G.R. No.

76464 February 29, 1988

TESTATE ESTATE OF THE LATE ADRIANA MALOTO, ALDINA MALOTO CASIANO,

CONSTANCIO MALOTO, PURIFICACION MIRAFLOR, ROMAN CATHOLIC CHURCH
OF MOLO, AND ASILO DE MOLO, petitioners, 
vs.
COURT OF APPEALS, PANFILO MALOTO AND FELINO MALOTO, respondents.

SARMIENTO, J.:

This is not the first time that the parties to this case come to us. In fact, two other cases
directly related to the present one and involving the same parties had already been
decided by us in the past. In G.R. No. L-30479, 1 which was a petition for certiorari and
mandamus instituted by the petitioners herein, we dismissed the petition ruling that the
more appropriate remedy of the petitioners is a separate proceeding for the probate of
the will in question. Pursuant to the said ruling, the petitioners commenced in the then
Court of First Instance of Iloilo, Special Proceeding No. 2176, for the probate of the
disputed will, which was opposed by the private respondents presently, Panfilo and
Felino both surnamed Maloto. The trial court dismissed the petition on April 30, 1970.
Complaining against the dismissal, again, the petitioners came to this Court on a petition
for review by certiorari. 2 Acting on the said petition, we set aside the trial court's order
and directed it to proceed to hear the case on the merits. The trial court, after hearing,
found the will to have already been revoked by the testatrix. Adriana Maloto, and thus,
denied the petition. The petitioners appealed the trial court's decision to the
Intermediate Appellate Court which, on June 7, 1985, affirmed the order. The
petitioners' motion for reconsideration of the adverse decision proved to be of no avail,
hence, this petition.

For a better understanding of the controversy, a factual account would be a great help.

On October 20, 1963, Adriana Maloto died leaving as heirs her niece and nephews, the
petitioners Aldina Maloto-Casiano and Constancio, Maloto, and the private respondents
Panfilo Maloto and Felino Maloto. Believing that the deceased did not leave behind a last
will and testament, these four heirs commenced on November 4, 1963 an intestate
proceeding for the settlement of their aunt's estate. The case was instituted in the then
Court of First Instance of Iloilo and was docketed as Special Proceeding No. 1736.
However, while the case was still in progress, or to be exact on February 1, 1964, the
parties — Aldina, Constancio, Panfilo, and Felino — executed an agreement of
extrajudicial settlement of Adriana's estate. The agreement provided for the division of
the estate into four equal parts among the parties. The Malotos then presented the
extrajudicial settlement agreement to the trial court for approval which the court did on
March 21, 1964. That should have signalled the end of the controversy, but,
unfortunately, it had not.

Three years later, or sometime in March 1967, Atty. Sulpicio Palma, a former associate
of Adriana's counsel, the late Atty. Eliseo Hervas, discovered a document entitled
"KATAPUSAN NGA PAGBUBULAT-AN (Testamento)," dated January 3,1940, and
purporting to be the last will and testament of Adriana. Atty. Palma claimed to have
found the testament, the original copy, while he was going through some materials
inside the cabinet drawer formerly used by Atty. Hervas. The document was submitted
to the office of the clerk of the Court of First Instance of Iloilo on April 1, 1967.
Incidentally, while Panfilo and Felino are still named as heirs in the said will, Aldina and
Constancio are bequeathed much bigger and more valuable shares in the estate of
Adriana than what they received by virtue of the agreement of extrajudicial settlement
they had earlier signed. The will likewise gives devises and legacies to other parties,
among them being the petitioners Asilo de Molo, the Roman Catholic Church of Molo,
and Purificacion Miraflor.

Thus, on May 24, 1967, Aldina and Constancio, joined by the other devisees and
legatees named in the will, filed in Special Proceeding No. 1736 a motion for
reconsideration and annulment of the proceedings therein and for the allowance of the
will When the trial court denied their motion, the petitioner came to us by way of a
petition for certiorari and mandamus assailing the orders of the trial court . 3 As we
stated earlier, we dismissed that petition and advised that a separate proceeding for the
probate of the alleged will would be the appropriate vehicle to thresh out the matters
raised by the petitioners.

Significantly, the appellate court while finding as inconclusive the matter on whether or
not the document or papers allegedly burned by the househelp of Adriana, Guadalupe
Maloto Vda. de Coral, upon instructions of the testatrix, was indeed the will, contradicted
itself and found that the will had been revoked. The respondent court stated that the
presence of animus revocandi in the destruction of the will had, nevertheless, been
sufficiently proven. The appellate court based its finding on the facts that the document
was not in the two safes in Adriana's residence, by the testatrix going to the residence of
Atty. Hervas to retrieve a copy of the will left in the latter's possession, and, her seeking
the services of Atty. Palma in order to have a new will drawn up. For reasons shortly to
be explained, we do not view such facts, even considered collectively, as sufficient bases
for the conclusion that Adriana Maloto's will had been effectively revoked.

There is no doubt as to the testamentary capacity of the testatrix and the due execution
of the will. The heart of the case lies on the issue as to whether or not the will was
revoked by Adriana.

The provisions of the new Civil Code pertinent to the issue can be found in Article 830.

Art. 830. No will shall be revoked except in the following cases:

(1) By implication of law; or

(2) By some will, codicil, or other writing executed as provided in case of

wills: or

(3) By burning, tearing, cancelling, or obliterating the will with the intention
of revoking it, by the testator himself, or by some other person in his
presence, and by his express direction. If burned, torn cancelled, or
obliterated by some other person, without the express direction of the
testator, the will may still be established, and the estate distributed in
accordance therewith, if its contents, and due execution, and the fact of its
unauthorized destruction, cancellation, or obliteration are established
according to the Rules of Court. (Emphasis Supplied.)

It is clear that the physical act of destruction of a will, like burning in this case, does not
per se constitute an effective revocation, unless the destruction is coupled with animus
revocandi on the part of the testator. It is not imperative that the physical destruction
be done by the testator himself. It may be performed by another person but under
theexpress direction and in the presence of the testator. Of course, it goes without
saying that the document destroyed must be the will itself.

In this case, while animus revocandi or the intention to revoke, may be conceded, for
that is a state of mind, yet that requisite alone would not suffice. "Animus revocandi is
only one of the necessary elements for the effective revocation of a last will and
testament. The intention to revoke must be accompanied by the overt physical act of
burning, tearing, obliterating, or cancelling the will carried out by the testator or by
another person in his presence and under his express direction. There is paucity of
evidence to show compliance with these requirements. For one, the document or papers
burned by Adriana's maid, Guadalupe, was not satisfactorily established to be a will at
all, much less the will of Adriana Maloto. For another, the burning was not proven to
have been done under the express direction of Adriana. And then, the burning was not
in her presence. Both witnesses, Guadalupe and Eladio, were one in stating that they
were the only ones present at the place where the stove (presumably in the kitchen)
was located in which the papers proffered as a will were burned.
The respondent appellate court in assessing the evidence presented by the private
respondents as oppositors in the trial court, concluded that the testimony of the two
witnesses who testified in favor of the will's revocation appear "inconclusive." We share
the same view. Nowhere in the records before us does it appear that the two witnesses,
Guadalupe Vda. de Corral and Eladio Itchon, both illiterates, were unequivocably positive
that the document burned was indeed Adriana's will. Guadalupe, we think, believed that
the papers she destroyed was the will only because, according to her, Adriana told her
so. Eladio, on the other hand, obtained his information that the burned document was
the will because Guadalupe told him so, thus, his testimony on this point is double
hearsay.

At this juncture, we reiterate that "(it) is an important matter of public interest that a
purported win is not denied legalization on dubious grounds. Otherwise, the very
institution of testamentary succession will be shaken to its very foundations ...."4

The private respondents in their bid for the dismissal of the present action for probate
instituted by the petitioners argue that the same is already barred by res
adjudicata. They claim that this bar was brought about by the petitioners' failure to
appeal timely from the order dated November 16, 1968 of the trial court in the intestate
proceeding (Special Proceeding No. 1736) denying their (petitioners') motion to reopen
the case, and their prayer to annul the previous proceedings therein and to allow the
last will and testament of the late Adriana Maloto. This is untenable.

The doctrine of res adjudicata finds no application in the present controversy. For a

judgment to be a bar to a subsequent case, the following requisites must concur: (1) the
presence of a final former judgment; (2) the former judgment was rendered by a court
having jurisdiction over the subject matter and the parties; (3) the former judgment is a
judgment on the merits; and (4) there is, between the first and the second action,
Identity of parties, of subject matter, and of cause of action. 5 We do not find here the
presence of all the enumerated requisites.

For one, there is yet, strictly speaking, no final judgment rendered insofar as the
probate of Adriana Maloto's will is concerned. The decision of the trial court in Special
Proceeding No. 1736, although final, involved only the intestate settlement of the estate
of Adriana. As such, that judgment could not in any manner be construed to be final
with respect to the probate of the subsequently discovered will of the decedent. Neither
is it a judgment on the merits of the action for probate. This is understandably so
because the trial court, in the intestate proceeding, was without jurisdiction to rule on
the probate of the contested will . 6 After all, an action for probate, as it implies, is
founded on the presence of a will and with the objective of proving its due execution and
validity, something which can not be properly done in an intestate settlement of estate
proceeding which is predicated on the assumption that the decedent left no will. Thus,
there is likewise no Identity between the cause of action in intestate proceeding and that
in an action for probate. Be that as it may, it would be remembered that it was precisely
because of our ruling in G.R. No. L-30479 that the petitioners instituted this separate
action for the probate of the late Adriana Maloto's will. Hence, on these grounds alone,
the position of the private respondents on this score can not be sustained.

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

WHEREFORE, judgment is hereby rendered REVERSING and SETTING ASIDE the

Decision dated June 7, 1985 and the Resolution dated October 22, 1986, of the
respondent Court of Appeals, and a new one ENTERED for the allowance of Adriana
Maloto's last will and testament. Costs against the private respondents.
G.R. No. L-26317             January 29, 1927

Estate of Miguel Mamuyac, deceased. 

FRANCISCO GAGO, petitioner-appellant, 
vs.
CORNELIO MAMUYAC, AMBROSIO LARIOSA, 
FELICIANA BAUZON, and CATALINA MAMUYAC, opponents-appellees.

Nicanor Tavora for appellant.

Jose Rivera for appellees.

JOHNSON, J.:

The purpose of this action was to obtain the probation of a last will and testament of
Miguel Mamuyac, who died on the 2d day of January, 1922, in the municipality of Agoo
of the Province of La Union. It appears from the record that on or about the 27th day of
July, 1918, the said Miguel Mamuyac executed a last will and testament (Exhibit A). In
the month of January, 1922, the said Francisco Gago presented a petition in the Court of
First Instance of the Province of La Union for the probation of that will. The probation of
the same was opposed by Cornelio Mamuyac, Ambrosio Lariosa, Feliciana Bauzon, and
Catalina Mamuyac (civil cause No. 1144, Province of La Union). After hearing all of the
parties the petition for the probation of said will was denied by the Honorable C. M.
Villareal on the 2d day of November, 1923, upon the ground that the deceased had on
the 16th day of April, 1919, executed a new will and testament.

On the 21st day of February, 1925, the present action was commenced. Its purpose was
to secure the probation of the said will of the 16th day of April, 1919 (Exhibit 1). To said
petition Cornelio Mamuyac, Ambrosio Lariosa, Feliciana Bauzon, and Catalina Mamuyac
presented their oppositions, alleging (a) that the said will is a copy of the second will
and testament executed by the said Miguel Mamuyac; (b) that the same had been
cancelled and revoked during the lifetime of Miguel Mamuyac and (c) that the said will
was not the last will and testament of the deceased Miguel Mamuyac.

Upon the issue thus presented, the Honorable Anastacio R. Teodoro, judge, after hearing
the respective parties, denied the probation of said will of April 16, 1919, upon the
ground that the same had been cancelled and revoked in the year 1920. Judge Teodoro,
after examining the evidence adduced, found that the following facts had been
satisfactorily proved:

That Exhibit A is a mere carbon of its original which remained in the possession of
the deceased testator Miguel Mamuyac, who revoked it before his death as per
testimony of witness Jose Fenoy, who typed the will of the testator on April 16,
1919, and Carlos Bejar, who saw on December 30, 1920, the original Exhibit A
(will of 1919) actually cancelled by the testator Miguel Mamuyac, who assured
Carlos Bejar that inasmuch as he had sold him a house and the land where the
house was built, he had to cancel it (the will of 1919), executing thereby a new
testament. Narcisa Gago in a way corroborates the testimony of Jose Fenoy,
admitting that the will executed by the deceased (Miguel Mamuyac) in 1919 was
found in the possession of father Miguel Mamuyac. The opponents have
successfully established the fact that father Miguel Mamuyac had executed in 1920
another will. The same Narcisa Gago, the sister of the deceased, who was living in
the house with him, when cross-examined by attorney for the opponents, testified
that the original Exhibit A could not be found. For the foregoing consideration and
for the reason that the original of Exhibit A has been cancelled by the deceased
father Miguel Mamuyac, the court disallows the probate of Exhibit A for the
applicant." From that order the petitioner appealed.

The appellant contends that the lower court committed an error in not finding from the
evidence that the will in question had been executed with all the formalities required by
the law; that the same had been revoked and cancelled in 1920 before his death; that
the said will was a mere carbon copy and that the oppositors were not estopped from
alleging that fact.

With reference to the said cancellation, it may be stated that there is positive proof, not
denied, which was accepted by the lower court, that will in question had been cancelled
in 1920. The law does not require any evidence of the revocation or cancellation of a will
to be preserved. It therefore becomes difficult at times to prove the revocation or
cancellation of wills. The fact that such cancellation or revocation has taken place must
either remain unproved of be inferred from evidence showing that after due search the
original will cannot be found. Where a will which cannot be found is shown to have been
in the possession of the testator, when last seen, the presumption is, in the absence of
other competent evidence, that the same was cancelled or destroyed. The same
presumption arises where it is shown that the testator had ready access to the will and it
cannot be found after his death. It will not be presumed that such will has been
destroyed by any other person without the knowledge or authority of the testator. The
force of the presumption of cancellation or revocation by the testator, while varying
greatly, being weak or strong according to the circumstances, is never conclusive, but
may be overcome by proof that the will was not destroyed by the testator with intent to
revoke it.

In view of the fat that the original will of 1919 could not be found after the death of the
testator Miguel Mamuyac and in view of the positive proof that the same had been
cancelled, we are forced to the conclusion that the conclusions of the lower court are in
accordance with the weight of the evidence. In a proceeding to probate a will the burden
of proofs is upon the proponent clearly to establish not only its execution but its
existence. Having proved its execution by the proponents, the burden is on the
contestant to show that it has been revoked. In a great majority of instances in which
wills are destroyed for the purpose of revoking them there is no witness to the act of
cancellation or destruction and all evidence of its cancellation perishes with the testator.
Copies of wills should be admitted by the courts with great caution. When it is proven,
however, by proper testimony that a will was executed in duplicate and each copy was
executed with all the formalities and requirements of the law, then the duplicate may be
admitted in evidence when it is made to appear that the original has been lost and was
not cancelled or destroyed by the testator. (Borromeo vs. Casquijo, G.R. No. L-26063.)1

After a careful examination of the entire record, we are fully persuaded that the will
presented for probate had been cancelled by the testator in 1920. Therefore the
judgment appealed from is hereby affirmed. And without any finding as to costs, it is so
ordered.
G.R. No. L-11823            February 11, 1918

CRISTINA SAMSON, DELFINA NAVAL, and SOR CONSOLACION

EUGENIO, petitioners-appellants, 
vs.
MONICA NAVAL, ROSA NAVAL, and CELESTINA NAVAL, objectors-appellants.

Guillermo Lualhati for appellants.

Perfecto Gabriel for appellees.

ARAULLO, J.:

On September 20, 1915, attorney Perfecto Gabriel presented in the Court of First
Instance of the city of Manila for allowance as the will of Simeona F. Naval, who died in
said city two days previously, a document executed by her of February 13, 1915, and in
which he was appointed executor. The case was recorded as No. 13386 and, after
hearing the petition for allowance filed by said executor, it was denied on the ground
that said document was not duly executed by the deceased as her last will and
testament, inasmuch as she did not sign it in the presence of three witness and the two
witnesses did not sign it in the presence of each other. Thereafter the nieces and
legatees of the same deceased filed in the same court for allowance as her will, another
document executed by her on October 31, 1914, and, consequently, the case was
registered under another number, which was No. 13579. The petition for allowance was
opposed by Monica Naval, Rosa Naval, and Cristina Naval on the ground that the will,
the allowance of which is asked, could not be allowed, because of the existence of
another will of subsequent date, executed during her lifetime by the same Simeona F.
Naval, and because said will has been revoked by another executed subsequently by her
during her lifetime, and further, because sail will has not been executed with the
formalities required by existing laws. Trial having taken place, at which evidence was
adduced, the court on February 8, 1916, issued an order, admitting said second
document and ordering its allowance as the last will and testament o said deceased.
From said order the opponents appealed to this court and transmitted to us the
corresponding declarations. Tow of the opponents, that is, Rosa and Cristina Naval,
assigned, as errors committed by the court, the following:

1. The finding of the court that the will of October 31, 1914, has not been revoked by
that of February 13, 1915;

2. The act of the court in permitting the petitioner to institute and proceed with the
proceedings relative to the last case for the allowance of the will, No. 13579,
notwithstanding that proceedings had already been had in the other case No. 13386 and
final judgment rendered therein; and

3. The act of the court in denying the motion for continuance of the trial on the
allowance of the will of October 31, 1914, which motion was presented for the sole
purpose of introducing evidence to show the falsity of the signature appearing in said
will and submitting said signature to the Bureau of Science for analysis.

The other opponent, Monica Naval, assigned, besides the first two errors already
mentioned, the finding of the court that the disallowance of the will of said deceased,
dated February 13, 1915, on the ground that is was not executed in such form that it
could transmit real and personal property, according to section 618 of the Code of Civil
Procedure, also had the effect of annulling the revocatory clause in said will.

From the evidence it appears, as we have already stated, that the trial court declared
that the first document presented by the executor of the deceased, Simeona F. Naval, as
a will executed by her on February 13, 1915, and which was the subject-matter of case
No. 13386 of said court, could not be allowed, on the ground that it was not executed
with the requisites and formalities prescribed by law. Article 739 of the Civil Code
provides that a former will is by operation of law revoked by another valid subsequent
will, if the testator does not state in the later will his desire that the former should
subsist wholly or partly. In harmony with this provision of substantive law, we find
section 623 of the Code of Civil Procedure, which provides that no will shall be revoked,
except by implication of law, otherwise than by some will, codicil, or other writing
executed as provided in case of wills.

Therefore, according to the legal provisions, in order that the will of February 13, 1915,
that is, the first document presented as the will of the deceased Simeona F. Naval, could
have the effect of revoking that which was presented afterwards by the petitioners as
executed by the same deceased on October 31, 1914, that is, on a date previous to the
execution of the first, it was necessary and indispensable that the later will, that is, that
first presented for allowance, should be perfect or valid, that it, executed as provided by
lay in case of wills.

It also appears from the record that the opponents themselves maintained that said
later will, that is, that of February 13, 1915, was not perfect, or executed as provided by
law in case of wills, and the Court of First Instance of Manila has so held in disallowing
said documents as the will of the deceased. So that it very evident that the second will
presented, that is, that of October 31, 1914, was not and could not have been revoked
by the first, and the court was not in error in so holding in the order appealed from. We
deem it unnecessary to add a single word mere or cite well-known doctrines and
opinions of jurists in support of what has already been stated.

As to the second error assigned by the opponents, we believe it sufficient to refer to

what the court below stated in the judgment appealed from. It is as follows:

The court finds no incongruency in the presentation of a prior will when another
will of subsequent date has been disallowed. Disregarding the fact that the
petitioners in this case were not those who presented the will in No. 13386, in
which the petition was presented by the same D. Perfecto Gabriel as executor, it is
proper to take into account that the object of a petition for allowance is to ask for
an order declaring that a will has been executed in accordance with the requisites
and formalities required by law. This is a question for the court to decide and is
out of the control of the party who presents the will. The allowance or disallowance
of a will by a competent court depends upon whether the evidence adduced at the
trial shows or does not show that the formalities required by law have been
complied with, and this cannot be determined in advance, as a general rule, by the
person who presents the testament. for he has not always concurred in or seen
the execution of the will.

If, therefore, the personal who presents a will and asks that if be allowed does not
secure its allowance, and he has in his possession another will, or has information
that another exists, he does not contradict himself by asking for the allowance of
the will of earlier date merely because the later will was declared invalid by the
proper court. If in this case there is any who adopts a contradictory position, it is
the respondent himself, inasmuch as in case No. 13386 he alleged, as a ground for
the disallowance of the will then presented, that it was not executed in accordance
with the law, and now he maintains the contrary, for he claims that said will
revoked that which is now presented.

With respect to the third error, it is beyond doubt that the court did not commit it, for it
appears that when the examination of the witness, Cristina Samson, was finished and
the court told Attorney Lualhati, counsel for the respondents, to continue adducing his
evidence, he said he had no more proof, although he added that he would ask the court
to grant him permission to send the will of 1914 to the Bureau of Science, which petition
was objected to by the attorney for the proponents and denied by the court.
Immediately thereafter the attorney for the opponents asked for the continuance of the
trial, which was also denied by the court, after objection was made by the proponents.
The attorney for the opponents excepted to said ruling.
Therefore, the petition of said attorney for the remission of said will to the Bureau of
Science, in the terms in which it was made to the court, after ha had stated that he had
no more evidence to present, signified that he left it to the discretion of the court to
grant it or not. Furthermore, no exception was taken to the order to the order denying
this motion, and although the attorney for the opponents excepted to the order denying
the motion for continuance of the trial, such exception was completely useless and
ineffective for the purpose of alleging before this court that the trial court erred in that
respect, for said resolution, being one of those left to the discretion of the court in the
exercise of it functions, according to section 141 of the Code of Civil Procedure, it could
not be the subject of an exception, unless the court, in denying said motion, abused its
discretional power and thereby prejudiced the essential rights of the respondents, which
is not the case here.

The error which, in addition to the first two already mentioned, has been assigned by
the opponent and appellant, Monica Naval, and refers, according to her, to the court's
action in declaring that the disallowance of the will of the deceased Simeona F. Naval,
dated February 13, 1915, for the reason that it was not executed in such manner and
from that it could transmit real and personal property, according to the provisions of
section 618 of the Code of Civil Procedure, also had the effect of annulling the
revocatory clause of said will.

First of all, it is not true that the court made such statement in the terms given in said
assignment of error, that is, it is not true that the court declared that, because said will
was not executed in the form required by law in order that it may transmit real and
personal property, according to the provisions of section 618, the disallowance of said
will also had the effect of annulling the revocatory clause therein contained. In the order
appealed from there is no declaration or conclusion made in these terms. The court did
not say that the annulment of the revocatory clause in said will was the effect or
consequence of the fact that it was not allowed on the ground that it was not executed
in the form required by law in order that it may transmit real and personal property.
Referring to the construction, given by the respondent to sections 618 and 623 of the
Code of Civil Procedure, to the effect that a subsequent will may revoke a previous will,
although the later will has not been allowed by the competent court, it being sufficient
that the intention of the testator to revoke the previous will should be clearly expressed,
and that, while the requisite of allowance is necessary in order that it may transmit
property from one person to another, it is not necessary in order that it might procedure
other effects, for example, the effect of a revocatory clause, or a clause of
aknowledgment of a child, — what the court declared, we repeat, was that although the
revocation of a will should have been effected, not by means of another will or codicil,
but by mans of a document, as authorized by said section 623, which document should
have the requisites and conditions fixed in section 618, the presentation of the
document to the court was necessary in order that the latter might allow it, by declaring
that it was executed with the formalities required by law for the execution of a will, and
finally concluding that, just as to, is to be proved that the requisites of section 618 have
been complied with in order that a will may be of value through its allowance, so without
such allowance the revocatory clause like the other provisions of the will, has no value
or effect except to show extraneous matters, as, for example, the acknowledgment of
natural children, of some debt or obligation. In such case, the document could produce
effect, but not as will, but simply as a written admission made by the person executing
it. And It is beyond doubt that the revocatory clause contained in a document, like the
present, which contains provisions proper of a will, as those relating to legacies and
distribution of the properties of the testator after his death as well as the appointment of
executors, is not matter extraneous to the will, but merely a part thereof, intimately
connected with it as well as with the will or wills, the revocation of which is declared in
said clause; in short, the desire of the testator declared in the revocatory clause is
related to the desire of the same testator expressed in the provisions of the testament in
which said clause is found and to that which he might have expressed in the testaments
which he may have previously executed. There is such relation between the revocatory
clause and the will which contains it, that if the will does not produce legal effects,
because it has not been executed in accordance with the provisions of the law, neither
would the revocatory clause therein produce legal effects. And if, in the present case,
the so-called will of the deceased, Simeona F. Naval, dated February 13, 1915, was not
duly executed by her as her last will and testament, ad declared by the court in its
decision of November 19, 1915, in case No. 13386, for which reason its allowance was
denied, neither may it be maintained that the revocatory clause contained in said will is
the expression of the last will of said deceased. The disallowance of the ill, therefore,
produced the effect of annulling the revocatory clause, not exactly because said will was
not executed in such from that it could transmit real and personal property, as
inaccurately alleged by the appellant, Monica Naval, to be the court's finding, upon
which said assignment of error is based, but because it was proved that said will was not
executed or signed with the formalities and requisites required by section 618 of the
Code of Civil Procedure, a cause which also produces the nullity of the same will,
according to section 634 of said law; and of course what is invalid in law can produce no
effect whatever.

If the instrument propounded as a revocation be in form a will, it must be perfect

as such, and be subscribed and attested as is required by the statute. An
instrument intended to be a will, but filing of its effect as such on account of some
imperfection in its structure or for want of due execution, cannot be set up for the
purpose of revoking a former will. (40 Cyc., p. 1177, and cases cited therein.)

A subsequent will containing a clause revoking an earlier will must, as a general

rule, be admitted to probate before the clause of revocation can have any effect,
and the same kind, quality, and method of proof is required for the establishment
of the subsequent will as was required for the establishment of the former will. (40
Cyc., p. 1178, and cases cited therein.)

But admitting that the will said to have been executed by the deceased Simeona F.
Naval on February 13, 1915, notwithstanding its inefficacy to transmit property for the
reason that it has not been executed, according to the provisions of said section 618 of
the Code of Civil Procedure, should be considered as executed by her in order to express
her desire, appearing in one of its clauses, to revoke and annul any previous will of hers,
as stated in clause 13, this being the argument adduced by the appellant, Monica naval,
in support of said assignment of error — neither could it be maintained that, the
allowance of said will having been denied by the court on November 11, 1915, said
revocatory clause subsists and the intention expressed by the testratrix therein is valid
and legally effective, for the simple reason that, in order that a will may be revoked by a
document, it is necessary, according to the conclusive provisions of section 623 of said
procedural law, that such documents be executed according to the provisions relating to
will in section 618, and the will in question, or, according to the respondent, the so-
called document, was not executed according to the provisions of said section, according
to the express finding of the trial court in its order of November 11, 1915, acquiesced in
by the opponent herself, and which is now final and executory. Therefore, the
disallowance of said will and the declaration that it was not executed according to the
provisions of law as to wills, produced the effect of annulling said revocatory clause.

In support of the argument advanced in her brief said appellant, Monica Naval, cites the
declaration made by the Supreme Court of Massachusetts in Wallis vs. Wallis (114
Mass., 510, 512)m which, according to the appellant herself, was in the following terms:

If it be shown that a later will was duly executed and attested, containing a clause
expressly revoking former will nothing else appearing as to its contents, it is
nevertheless good as a revocation, but it can only be made available by setting it
up in opposition to the probate of the earlier will.

In the decision of said case the finding referred to be by the appellant appears not to
have been made by the Supreme Court of Massachusetts.

The syllabus of said decision says:

When a will revoking a former will is in existence, it must be established in the

Probate Court; but when it has been lost or destroyed, and its contents cannot be
 sufficiently proved to admit it to probate, it may nevertheless be availed of as a
revocation in opposition to the probate of the will revoked by it.:

And in the body of the decision there is a declaration, to which the appellant must have
desired to refer in her brief, which declaration says:

If it can be proved that a later will was duly executed, attested and subscribed,
and that it contained a clause expressly revoking all former wills, but evidence of
the rest of its contents cannot be obtained, it is nevertheless a good revocation;
and it can be made available only by allowing it to be set up in opposition to the
probate of the earlier will,. . .

The facts of the case in which this decision was rendered are different from the facts of
the case at bar. That was a case concerning a will filed by one of the children of the
testatrix, Mary Wallis, as her last will, to the allowance of which another son objected,
alleging that said will had been revoked by another executed by the same deceased
subsequent to the will that was filed, and that it had been fraudulently destroyed or
taken by his brother, the proponent and his wife, or by one of them, in order to deprive
him of the rights conferred upon him by said will. Therefore, the will said to have been
subsequently executed by the testatrix and in which, according to the oppositor, the
clause revocatory of the former will appeared, was not presented by said oppositor,
while the previous will was, in the contrary, filed for allowance by the son of the
testratrix, who appeared to be favored therein, said oppositor having alleged that the
subsequent will, that is, that containing the revocatory clause, had been drawn,
subscribed and executed in accordance with the provisions of the law, a fact which he
was ready to prove just as he was ready to prove that it had been destroyed or
suppressed by the proponent, his brother and his wife, or one of them. In the case at
bar, the subsequent will containing the revocatory clause of the previous will executed
by the deceased Simeona F. Naval was presented to the court for allowance and it was
disallowed — a fact which gave opportunity to the legatees of said deceased to present a
previous will executed by her on October 31, 1914, and said two wills having been
successively presented, evidence as to them was also successively adduced for their
allowance by the court.

Therefore, the declaration made by the Supreme Court of Massachusetts in Wallis vs.
Wallis (supra), to the effect that a subsequent will containing a revocatory clause of
previous wills, constitutes a valid revocation and may be used in objecting to the
allowance of the previous will, even when it is not possible to obtain proof of the
remainder of the contents of said subsequent will, refers to the case in which the latter
had been taken away, destroyed or suppressed, and it was impossible to present it for
allowance, but requires for that purpose that it be proved that said subsequent will has
been executed, attested, and subscribed in due form and that it contained, furthermore,
that revocatory clause. This is what said declaration and, in relation thereto, also what
the syllabus of the decision thereof clearly says. The court, through Chief Justice Gray,
in giving its opinion, thus began by saying:

By our law, no will can be revoked by any subsequent instrument, other than a
"will, codicil or writing, signed, attested and subscribed in the manner provided for
making a will." And when an instrument of revocation is in existence and capable
of being propounded for probate, its validity should be tried by a direct proceeding
instituted for the purpose in the Probate Court. (Loughton vs. Atkins, 1 Pick., 535.)

It results, therefore, that while perfect parity does not exist between the case decided
by the Supreme Court of Massachusetts, to which the appellant Monica Naval refers, and
that which is not before us, it is wholly unquestionable that, whether the case deals with
a subsequent will revocatory of a previous will, which may possibly be presented to a
probate court for allowance, or of a subsequent will, also revocatory of a previous will,
which could not be presented for allowance, because it has been taken or hidding, or
mislaid — in order that such will may constitute a valid revocation and be utilized in the
second case, although the remaining provisions may not be proven, in opposition to the
allowance of the previous will, it is necessary to prove that it was executed, attested,
and subscribed in due form, and, of course, also that it contained a clause expressly
revoking the previous will, or, what is the same thing, that said subsequent will has
been executed according to the provisions relating to wills, as expressed in section 623
of the procedural law in force. There can be no doubt whatever that this applies when
the revocation had been made to appear in a writing or document susceptible of
presentation for allowance, like the so-called will of the deceased Simeona F. Naval,
dated February 13, 1915, and considered by said respondent and appellant as a mere
document of revocation, for, as already seen in said decision invoked by her, the
requisite as to signing, attesting, and subscribing in the form, required by law for the
execution of wills in order that it may revoke a previous will, is also required in a will as
well as in a codicil, or in a writing, and in referring to a document of revocation, it is also
expressed that its validity should be proved in a direct proceeding, instituted for the
purpose in a probate court. In the case at bar, the document, executed by the deceased,
Simeona F. Naval, as her last will and testament, dated February 13, 1915, has been
presented for allowance; it validity has been proved by means of said procedure in the
Court of Probate of Manila, and that court denied its allowance, on the ground that the
document in question had not been duly executed by the deceased, as her last will and
testament, because she did not sign in the presence of three witnesses, and two of
these witnesses did not sign in the presence of each other, or what is the same thing,
that said document has not be attested and subscribed in the manner established by law
for the execution of will, or, in other words, as provided by law in case of wills, as stated
by section 623 of said procedural law, and this resolution was acquiesced in, as already
stated, by the respondents in this case, and is, therefore, final and executory.

In conclusions, the doctrine laid down in the decision of the Supreme Court of
Massachusetts, invoked by the appellant, Monica Naval, is in conformity with the
provision of said section 623 of our procedural law and article 739 of the Civil Code, and
the will executed by the deceased Simeona F. Naval on October 31, 1914, not having
been revoked, according to these provisions, by the will presented and alleged as
executed by the same deceased subsequently on February 13, 1915, the allowance of
which was denied by the Court of First Instance of Manila, the court below was not in
error in ordering the allowance of said will, that is, of that of October 31, 1914, as the
last will and testament of said deceased. Wherefore, the order appealed from is
affirmed, with the costs of this instance against the appellants. So ordered.
G.R. No. L-2538             September 21, 1951

Testate Estate of the Deceased MARIANO MOLO Y LEGASPI. JUANA JUAN VDA.
DE MOLO, petitioner-appellee, 
vs.
LUZ, GLICERIA and CORNELIO MOLO, oppositors-appellants.

Claro M. Recto and Serafin C. Dizon for appellants. 

Delgado & Flores for appellee.

BAUTISTA ANGELO, J.:

This is an appeal from an order of the Court of First Instance of Rizal admitting to
probate the last will and testament of the deceased Mariano Molo y Legaspi executed on
August 17, 1918. The oppositors-appellants brought the case on appeal to this Court for
the reason that the value of the properties involved exceeds P50,000.

Mariano Molo y Legaspi died on January 24, 1941, in the municipality of Pasay, province
of Rizal, without leaving any forced heir either in the descending or ascending line. He
was survived, however, by his wife, the herein petitioner Juana Juan Vda. de Molo, and
by his nieces and nephew, the oppositors-appellants, Luz Gliceria and Cornelio, all
surnamed Molo, who were the legitimate children of Candido Molo y Legaspi, deceased
brother of the testator. Mariano Molo y Legaspi left two wills, one executed on August
17, 1918, (Exhibit A) and another executed on June 20, 1939. (Exhibit I). The later will
executed in 1918.

On February 7, 1941, Juana Juan Vda. de Molo, filed in the Court of First Instance of
Rizal a petition, which was docketed as special proceeding No. 8022 seeking the probate
of the will executed by the deceased on June 20, 1939. There being no opposition, the
will was probated. However, upon petition filed by the herein oppositors, the order of the
court admitting the will to probate was set aside and the case was reopened. After
hearing, at which both parties presented their evidence, the court rendered decision
denying the probate of said will on the ground that the petitioner failed to prove that the
same was executed in accordance with law.

In view of the disallowance of the will executed on June 20, 1939, the widow on
February 24, 1944, filed another petition for the probate of the will executed by the
deceased on August 17, 1918, which was docketed as special proceeding No. 56, in the
same court. Again, the same oppositors filed an opposition to the petition based on
three grounds: (1) that petitioner is now estopped from seeking the probate of the will
of 1918; (2) that said will has not been executed in the manner required by law and (3)
that the will has been subsequently revoked. But before the second petition could be
heard, the battle for liberation came and the records of the case were destroyed.
Consequently, a petition for reconstitution was filed, but the same was found to be
impossible because neither petitioner nor oppositors could produce the copies required
for its reconstitution. As a result, petitioner filed a new petition on September 14, 1946,
similar to the one destroyed, to which the oppositors filed an opposition based on the
same grounds as those contained in their former opposition. Then, the case was set for
trial, and on May 28, 1948, the court issued an order admitting the will to probate
already stated in the early part of this decision. From this order the oppositors appealed
assigning six errors, to wit.

I. The probate court erred in not holding that the present petitioner voluntarily and
deliberately frustrated the probate of the will dated June 20, 1939, in special
proceeding No. 8022, in order to enable her to obtain the probate of another
alleged will of Molo dated 191.

II. The court a quo erred in not holding that the petitioner is now estopped from
seeking the probate of Molo's alleged will of 1918.
 III. The lower court erred in not holding that petitioner herein has come to court
with "unclean hands" and as such is not entitled to relief.

IV. The probate court erred in not holding that Molo's alleged will of August 17,
1918 was not executed in the manner required by law.

V. The probate court erred in not holding that the alleged will of 1918 was
deliberately revoked by Molo himself.

VI. The lower court erred in not holding that Molo's will of 1918 was subsequently
revoked by the decedent's will of 1939.

In their first assignment of error, counsel for oppositors contend that the probate court
erred in not holding that the petitioner voluntarily and deliberately frustrated the
probate of the will dated June 20, 1939, in order to enable her to obtain the probate of
the will executed by the deceased on August 17, 1918, pointing out certain facts and
circumstances with their opinion indicate that petitioner connived with the witness
Canuto Perez in an effort to defeat and frustrate the probate of the 1939 will because of
her knowledge that said will intrinsically defective in that "the one and only
testamentory disposition thereof was a "disposicion captatoria". These circumstances,
counsel for the appellants contend, constitute a series of steps deliberately taken by
petitioner with a view to insuring the realization of her plan of securing the probate of
the 1918 will which she believed would better safeguard her right to inherit from the
decease.

These imputations of fraud and bad faith allegedly committed in connection with special
proceedings No. 8022, now closed and terminated, are vigorously met by counsel for
petitioner who contends that to raise them in these proceedings which are entirely new
and distinct and completely independent from the other is improper and unfair as they
find no support whatsoever in any evidence submitted by the parties in this case. They
are merely based on the presumptions and conjectures not supported by any proof. For
this reason, counsel, contends, the lower court was justified in disregarding them and in
passing them sub silentio in its decision.

A careful examination of the evidence available in this case seems to justify this
contention. There is indeed no evidence which may justify the insinuation that petitioner
had deliberately intended to frustrate the probate of the 1939 will of the deceased to
enable her to seek the probate of another will other than a mere conjecture drawn from
the apparently unexpected testimony of Canuto Perez that he went out of the room to
answer an urgent call of nature when Artemio Reyes was signing the will and the failure
of petitioner later to impeach the character of said witness in spite of the opportunity
given her by the court to do so. Apart from this insufficiency of evidence, the record
discloses that this failure has been explained by petitioner when she informed the court
that she was unable to impeach the character of her witness Canuto Perez because of
her inability to find witnesses who may impeach him, and this explanation stands
uncontradicted. Whether this explanation is satisfactory or not, it is not now, for us to
determine. It is an incident that comes within the province of the former case. The
failure of petitioner to present the testimony of Artemio Reyes at the hearing has also
been explained, and it appears that petitioner has filed because his whereabouts could
not be found. Whether this is true or not is also for this Court to determine. It is likewise
within the province and function of the court in the former case. And the unfairness of
this imputation becomes more glaring when we stock of the developments that had
taken place in these proceedings which show in bold relief the true nature of the
conduct, behavior and character of the petitioner so bitterly assailed and held in
disrepute by the oppositors.

It should be recalled that the first petition for the probate of the will executed on June
20, 1939, was filed on February 7, 1941, by the petitioner. There being no opposition,
the will was probated. Subsequently, however, upon petition of the herein oppositors,
the order of the court admitting said will to probate was set aside, over the vigorous
opposition of the herein petitioner, and the case was reopened. The reopening was
ordered because of the strong opposition of the oppositors who contended that he will
had not been executed as required by law. After the evidence of both parties had been
presented, the oppositors filed an extensive memorandum wherein they reiterated their
view that the will should be denied probate. And on the strenght of this opposition, the
court disallowed the will.

If petitioner then knew that the 1939 will was inherently defective and would make the
testamentary disposition in her favor invalid and ineffective, because it is a "disposicion
captatoria", which knowledge she may easily acquire through consultation with a lawyer,
there was no need her to go through the order of filing the petition for the probate of the
will. She could accomplish her desire by merely suppressing the will or tearing or
destroying it, and then take steps leading to the probate of the will executed in 1918.
But for her conscience was clear and bade her to take the only proper step possible
under the circumstances, which is to institute the necessary proceedings for the probate
of the 1939 will. This she did and the will was admitted to probate. But then the
unexpected happened. Over her vigorous opposition, the herein appellants filed a
petition for reopening, and over her vigorous objection, the same was granted and the
case was reopened. Her motion for reconsideration was denied. Is it her fault that the
case was reopened? Is it her fault that the order admitting the will to probate was set
aside? That was a contingency which petitioner never expected. Had appellants not filed
their opposition to the probate of the will and had they limited their objection to the
intrinsic validity of said will, their plan to defeat the will and secure the intestacy of the
deceased would have perhaps been accomplished. But they failed in their strategy. If
said will was denied probate it is due to their own effort. It is now unfair to impute bad
faith petitioner simply because she exerted every effort to protect her own interest and
prevent the intestacy of the deceased to happen.

Having reached the foregoing conclusions, it is obvious that the court did not commit the
second and third errors imputed to it by the counsel for appellants. Indeed, petitioner
cannot be considered guilty or estoppel which would prevent her from seeking the
probate of the 1918 will simply because of her effort to obtain the allowance of the 1939
will has failed considering that in both the 1918 and 1939 wills she was in by her
husband as his universal heir. Nor can she be charged with bad faith far having done so
because of her desire to prevent the intestacy of her husband. She cannot be blamed
being zealous in protecting her interest.

The next contention of appellants refers to the revocatory clause contained in 1939 will
of the deceased which was denied probate. They contend that, notwithstanding the
disallowance of said will, the revocatory clause is valid and still has the effect of
nullifying the prior of 1918.

Counsel for petitioner meets this argument by invoking the doctrine laid down in the
case of Samson vs. Naval, (41 Phil., 838). He contends that the facts involved in that
case are on all fours with the facts of this case. Hence, the doctrine is that case is here
controlling.

There is merit in this contention. We have carefully read the facts involved in the
Samson case we are indeed impressed by their striking similarity with the facts of this
case. We do not need to recite here what those facts are; it is enough to point out that
they contain many points and circumstances in common. No reason, therefore, is seen
by the doctrine laid down in that case (which we quote hereunder) should not apply and
control the present case.

A subsequent will, containing a clause revoking a previous will, having been

disallowed, for the reason that it was not executed in conformity with the
provisions of section 618 of the Code of Civil Procedure as to the making of wills,
cannot produce the effect of annulling the previous will, inasmuch as said
revocatory clause is void. (41 Phil., 838.)

Apropos of this question, counsel for oppositors make the remark that, while they do not
disagree with the soundness of the ruling laid down in the Samson case, there is reason
to abandon said ruling because it is archaic or antiquated and runs counter to the
modern trend prevailing in American jurisprudence. They maintain that said ruling is no
longer controlling but merely represents the point of view of the minority and should,
therefore, be abandoned, more so if we consider the fact that section 623 of our Code of
Civil Procedure, which governs the revocation of wills, is of American origin and as such
should follow the prevailing trend of the majority view in the United States. A long line
of authorities is cited in support of this contention. And these authorities hold the view,
that "an express revocation is immediately effective upon the execution of the
subsequent will, and does not require that it first undergo the formality of a probate
proceeding". (p. 63, appellants' brief .

While they are many cases which uphold the view entertained by counsel for oppositors,
and that view appears to be in controlling the states where the decisions had been
promulgated, however, we are reluctant to fall in line with the assertion that is now the
prevailing view in the United States. In the search we have made of American
authorities on the subject, we found ourselves in a pool of conflicting opinions perhaps
because of the peculiar provisions contained in the statutes adopted by each State in the
subject of revocation of wills. But the impression we gathered from a review and the
study of the pertinent authorities is that the doctrine laid down in the Samson case is
still a good law. On page 328 of the American Jurisprudence Vol. 57, which is a revision
Published in 1948, we found the following passages which in our opinion truly reflect the
present trend of American jurisprudence on this matter affecting the revocation of wills:

SEC. 471. Observance of Formalities in Execution of Instrument. — Ordinarily,

statutes which permit the revocation of a will by another writing provide that to be
effective as a revocation, the writing must be executed with the same formalities
which are required to be observed in the execution of a will. Accordingly, where,
under the statutes, attestation is necessary to the making of a valid will, an
unattested non testamentary writing is not effective to revoke a prior will. It has
been held that a writing fails as a revoking instrument where it is not executed
with the formalities requisite for the execution of a will, even though it is inscribed
on the will itself, although it may effect a revocation by cancellation or obliteration
of the words of the will. A testator cannot reserve to himself the power to modify a
will by a written instrument subsequently prepared but not executed in the
manner required for a will.

SEC, 472. Subsequent Unexecuted, Invalid, or Ineffective Will or Codicil. — A will

which is invalid because of the incapacity of the testator, or of undue influence can
have no effect whatever as a revoking will. Moreover, a will is not revoked by the
unexecuted draft of a later one. Nor is a will revoked by a defectively executed will
or codicil, even though the latter contains a clause expressly revoking the former
will, in a jurisdiction where it is provided by a controlling statute that no writing
other than a testamentary instrument is sufficient to revoke a will, for the simple
reason that there is no revoking will. Similarly where the statute provides that a
will may be revoked by a subsequent will or other writing executed with the same
formalities as are required in the execution of wills, a defectively executed will
does not revoke a prior will, since it cannot be said that there is a writing which
complies with the statute. Moreover, a will or codicil which, on account of the
manner in which it is executed, is sufficient to pass only personally does not affect
dispositions of real estate made by a former will, even though it may expressly
purport to do so. The intent of the testator to revoke is immaterial, if he has not
complied with the statute. (57 Am. Jur., 328, 329.)

We find the same opinion in the American Law Reports, Annotated, edited in 1939. On
page 1400, Volume 123, there appear many authorities on the "application of rules
where second will is invalid", among which a typical one is the following:

It is universally agreed that where the second will is invalid on account of not
being executed in accordance with the provisions of the statute, or where the
testator who has not sufficient mental capacity to make a will or the will is
procured through undue influence, or the such, in other words, where the second
 will is really no will, it does not revoke the first will or affect it in any manner. Mort
vs. Baker University (193-5) 229 Mo. App., 632, 78 S.W. (2d), 498.

These treaties cannot be mistaken. They uphold the view on which the ruling in the
Samson case is predicated. They reflect the opinion that this ruling is sound and good
and for this reason, we see no justification for abondoning it as now suggested by
counsel for the oppositors.

It is true that our law on the matter (sec. 623, Code Civil Procedure) provides that a will
may be some will, codicil, or other writing executed as proved in case of wills" but it
cannot be said that the 1939 will should be regarded, not as a will within the meaning of
said word, but as "other writing executed as provided in the case of wills", simply
because it was denied probate. And even if it be regarded as any other writing within
the meaning of said clause, there is authority for holding that unless said writing is
admitted to probate, it cannot have the effect of revocation. (See 57 Am. Jur. pp. 329-
330).

But counsel for oppositors contemned that, regardless of said revocatory clause, said will
of 1918 cannot still be given effect because of the presumption that it was deliberately
revoked by the testator himself. The oppositors contend that the testator, after
executing the 1939 will, and with full knowledge of the recovatory clause contained said
will, himself deliberately destroyed the original of the 1918 will, and for that reason the
will submitted by petitioner for probate in these proceedings is only a duplicate of said
original.

There is no evidence which may directly indicate that the testator deliberately destroyed
the original of the 1918 will because of his knowledge of the revocatory clause contained
in the will he executed in 1939. The only evidence we have is that when the first will was
executed in 1918, Juan Salcedo, who prepared it, gave the original and copies to the
testator himself and apparently they remained in his possession until he executed his
second will in 1939. And when the 1939 will was denied probate on November 29, 1943,
and petitioner was asked by her attorney to look for another will, she found the
duplicate copy (Exhibit A) among the papers or files of the testator. She did not find the
original.

If it can be inferred that the testator deliberately destroyed the 1918 will because of his
knowledge of the revocatory clause of the 1939 will, and it is true that he gave a
duplicate copy thereof to his wife, the herein petitioner, the most logical step for the
testator to take is to recall said duplicate copy in order that it may likewise be
destroyed. But this was not done as shown by the fact that said duplicate copy remained
in the possession of petitioner. It is possible that because of the long lapse of twenty-
one (21) years since the first will was executed, the original of the will had been
misplaced or lost, and forgetting that there was a copy, the testator deemed it wise to
execute another will containing exactly the same testamentary dispositions. Whatever
may be the conclusion we may draw from this chain of circumstances, the stubborn fact
is that there is no direct evidence of voluntary or deliberate destruction of the first will
by the testator. This matter cannot be inference or conjectur.

Granting for the sake of argument that the earlier will was voluntarily destroyed by the
testator after the execution of the second will, which revoked the first, could there be
any doubt, under this theory, that said earlier will was destroyed by the testator in the
honest belief that it was no longer necessary because he had expressly revoked it in his
will of 1939? In other words, can we not say that the destruction of the earlier will was
but the necessary consequence of the testator's belief that the revocatory clause
contained in the subsequent will was valid and the latter would be given effect? If such
is the case, then it is our opinion that the earlier will can still be admitted to probate
under the principle of "dependent relative revocation".

This doctrine is known as that of dependent relative revocation, and is usually

applied where the testator cancels or destroys a will or executes an instrument
intended to revoke a will with a present intention to make a new testamentary
 disposition as a substitute for the old, and the new disposition is not made or, if
made, fails of effect for same reason. The doctrine is n limited to the existence of
some other document, however, and has been applied where a will was destroyed
as a consequence of a mistake of law. . . . (68 C.J.P. 799).

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

This is the doctrine of dependent relative revocation. The failure of a new

testamentary disposition upon whose validity the revocation depends, is equivalent
to the non-fulfillment of a suspensive conditions, and hence prevents the
revocation of the original will. But a mere intent to make at some time a will in the
place of that destroyed will not render the destruction conditional. It must appear
that the revocation is dependent upon the valid execution of a new will. (1
Alexander, p. 751; Gardner, p. 253.)

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

The remaining question to be determined refers to the sufficiency of the evidence to

prove the due execution of the will.

The will in question was attested, as required by law, by three witnesses, Lorenzo
Morales, Rufino Enriquez, and Angel Cuenca. The first two witnesses died before the
commencement of the present proceedings. So the only instrumental witness available
was Angel Cuenca and under our law and precedents, his testimony is sufficient to prove
the due execution of the will. However, petitioner presented not only the testimony of
Cuenca but placed on the witness stand Juan Salcedo, the notary public who prepared
and notarized the will upon the express desire and instruction of the testator, The
testimony of these witnesses shows that the will had been executed in the manner
required by law. We have read their testimony and we were impressed by their
readiness and sincerity. We are convinced that they told the truth. Wherefore, the order
appealed from is hereby affirmed, with costs against the appellants.1âwphïl.nêt
G.R. No. 17714             May 31, 1922

In the mater of the estate of Jesus de Leon. 

IGNACIA DIAZ, petitioner-appellant, 
vs.
ANA DE LEON, opponent-appellee.

Montinola, Montinola & Hontiveros and Jose Lopez Vito for appellant.
Francisco A. Delgado, Powell & Hill and Padilla & Treñas for appellee.

ROMUALDEZ, J.:

The only question raised in this case is whether or to the will executed by Jesus de Leon,
now, was revoked by him.

The petitioner denies such revocation, while the contestant affirms the same by alleging
that the testator revoked his will by destroying it, and by executing another will
expressly revoking the former.

We find that the second will Exhibit 1 executed by the deceased is not cloth with all the
necessary requisites to constitute a sufficient revocation.

But according to the statute governing the subject in this jurisdiction, the destruction of
a will animo revocandi constitutes, in itself, a sufficient revocation. (Sec. 623, Code of
Civil Procedure.)lävvphì1·né+

From the evidence submitted in this case, it appears that the testator, shortly after the
execution of the first will in question, asked that the same be returned to him. The
instrument was returned to the testator who ordered his servant to tear the document.
This was done in his presence and before a nurse who testified to this effect. After some
time, the testator, being asked by Dr. Cornelio Mapa about the will, said that it had been
destroyed.

The intention of revoking the will is manifest from the established fact that the testator
was anxious to withdraw or change the provisions he had made in his first will. This fact
is disclosed by the testator's own statements to the witnesses Canto and the Mother
Superior of the Hospital where he was confined.

The original will herein presented for probate having been destroyed with animo
revocandi, cannot now be probated as the will and last testament of Jesus de Leon.
Judgement is affirmed with costs against the petitioner. So ordered.
G.R. No. L-46078             May 25, 1939

In the matter of the will of the deceased Mauro Salvacion. 

GREGORIA REYNOSO, administratrix-appellant, 
vs.
JOSE E. TOLENTINO, guardian ad litem of the minors Maurito and Remedios
Aguila, 
JOAQUIN CAMPOSANO, guardian ad litem of the minor Corazon Camposano, 
VALERIO SALVACION, NUMERIANO SALVACION, AMADEO SALVACION, and
MARTINA ALLA, legatees-appellants.

Feria and La O for administratrix and appellant.

Andres Laredo, Sumulong, Lavides and Sumulong, and Elias C. Desembrana for legatees
and appellants.

AVANCEÑA, C.J.:

Mauro Salvacion died on June 30, 1932 in the municipality of Lucena, Province of
Tayabas, without leaving any descendant or ascendant. His widow, Gregoria Reynoso,
who survived him, is now the administratrix appointed in this testate proceeding.

The properties left by the deceased are conjugal in nature because they were acquired
during his marriage with his widow. He left a will and a codicil upon his death, wherein
he made a partition of the conjugal properties between him and his widow, and disposed
by way of legacy of the half corresponding to him.

The attorney of the administration of this testate thereafter prepared the partition of the
properties left by the deceased between the widow and the legatees.

The widow opposed the approval of this partition as to the coconut trees, alleging that it
is unequal not only as to the number of trees but also as to the quality thereof. Over this
opposition of the widow, the court, without affording her an opportunity to substantiate
her opposition and present evidence in support thereof, approved the partition. To this
resolution the widow expected.

The legatees, on the other hand, also opposed the approval of the partition in so far as it
casts the burden of the widow's usufruct upon one-half of what corresponds to each one.
Moreover, these legatees contend that the allowance received by the widow during the
liquidation of the conjugal properties should be charged against her in so far as it
exceeds the products of the properties allotted to her. The court also overruled this
opposition and approved the partition in this respect.

In so far as it refers to the appeal of the widow, we are of the opinion that the resolution
of the court, approving the partition, is erroneous. The court should have substantiated
the opposition of the widow and should have given her an opportunity to adduce
evidence in its support. However, the court, relying only upon the fact that the partition
was made in accordance with the will of the deceased, approved it. The will, in so far as
the the testator alone made therein a partition of the conjugal properties by assigning to
himself those which he liked and to the wife those which she did not like, is illegal. The
conjugal property is one between husband and wife wherein each one, except as to the
administration thereof, has equal rights. Each one has a right to one-half of these
properties and each one occupies the same position as to its ownership. It is an
encroachment upon these rights of each of the spouses if one of them could designate
which and how much these properties should correspond to him. Any of this spouses is
entitled to be heard in the partition of the conjugal properties in order to defend his or
her equal share.

As to the appeal of the legatees, the theory upon which it is based in plainly erroneous.
The usufruct which article 837 of the Civil Code gives to the widow is upon one-half of
the properties of the deceased spouse and not upon the properties of the widow herself,
such as the half of the conjugal properties corresponding to her.

The contention that the allowance received by the widow should be charged against her
share in the conjugal properties in so far as it exceeds the fruits of the properties
corresponding to her, is perfectly legal. But we are precluded from ruling upon this
point, because there is neither showing nor allegation as to the amount of the fruits of
the properties during the liquidation. Without this, we are not in a position to decide
whether or not the widow received by way of allowance more than that corresponding to
her from the fruits of the properties.

In view of the foregoing, the appealed judgment is modified in the sense that the court
should permit the widow to substantiate her opposition and to present evidence in
support thereof, and is affirmed in all other respects, with the costs to the defendants as
appellants and legatees. So ordered.
G.R. No. L-35993         December 19, 1932

In re Estate of the deceased Gregorio Tolentino. ADELAIDA

TOLENTINO, petitioner-appellee, 
vs.
NATALIA FRANCISCO, ET AL., oppositors-appellants.

Laurel, Del Rosario & Lualhati for appellants.

Eduardo Gutierrez Repide for appellee.

STREET, J.:

This petition was filed in the Court of First Instance of Manila by Adelaida Tolentino de
Concepcion, for the purpose of procuring probate of the will of Gregorio Tolentino,
deceased, who died at the hand of an assassin, in his home, No. 2541 Lico Street, in the
District of Santa Cruz, Manila, on November 9, 1930. In the inception of the proceedings
Eugene de Mitkiewicz was appointed special coadministrator, and he joined as coplaintiff
in the petition. Opposition was made to the probate of the will by Ciriaco Francisco,
Natalia Francisco, and Gervasia Francisco, all cousins of the deceased and residents of
the City of Manila. Upon hearing the cause the trial court overruled the opposition,
declared the will to have been properly executed, and allowed the probate thereof. From
this order the three opponents appealed.

At the time of his death on November 9, 1930, Gregorio Tolentino was sixty-six years of
age. During the more vigorous years of his life he had been married to Benita Francisco,
but she predeceased him years ago. By their industry and frugality the two had
accumulated a very considerable estate which does not appear to have suffered any
material diminution in the years of Tolentino's widowhood. The pair had no children, and
the generous instincts of the survivor prompted him to gather around him in his
comfortable and commodious home a number of his wife's kin; and by him various
younger members of the connection were supported and educated. At one time
Tolentino contemplated leaving his property mainly to these kin of his wife, of the
surname Francisco; and for several years prior to his death, he had kept a will indicating
this desire. However, in October, 1930, strained relations, resulting from grave
disagreements, developed between Tolentino and the Francisco relations and he
determined to make a new will in which, apart from certain legacies in favor of a few
individuals, the bulk of his estate, worth probably about P150,000, should be given to
Adelaida Tolentino de Concepcion, as his universal heir.

To this end, on October 17, 1930, Tolentino went to the office of Eduardo Gutierrez
Repide, an attorney at 97 General Luna, Manila, and informed him that he wanted to
make a new will and desired Repide to draft it for him. After the necessary preliminary
inquiries had been made, the attorney suggested to Tolentino to return later, bringing a
copy of the will previously made. Accordingly, on the second day thereafter, Tolentino
again appeared in Repide's office with the prior will; and the attorney proceeded to
reduce the new will to proper form. As the instrument was taking shape Tolentino stated
that he wanted the will to be signed in Repide's office, with Repide himself as one of the
attesting witnesses. For the other two witnesses Tolentino requested that two attorneys
attached to the office, namely, Leoncio B. Monzon and Ramon L. Sunico, should serve.
For this reason, in the draft of the will, as it at first stood, the names of the three above
mentioned were inserted as the names of the three attesting witnesses.

When the instrument had been reduced to proper form it was placed in the hands of
Tolentino, the testator, in order that he might take it home to reflect over its provisions
and consider whether it conformed in all respects to his wishes. On the morning of
October 21 he again appeared in Repide's office and returned to him the draft of the will
with certain corrections. Among the changes thus made was the suppression of the
names of Monzon, Sunico, and Repide as attesting witnesses, these names being
substituted by the names of Jose Syyap, Agustin Vergel de Dios, and Vicente Legarda.
The explanation given by the testator for desiring this change was that he had met Jose
Syyap on the Escolta, the day before, and had committed the indiscretion of
communicating the fact that he (Tolentino) was having a new will made in which
Monzon, Sunico, and Repide would appear as the attesting witnesses. Now Syyap had
been the draftsman of the former will of Tolentino, and in this same will the name of
Syyap appeared as one of the attesting witnesses, the other two being Vicente Legarda
and Vergel de Dios. When, therefore, Syyap learned that a new will was being drawn up
without his intervention, he showed profound disappointment, saying to Tolentino that
he considered it a gross offense that he, Legarda, and Vergel de Dios should be
eliminated as witnesses to the new will. Upon this manifestation of feeling by Syyap,
Tolentino decided to avail himself of Syyap, Legarda, and Vergel de Dios as witnesses to
this will also, and he therefore requested Repide to change the names of the attesting
witnesses. After this point had been settled Tolentino stated that he would request
Syyap, Legarda, and Vergel de Dios to appear at the office of Repide for the purpose of
signing the will. To this end Tolentino went away but returned later saying that he had
spoken to Syyap about it and that the latter strenuously objected, observing that the will
should be signed at a chop-suey restaurant ( panciteria). Tolentino further stated to his
attorney in this conversation that he had arranged with Syyap and the other two
intending witnesses to meet at five o'clock in the afternoon of the next day, which was
October 22, for the purpose of executing the will.

Pursuant to these instructions Repide made the desired changes in the will; and just
before twelve o'clock noon of the next day Tolentino returned to Repide's office and
received from him the criminal document with a carbon copy thereof. Repide advised the
testator that the copy should be executed with the same formality as the original in
order that the intention of the testator should not be frustrated by the possible loss or
destruction of the original.lawphil.net

It is a custom in the office of Repide not to number the consecutive pages of a will, on
the typewriting machine, the duty of numbering the pages being left to the testator
himself. This precaution appears to have been born of experience, and has been adopted
by Repide to prevent the possible destruction of a will by the mere erasure of the figures
or letters indicating the pagination, — a disaster which, in Repide's experience, had
occurred in at least one case. Accordingly, upon delivering the completed will and carbon
copy to the testator, Repide took particular pains to instruct the testator to write the
consecutive paging of both original and duplicate before signing the instrument.

At his interview the testator suggested to Repide that the latter should also go to the
place where the will was to be executed, so that he might be present at the formality.
The attorney replied that it was impossible for him to do so as he had another
engagement for the hour indicated, which would prevent his attendance.

At about 4:30 p. m. on the same day, which was October 22, Tolentino started in his car
to pick up Syyap and Vergel de Dios at their respective homes on Antipolo and
Benavides streets. He then caused his chauffeur to drive with the three to La Previsora
Filipina, on Rizal Avenue, where Vicente Legarda, the third intending witness was to be
found. Arriving at this place, the three entered the office of Legarda, who was manager
of the establishment, and they were invited to take seats, which they did. Tolentino then
suggested that the three should go as his guests to a panciteria, where they could take
refreshments and the will could be executed. Legarda replied that he must decline the
invitation for he had an engagement to go to the Cosmos Club the same afternoon.
Upon this Tolentino asked Legarda to permit the will to be signed in his office, and to
this request Legarda acceded.

Tolentino thereupon drew two documents from his pocket saving that it was his last will
and testament, done in duplicate, and he proceeded to read the original to the
witnesses. After this had been completed, Legarda himself took the will in hand and read
it himself. He then returned it to Tolentino, who thereupon proceeded, with pen and ink,
to number the pages of the will thus, "Pagina Primera", "Pagina Segunda", etc. He then
paged the duplicate copy of the will in the same way. He next proceeded to sign the
original will and each of its pages by writing his name "G. Tolentino" in the proper
places. Following this, each of the three witnesses signed their own respective names at
the end of the will, at the end of the attesting clause, and in the left margin of each
page of the instrument. During this ceremony all of the persons concerned in the act of
attestation were present together, and all fully advertent to the solemnity that engaged
their attention.

After the original of the will had been executed in the manner just stated, the testator
expressed his desire that the duplicate should be executed in the same manner. To this
Syyap objected, on the ground that it was unnecessary; and in this view he was
supported by Vergel de Dios, with the result that the wishes of the testator on this point
could not be carried out. As the party was about to break up Tolentino used these
words: "For God's sake, as a favor, I request you not to let any one know the contents
of this will." The meeting then broke up and Tolentino returned Syyap and Vergel de
Dios to their homes in his car. He then proceeded to the law office of Repide, arriving
about 6:15 p. m. After preliminary explanations had been made, Tolentino requested
Repide to keep the will overnight in his safe, as it was already too late to place it in the
compartment which Tolentino was then renting in the Oriental Safe Deposit, in the
Kneedler Building. In this connection the testator stated that he did not wish to take the
will to his home, as he knew that his relatives were watching him and would take
advantage of any carelessness on his part to pry into his papers. Also, in this
conversation Tolentino informed Repide of the refusal of Syyap to execute the duplicate
of the will.

After a good part of an hour had thus been spent at Repide's office by the testator and
after the original of the will had been deposited in Repide's safe, Tolentino took the
attorney to the latter's residence in Ermita, and then returned to his own home, where
he remained without again going out that night. But promptly at nine o'clock the next
morning Tolentino presented himself at Repide's office for the purpose of securing the
will. Repide happened to be out and Tolentino went away, but again returned the next
day and received the will. With the instrument thus in his possession he proceeded at
once to the Oriental Safe Deposit and there left the instrument in his private
compartment, No. 333, in which place it remained until withdrawn some two weeks later
by order of the court.

On the morning of November 9, 1930, Gregorio Tolentino was found dead in his bed,
having perished by the hands of an assassin.

The peculiarity of this case is that, upon the trial of this proceeding for the probate of
the will of the decedent, two of the attesting witnesses, Jose Syyap and Vergel de Dios,
repudiated their participation in the execution of the will at the time and place stated;
and while admitting the genuineness of their signatures to the will, pretended that they
had severally signed the instrument, at the request of the testator, at different places.
Thus Syyap, testifying as a witness, claimed that the testator brought the will to Syyap's
house on the afternoon of October 21 — a time, be it remembered, when the will had
not yet left the hands of the draftsman — and upon learning that Syyap could not be
present at the time and place then being arranged for the execution of the will, he
requested Syyap, as a mere matter of complaisance, to sign the will then, which Syyap
did. Vergel de Dios has another story to tell of isolated action, claiming that he signed
the will in the evening of October 22 at the Hospital of San Juan de Dios in Intramuros.

We are unable to give any credence to the testimony of these two witnesses on this
point, the same being an evident fabrication designed for the purpose of defeating the
will. In the first place, the affirmative proof showing that the will was properly executed
is adequate, consistent, and convincing, consisting of the testimony of the third attesting
witness, Vicente Legarda, corroborated by Miguel Legarda and Urbana Rivera, two
disinterested individuals, employees of La Previsora Filipina, who were present in
Legarda's office when the will was executed and who lent a discerning attention to what
was being done. In the second place, each of the seven signatures affixed to his will by
Syyap appear to the natural eye to have been made by using the same pen and ink that
was used by Legarda in signing the will. The same is also probably true of the seven
signatures made by Vergel de Dios. This could hardly have happened if the signatures of
Syyap and Vergel de Dios had been affixed, as they now pretend, at different times and
places. In the third place, Both Syyap and Vergel de Dios are impeached by proof of
contradictory statements made by them on different occasions prior to their appearance
as witnesses in this case. In this connection we note that, after the murder of Gregorio
Tolentino, and while the police authorities were investigating his death, Nemesio Alferez,
a detective, sent for Syyap and questioned him concerning his relations with the
deceased. Upon this occasion Syyap stated that Gregorio Tolentino had lately made a
will, that it had been executed at the office of La Previsora Filipina under the
circumstances already stated, and that he himself had served as one of the attesting
witnesses.

With respect to Vergel de Dios we have the following fact: On the day that Gregorio
Tolentino was buried, Ramon Llorente, a member of the city police force, was sent out to
the cemetery in order that he might be present and observe the demeanor on that
occasion of such Tolentino's kin as might be present. Llorente arrived before the funeral
cortege, having been taken out to the cemetery by Repide. While the two were waiting
at the cemetery, Llorente noted the presence of Vergel de Dios, he requested the
policeman to introduce him. In the conversation that ensued Vergel de Dios stated with
considerable detail that Gregorio Tolentino had made a will just before his death, that it
was executed at La Previsora Filipina, and that he was one of the witnesses who attested
the instrument at that time and place.

Again, on a certain occasion subsequent to the death of Gregorio Tolentino, Juan

Concepcion the husband of Adelaida Tolentino, accompanied by Genoveva de Mendoza,
called upon Vergel de Dios, and in the conversation that resulted Vergel de Dios told
them that the will was properly executed, that he was one of the attesting witnesses,
and that it had been signed by all of them in the office of La Previsora Filipina.

These circumstances and other incidents revealed in the proof leave no room for doubt
in our mind that Syyap and Vergel de Dios have entered into a conspiracy between
themselves, and in concert with the opponents, to defeat the will of Gregorio Tolentino
although they are well aware that said will was in all respects properly executed; and
the trial court, in our opinion, committed no error in admitting the will to probate.

When a will is contested it is the duty of the proponent to call all of the attesting
witnesses, if available but the validity of the will in no wise depends upon the united
support of the will by all of those witnesses. A will may be admitted to probate
notwithstanding the fact that one or more of the subscribing witnesses do not unite with
the other, or others, in proving all the facts upon which the validity of the will rests.
(Fernandez vs. Tantoco, 49 Phil., 380.) It is sufficient if the court is satisfied from all the
proof that the will was executed and attested in the manner required by law. In this case
we feel well assured that the contested will was properly executed and the order
admitting to it probate was entirely proper.

The order appealed from will therefore be affirmed, with costs against the appellants. So
ordered.
G.R. No. 45629           September 22, 1938

ANTILANO G. MERCADO, petitioner, 
vs.
ALFONSO SANTOS, Judge of First Instance of Pampanga, respondents.
ROSARIO BASA DE LEON, ET AL., intervenors.

Claro M. Recto and Benigno S. Aquino for petitioner.

Esperanza de la Cruz and Heracio Abistao for respondents.
Sotto and Sotto for intervenors.

LAUREL, J.:

On May 28, 1931, the petitioner herein filed in the Court of First Instance of Pampanga a
petition for the probate of the will of his deceased wife, Ines Basa. Without any
opposition, and upon the testimony of Benigno F. Gabino, one of the attesting witnesses,
the probate court, on June 27,1931, admitted the will to probate. Almost three years
later, on April 11, 1934, the five intervenors herein moved ex parte to reopen the
proceedings, alleging lack of jurisdiction of the court to probate the will and to close the
proceedings. Because filed ex parte, the motion was denied. The same motion was filed
a second time, but with notice to the adverse party. The motion was nevertheless denied
by the probate court on May 24, 1934. On appeal to this court, the order of denial was
affirmed on July 26, 1935. (Basa vs. Mercado, 33 Off. Gaz., 2521.)

It appears that on October 27, 1932, i. e., sixteen months after the probate of the will of
Ines Basa, intervenor Rosario Basa de Leon filed with the justice of the peace court of
San Fernando, Pampanga, a complaint against the petitioner herein, for falsification or
forgery of the will probated as above indicated. The petitioner was arrested. He put up a
bond in the sum of P4,000 and engaged the services of an attorney to undertake his
defense. Preliminary investigation of the case was continued twice upon petition of the
complainant. The complaint was finally dismissed, at the instance of the complainant
herself, in an order dated December 8, 1932. Three months later, or on March 2, 1933,
the same intervenor charged the petitioner for the second time with the same offense,
presenting the complaint this time in the justice of the peace court of Mexico,
Pampanga. The petitioner was again arrested, again put up a bond in the sum of P4,000,
and engaged the services of counsel to defend him. This second complaint, after
investigation, was also dismissed, again at the instance of the complainant herself who
alleged that the petitioner was in poor health. That was on April 27, 1933. Some nine
months later, on February 2, 1934, to be exact, the same intervenor accused the same
petitioner for the third time of the same offense. The information was filed by the
provincial fiscal of Pampanga in the justice of the peace court of Mexico. The petitioner
was again arrested, again put up a bond of P4,000, and engaged the services of defense
counsel. The case was dismissed on April 24, 1934, after due investigation, on the
ground that the will alleged to have been falsified had already been probated and there
was no evidence that the petitioner had forged the signature of the testatrix appearing
thereon, but that, on the contrary, the evidence satisfactorily established the
authenticity of the signature aforesaid. Dissatisfied with the result, the provincial fiscal,
on May 9, 1934, moved in the Court of First Instance of Pampanga for reinvestigation of
the case. The motion was granted on May 23, 1934, and, for the fourth time, the
petitioner was arrested, filed a bond and engaged the services of counsel to handle his
defense. The reinvestigation dragged on for almost a year until February 18, 1934, when
the Court of First Instance ordered that the case be tried on the merits. The petitioner
interposed a demurrer on November 25, 1935, on the ground that the will alleged to
have been forged had already been probated. This demurrer was overruled on December
24, 1935, whereupon an exception was taken and a motion for reconsideration and
notice of appeal were filed. The motion for reconsideration and the proposed appeal
were denied on January 14, 1936. The case proceeded to trial, and forthwith petitioner
moved to dismiss the case claiming again that the will alleged to have been forged had
already been probated and, further, that the order probating the will is conclusive as to
the authenticity and due execution thereof. The motion was overruled and the petitioner
filed with the Court of Appeals a petition for certiorari with preliminary injunction to
enjoin the trial court from further proceedings in the matter. The injunction was issued
and thereafter, on June 19, 1937, the Court of Appeals denied the petition for certiorari,
and dissolved the writ of preliminary injunction. Three justices dissented in a separate
opinion. The case is now before this court for review on certiorari.

Petitioner contends (1) that the probate of the will of his deceased wife is a bar to his
criminal prosecution for the alleged forgery of the said will; and, (2) that he has been
denied the constitutional right to a speedy trial.

1. Section 306 of our Code of Civil Procedure provides as to the effect of judgments.

SEC. 306. Effect of judgment. — The effect of a judgment or final order in an

action or special proceeding before a court or judge of the Philippine Islands or of
the United States, or of any State or Territory of the United States, having
jurisdiction to pronounce the judgment or order, may be as follows.

1. In case of a judgment or order against a specific thing, or in respect to the

probate of a will, or the administration of the estate of a deceased person, or in
respect to the personal, political, or legal condition or relation of a particular
person, the judgment or order is conclusive upon the title of the thing, the will or
administration, or the condition or relation of the person Provided, That the
probate of a will or granting of letters of administration shall only be prima
facie evidence of the death of the testator or intestate.

xxx           xxx           xxx

(Emphasis ours.)

Section 625 of the same Code is more explicit as to the conclusiveness of the due
execution of a probate will. It says.

SEC. 625. Allowance Necessary, and Conclusive as to Execution. — No will shall

pass either the real or personal estate, unless it is proved and allowed in the Court
of First Instance, or by appeal to the Supreme Court; and the allowance by the
court of a will of real and personal estate shall be conclusive as to its due
execution. (Emphasis ours.)

(In Manahan vs. Manahan 58 Phil., 448, 451), we held:

. . . The decree of probate is conclusive with respect to the due execution thereof
and it cannot be impugned on any of the grounds authorized by law, except that of
fraud, in any separate or independent action or proceeding. Sec. 625, Code of Civil
Procedure; Castañeda vs. Alemany, 3 Phil., 426; Pimentel vs. Palanca, 5 Phil.,
436; Sahagun vs. De Gorostiza, 7 Phil., 347; Limjuco vs. Ganara, 11 Phil., 393;
Montañano vs. Suesa, 14 Phil., 676; in re Estate of Johnson, 39 Phil, 156;
Riera vs. Palmaroli, 40 Phil., 105; Austria vs. Ventenilla, 21 Phil., 180;
Ramirez vs. Gmur, 42 Phil., 855; and Chiong Jocsoy vs. Vano, 8 Phil., 119.

In 28 R. C. L., p. 377, section 378, it is said.

The probate of a will by the probate court having jurisdiction thereof is usually
considered as conclusive as to its due execution and validity, and is also conclusive
that the testator was of sound and disposing mind at the time when he executed
the will, and was not acting under duress, menace, fraud, or undue influence, and
that the will is genuine and not a forgery. (Emphasis ours.)

As our law on wills, particularly section 625 of our Code of Civil Procedure aforequoted,
was taken almost bodily from the Statutes of Vermont, the decisions of the Supreme
Court of the State relative to the effect of the probate of a will are of persuasive
authority in this jurisdiction. The Vermont statute as to the conclusiveness of the due
execution of a probated will reads as follows.

SEC. 2356. No will shall pass either real or personal estate, unless it is proved and
allowed in the probate court, or by appeal in the county or supreme court; and the
probate of a will of real or personal estate shall be conclusive as to its due
execution. (Vermont Statutes, p. 451.)

Said the Supreme Court of Vermont in the case of Missionary Society vs. Eells (68 Vt.,
497, 504): "The probate of a will by the probate court having jurisdiction thereof, upon
the due notice, is conclusive as to its due execution against the whole world. (Vt. St.,
sec. 2336; Fosters Exrs. vs. Dickerson, 64 Vt., 233.)"

The probate of a will in this jurisdiction is a proceeding in rem. The provision of notice by
Publication as a prerequisite to the allowance of a will is constructive notice to the whole
world, and when probate is granted, the judgment of the court is binding upon
everybody, even against the State. This court held in the case of Manalo vs. Paredes
and Philippine Food Co. (47 Phil., 938):

The proceeding for the probate of a will is one in rem (40 Cyc., 1265), and the
court acquires jurisdiction over all the persons interested, through the publication
of the notice prescribed by section 630 of the Code of Civil Procedure, and any
order that may be entered therein is binding against all of them.

Through the publication of the petition for the probate of the will, the court
acquires jurisdiction over all such persons as are interested in said will; and any
judgment that may be rendered after said proceeding is binding against the whole
world.

In Everrett vs. Wing (103 Vt., 488, 492), the Supreme Court of Vermont held.

In this State the probate of a will is a proceeding in rem being in form and

substance upon the will itself to determine its validity. The judgment determines
the status of the instrument, whether it is or is not the will of the testator. When
the proper steps required by law have been taken the judgment is binding upon
everybody, and makes the instrument as to all the world just what the judgment
declares it to be. (Woodruff vs. Taylor, 20 Vt., 65, 73; Burbeck vs. Little, 50 Vt.,
713, 715; Missionary Society vs. Eells, 68 Vt., 497, 504; 35 Atl., 463.) The
proceedings before the probate court are statutory and are not governed by
common law rules as to parties or causes of action. (Holdrige vs. Holdriges Estate,
53 Vt., 546, 550; Purdy vs. Estate of Purdy, 67 Vt. 50, 55; 30 Atl., 695.) No
process is issued against anyone in such proceedings, but all persons interested in
determining the state or conditions of the instrument are constructively notified by
the publication of notice as required by G. L. 3219. (Woodruff vs. Taylor, supra; In
re Warners Estate 98 Vt., 254; 271; 127 Atl., 362.)

Section 333, paragraph 4, of the Code of Civil Procedure establishes an incontrovertible

presumption in favor of judgments declared by it to be conclusive.

SEC. 333. Conclusive Presumptions. — The following presumptions or deductions,

which the law expressly directs to be made from particular facts, are deemed
conclusive.

xxx           xxx           xxx

4. The judgment or order of a court, when declared by this code to be conclusive.

Conclusive presumptions are inferences which the law makes so peremptory that it will
not allow them to be overturned by any contrary proof however strong.
(Brant vs. Morning Journal Assn., 80 N.Y.S., 1002, 1004; 81 App. Div., 183; see, also,
Joslyn vs. Puloer, 59 Hun., 129, 140, 13 N.Y.S., 311.) The will in question having been
probated by a competent court, the law will not admit any proof to overthrow the legal
presumption that it is genuine and not a forgery.

The majority decision of the Court of Appeals cites English decisions to bolster up its
conclusion that "the judgment admitting the will to probate is binding upon the whole
world as to the due execution and genuineness of the will insofar as civil rights and
liabilities are concerned, but not for the purpose of punishment of a crime." The cases of
Dominus Rex vs. Vincent, 93 English Reports, Full Reprint, 795, the first case being
decided in 1721, were cited to illustrate the earlier English decisions to the effect that
upon indictment for forging a will, the probating of the same is conclusive evidence in
the defendants favor of its genuine character. Reference is made, however, to the cases
of Rex vs. Gibson, 168 English Reports, Full Reprint, 836, footnote (a), decided in 1802,
and Rex vs. Buttery and Macnamarra, 168 English Reports, Full Reprint, 836, decided in
1818, which establish a contrary rule. Citing these later cases, we find the following
quotation from Black on Judgments, Vol. II, page 764.

A judgment admitting a will to probate cannot be attacked collaterally although the

will was forged; and a payment to the executor named therein of a debt due the
decedent will discharge the same, notwithstanding the spurious character of the
instrument probated. It has also been held that, upon an indictment for forging a
will, the probate of the paper in question is conclusive evidence in the defendants
favor of its genuine character. But this particular point has lately been ruled
otherwise.

It was the case of Rex vs. Buttery, supra, which induced the Supreme Court of

Massachussetts in the case of Waters vs. Stickney (12 Allen 1; 90 Am. Dec., 122) also
cited by the majority opinion, to hold that "according to later and sounder decisions, the
probate, though conclusive until set aside of the disposition of the property, does not
protect the forger from punishment." This was reproduced in 28 R.C.L., p. 376, and
quoted in Barry vs. Walker (103 Fla., 533; 137 So., 711, 715), and
Thompson vs. Freeman (149 So., 740, 742), also cited in support of the majority opinion
of the Court of Appeals. The dissenting opinion of the Court of Appeals in the instant
case under review makes a cursory study of the statutes obtaining in England,
Massachussetts and Florida, and comes to the conclusion that the decisions cited in the
majority opinion do not appear to "have been promulgated in the face of statutes similar
to ours." The dissenting opinion cites Whartons Criminal Evidence (11th ed., sec. 831),
to show that the probate of a will in England is only prima facie proof of the validity of
the will (Op. Cit. quoting Marriot vs. Marriot, 93 English Reprint, 770); and 21 L.R.A.
(pp. 686689 and note), to show that in Massachussetts there is no statute making the
probate of a will conclusive, and that in Florida the statute(sec. 1810, Revised Statutes)
makes the probate conclusive evidence as to the validity of the will with regard to
personal, and prima facie as to real estate. The cases decided by the Supreme Court of
Florida cited by the majority opinion, supra, refer to wills of both personal and real
estate.

The petitioner cites the case of State vs. McGlynn (20 Cal., 233, decided in 1862), in
which Justice Norton of the Supreme Court of California, makes the following review of
the nature of probate proceedings in England with respect to wills personal and real
property.

In England, the probate of wills of personal estate belongs to the Ecclesiastical

Courts. No probate of a will relating to real estate is there necessary. The real
estate, upon the death of the party seized, passes immediately to the devisee
under the will if there be one; or if there be no will, to the heir at law. The person
who thus becomes entitled takes possession. If one person claims to be the owner
under a will, and another denies the validity of the will and claims to be the owner
as heir at law, an action of ejectment is brought against the party who may be in
possession by the adverse claimant; and on the trial of such an action, the validity
of the will is contested, and evidence may be given by the respective parties as to
the capacity of the testator to make a will, or as to any fraud practiced upon him,
or as to the actual execution of it, or as to any other circumstance affecting its
 character as a valid devise of the real estate in dispute. The decision upon the
validity of the will in such action becomes res adjudicata, and is binding and
conclusive upon the parties to that action and upon any person who may
subsequently acquire the title from either of those parties; but the decision has no
effect upon other parties, and does not settle what may be called the status or
character of the will, leaving it subject to be enforced as a valid will, or defeated
as invalid, whenever other parties may have a contest depending upon it. A
probate of a will of personal property, on the contrary, is a judicial determination
of the character of the will itself. It does not necessarily or ordinarily arise from
any controversy between adverse claimants, but is necessary in order to authorize
a disposition of the personal estate in pursuance of its provisions. In case of any
controversy between adverse claimants of the personal estate, the probate is
given in evidence and is binding upon the parties, who are not at liberty to
introduce any other evidence as to the validity of the will.

The intervenors, on the other hand, attempt to show that the English law on wills is
different from that stated in the case of State vs. McGlynn, supra, citing the following
statutes.

1. The Wills Act, 1837 (7 Will. 4 E 1 Vict. c. 26).

2. The Court of Probate Act, 1857 (20 and 21 Vict. c. 77).

3. The Judicature Act, 1873 (36 and 37 Vict. c. 66).

The Wills Act of 1837 provides that probate may be granted of "every instrumental
purporting to be testamentary and executed in accordance with the statutory
requirements . . . if it disposes of property, whether personal or real." The Ecclesiastical
Courts which took charge of testamentary causes (Ewells Blackstone [1910], p. 460),
were determined by the Court of Probate Act of 1857, and the Court of Probate in turn
was, together with other courts, incorporated into the Supreme Court of Judicature, and
transformed into the Probate Division thereof, by the Judicature Act of 1873. (Lord
Halsbury, The Laws of England[1910], pp. 151156.) The intervenors overlook the fact,
however, that the case of Rex vs. Buttery and Macnamarra, supra, upon which they rely
in support of their theory that the probate of a forged will does not protect the forger
from punishment, was decided long before the foregoing amendatory statutes to the
English law on wills were enacted. The case of State vs. McGlynn may be considered,
therefore, as more or less authoritative on the law of England at the time of the
promulgation of the decision in the case of Rex vs. Buttery and Macnamarra.

In the case of State vs. McGlynn, the Attorney General of California filed an information

to set aside the probate of the will of one Broderick, after the lapse of one year provided
by the law of California for the review of an order probating a will, in order that the
estate may be escheated to the State of California for the review of an probated will was
forged and that Broderick therefore died intestate, leaving no heirs, representatives or
devisees capable of inheriting his estate. Upon these facts, the Supreme Court of
California held.

The fact that a will purporting to be genuine will of Broderick, devising his estate
to a devisee capable of inheriting and holding it, has been admitted to probate and
established as a genuine will by the decree of a Probate Court having jurisdiction
of the case, renders it necessary to decide whether that decree, and the will
established by it, or either of them, can be set aside and vacated by the judgment
of any other court. If it shall be found that the decree of the Probate Court, not
reversed by the appellate court, is final and conclusive, and not liable to be
vacated or questioned by any other court, either incidentally or by any direct
proceeding, for the purpose of impeaching it, and that so long as the probate
stands the will must be recognized and admitted in all courts to be valid, then it
will be immaterial and useless to inquire whether the will in question was in fact
genuine or forged. (State vs. McGlynn, 20 Cal., 233; 81 Am. Dec., 118, 121.).
Although in the foregoing case the information filed by the State was to set aside the
decree of probate on the ground that the will was forged, we see no difference in
principle between that case and the case at bar. A subtle distinction could perhaps be
drawn between setting aside a decree of probate, and declaring a probated will to be a
forgery. It is clear, however, that a duly probated will cannot be declared to be a forgery
without disturbing in a way the decree allowing said will to probate. It is at least
anomalous that a will should be regarded as genuine for one purpose and spurious for
another.

The American and English cases show a conflict of authorities on the question as to
whether or not the probate of a will bars criminal prosecution of the alleged forger of the
probate will. We have examined some important cases and have come to the conclusion
that no fixed standard maybe adopted or drawn therefrom, in view of the conflict no less
than of diversity of statutory provisions obtaining in different jurisdictions. It behooves
us, therefore, as the court of last resort, to choose that rule most consistent with our
statutory law, having in view the needed stability of property rights and the public
interest in general. To be sure, we have seriously reflected upon the dangers of evasion
from punishment of culprits deserving of the severity of the law in cases where, as here,
forgery is discovered after the probate of the will and the prosecution is had before the
prescription of the offense. By and large, however, the balance seems inclined in favor
of the view that we have taken. Not only does the law surround the execution of the will
with the necessary formalities and require probate to be made after an elaborate judicial
proceeding, but section 113, not to speak of section 513, of our Code of Civil Procedure
provides for an adequate remedy to any party who might have been adversely affected
by the probate of a forged will, much in the same way as other parties against whom a
judgment is rendered under the same or similar circumstances. (Pecson vs.Coronel, 43
Phil., 358.)The aggrieved party may file an application for relief with the proper court
within a reasonable time, but in no case exceeding six months after said court has
rendered the judgment of probate, on the ground of mistake, inadvertence, surprise or
excusable neglect. An appeal lies to review the action of a court of first instance when
that court refuses to grant relief. (Banco Español Filipino vs. Palanca, 37 Phil., 921;
Philippine Manufacturing Co. vs. Imperial, 47 Phil., 810; Samia vs. Medina, 56 Phil.,
613.) After a judgment allowing a will to be probated has become final and
unappealable, and after the period fixed by section 113 of the Code of Civil Procedure
has expired, the law as an expression of the legislative wisdom goes no further and the
case ends there.

. . . The court of chancery has no capacity, as the authorities have settled, to

judge or decide whether a will is or is not a forgery; and hence there would be an
incongruity in its assuming to set aside a probate decree establishing a will, on the
ground that the decree was procured by fraud, when it can only arrive at the fact
of such fraud by first deciding that the will was a forgery. There seems, therefore,
to be a substantial reason, so long as a court of chancery is not allowed to judge
of the validity of a will, except as shown by the probate, for the exception of
probate decrees from the jurisdiction which courts of chancery exercise in setting
aside other judgments obtained by fraud. But whether the exception be founded in
good reason or otherwise, it has become too firmly established to be disregarded.
At the present day, it would not be a greater assumption to deny the general rule
that courts of chancery may set aside judgments procured by fraud, than to deny
the exception to that rule in the case of probate decrees. We must acquiesce in
the principle established by the authorities, if we are unable to approve of the
reason. Judge Story was a staunch advocate for the most enlarged jurisdiction of
courts of chancery, and was compelled to yield to the weight of authority. He says
"No other excepted case is known to exist; and it is not easy to discover the
grounds upon which this exception stands, in point of reason or principle, although
it is clearly settled by authority. (1 Storys Eq. Jur. sec. 440.)" (State vs. McGlynn,
20 Cal., 233; 81 Am. Dec., 118, 129. See, also, Tracy vs. Muir, 121 American
State Reports, 118, 125.)
We hold, therefore, that in view of the provisions of sections 306, 333 and 625 of our
Code of Civil Procedure, criminal action will not lie in this jurisdiction against the forger
of a will which had been duly admitted to probate by a court of competent jurisdiction.

The resolution of the foregoing legal question is sufficient to dispose of the case.
However, the other legal question with reference to the denial to the accused of his right
to a speedy trial having been squarely raised and submitted, we shall proceed to
consider the same in the light of cases already adjudicated by this court.

2. The Constitution of the Philippines provides that "In all criminal prosecutions the
accused . . . shall enjoy the right . . . to have a speedy . . . trial. . . . (Art. III, sec. 1,
par. 17. See, also, G.O. No. 58, sec. 15, No. 7.) Similar provisions are to be found in the
Presidents Instructions to the Second Philippine Commission (par. 11), the Philippine Bill
of July 1, 1902 (sec. 5, par. 2) and the Jones Act of August 29, 1916 (sec. 3, par. 2).
The provisions in the foregoing organic acts appear to have been taken from similar
provisions in the Constitution of the United States (6th Amendment) and those of the
various states of the American Union. A similar injunction is contained in the Malolos
Constitution (art. 8, Title IV), not to speak of other constitutions. More than once this
court had occasion to set aside the proceedings in criminal cases to give effect to the
constitutional injunction of speedy trial. (Conde vs. Judge of First Instance and Fiscal of
Tayabas [1923], 45 Phil., 173; Conde vs. Rivera and Unson[1924], 45 Phil., 650;
People vs. Castañeda and Fernandez[1936]), 35 Off. Gaz., 1269; Kalaw vs. Apostol, Oct.
15, 1937, G.R. No. 45591; Esguerra vs. De la Costa, Aug. 30,1938, G.R. No. 46039.).

In Conde vs. Rivera and Unson, supra, decided before the adoption of our Constitution,
we said.

Philippine organic and statutory law expressly guarantee that in all criminal
prosecutions the accused shall enjoy the right to have a speedy trial. Aurelia
Conde, like all other accused persons, has a right to a speedy trial in order that if
innocent she may go free, and she has been deprived of that right in defiance of
law. Dismissed from her humble position, and compelled to dance attendance on
courts while investigations and trials are arbitrarily postponed without her consent,
is palpably and openly unjust to her and a detriment to the public. By the use of
reasonable diligence, the prosecution could have settled upon the appropriate
information, could have attended to the formal preliminary examination, and could
have prepared the case for a trial free from vexatious, capricious, and oppressive
delays.

In People vs. Castañeda and Fernandez, supra, this court found that the accused had
not been given a fair and impartial trial. The case was to have been remanded to the
court a quo for a new trial before an impartial judge. This step, however, was found
unnecessary. A review of the evidence convinced this court that a judgment of
conviction for theft, as charged, could not be sustained and, having in view the right to a
speedy trial guaranteed by the Constitution to every person accused of crime, entered a
judgment acquitting the accused, with costs de oficio. We said.

. . . The Constitution, Article III, section 1, paragraph 17, guarantees to every

accused person the right to a speedy trial. This criminal proceeding has been
dragging on for almost five years now. The accused have twice appealed to this
court for redress from the wrong that they have suffered at the hands of the trial
court. At least one of them, namely Pedro Fernandez alias Piro, had been con-fined
in prison from July 20, 1932 to November 27, 1934, for inability to post the
required bond of P3,000 which was finally reduced to P300. The Government
should be the last to set an example of delay and oppression in the administration
of justice and it is the moral and legal obligation of this court to see that the
criminal proceedings against the accused come to an end and that they be
immediately dis-charged from the custody of the law. (Conde vs. Rivera and
Unson, 45 Phil., 651.)
In Kalaw vs. Apostol, supra, the petitioner invoked and this court applied and gave effect
to the doctrines stated in the second Conde case, supra. In granting the writs prayed
for, this court, after referring to the constitutional and statutory provisions guaranteeing
to persons accused of crime the right to a speedy trial, said:

Se infiere de los preceptos legales transcritos que todo acusado en causa criminal
tiene derecho a ser juzgado pronta y publicamente. Juicio rapido significa un
juicioque se celebra de acuerdo con la ley de procedimiento criminal y los
reglamentos, libre de dilaciones vejatorias, caprichosas y opersivas
(Burnett vs.State, 76 Ark., 295; 88S. W., 956; 113 AMSR, 94; Stewart vs. State,
13 Ark., 720; Peo. vs. Shufelt, 61 Mich., 237; 28 N. W., 79; Nixon vs. State, 10
Miss., 497; 41 AMD., 601; State vs. Cole, 4 Okl. Cr., 25; 109 P., 736;
State vs. Caruthers, 1 Okl. Cr., 428; 98 P., 474; State vs. Keefe, 17 Wyo., 227, 98
p., 122;22 IRANS, 896; 17 Ann. Cas., 161). Segun los hechos admitidos resulta
que al recurrente se le concedio vista parcial del asunto, en el Juzgado de Primera
Instancia de Samar, solo despues de haber transcurrido ya mas de un año y medio
desde la presentacion de la primera querella y desde la recepcion de la causa en
dicho Juzgado, y despues de haberse transferido dos veces la vista delasunto sin
su consentimiento. A esto debe añadirse que laprimera transferencia de vista era
claramente injustificadaporque el motivo que se alego consistio unicamente en
laconveniencia personal del ofendido y su abogado, no habiendose probado
suficientemente la alegacion del primero de quese hallaba enfermo. Es cierto que
el recurrente habia pedido que, en vez de señalarse a vista el asunto para el mayo
de 1936, lo fuera para el noviembre del mismo año; pero,aparte de que la razon
que alego era bastante fuerte porquesu abogado se oponia a comparecer por
compromisos urgentes contraidos con anterioridad y en tal circunstancia hubiera
quedado indefenso si hubiese sido obligado a entraren juicio, aparece que la vista
se pospuso por el Juzgado amotu proprio, por haber cancelado todo el calendario
judicial preparado por el Escribano para el mes de junio. Declaramos, con visto de
estos hechos, que al recurrents se leprivo de su derecho fundamental de ser
juzgado prontamente.

Esguerra vs. De la Costa, supra, was a petition for mandamus to compel the respondent
judge of the Court of First Instance of Rizal to dismiss the complaint filed in a criminal
case against the petitioner, to cancel the bond put up by the said petitioner and to
declare the costs de oficio. In accepting the contention that the petitioner had been
denied speedy trial, this court said:

Consta que en menos de un año el recurrente fue procesado criminalmente por el

alegado delito de abusos deshonestos, en el Juzgado de Paz del Municipio de
Cainta, Rizal. Como consecuencia de las denuncias que contra el se presentaron
fue arrestado tres veces y para gozar de libertad provisional, en espera de los
juicios, se vio obligado a prestartres fianzas por la suma de P1,000 cada una. Si
no se da fin al proceso que ultimamente se ha incoado contra el recurrente la
incertidumbre continuara cerniendose sobre el y las consiguientes molestias y
preocupaciones continuaran igualmente abrumandole. El Titulo III, articulo 1, No.
17,de la Constitucion preceptua que en todo proceso criminalel acusado tiene
derecho de ser juzgado pronta y publicamente. El Articulo 15, No. 7, de la Orden
General No. 58 dispone asimismo que en las causas criminales el acusado tendra
derecho a ser juzgado pronta y publicamente. Si el recurrente era realmente
culpable del delito que se le imputo, tenia de todos modos derechos a que fuera
juzgado pronta y publicamente y sin dilaciones arbitrarias y vejatorias. Hemos
declarado reiteradamente que existe un remedio positivo para los casos en que se
viola el derecho constitucional del acusado de ser juzgado prontamente. El
acusado que esprivado de su derecho fundomental de ser enjuiciado rapidamente
tiene derecho a pedir que se le ponga en libertad, si estuviese detenido, o a que la
causa que pende contra el sea sobreseida definitivamente. (Conde contra Rivera y
Unson, 45 Jur. Fil., 682; In the matter of Ford [1911], 160 Cal., 334; U. S. vs. Fox
[1880], 3 Mont., 512; Kalaw contra Apostol, R. G. No. 45591, Oct. 15, 1937;
Pueblo contra Castañeda y Fernandez, 35 Gac. Of., 1357.)
We are again called upon to vindicate the fundamental right to a speedy trial. The facts
of the present case may be at variance with those of the cases hereinabove referred to.
Nevertheless, we are of the opinion that, under the circumstances, we should consider
the substance of the right instead of indulging in more or less academic or undue factual
differentiations. The petitioner herein has been arrested four times, has put up a bond in
the sum of P4,000 and has engaged the services of counsel to undertake his defense an
equal number of times. The first arrest was made upon a complaint filed by one of the
intervenors herein for alleged falsification of a will which, sixteen months before, had
been probated in court. This complaint, after investigation, was dismissed at the
complainant's own request. The second arrest was made upon a complaint charging the
same offense and this complaint, too, was dismissed at the behest of the complainant
herself who alleged the quite startling ground that the petitioner was in poor health. The
third arrest was made following the filing of an information by the provincial fiscal of
Pampanga, which information was dismissed, after due investigation, because of
insufficiency of the evidence. The fourth arrest was made when the provincial fiscal
secured a reinvestigation of the case against the petitioner on the pretext that he had
additional evidence to present, although such evidence does not appear to have ever
been presented.

It is true that the provincial fiscal did not intervene in the case until February 2, 1934,
when he presented an information charging the petitioner, for the third time, of the
offense of falsification. This, however, does not matter. The prosecution of offenses is a
matter of public interest and it is the duty of the government or those acting in its behalf
to prosecute all cases to their termination without oppressive, capricious and vexatious
delay. The Constitution does not say that the right to a speedy trial may be availed of
only where the prosecution for crime is commenced and undertaken by the fiscal. It
does not exclude from its operation cases commenced by private individuals. Where
once a person is prosecuted criminally, he is entitled to a speedy trial, irrespective of the
nature of the offense or the manner in which it is authorized to be commenced. In any
event, even the actuations of the fiscal himself in this case is not entirely free from
criticism. From October 27, 1932, when the first complaint was filed in the justice of the
peace court of San Fernando, to February 2, 1934, when the provincial fiscal filed his
information with the justice of the peace of Mexico, one year, three months and six days
transpired; and from April 27, 1933, when the second criminal complaint was dismissed
by the justice of the peace of Mexico, to February 2, 1934, nine months and six days
elapsed. The investigation following the fourth arrest, made after the fiscal had secured
a reinvestigation of the case, appears also to have dragged on for about a year. There
obviously has been a delay, and considering the antecedent facts and circumstances
within the knowledge of the fiscal, the delay may not at all be regarded as permissible.
In Kalaw vs. Apostol, supra, we observed that the prosecuting officer all prosecutions for
public offenses (secs. 1681 and 2465 of the Rev. Adm. Code), and that it is his duty to
see that criminal cases are heard without vexatious, capricious and oppressive delays so
that the courts of justice may dispose of them on the merits and determine whether the
accused is guilty or not. This is as clear an admonition as could be made. An accused
person is entitled to a trial at the earliest opportunity. (Sutherland on the Constitution,
p. 664; United States vs. Fox, 3 Mont., 512.) He cannot be oppressed by delaying he
commencement of trial for an unreasonable length of time. If the proceedings pending
trial are deferred, the trial itself is necessarily delayed. It is not to be supposed, of
course, that the Constitution intends to remove from the prosecution every reasonable
opportunity to prepare for trial. Impossibilities cannot be expected or extraordinary
efforts required on the part of the prosecutor or the court. As stated by the Supreme
Court of the United States, "The right of a speedy trial is necessarily relative. It is
consistent with delays and depends upon circumstances. It secures rights to a
defendant. It does not preclude the rights of public justice." (Beavers vs. Haubert
[1905], 198 U. S., 86; 25 S. Ct., 573; 49 Law. ed., 950, 954.).

It may be true, as seems admitted by counsel for the intervenors, in paragraph 8, page
3 of his brief, that the delay was due to "the efforts towards reaching an amicable
extrajudicial compromise," but this fact, we think, casts doubt instead upon the motive
which led the intervenors to bring criminal action against the petitioner. The petitioner
claims that the intention of the intervenors was to press upon settlement, with the
continuous threat of criminal prosecution, notwithstanding the probate of the will alleged
to have been falsified. Argument of counsel for the petitioner in this regard is not
without justification. Thus after the filing of the second complaint with the justice of the
peace court of Mexico, complainant herself, as we have seen, asked for dismissal of the
complaint, on the ground that "el acusado tenia la salud bastante delicada," and,
apparently because of failure to arrive at any settlement, she decided to renew her
complaint.

Counsel for the intervenors contend — and the contention is sustained by the Court of
Appeals — that the petitioner did not complain heretofore of the denial of his
constitutional right to a speedy trial. This is a mistake. When the petitioner, for the
fourth time, was ordered arrested by the Court of First Instance of Pampanga, he moved
for reconsideration of the order of arrest, alleging, among other things, "Que por estas
continuas acusaciones e investigaciones, el acusado compareciente no obstante su mal
estado de salud desde el año 1932 en que tuvo que ser operado por padecer de
tuberculosis ha tenido que sostener litigios y ha sufrido la mar de humiliaciones y
zozobras y ha incudo en enormes gastos y molestias y ha desatendido su quebrantada
salud." The foregoing allegation was inserted on page 6 of the amended petition
for certiorari presented to the Court of Appeals. The constitutional issue also appears to
have been actually raised and considered in the Court of Appeals. In the majority
opinion of that court, it is stated:

Upon the foregoing facts, counsel for the petitioner submits for the consideration
of this court the following questions of law: First, that the respondent court acted
arbitrarily and with abuse of its authority, with serious damage and prejudice to
the rights and interests of the petitioner, in allowing that the latter be prosecuted
and arrested for the fourth time, and that he be subjected, also for the fourth
time, to a preliminary investigation for the same offense, hereby converting the
court into an instrument of oppression and vengeance on the part of the alleged
offended parties, Rosario Basa et al.; . . . .

And in the dissenting opinion, we find the following opening paragraph:

We cannot join in a decision declining to stop a prosecution that has dragged for
about five years and caused the arrest on four different occasions of a law abiding
citizen for the alleged offense of falsifying a will that years be competent
jurisdiction.

From the view we take of the instant case, the petitioner is entitled to have the criminal
proceedings against him quashed. The judgment of the Court of Appeals is hereby
reversed, without pronouncement regarding costs. So ordered.
[G.R. No. L-5405.  January 31, 1956.]
ERNESTO M. GUEVARA, Petitioner, vs. ROSARIO GUEVARA and PEDRO C.
QUINTO, Respondents.
 
DECISION
CONCEPCION, J.:
This is a petition for review by certiorari of a decision of the Court of Appeals. The
pertinent facts are set forth in said decision, from which we
quote:chanroblesvirtuallawlibrary
“This case being the sequel to, and aftermath of, a previous litigation between the
parties that reached the Supreme Court, through the former Court of Appeals, it
becomes necessary to restate the essential antecedent facts to view the issues in proper
perspective. For this purpose, it is important to recall that on August 26, 1931, Victorino
L. Guevara, a resident of Bayambang, Pangasinan, executed a will (Exhibit A),
distributing assorted movables and a residential lot among his children, Rosario and
Ernesto Guevara, and his stepchildren, Vivencio, Eduvigis, Dionista, Candida, and Pio
Guevara. To his second wife Augustia Posadas, the testator bequeathed, in addition to
various movables, a portion of 25 hectares to be taken out of a 259 odd hectare parcel
outlined in Plan Psu-68618, plus another five (5) hectares in settlement of her widow’s
usufruct. The balance of the 259 odd hectares he distributed as
follows:chanroblesvirtuallawlibrary
100 hectares reserved for disposal during the testator’s lifetime and for payment of his
debts and family expenses;
108.0854 hectares to his legitimate son Ernesto Guevara, including therein 43.2342
hectares by way of mejora;
21.6171 hectares to ‘mi hija natural reconocida Rosario Guevara.’
Ernesto Guevara was appointed executor without bond.
On July 12, 1933, the same testator executed a deed of sale in favor of Ernesto
Guevara, conveying to the latter the southern half of the 259-hectare lot heretofore
mentioned, and expressly recognized Ernesto Guevara as owner of the northern half.
Prior to this sale, on November 1, 1932, Victorino and his son Ernesto had jointly applied
for registration of the big parcel (case No. 15174), but in view of the sale from the
former to the latter, the decree was issued in the name of Ernesto Guevara exclusively
and for the whole tract, a certificate of title (No. 51691 of Pangasinan) being issued in
his sole name on October 12, 1933.
Fifteen days previously, i.e., on September 27, 1933, Victorino Guevara died, but his will
was not filed for probate. About four years later, Rosario Guevara, claiming to be a
recognized natural child of the deceased Victorino, and on the assumption that he had
died intestate, brought suit against Ernesto Guevara to recover 423,492 square meters
of the tract covered by certificate of title No. 51691 as the portion that should
correspond to her (Rosario) by way of legitime.
The case reached the former Court of Appeals in due course and was decided in Rosario
Guevara’s favor (Exhibit E); chan roblesvirtualawlibrarybut upon certiorari, the Supreme
Court modified the judgment in December, 1943, as follows (Exhibit F);
‘Wherefore, that part of the decision of the Court of Appeals which declares in effect that
notwithstanding exhibit 2 and the issuance of original certificate of title No. 51691 in the
name of Ernesto M. Guevara, one-half of the land described in said certificate of title
belongs to the estate of Victorino L. Guevara and the other half to Ernesto M. Guevara in
consideration of the latter’s assumption of the obligation to pay all the debts of the
deceased, is hereby affirmed; chan roblesvirtualawlibrarybut the judgment of said court
insofar as it awarded any relief to the Respondent Rosario Guevara in this action is
hereby reversed and set aside, and the parties are hereby ordered to present the
document Exhibit A to the proper court for probate in accordance with law, without
prejudice to such action as the provincial fiscal of Pangasinan may take against the
responsible party or parties under section 4 of Rule 76. After the said document is
approved and allowed by the court as the last will and testament of the deceased
Victorino L. Guevara, the heirs and legatees herein named may take such action, judicial
or extrajudicial, as may be necessary to partition the estate of the testator, taking into
consideration the pronouncements made in part II of this opinion. No finding as to costs
in any of the three instances.’ (Appellant’s Brief, pp. 13-14.)
Claiming to act pursuant to the foregoing decision, Rosario Guevara commenced on
October 5, 1945, special proceedings No. 2646 in the Court of First Instance of
Pangasinan for the probate of the will of Victorino Guevara. In paragraph 10 of the
petition, it was alleged:chanroblesvirtuallawlibrary
‘10.  Que dicho testamento, o sus disposiciones testamentarias, ha sido de jure
revocado, o revocados, en cuanto a la parcela de terreno de 259 hectareas descrita en
dicho testamento, por haber el testador enajenado o dispuesto intervivos de la misma
en la forma mencionada en las tres decisiones supra-mencionadas; chan
roblesvirtualawlibraryy que la solicitante pide la legalizacion de dicho testamento tan
solo para los efectos del reconocimiento de hija natural hecha en dicho testamento a
favor de la demandante y en obediencia al mandato de la Corte Suprema en su decision
supra.’ (Record on Appeal, p. 5.)
Notice of the petition having been duly published pursuant to Rule of Court 77, section
4, Ernesto Guevara appeared and opposed the probate. Pedro L. Quinto, counsel for
Rosario in the former litigation, was allowed to intervene in view of his duly recorded
attorney’s lien.
On January 31, 1946, Ernesto Guevara, through counsel, filed a motion to dismiss the
petition on the grounds that (a) the petition itself alleged that the will was
revoked; chan roblesvirtualawlibrary(b) that ‘whatever right to probate the parties may
have has already prescribed’ (Record on Appeal, p. 14); chan roblesvirtualawlibraryand
(c) that the purpose of the probate was solely to have Petitioner Rosario declared an
acknowledged natural child of the deceased.
By order of December 9, 1946, Judge Sotero Rodas denied the motion to dismiss; chan
roblesvirtualawlibrarybut upon motion of reconsideration, Judge Mañalac of the same
court, on June 23, 1937, reconsidered and set aside the previous resolution and ordered
the petition dismissed on the ground that Rosario Guevara’s petition did not ask for the
probate in toto of the will, contrary to the order of the Supreme Court; chan
roblesvirtualawlibrarythat her right to petition for the probate of the testament of
Victorino L. Guevara had prescribed; chan roblesvirtualawlibraryand that her action for
judicial declaration of acknowledgment had likewise prescribed.
An amended petition for the probate of the will in toto and another petition to reconsider
the previous order were subsequently denied; chan roblesvirtualawlibrarythe former on
the ground that there was a radical change of theory from that embodied in the original
petition, and the second for the same reasons stated in the order of June 23, 1947.
Rosario L. Guevara and Pedro L. Quinto thereupon brought the case on appeal to this
Court, assigning no less than twenty (20) alleged errors committed by the court below.”
(Guevara vs. Guevara, C.A. — G. R. No. 5416-R, promulgated December 26, 1951; chan
roblesvirtualawlibrarysee Appendix to brief for the Petitioner-Appellant, pp. 1-6.)
The dispositive part of the decision of the Court of Appeals reads as
follows:chanroblesvirtuallawlibrary
“The order of dismissal of the petition for probate is reversed and the court of origin
ordered to reinstate the petition, and to hear and decide whether the will of Victorino
Guevara, deceased, should be allowed to probate. Costs against Appellees in both
instances.” (Ibid.)
In his appeal therefrom, Petitioner Ernesto M. Guevara raises the following questions, to
wit:chanroblesvirtuallawlibrary (a) Did Respondents herein duly perfect their appeal
from the decision of the Court of First Instance of Pangasinan? (b) Did the Court of
Appeals have jurisdiction to entertain said appeal? (c) Is the petition for probate of the
alleged will of the deceased Victorino L. Guevara barred by the statute of limitations?
(1)  With reference to the first question, Petitioner has submitted the following
statement 1 of the steps taken since June 23, 1947, date of the resolution of Judge
Mañalac, dismissing the petition for probate of the last will and testament of Victoriano
L. Guevara:chanroblesvirtuallawlibrary
“June 23, 1947 —
Date of Resolution appealed from.
July 14, 1947 —
Date of Joint Petition for Reconsideration filed by Appellants.
July 25, 1947 —
Date of Amended petition for probate of will.
July 25, 1947 —
Motion for admission of Amended Petition.
August 2, 1947 —
Appellants’ motion to postpone hearing on petition for reconsideration and motion for
admission of Amended Petition.
August 10, 1947 —
Appellants’ urgent motion for continuance of hearing on joint petition for Reconsideration
as well as Motion to Admit Amended Petition.
August 25, 1947 —
Motion for extension of time to file memorandum.
September 1, 1947 —
Memorandum for Appellants submitted.
October 7, 1947 —
Memorandum for Appellee submitted.
October 14, 1947 —
Appellants’ petition for ten (10) days to file reply memorandum.
November 1, 1947 —
Appellants’ petition to file reply memorandum on or before November 9, 1947.
November 8, 1947 —
Appellants’ petition for extension to file reply memorandum.
November 18, 1947 —
Verified reply of Appellant Rosario Guevara.
November 24, 1947 —
Reply memorandum of Pedro C. Quinto filed.
January 12, 1948 —
Court denies both petitions of July 14 and 25, 1947.
January 24, 1948 —
Notice of appeal to Supreme Court and petition for thirty (30) days’ extension
by Appellant Rosario Guevara.
January 29, 1948 —
Order granting petition for extension.
February 1, 1948 —
Another notice of appeal to Supreme Court and motion for thirty (30) days extension
by AppellantRosario Guevara.
February 28, 1948 —
Appellants’ ex-parte petition for further extension.
March 6, 1948 —
Original joint Record on Appeal filed. (This was so defective and incomplete it consisted
of mere disjointed sheets of paper intercalated with one another and was a mere token
record on appeal.)
March 8, 1948 —
Another joint petition for reconsideration of Appellants.
March 11, 1948 —
Appellee’s objection to record on appeal.
March 17, 1948 —
Verified reply of Appellants to objection.
March 18, 1948 —
Appellee’s objection to joint petition for reconsideration.
June 19, 1948 —
Appellants’ memorandum in support of the joint petition for reconsideration.
July 23, 1948 —
Order of denial of Joint Petition and disapproving original record on appeal as incomplete
and giving Appellants within 10 days from notice.
July 26, 1948 —
Amended Notice of Appeal to the Court of Appeals instead of to the Supreme Court.
July 28 and 29, 1948 —
Appellants received copy of order of July 23, 1948.
August 1, 1948 —
Petition for five (5) days extension to file amended Record on Appeal filed
by Appellant Pedro C. Quinto.
August 10, 1948 —
Appellants’ Joint Petition for last extension of two (2) days.
August 10, 1948 —
Filing of amended joint record on appeal. (This is also again so defective and incomplete
as to constitute another mere token record on appeal as required by the Rules.)
August 24, 1948 —
Appellants’ petition for ten (10) days period to reply to objection, if any was to be filed.
August 27, 1948 —
Appellee’s objection to amended record on appeal.
September 8, 1948 —
Appellants’ reply to objection.
October 20, 1948 —
Court order sustaining objection and gives Appellants fifteen (15) days from notice to
redraft record on appeal.
November 3, 1948 —
Appellants’ joint petition to reconsider order of disapproval of Amended Record on
Appeal.
November 3, 1948 —
Appellants file re-amended joint record on appeal. (This again disregarded the orders of
the court regarding the contents of the record on appeal.).
November 22, 1948 —
Appellee objected to approval of re-amended joint record on appeal and prayed that
order appealed from be declared final.
March 22, 1949 —
Court sustains Appellee’s objection to record on appeal denying petition for
reconsideration and Appellants given fifteen (15) days from notice to satisfy
requirements of court’s previous order.
April 8, 1949 —
Appellants file in Supreme Court petition for certiorari and mandamus attacking order of
June 23, 1947.
April 11, 1949 —
Appellant Quinto’s petition for fifteen (15) days extension to file Re-amended Record on
Appeal.
April 12, 1949 —
Supreme Court denies petition off-hand.
April 16, 1949 —
Appellant Rosario Guevara’s motion for fifteen (15) days extension for the same
purpose.
April 21, 1949 —
Court granted extension prayed for to expire May 1, 1948.
April 21, 1949 —
Second Re-Amended Record on Appeal filed.
June 11, 1949 —
Appellee’s opposition to ‘Second Re-Amended Record on Appeal’.
June 29, 1949 —
Appellants’ joint notice of hearing on Second Re-Amended Record on Appeal for July 12,
1949.
July 10, 1949 —
Appellants’ joint reply to opposition.
July 12, 1949 —
Action on record on appeal deferred on petition of Atty. Quinto.
September 3, 1949 —
Appellant Quinto’s notice of hearing on Second Re-Amended Record on Appeal for
September 28, 1949.
September 28, 1949 —
Order of court approving same.
December 8, 1949 —
Clerk of lower court sends records to appellate court.
December 10, 1949 —
Appellant Quinto’s motion ex-parte to have records sent up to appellate court.”
(Petitioner-Appellant’s Brief, pp. 41-47.)
Based upon the foregoing, Oppositor and Appellee Ernesto M. Guevara filed, with the
Court of Appeals, a motion praying that the appeal be
dismissed:chanroblesvirtuallawlibrary
“(a)  Because due to the Appellant’s many and repeated dilatory tactics, the prosecution
of their appeal has been unduly and unreasonably delayed for a period which should
strike anyone as totally without justification. The resolution appealed from was dictated
by the lower court on June 23, 1947, so that a period of over two (2) years and nine (9)
months until the date of this writing has elapsed, thus establishing a record-holding
delay which should not be sanctioned by the Courts as prejudicial to the administration
of justice.
“(b)  Because Appellants, in violation of Rule 48, section 3, did not diligently prosecute
their appeal by failing to have the record sent up to this Honorable Court within thirty
(30) days from the time their Second Re-amended Record on Appeal was approved on
September 28, 1949; chan roblesvirtualawlibraryand it was only so transmitted on
December 8, 1949, that is after the lapse of two (2) months and ten (10) days.
“(c)  Because, at any rate, the first Amended Joint Record on Appeal was filed beyond
the extension granted by the Court and, consequently, the Appellants’ right to appeal
has lapsed.” (Exhibit A, pp. 1-2).
The Court of Appeals denied said motion to dismiss for the following
reasons:chanroblesvirtuallawlibrary
“A preliminary question was posed by the Appellee who prayed for the dismissal of the
appeal on the ground that Petitioners-Appellants had unreasonably delayed the
perfection of the appeal, as the Second Re-amended Joint Record on Appeal was not
certified to this Court until December, 1949. After considering the voluminous record,
and the arguments of both parties, we are of the opinion that both parties have
contributed to the delay with lengthy memoranda, and repeated motions and objections.
Moreover, the points in question are important enough to deserve adequate
consideration upon the merits. Wherefore, the motion to dismiss the appeal should be
and is hereby, overruled and denied.” (Appendix to Brief for the Petitioner-Appellant, pp.
6- 7.)
It is urged by Petitioner herein that Respondents’ appeal from the decision of the Court
of First Instance of Pangasinan had not been duly perfected
because:chanroblesvirtuallawlibrary (a) the original of the record on appeal did not
comply with the Rules of Court; chan roblesvirtualawlibrary(b) the record on appeal was
filed after the lapse of the reglementary period; chan roblesvirtualawlibrary(c) there has
been an unprecedented delay in the filing of a satisfactory record on appeal; chan
roblesvirtualawlibraryand (d) the appeal should be deemed abandoned for violation of
Rule 48, section 3, of the Rules of Court.
The first ground is predicated upon the fact that, instead of transcribing the motions,
petitions, orders and resolutions incorporated in the original record on
appeal, Respondents herein merely attached to the original copy of said record on
appeal, filed with the Court of First Instance of Pangasinan, their own copies of said
motions, petitions, orders and resolutions. Accordingly, the copy of said record on
appeal furnished to Petitioner herein did not contain or enclose the aforementioned parts
of the record. It appears, however, that the Respondents were given several extensions
of time within which to comply with the pertinent provisions of the Rules of Court and
that Respondents eventually did so. There being no question about the authority of the
court of first instance to grant said extensions of time, it is clear that the first ground,
relied upon by Petitioner herein, is untenable.
In support of the second ground, it is alleged:chanroblesvirtuallawlibrary (a) that the
original record on appeal was filed by Pedro C. Quinto only, and does not inure to the
benefit of Rosario Guevara; chan roblesvirtualawlibraryand (b) that Respondents had
lost their right to appeal by the lapse of the reglementary period. As regards the first
proposition, Petitioner asserts that Respondent Pedro C. Quinto had withdrawn his
appearance as counsel for Respondent Rosario Guevara; chan roblesvirtualawlibrarythat
Quinto had, thereafter, intervened in the case in his own behalf, in order to enforce his
attorney’s lien, as former counsel for Rosario Guevara; chan roblesvirtualawlibrarythat,
consequently, the original record on appeal and the petitions for extension of time to file
an amended record on appeal, filed by Pedro C. Quinto, were good only insofar as he is
concerned, and cannot profit Rosario Guevara, she having ceased to be his client long
before the filing of said original record on appeal and petitions for extension of
time; chan roblesvirtualawlibrarythat this interest in the case arises from his rights as
former attorney for Respondent Rosario Guevara, and, as such, is subordinate to, and
dependent upon, the interest therein of said Rosario Guevara and the success of her
claim therein; chan roblesvirtualawlibraryand that, her appeal not having been duly
perfected, his appeal must be deemed to have no legal effect. There is no merit in this
pretense, for it appears, at the foot of said record on appeal, that Pedro C. Quinto had
filed the same, “for himself as Appellant and in behalf of Rosario Guevara, who
authorized him to perfect the appeal for both Appellants,” and that similar statements
were made in the body and at the foot of said petitions for extension of time. It is clear,
therefore, that the aforementioned record on appeal and motions should be deemed
submitted, also, by Respondent Rosario Guevara. The position then held by Pedro C.
Quinto, as special prosecutor in the office of the Solicitor General, did not nullify his
aforesaid acts on behalf of Rosario Guevara. Besides, said acts would seem to have been
performed by him, more as attorney-in- fact than as counsel for Rosario Guevara, and
this merely in connection with the perfection of her appeal. We do not find therein
anything objectionable, either legally or morally, in the light of the circumstances
surrounding the case.
The second proposition is based upon the following reasons:chanroblesvirtuallawlibrary
(a)  The aforementioned record on appeal and motions for extension of time filed by
Quinto on behalf of Rosario Guevara did not inure to her benefit, for which reason the
reglementary period to appeal had expired before the perfection of her appeal. For the
reasons already adverted to, this argument is clearly untenable.
(b)  The petition for reconsideration filed by Respondents on July 14, 1947, did not
suspend the running of the period to perfect the record on appeal, because said petition
did not comply with the provisions of Rule 37, section 1, of the Rules of Court, reading
as follows:chanroblesvirtuallawlibrary
“Within thirty days after notice of the judgment in an action, the aggrieved party may
move the trial court to set aside the judgment end grant a new trial for one or more of
the following causes materially affecting the substantial rights of said
party:chanroblesvirtuallawlibrary
(a)  Fraud, accident, mistake or excusable negligence which ordinary prudence could not
have guarded against and by reason of which such aggrieved party has probably been
impaired in his rights;
(b)  Newly discovered evidence, which he could not, with reasonable diligence, have
discovered, and produced at the trial, and which if presented would probably alter the
result;
(c)  Because excessive damages have been awarded, or the evidence was insufficient to
justify the decision, or it is against the law.”
Said petition for reconsideration appears, however, to be predicated, in effect, upon the
ground that the evidence is insufficient to justify the decision of the court of first
instance, and that said decision is contrary to law. It partakes, therefore, of the nature
of a motion for new trial, stating specifically the reasons in support thereof, and, hence,
it suspended the period to appeal until the determination of said motion.
Relative to the alleged unprecedented delay in the filing of a satisfactory record on
appeal, we agree with the finding of the Court of Appeals to the effect that the delay was
due to the acts of the Respondents, as well as of the Petitioner herein, for both had
asked several postponements and extensions of time, filed memoranda and reply
memoranda, and raised or provoked a number of other issues or incidents which
necessarily delayed the perfection of the appeal. Obviously, Petitioner should not be
allowed to profit by said delay, to which he had actively contributed. 1
Lastly, Petitioner maintains that, although the record on appeal had been approved on
September 28, 1949, it was not forwarded to the Court of Appeals until December 8,
1949. Section 3 of Rule 48 of the Rules of Court provides:chanroblesvirtuallawlibrary
“If the record on appeal is not received by the Court of Appeals within thirty days after
the approval thereof, the Appellee may, upon notice to the Appellant, move the court to
grant an order directing the clerk of the lower court forthwith to transmit such record on
appeal or to declare the same abandoned for failure to prosecute.”
Considering that Respondents herein were not notified of the approval of the record on
appeal until December 8, 1949, on which date the record on appeal was forwarded to
the Court of Appeals, and that the aforementioned provision of the Rules of Court does
impose upon said court the mandatory duty to declare the appeal abandoned for failure
to prosecute, we believe that no error was committed in giving due course to the appeal
and that the same has been duly perfected.
(2)  Did the Court of Appeals have jurisdiction to try the case, on appeal from the
decision of the court of first instance? Petitioner maintains the negative, upon the
ground that the appeal involved only questions of law. This is not correct, for the very
motion for reconsideration adverted to above, indicated that the appeal raised some
issues of fact, such as, for instance, whether or not the will in question was in the
possession of Respondent Rosario Guevara and whether Respondent Quinto had been
authorized by her to perfect the appeal on her behalf. At any rate, the case is now
before us and, upon examination of the record and consideration of all the issues therein
raised, we are of the opinion that, had the appeal been forwarded directly to this Court,
we would have disposed of it in the manner set forth in the decision of the Court of
Appeals, the review of which is sought by herein Appellant.
(3)  The last question for determination in this case is whether or not the petition for
probate of the will of Victorino L. Guevara is barred by the statute of limitations,
considering that the testator died on September 27, 1933, and that the petition for
probate of said will was filed twelve (12) years later, or, to be exact, on October 5,
1945. The Court of Appeals resolved the question in the negative, upon the following
grounds:chanroblesvirtuallawlibrary
“We are of the opinion that the Court below was in error when it declared that the
petition for probate of the will of Victorino Guevara was barred by prescription. The
provision of Article 756 of the old Civil Code (1042 of the New) and of Rule 76 of the
Rules of Court, reiterating those of the old Code of Civil Procedure (Act 190), point out
that the presentation of a decedent’s will to the competent court has always been
deemed by our law as more of a duty than a right, and the neglect of such obligation
carries with it the corresponding penalty and it is inconsistent with that policy that the
court should refuse to admit wills to probate, without inquiry into their validity. The
authority given to testators to dispose freely of a portion of their estate would be
imperfectly safeguarded, unless adequate measures were provided by the state to
assure that the wishes of the deceased would be carried out. Because the decedent may
no longer act to have his testamentary dispositions duly executed, the state authority
must take over the opposite vigilance and supervision, so that free testamentary
disposition does not remain a delusion and a dream. This was expressly recognized by
the Supreme Court in its previous decision, G. R. No. 48840 (Exhibit E) when it
said:chanroblesvirtuallawlibrary
‘ cralaw We hold that under section 1 of Rule 74, in relation to Rule 76, if the decedent
left a will and no debts and the heirs and legatees desire to make an extrajudicial
partition of the estate, they must first present that will to the court for probate and
divide the estate in accordance with the will. They may not disregard the provisions of
the will unless those provisions are contrary to law. Neither may they do away with the
presentation of the will to the court for probate, because such suppression of the will is
contrary to law and public policy. The law enjoins the probate of the will and public
policy requires it, because unless the will is probated and notice thereof given to the
whole world, the right of a person to dispose of his property by will may be rendered
nugatory, as is attempted to be done in the instant case. Absent legatees and devisees,
or such of them as may have no knowledge of the will, could be cheated of their
inheritance thru the collusion of some of the heirs who might agree to the partition of
the estate among themselves to the exclusion of others.’ (Italics supplied)
“In holding the statute of limitations applicable to the probate of wills, the court below
failed to notice that its doctrine was destructive of the right of testamentary disposition
and violative of the owner’s right to control his property within the legal limits. The
appealed order in fact leaves wills at the mercy and whim of custodians and heirs
interested in their suppression. The lower court would in effect abdicate the tutelary
power that passed to the Republic from the former sovereigns, that ‘potestad suprema
que en mi reside para velar por el puntual cumplimiento de las ultimas voluntades’,
asserted as one of the royal prerogatives in the ‘Real Cedula’ of March 18, 1776.
“It is not without purpose that Rule of Court 77 prescribes that any ‘person interested in
the estate may, at any time after the death of the testator, petition the court having
jurisdiction to have the will allowed’. Taken from the Code of Procedure of California, this
provision has been interpreted as meaning that the statute of limitations has no
application to probate of wills. In the case of In re Hume’s Estate, 179 Calif. 338, 176
Pac. 681, the California Supreme Court ruled that:chanroblesvirtuallawlibrary
‘The chapter of the Code relating to the probate of wills does not provide for opposition
to such probate on the ground of the bar of the statute of limitations, but, in effect,
excludes it from the category of grounds allowed as a basis for such opposition. Section
1299 declares that any person interested in the estate ‘may at any time after the death
of the testator, petition the court having jurisdiction to have the will proved.’ This
implies that there is no arbitrary time limit.’
As additional reasons, the same Court stated:chanroblesvirtuallawlibrary
‘ cralaw Section 1317 declares:chanroblesvirtuallawlibrary If the court is satisfied, upon
the proof taken or from the facts found by the jury that the will was duly executed and
that the will testator at the time of its execution was of sound and disposing mind and
not acting under duress menace fraud, or undue influence, a certificate of the proof and
the facts found, signed by the judge and attested by the seal of the court, must be
attached to the will.’
‘This excludes the bar of the statute of limitation from consideration as one of the
matters which may be shown in opposition to the probate. This is further emphasized by
section 1341, which, in substance, declares that, if upon the verdict of the jury the facts
mentioned in section 1317 as aforesaid appear to be established, the court ‘must’ admit
the will to probate. Section 1314 thus makes it imperative that the court shall admit the
will to probate if the execution is proven and the grounds of opposition authorized by
section 1312 are not established. This clearly implies that no grounds of opposition other
than those enumerated in section 1312 may be set up, and it leaves no place for the
application of the statute of limitations.
‘It is further to be observed that, notwithstanding the positive and comprehensive
language of sections 343 and 369, if taken literally, there can be no doubt that they
cannot apply to all special proceedings of a civil nature. Proceedings for a change of
name, or in arbitration, or for voluntary dissolution of a corporation, or for guardianship,
or for a married woman to become a sole trader, are all within the definition of the
phrase, and each is enumerated, classed, and defined as such proceeding by the Code.
If the statute of limitations applied, it would begin to run against such proceedings as
soon as the right to institute them accrued. Yet from the very nature of these
proceedings it is obvious that neither of them could be subject to such limitation.
‘This construction of these Code provisions is confirmed by the long-continued and
uniform practice and the universal understanding of the bench and bar of the state on
the subject.’
x x x                    x x x                    x x x
‘Action to quiet title frequently involve wills of persons who have died many years before
the action was begun. The section contemplates that such a will, although not yet
probated, may be construed in the action and may be afterwards probated, and it clearly
shows that the Legislature did not understand that the right to probate such will would
be barred if the testator had died more than four years before the petition for probate
was filed.
‘This uniform practice and understanding of the bench and bar, and of the legislative
department of the state also, is a strong argument to the effect that the statute of
limitations does not apply to such proceedings. The authorities on the effect of such long
acquiescence are numerous.’
“The Statute of Limitations upon which the court below has relied, sections 38 to 50 of
the old Code of Civil Procedure, Act 190, undertakes to fix limits for the filing of ‘civil
actions’, but none for ‘special proceedings’ of which probate is admittedly one. The
distinction is not purely verbal, but based on differences that make the limitation to
‘actions’ inapplicable to ‘special proceedings’. In this regard, the Supreme Court of New
York has adequately remarked (In re Canfield’s Will, 300 NYS
502):chanroblesvirtuallawlibrary
‘A Respondent in a private proceeding owes no legal duty or obligation to the proponent
as such, wherefore it is impossible for him to violate such non-existent obligation.
Furthermore such a proceeding is not instituted for the vindication of any personal right
to the proponent. The subject-matter is therefore wholly absent which could give rise to
any ‘cause of action’ against any Respondent therein.
‘The primary purpose of the proceeding is not to establish the existence of the right of
any living person, but to determine whether or not the decedent has performed the acts
specified by the pertinent statutes which are the essential prerequisites to personal
direction of the mode of devolution of his property on death. There is no legal but
merely a moral duty resting upon a proponent to attempt to validate the wishes of the
departed, and he may and frequently does receive no personal benefit from the
performance of the act.
‘One of the most fundamental conceptions of probate law, is that it is the duty of the
court to effectuate, in so far as may be compatible with the public interest, the
devolutionary wishes of a deceased person (Matter of Watson’s Will, 262 N.Y. 284, 294,
186 N.E. 787; chan roblesvirtualawlibraryMatter of Marriman’s Estate, 124 Misc. 320,
325, 208 N.Y.S. 672; chan roblesvirtualawlibraryFoley, S. affirmed 217 App. Div. 733,
216 N.Y.S. 842; chan roblesvirtualawlibraryMatter of Lensman’s Estate, 137 Misc. 77,
78, 243 N.Y.S. 126, Henderson, S., Matter of Drake’s Estate, 160 Misc. 587, 598, 290
N.Y.S. 581). To that end, the court is, in effect, an additional party to every litigation
affecting the disposal of the assets of the deceased. Matter of Van Valkenburgh’s Estate,
164 Misc. 295, 296, 298 N.Y.S. 219. A determination, therefore, that the mere non-
action of a person upon whom no legal duty rested in this regard, could have the effect
of subverting the wishes of one who was no longer able to protect his own
unquestionable rights, would strike at the very foundation of all conceptions of justice as
administered in probate courts.’
“These decisions are of high persuasive value (Cu vs. Republic, G. R. L-3018, July 18,
1951); chan roblesvirtualawlibrarythey represent the trend of authority (57 Am. Jur.
585), and enable us to conclude that reason and precedent reject the applicability of the
Statute of Limitations to probate proceedings, because these are not exclusively
established in the interest of the surviving heirs, but primarily for the protection of the
testator’s expressed wishes, that are entitled to respect as an effect of his ownership
and right of disposition. If the probate of validly executed wills is required by public
policy, as declared by the Supreme Court in the previous case, G.R. 48840 (Exhibit E),
the state could not have intended the statute of limitations to defeat that policy.
“It is true, as ruled by the trial court, that the rights of parties ‘should not be left
hanging in uncertainty for periods of time far in excess of the maximum period of ten
years allowed by law’; chan roblesvirtualawlibrarybut the obvious remedy is for the
other interested persons to petition for the production of the will and for its probate, or
to inflict upon the guilty party the penalties prescribed by Rule 76 or declare the
unworthiness of the heir under the Civil Code for concealing or suppressing the
testament; chan roblesvirtualawlibrarybut not to dismiss the petition for probate,
however belatedly submitted, and thereby refuse sanction to testamentary dispositions
executed with all the formalities prescribed by law, incidentally prejudicing also those
testamentary heirs who do not happen to be successors ab intestato. That in this
particular case the appealed rule may not work injustice would not excuse its adoption
as a general norm applicable to all cases.
“It is likewise reasonable to assume that if the Supreme Court had considered the ten-
year limitation applicable to probate proceedings, it would not have ordered the parties
on December 29, 1943 ‘to present the document Exhibit A to the proper court for
probate in accordance with law’, because the ten years from the death of the testator
expired in September of that same year, two months before the decision. It is safe to
assume that the high Court would not order a useless step. The reasoning that the
phrase ‘in accordance with law’ was a qualification signifying ‘if still legally possible’,
appears to be far-fetched and unjustified. The plain import of the words employed by
the high Court is that the probate should follow the procedure provided for the purpose.”
x x x                    x x x                    x x x
“The other reasons advanced by the court a quo in support of its order dismissing the
petition are also untenable. The allegation contained in paragraph 10 of the original
petition, that ‘the will, or its testamentary dispositions, had been de jure revoked in so
far as the parcel of 259 hectares described in said will’ is concerned, does not justify the
finding that the probate would be pointless. What is alleged is a partial revocation, only
as to the parcel of land affected; chan roblesvirtualawlibrarybut as previously shown, the
will disposed of other property besides that one. And even granting that the next
allegation to the effect that Plaintiff sought to probate ‘only for the purposes of her
acknowledgment as natural child in said will’, constitutes an averment that the will had
been fully revoked, the same would at the most constitute a conclusion or inference that
the lower court was not bound to admit. Because the Appellant claimed or believed that
the revocation of the will as to the large parcel of land, constituted a total revocation of
the testament is no reason why the court should concur in the same belief or conclusion,
especially when the will itself, appended to the petition, showed that there were other
properties and other heirs or legatees, and the trial court had before it the decision of
the Supreme Court ordering the filing of the will for its probate because, as stated in its
decision, such a step was enjoined by law and public policy. Moreover, the defect, if any,
incurred in failing to ask for the probate in toto of the will, was subsequently cured and
corrected in the amended petition, where not only the objectionable statements were
eliminated, but others added indicating the existence of a partible estate.
“Assuming that the original petition violated the order of the Supreme Court in so far as
it did not ask for the allowance of the entire will, the court below erred in dismissing the
petition, for it thereby sanctioned further disobedience to the order of the superior court.
Once again, it must be repeated that the order of dismissal failed to take into account
that the case involved not only the interests of Rosario Guevara, and those of
the Appellee Ernesto Guevara and the other legatees, but specially the express desires
of the testator; chan roblesvirtualawlibraryand that the protection and defense of the
latter developed upon the court itself, since no one else made any move to enforce
them.
“Even if the other heirs had failed to show interest in the case (a fact not properly
inferable from their non-intervention in the case, because the order of publication of the
petition only called for those interested to ‘appear to contest the allowance’ and not to
support it) (Rec. on App., p. 7), and even if the other heirs had already received their
shares, the order refusing the probate remains indefensible. If the other heirs were not
interested, there remained the wishes of the testator to be supported and protected, if
validly expressed. If the heirs had distributed the estate, the distribution was illegal and
improper unless the will be first probated. The Supreme Court so ruled in its previous
decision (G. R. 48840) heretofore quoted.
‘Even if the decedent left no debts and nobody raises any question as to the authenticity
and due execution of the will, none of the heirs may sue for the partition of the estate in
accordance with that will without first securing its allowance or probate by the
court:chanroblesvirtuallawlibrary first, because the law expressly provides that ‘no will
shall pass either real or personal estate unless it is proved and allowed in the proper
court; chan roblesvirtualawlibraryand, second, because the probate of a will, which is a
proceeding in rem, cannot be dispensed with and substituted by any other proceeding,
judicial or extrajudicial, without offending against public policy designed to effectuate
the testator’s right to dispose of his property by will in accordance with law and to
protect the rights of the heirs and legatees under the will thru the means provided by
law, among which are the publication and the personal notices to each and all of said
heirs and legatees. Nor may the court approve and allow the will presented in evidence
in such an action for partition, which is one in personam, any more than it could decree
the registration under the Torrens system of the land involved in an ordinary action for
revindicacion or partition.’
“From whatever angle the case is viewed, a hearing on the allowance of the will is
unavoidable. The persistent, albeit obnoxious, attempts of Rosario Guevara to sidetrack
the will are not remedied by dismissing the petition for probate of will, and allowing
Ernesto to retain a greater interest than that intended by the testator.” (Appendix to
brief for the Petitioner-Appellant, pp. 7-15, 17-20.)
We are fully in accord with these findings which we adopt as ours.
In view of the foregoing, the decision appealed from is hereby affirmed, with the costs of
this instance against the Petitioner.
[G.R. No. 78778 :  December 3, 1990.]
191 SCRA 814
LEONIDA CORONADO, FELIX BUENO, MELANIA RETIZOS, BERNARDINO
BUENASEDA and JOVITA MONTEFALCON, Petitioners,  vs.  THE COURT OF
APPEALS and JUANA BUENO ALBOVIAS, Respondents. 
 
D E C I S I O N 
PARAS, J.:
 
This is a petition for review on certiorari seeking to reverse the decision* of the
respondent appellate court dated March 3, 1987 CA-G.R. CV No. 06911 entitled "Juana
(Bueno) Albovias et al., v. Leonida Coronado, et al.," affirming the decision of the lower
court, the decretal portion of which reads:: nad
"WHEREFORE, premises considered, judgment is hereby rendered:
1. Declaring Leonida Coronado to have no title or interest over the property in
question, hence, has no authority to dispose of the same in favor of her co-
defendants;
2. Declaring the sales executed by Coronado and subsequent transactions
involving the same property null and void ab initio;
3. Declaring the plaintiff to be the true and legal owner of the subject parcel of
land;
4. Ordering the defendants to vacate the subject premises and to surrender
possession thereof unto the plaintiff;
5. Ordering the defendants to jointly and severally pay unto the plaintiff the sum
of P2,000.00 as attorney's fees and P10,000.00 as moral and exemplary damages.
Costs against the defendants." (Rollo, p. 17)
As found by the respondent appellate court, the property subject of this case is a parcel
of land situated in Nagcarlan, Laguna, containing 277 square meters, more particularly
described as follows:: nad
"A parcel of land situated in the Poblacion, Municipality of Nagcarlan, province of
Laguna. Bounded on the North, by property of Epifania Irlandez (formerly
Bonifacio Formentera); on the East, by that of Julio Lopez; on the South, by that
of Dalmacio Monterola (formerly Domingo Bueno); and on the West, by C. Lirio
Street. Containing an area of two hundred seventy seven (277) square meters,
more or less. Assessed at P3,320.00 under tax declaration No. 241." (Ibid., p. 15)
Said parcel of land is being contested by Juana Albovias, herein private respondent, on
the one hand, and Leonida-Coronado, Felix Bueno, Melania Retizos, Bernardino
Buenseda and Jovita Montefalcon, herein petitioners, on the other hand.
Juana Albovias (JUANA, for brevity) claims that the property in question is a portion of a
bigger lot referred to as Parcel G in the last will and testament executed in 1918 by
Melecio Artiaga, grandfather of JUANA. This bigger lot was inherited under that will by
JUANA, her brother Domingo Bueno, and two other grandchildren, namely Bonifacio and
Herminigildo, both surnamed Formentera. Parcel G is described as follows:
"Isang lagay na lupa na ang bahagi ay walang tanim na halaman at ang bahagi naman
ay may tanim na saguing, tumatayo sa gawin Canloran ng Calle Avenida Rizal nitong
Nagcarlan, at humahangan sa Ibaba; sa ari cong Testador; sa Silangan, sa cay Enrique
Jovellano; sa Ilaya, sa namatay na Perfecto Nanagas, at sa Canloran, tubig na
pinamamagatang San Cido." (Ibid., p. 16)
JUANA further claims that sometime in 1925 or 1926, C. Lirio Street was created by the
Municipality of Nagcarla traversing said Parcel G and thus dividing it into two portions,
one on the west of C. Lirio St. and the other to the east of said street. Parcel G was
divided by the heirs in the following manner; the land was divided into two portions, the
northern portion of which was adjudicated in favor of the Formenteras and the southern
portion was given to JUANA and Doming Bueno. The southern portion in turn was
partitioned between JUANA and Domingo Bueno, the former getting the northern part
adjoining the lot of the Formenteras, and the latter the southern part which adjoins the
lot of Perfecto Nanagas (not owned by Dalmacio Monterola). The part allocated to
Domingo was later sold by him to Dalmacio Monterola, owner of the adjoining property
(Ibid.).: nad
Moreover, JUANA claims that her property was included together with the two parcels of
land owned by Dalmacio Monterola, which were sold by Monterola's successor-in-interest
Leonida Coronado (now married to Felix Bueno) to Melania Retizos on April 18, 1970.
Melania Retizos in turn sold the lots, including that one being claimed by JUANA, to the
spouse Bernardino Buenaseda and Jovita Montefalcon, now the present possessors
thereof, sometime in 1974 (Ibid., pp. 16-17).
On the other hand, Leonida Coronado and her co-petitioners (CORONADO, for brevity)
claim that the property in question was bequeathed to Leonida Coronado under a Will
executed by Dr. Dalmacio Monterola, who was allegedly in possession thereof even
before the outbreak of World War II (Ibid., p. 107).
Parenthetically, said will was probated under Sp. Proc. No. SC-283, entitled "Testate
Estate of the Deceased Monterola Leonida F. Coronado, petitioner (Ibid., p. 105).
JUANA, together with her husband, opposed the said probate. Despite their opposition,
however, the Will was allowed by the then Court of First Instance of Laguna, Sta. Cruz
Branch (Ibid., p. 106). On appeal, said decision was affirmed by the Court of Appeals in
CA-G.R. No. 40353, entitled "Leonida F. Coronado, petitioner-appellee v. Heirs of Dr.
Dalmacio Monterola, oppositors-appellants" (Ibid.). It is not apparent, however, from
the record whether or not said decision has already become final and executory.
As a result of the conflicting claims over the property in question, JUANA filed an action
for quieting of title, declaratory relief and damages against CORONADO in the Regional
Trial Court of the Fourth Judicial Region, Branch XXVI, Sta. Cruz, Laguna, docketed as
Civil Case No. 7345 (Ibid., p. 4).
As adverted to above (first par.), the lower court rendered judgment in favor of JUANA.
Not satisfied with the decision of the lower court, CORONADO elevated the case to the
Court of Appeals, which affirmed the decision appealed from (Ibid., p. 20). Hence, this
petition.:-cralaw
CORONADO raised the following assigned errors:
I
THE RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN ARRIVING AT A
CONCLUSION WHICH IS CONTRARY TO THE FACTS AND CIRCUMSTANCES OF THE CASE
AND IN NOT APPLYING THE APPLICABLE PROVISION OF LAW AND JURISPRUDENCE
LAID DOWN BY THIS HONORABLE COURT. (Ibid., p. 108)
II
THERE IS NO EVIDENCE PRESENTED TO SHOW THAT THE LAND IN QUESTION CLAIMED
BY PRIVATE RESPONDENT IS THE SAME PROPERTY ADJUDICATED TO JUANA BUENO
UNDER THE WILL OF THE DECEASED MELECIO ARTIAGA; NEITHER IS THERE EVIDENCE
TO SHOW THAT SAID WILL HAD BEEN PROBATED. (Ibid., p. 114)
III
PRIVATE RESPONDENT IS IN ESTOPPEL FROM QUESTIONING THE OWNERSHIP OF THE
PETITIONER OVER THE LAND IN QUESTION HAVING FAILED TO RAISE THE SAME IN
THE ESTATE PROCEEDING IN THE TRIAL COURT AND EVEN ON APPEAL. (Ibid., p. 119)
IV
THE RESPONDENT COURT OF APPEALS MISAPPRECIATED THE EVIDENCE SUBMITTED
AND FACTS ADMITTED ON RECORD. IT THEREFORE COMMITTED GRAVE AND SERIOUS
ERROR. (Ibid., p. 121)
As required by this Court, CORONADO filed their memorandum on May 8, 1989 (Ibid., p.
105); while that of JUANA was filed on October 13, 1989 (Ibid., p. 139).
The petition is devoid of merit.
Under the first assigned error, CORONADO assails the respondent appellate court's
finding that Dr. Dalmacio Monterola could not have acquired the subject land by
acquisitive prescription. Citing Art. 1116 of the New Civil Code in relation to Section 41
of the Code of Civil Procedure, CORONADO claims that JUANA had already foreclosed
whatever right or legal title she had over the property in question, the reason being that
Monterola's continued possession of the said property for over ten years since 1934
ripened into full and absolute ownership (Ibid., p. 112).
The argument has no factual basis.
Time and again, it has been ruled that the jurisdiction of the Supreme Court in cases
brought to it from the Court of Appeals is limited to reviewing and revising the errors of
law imputed to it, its findings of fact being conclusive. It is not the function of the
Supreme Court to analyze or weigh such evidence all over again, its jurisdiction being
limited to reviewing errors of law that might have been committed. Absent, therefore, a
showing that the findings complained of are totally devoid of support in the record, so
that they are so glaringly erroneous as to constitute serious abuse of discretion, such
findings must stand, for the Supreme Court is not expected or required to examine or
contrast the oral and documentary evidence submitted by the parties (Andres v.
Manufacturers Hanover & Trust Corporation, G.R. 82670, September 15, 1989). There
are no convincing reasons in the instant case to depart from this rule.
As found by the respondent appellate court, Monterola never claimed ownership over the
property in question. As a matter of fact, one of the deeds of donation executed by
Monterola in favor of Leonida Coronado acknowledged that the boundary owner on the
property conveyed to her is JUANA. This is precisely the reason why during the lifetime
of the late Dalmacio Monterola, JUANA had always been allowed to enter and reap the
benefits or produce of the said property. It was only after the death of said Monterola in
1970 that Leonida Coronado prohibited JUANA from entering it (Ibid., p. 18).:- nad
Even assuming arguendo that Monterola was indeed in continued possession of the said
property for over ten years since 1934, said possession is insufficient to constitute the
fundamental basis of the prescription. Possession, under the Civil Code, to constitute the
foundation of a prescriptive right, must be possession under claim of title (en concepto
de dueno), or to use the common law equivalent of the term, it must be adverse. Acts of
possessory character performed by one who holds by mere tolerance of the owner are
clearly not en concepto de dueno, and such possessory acts, no matter how long so
continued, do not start the running of the period of prescription (Manila Electric
Company v. Intermediate Appellate Court, G.R. 71393, June 28, 1989).
In this case, Monterola, as found by the respondent appellate court and the lower court,
never categorically claimed ownership over the property in question, much less his
possession thereof en concepto de dueno. Accordingly, he could not have acquired said
property by acquisitive prescription.
Anent the contention of CORONADO that Leonida Coronado could tack her possession to
that of Monterola, so that claim of legal title or ownership over the subject property,
even against the petitioners, the Buenasesas, who are purchasers for value and in good
faith, is a foregone or settled issue, the respondent appellate court aptly answered the
same in this wise:
"It follows that Leonida Coronado could not have derived ownership of the land in
question from her predecessor-in-interest Dalmacio Monterola, whether by prescription
or by some other title. Neither can she claim acquisitive prescription in her own name. It
was only in 1970 after the death of Dalmacio Monterola that she asserted her claim of
ownership adverse to that of plaintiff-appellee. Having knowledge that she had no title
over the land in question, she must be deemed to have claimed it in bad faith. Under
Article 1137 of the Civil Code, ownership and other real rights over immovables
prescribe through uninterrupted adverse possession thereof for thirty years, without
need of title or good faith. And even granting that she had no notice or defect in her title
and was, therefore, in good faith, a period of ten years of possession is necessary for
her to acquire the land by ordinary prescription. (Article 1134, Civil Code). But she can
claim to have possessed the land only in 1968, the year the Monterola lots were donated
to her. The period, however, was interrupted in 1975, or 7 years after, when the
complaint below was filed." (Rollo, pp. 18-19)
Under the second assigned error, CORONADO claims that the will under which JUANA
inherited the property in question from her grandfather, Melecio Artiaga, was never
probated; hence, said transfer for ownership was ineffectual considering that under Rule
75, Sec. 1 of the Rules of Court (formerly Sec. 125 of Act No. 190, no will shall pass
either real or personal property unless it is proved and allowed in the proper court (Ibid.,
p. 115).
The contention is without merit.chanrobles virtual law library
While it is true that no will shall pass either real or personal property unless it is proved
and allowed in the proper court (Art. 838, Civil Code), the questioned will, however, may
be sustained on the basis of Article 1056 of the Civil Code of 1899, which was in force at
the time said document was executed by Melecio Artiaga in 1918. The said article read
as follows:
"Article 1056. If the testator should make a partition of his properties by an act inter
vivos, or by will, such partition shall stand in so far as it does not prejudice the legitime
of the forced heir." (Mang-Oy v. Court of Appeals, 144 SCRA 33 [1986])
In this case, nowhere was it alleged nor shown that Leonida Coronado is entitled to
legitime from Melecio Artiaga. The truth of the matter is that the record is bereft of any
showing that Leonida Coronado and the late Melecio Artiaga were related to each other.
Under the third assigned error, CORONADO claims that JUANA is estopped from
questioning the ownership of Leonida Coronado over the land in question having failed
to raise the same in the estate proceedings in the trial court and even on appeal (Rollo,
p. 119).
The contention is likewise without merit.
Normally, the probate of a will does not look into its intrinsic validity. The authentication
of a will decides no other questions than such as touch upon the capacity of the testator
and the compliance with those requisites or solemnities which the law prescribes for the
validity of the wills. It does not determine nor even by implication prejudge the validity
or efficiency of the provisions of the will, thus may be impugned as being vicious or null,
notwithstanding its authentication. The question relating to these points remain entirely
unaffected, and may be raised even after the will has been authenticated (Maninang, et
al., v. Court of Appeals, 114 SCRA 473 [1982]). Consequently, JUANA is not estopped
from questioning the ownership of the property in question, notwithstanding her having
objected to the probate of the will executed by Monterola under which Leonida Coronado
is claiming title to the said property.:-cralaw
Under the fourth assigned error, it is alleged by CORONADO that JUANA's petition is
weak for want of factual and legal support; the weakness of JUANA's position lies in the
fact that she did not only fail to identify the subject land, but also failed to explain the
discrepancy in the boundary of the property she is claiming to be hers (Rollo, p. 125).
The contention is unavailing.
The fact that JUANA failed to identify the property in question and to explain the
discrepancy in the boundary of said property, assuming they are true, is immaterial, in
view of the findings of the lower court as to the identity of the property in question.
Moreover, the lower court found sufficient evidence to support the conclusion that the
property in question is the same property adjudicated to JUANA under the will of Melecio
Artiaga, and that CORONADO has no right whatsoever to said property (Ibid., p. 20).
Such findings are conclusive upon this Court (Reynolds Philippine Corporation v. Court of
Appeals, 169 SCRA 220 [1989]).
PREMISES CONSIDERED, the decision appealed from is hereby AFFIRMED.
G.R. No. 129505           January 31, 2000

OCTAVIO S. MALOLES II, petitioner, 

vs.
PACITA DE LOS REYES PHILLIPS, respondent.

-----------------------------

G.R. No. 133359           January 31, 2000

OCTAVIO S. MALOLES II, petitioner, 

vs.
COURT OF APPEALS, HON. FERNANDO V. GOROSPE, JR., in his Official Capacity
as Presiding Judge of RTC-Makati, Branch 61, and PACITA PHILLIPS as the
alleged executrix of the alleged will of the late Dr. Arturo de
Santos, respondents.

MENDOZA, J.:

These are petitions for review on certiorari of the decisions of the Thirteenth and the
Special Eighth Divisions of the Court of Appeals which ruled that petitioner has no right
to intervene in the settlement of the estate of Dr. Arturo de Santos. The cases were
consolidated considering that they involve the same parties and some of the issues
raised are the same.

The facts which gave rise to these two petitions are as follows:

On July 20, 1995, Dr. Arturo de Santos, Filipino and a resident of Makati City, filed a
petition for probate of his will1 in the Regional Trial Court, Branch 61, Makati, docketed
as Sp. Proc. No. M-4223. In his petition, Dr. De Santos alleged that he had no
compulsory heirs; that he had named in his will as sole legatee and devisee the Arturo
de Santos Foundation, Inc.; that he disposed by his will his properties with an
approximate value of not less than P2,000,000.00; and that copies of said will were in
the custody of the named executrix, private respondent Pacita de los Reyes Phillips. A
copy of the will2 was annexed to the petition for probate.

On February 16, 1996, Judge Fernando V. Gorospe, Jr. of RTC-Makati, Branch 61 issued
an order granting the petition and allowing the will. The order reads:

On 03 August 1995, the Court issued an Order setting the hearing of the petition
on 12 September 1995, at 8:30 o'clock in the morning, copies of which were
served to Arturo de Santos Foundation, Inc. and Ms. Pacita de los Reyes Phillips
(Officer's Return, dated 04 September 1995 attached to the records). When the
case was called for hearing on the date set, no oppositor appeared nor any written
opposition was ever filed and on motion of petitioner, he was allowed to adduce
his evidence in support of the petition.

Petitioner personally appeared before this Court and was placed on the witness
stand and was directly examined by the Court through "free wheeling" questions
and answers to give this Court a basis to determine the state of mind of the
petitioner when he executed the subject will. After the examination, the Court is
convinced that petitioner is of sound and disposing mind and not acting on duress,
menace and undue influence or fraud, and that petitioner signed his Last Will and
Testament on his own free and voluntary will and that he was neither forced nor
influenced by any other person in signing it.

Furthermore, it appears from the petition and the evidence adduced that petitioner
in his lifetime, executed his Last Will and Testament (Exhs. "A", "A-1", "A-2", "A-
4", "A-5") at his residence situated at 9 Bauhinia corner Intsia Streets, Forbes
Park, Makati City; said Last Will and Testament was signed in the presence of his
 three (3) witnesses, namely, to wit: Dr. Elpidio Valencia (Exhs. "A-6", "A-7", "A-
8", "A-16", "A-16-A"), Atty. Edward J. Berenguer (Exhs. "A-3", "A-3-A", "A-9", "A-
10", & "A-11"), and Atty. Victoria C. delos Reyes (Exhs. "A-12", "A-13", "A-14",
"A-17", & "A-18"), who in turn, in the presence of the testator and in the presence
of each and all of the witnesses signed the said Last Will and Testament and duly
notarized before Notary Public Anna Melissa L. Rosario (Exh. "A-15"); on the
actual execution of the Last Will and Testament, pictures were taken (Exhs. "B" to
"B-3").

Petitioner has no compulsory heirs and Arturo de Santos Foundation, Inc., with
address at No. 9 Bauhinia corner Intsia Streets, Forbes Park, Makati City has been
named as sole legatee and devisee of petitioner's properties, real and personal,
approximately valued at not less than P2 million, Ms. Pacita de los Reyes Phillips
was designated as executor and to serve as such without a bond.1âwphi1.nêt

From the foregoing facts, the Court finds that the petitioner has substantially
established the material allegations contained in his petition. The Last Will and
Testament having been executed and attested as required by law; that testator at
the time of the execution of the will was of sane mind and/or not mentally
incapable to make a Will; nor was it executed under duress or under the influence
of fear or threats; that it was in writing and executed in the language known and
understood by the testator duly subscribed thereof and attested and subscribed by
three (3) credible witnesses in the presence of the testator and of another; that
the testator and all the attesting witnesses signed the Last Will and Testament
freely and voluntarily and that the testator has intended that the instrument
should be his Will at the time of affixing his signature thereto.

WHEREFORE, as prayed for by the petitioner (testator himself) the petition for the
allowance of the Last Will and Testament of Arturo de Santos is hereby APPROVED
and ALLOWED.

Shortly after the probate of his will, Dr. De Santos died on February 26, 1996.

On April 3, 1996, petitioner Octavio S. Maloles II filed a motion for intervention claiming
that, as the only child of Alicia de Santos (testator's sister) and Octavio L. Maloles, Sr.,
he was the sole full-blooded nephew and nearest of kin of Dr. De Santos. He likewise
alleged that he was a creditor of the testator. Petitioner thus prayed for the
reconsideration of the order allowing the will and the issuance of letters of
administration in his name.

On the other hand, private respondent Pacita de los Reyes Phillips, the designated
executrix of the will, filed a motion for the issuance of letters testamentary with Branch
61. Later, however, private respondent moved to withdraw her motion. This was
granted, while petitioner was required to file a memorandum of authorities in support of
his claim that said court (Branch 61) still had jurisdiction to allow his intervention.3

Petitioner filed his memorandum of authorities on May 13, 1996. On the other hand,
private respondent, who earlier withdrew her motion for the issuance of letters
testamentary in Branch 61, refiled a petition for the same purpose with the Regional
Trial Court, Makati, which was docketed as Sp. Proc. No. M-4343 and assigned to Branch
65.

Upon private respondent's motion, Judge Salvador Abad Santos of Branch 65 issued an
order, dated June 28, 1996, appointing her as special administrator of Dr. De Santos's
estate.

On July 29, 1996, petitioner sought to intervene in Sp. Proc. No. M-4343 and to set
aside the appointment of private respondent as special administrator. He reiterated that
he was the sole and full blooded nephew and nearest of kin of the testator; that he came
to know of the existence of Sp. Proc. No. M-4343 only by accident; that the probate
proceedings in Sp. Proc. No. M-4223 before Branch 61 of the same court was still
pending; that private respondent misdeclared the true worth of the testator's estate;
that private respondent was not fit to be the special administrator of the estate; and
that petitioner should be given letters of administration for the estate of Dr. De Santos.

On August 28, 1996, Judge Abad Santos ordered the transfer of Sp. Proc. No. M-4343 to
Branch 61, on the ground that "[it] is related to the case before Judge Gorospe of RTC
Branch 61 . . ."

It appears, however, that in Sp. Proc. No. M-4223, Judge Gorospe had denied on August
26, 1996 petitioner's motion for intervention. Petitioner brought this matter to the Court
of Appeals which, in a decision4 promulgated on February 13, 1998, upheld the denial of
petitioner's motion for intervention.

Meanwhile, Judge Gorospe issued an order, dated September 4, 1996, returning the
records of Sp. Proc. No. M-4343 to Branch 65 on the ground that there was a pending
case involving the Estate of Decedent Arturo de Santos pending before said court. The
order reads:

Acting on the ORDER dated 28 August 1996 of Branch 65, this Court, transferring
this case to this Branch 61 on the ground that this case is related with a case
before this Court, let this case be returned to Branch 65 with the information that
there is no related case involving the ESTATE OF DECEDENT ARTURO DE SANTOS
pending before this Branch.

There is, however, a case filed by ARTURO DE SANTOS, as petitioner under Rule
76 of the Rules of Court for the Allowance of his will during his lifetime docketed as
SP. PROC. NO. M-4223 which was already decided on 16 February 1996 and has
become final.

It is noted on records of Case No. M-4223 that after it became final, herein
Petitioner Pacita de los Reyes Phillips filed a MOTION FOR THE ISSUANCE OF
LETTERS TESTAMENTARY, which was subsequently withdrawn after this Court,
during the hearing, already ruled that the motion could not be admitted as the
subject matter involves a separate case under Rule 78 of the Rules of Court, and
movant withdrew her motion and filed this case (No. 4343).

Octavio de Santos Maloles [II] filed a MOTION FOR INTERVENTION before Case
No. M-4223 and this motion was already DENIED in the order (Branch 61) of 26
August 1996 likewise for the same grounds that the matter is for a separate case
to be filed under Rule 78 of the Rules of Court and cannot be included in this case
filed under Rule 76 of the Rules of Court.

It is further noted that it is a matter of policy that consolidation of cases must be

approved by the Presiding Judges of the affected Branches.

Initially, in his decision dated September 23, 1996, 5 Judge Abad Santos appeared firm in
his position that " . . . it would be improper for (Branch 65) to hear and resolve the
petition (Sp. Proc. No. M-4343)," considering that the probate proceedings were
commenced with Branch 61. He thus ordered the transfer of the records back to the
latter branch. However, he later recalled his decision and took cognizance of the case "to
expedite the proceedings." Thus, in his Order, dated October 21, 1996, he stated:

Considering the refusal of the Hon. Fernando V. Gorospe, Jr. of Branch 61 to

continue hearing this case notwithstanding the fact that said branch began the
probate proceedings of the estate of the deceased and must therefore continue to
exercise its jurisdiction to the exclusion of all others, until the entire estate of the
testator had been partitioned and distributed as per Order dated 23 September
1996, this branch (Regional Trial Court Branch 65) shall take cognizance of the
petition if only to expedite the proceedings, and under the concept that the
Regional Trial Court of Makati City is but one court.
 Furnish a copy of this order to the Office of the Chief justice and the Office of the
Court Administrator, of the Supreme Court; the Hon. Fernando V. Gorospe, Jr.;
Pacita De Los Reyes Phillips, Petitioner; and Octavio de Santos Maloles,
Intervenor.

On November 4, 1996, Judge Abad Santos granted petitioner's motion for intervention.
Private respondent moved for a reconsideration but her motion was denied by the trial
court. She then filed a petition for certiorari in the Court of Appeals which, on February
26, 1997, rendered a decision6 setting aside the trial court's order on the ground that
petitioner had not shown any right or interest to intervene in Sp. Proc. No. M-4343.

Hence, these petitions which raise the following issues:

1. Whether or not the Honorable Regional Trial Court — Makati, Branch 61 has lost
jurisdiction to proceed with the probate proceedings upon its issuance of an order
allowing the will of Dr. Arturo de Santos.

2. Whether or not the Honorable (Regional Trial Court — Makati, Branch 65)
acquired jurisdiction over the petition for issuance of letters testamentary filed by
(private) respondent.

3. Whether or not the petitioner, being a creditor of the late Dr. Arturo de Santos,
has a right to intervene and oppose the petition for issuance of letters
testamentary filed by the respondent.

4. Whether or not (private) respondent is guilty of forum shopping in filing her

petition for issuance of letters testamentary with the Regional Trial Court —
Makati, Branch 65 knowing fully well that the probate proceedings involving the
same restate estate of the decedent is still pending with the Regional Trial Court —
Makati, Branch 61.

First. Petitioner contends that the probate proceedings in Branch 61 of RTC-Makati did
not terminate upon the issuance of the order allowing the will of Dr. De Santos. Citing
the cases of Santiesteban v. Santiesteban7 and Tagle v. Manalo,8 he argues that the
proceedings must continue until the estate is fully distributed to the lawful heirs,
devisees, and legatees of the testator, pursuant to Rule 73, §1 of the Rules of Court.
Consequently, petitioner contends that Branch 65 could not lawfully act upon private
respondent's petition for issuance of letters testamentary.

The contention has no merit.

In cases for the probate of wills, it is well-settled that the authority of the court is limited
to ascertaining the extrinsic validity of the will, i.e., whether the testator, being of sound
mind, freely executed the will in accordance with the formalities prescribed by law.9

Ordinarily, probate proceedings are instituted only after the death of the testator, so
much so that, after approving and allowing the will, the court proceeds to issue letters
testamentary and settle the estate of the testator. The cases cited by petitioner are of
such nature. In fact, in most jurisdictions, courts cannot entertain a petition for probate
of the will of a living testator under the principle of ambulatory nature of wills.10

However, Art. 838 of the Civil Code authorizes the filing of a petition for probate of the
will filed by the testator himself. It provides:

CIVIL CODE, ART. 838. No will shall pass either real or personal property unless it
is proved and allowed in accordance with the Rules of Court.

The testator himself may, during his lifetime, petition the court having jurisdiction
for the allowance of his will. In such case, the pertinent provisions of the Rules of
Court for the allowance of wills after the testator's death shall govern.
 The Supreme Court shall formulate such additional Rules of Court as may be
necessary for the allowance of wills on petition of the testator.

Subject to the right of appeal, the allowance of the will, either during the lifetime
of the testator or after his death, shall be conclusive as to its due execution.

Rule 76, §1 likewise provides:

Sec. 1. Who may petition for the allowance of will. — Any executor, devisee, or
legatee named in a will, or any other person interested in the estate, may, at any
time after the death of the testator, petition the court having jurisdiction to have
the will allowed, whether the same be in his possession or not, or is lost or
destroyed.

The testator himself may, during his lifetime, petition in the court for the
allowance of his will.

The rationale for allowing the probate of wills during the lifetime of testator has been
explained by the Code Commission thus:

Most of the cases that reach the courts involve either the testamentary capacity of
the testator or the formalities adopted in the execution of wills. There are
relatively few cases concerning the intrinsic validity of testamentary dispositions.
It is far easier for the courts to determine the mental condition of a testator during
his lifetime than after his death. Fraud, intimidation and undue influence are
minimized. Furthermore, if a will does not comply with the requirements
prescribed by law, the same may be corrected at once. The probate during the
testator's life, therefore, will lessen the number of contest upon wills. Once a will is
probated during the lifetime of the testator, the only questions that may remain
for the courts to decide after the testator's death will refer to the intrinsic validity
of the testamentary dispositions. It is possible, of course, that even when the
testator himself asks for the allowance of the will, he may be acting under duress
or undue influence, but these are rare cases.

After a will has been probated during the lifetime of the testator, it does not
necessarily mean that he cannot alter or revoke the same before his death. Should
he make a new will, it would also be allowable on his petition, and if he should die
before he has had a chance to present such petition, the ordinary probate
proceeding after the testator's death would be in order.11

Thus, after the allowance of the will of Dr. De Santos on February 16, 1996, there was
nothing else for Branch 61 to do except to issue a certificate of allowance of the will
pursuant to Rule 73, §12 of the Rules of Court. There is, therefore, no basis for the
ruling of Judge Abad Santos of Branch 65 of RTC-Makati that —

Branch 61 of the Regional Trial Court of Makati having begun the probate
proceedings of the estate of the deceased, it continues and shall continue to
exercise said jurisdiction to the exclusion of all others. It should be noted that
probate proceedings do not cease upon the allowance or disallowance of a will but
continues up to such time that the entire estate of the testator had been
partitioned and distributed.

The fact that the will was allowed during the lifetime of the testator meant merely
that the partition and distribution of the estate was to be suspended until the
latter's death. In other words, the petitioner, instead of filing a new petition for the
issuance of letters testamentary, should have simply filed a manifestation for the
same purpose in the probate court.12

Petitioner, who defends the order of Branch 65 allowing him to intervene, cites Rule 73,
§1 which states:
 Where estate of deceased persons settled. — If the decedent is an inhabitant of
the Philippines at the time of his death, whether a citizen or an alien, his will shall
be proved, or letters of administration granted, and his estate settled, in the Court
of First Instance in the province in which he resides at the time of his death, and if
he is an inhabitant of a foreign country, the Court of First Instance of any province
in which he had estate. The court first taking cognizance of the settlement of the
estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts.
The jurisdiction assumed by a court, so far as it depends on the place of residence
of the decedent, or of the location of his estate, shall not be contested in a suit or
proceeding, except in an appeal from that court, in the original case, or when the
want of jurisdiction appears on the record.

The above rule, however, actually provides for the venue of actions for the settlement of
the estate of deceased persons. In Garcia Fule v. Court of Appeals, it was held:13

The aforequoted Section 1, Rule 73 (formerly Rule 75, Section 1), specifically the
clause "so far as it depends on the place of residence of the decedent, or of the
location of the state," is in reality a matter of venue, as the caption of the Rule
indicates: "Settlement of Estate of Deceased Persons. Venue and Processes." It
could not have been intended to define the jurisdiction over the subject matter,
because such legal provision is contained in a law of procedure dealing merely with
procedural matters. Procedure is one thing, jurisdiction over the subject matter is
another. The power or authority of the court over the subject matter "existed was
fixed before procedure in a given cause began." That power or authority is not
altered or changed by procedure, which simply directs the manner in which the
power or authority shall be fully and justly exercised. There are cases though that
if the power is not exercised conformably with the provisions of the procedural
law, purely, the court attempting to exercise it loses the power to exercise it
legally. However, this does not amount to a loss of jurisdiction over the subject
matter. Rather, it means that the court may thereby lose jurisdiction over the
person or that the judgment may thereby be rendered defective for lack of
something essential to sustain it. The appearance of this provision in the
procedural law at once raises a strong presumption that it has nothing to do with
the jurisdiction of the court over the subject matter. In plain words, it is just a
matter of method, of convenience to the parties.

Indeed, the jurisdiction over probate proceedings and settlement of estates with
approximate value of over P100,000.00 (outside Metro Manila) or P200,000.00 (in Metro
Manila) belongs to the regional trial courts under B.P. Blg. 129, as amended. The
different branches comprising each court in one judicial region do not possess
jurisdictions independent of and incompatible with each other.14

It is noteworthy that, although Rule 73, §1 applies insofar as the venue of the petition
for probate of the will of Dr. De Santos is concerned, it does not bar other branches of
the same court from taking cognizance of the settlement of the estate of the testator
after his death. As held in the leading case of Bacalso v. Ramolote:15

The various branches of the Court of First Instance of Cebu under the Fourteenth
Judicial District, are a coordinate and co-equal courts, and the totality of which is
only one Court of First Instance. The jurisdiction is vested in the court, not in the
judges. And when a case is filed in one branch, jurisdiction over the case does not
attach to the branch or judge alone, to the exclusion of the other branches. Trial
may be held or proceedings continue by and before another branch or judge. It is
for this reason that Section 57 of the Judiciary Act expressly grants to the
Secretary of Justice, the administrative right or power to apportion the cases
among the different branches, both for the convenience of the parties and for the
coordination of the work by the different branches of the same court. The
apportionment and distribution of cases does not involve a grant or limitation of
jurisdiction, the jurisdiction attaches and continues to be vested in the Court of
First Instance of the province, and the trials may be held by any branch or judge
of the court.
Necessarily, therefore, Branch 65 of the RTC of Makati City has jurisdiction over Sp.
Proc. No. M-4343.

Second. Petitioner claims the right to intervene in and oppose the petition for issuance
of letters testamentary filed by private respondent. He argues that, as the nearest next
of kin and creditor of the testator, his interest in the matter is material and direct. In
ruling that petitioner has no right to intervene in the proceedings before Branch 65 of
RTC-Makati City, the Court of Appeals held:

The private respondent herein is not an heir or legatee under the will of the
decedent Arturo de Santos. Neither is he a compulsory heir of the latter. As the
only and nearest collateral relative of the decedent, he can inherit from the latter
only in case of intestacy. Since the decedent has left a will which has already been
probated and disposes of all his properties the private respondent can inherit only
if the said will is annulled. His interest in the decedent's estate is, therefore, not
direct or immediate.

His claim to being a creditor of the estate is a belated one, having been raised for
the first time only in his reply to the opposition to his motion to intervene, and, as
far as the records show, not supported by evidence.

. . . . [T]he opposition must come from one with a direct interest in the estate or
the will, and the private respondent has none. Moreover, the ground cited in the
private respondent's opposition, that the petitioner has deliberately misdeclared
the truth worth and value of the estate, is not relevant to the question of her
competency to act as executor. Section 2, Rule 76 of the Rules of Court requires
only an allegation of the probable value and character of the property of the
estate. The true value can be determined later on in the course of the settlement
of the estate.16

Rule 79, §1 provides:

Opposition to issuance of letters testamentary. Simultaneous petition for

administration. — Any person interested in a will may state in writing the grounds
why letters testamentary should not issue to the persons named therein as
executors, or any of them, and the court, after hearing upon notice, shall pass
upon the sufficiency of such grounds. A petition may, at the same time, be filed for
letters of administration with the will annexed.

Under this provision, it has been held that an "interested person" is one who would be
benefited by the estate, such as an heir, or one who has a claim against the estate, such
as a creditor, and whose interest is material and direct, not merely incidental or
contingent.17

Even if petitioner is the nearest next of kin of Dr. De Santos, he cannot be considered an
"heir" of the testator. It is a fundamental rule of testamentary succession that one who
has no compulsory or forced heirs may dispose of his entire estate by will. Thus, Art.
842 of the Civil Code provides:

One who has no compulsory heirs may dispose by will of all his estate or any part
of it in favor of any person having capacity to succeed.

One who has compulsory heirs may dispose of his estate provided he does not
contravene the provisions of this Code with regard to the legitimate of said heirs.

Compulsory heirs are limited to the testator's —

(1) Legitimate children and descendants, with respect to their legitimate parents
and ascendants;
 (2) In default of the foregoing, legitimate parents and ascendants, with respect to
their legitimate children and descendants;

(3) The widow or widower;

(4) Acknowledged natural children, and natural children by legal fiction;

(5) Other illegitimate children referred to in Article 287 of the Civil Code.18

Petitioner, as nephew of the testator, is not a compulsory heir who may have been
preterited in the testator's will.

Nor does he have any right to intervene in the settlement proceedings based on his
allegation that he is a creditor of the deceased. Since the testator instituted or named an
executor in his will, it is incumbent upon the Court to respect the desires of the testator.
As we stated in Ozaeta v. Pecson:19

The choice of his executor is a precious prerogative of a testator, a necessary

concomitant of his right to dispose of his property in the manner he wishes. It is
natural that the testator should desire to appoint one of his confidence, one who
can be trusted to carry out his wishes in the disposal of his estate. The curtailment
of this right may be considered a curtailment of the right to dispose.

Only if the appointed executor is incompetent, refuses the trust, or fails to give bond
may the court appoint other persons to administer the estate. 20 None of these
circumstances is present in this case.

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

This contention has no merit. As stated earlier, the petition for probate was filed by Dr.
De Santos, the testator, solely for the purpose of authenticating his will. Upon the
allowance of his will, the proceedings were terminated.1âwphi1.nêt

On the other hand, the petition for issuance of letters testamentary was filed by private
respondent, as executor of the estate of Dr. De Santos, for the purpose of securing
authority from the Court to administer the estate and put into effect the will of the
testator. The estate settlement proceedings commenced by the filing of the petition
terminates upon the distribution and delivery of the legacies and devises to the persons
named in the will. Clearly, there is no identity between the two petitions, nor was the
latter filed during the pendency of the former. There was, consequently, no forum
shopping. WHEREFORE, the petition is DENIED and the decisions of the Court of Appeals
are hereby AFFIRMED.
G.R. No. 115925            August 15, 2003

SPOUSES RICARDO PASCUAL and CONSOLACION SIOSON, petitioners, 

vs.
COURT OF APPEALS and REMEDIOS S. EUGENIO-GINO, respondents.

CARPIO, J.:

The Case

This is a petition for review of the Decision 1 dated 31 January 1994 of the Court of
Appeals ordering the Register of Deeds of Metro Manila, District III, to place TCT No.
(232252) 1321 in the name of respondent Remedios S. Eugenio-Gino. The Decision
ordered the Register of Deeds to cancel the names of petitioners Ricardo Pascual and
Consolacion Sioson ("petitioners") in TCT No. (232252) 1321. The Decision also directed
petitioners to pay respondent moral and exemplary damages and attorney’s fees.

The Facts

Petitioner Consolacion Sioson ("CONSOLACION") and respondent Remedios S. Eugenio-

Gino ("REMEDIOS") are the niece and granddaughter, respectively, of the late Canuto
Sioson ("CANUTO"). CANUTO and 11 other individuals, including his sister Catalina
Sioson ("CATALINA") and his brother Victoriano Sioson ("VICTORIANO"), were co-
owners of a parcel of land in Tanza, Navotas, Metro Manila. The property, known as Lot
2 of Plan Psu 13245, had an area of 9,347 square meters and was covered by Original
Certificate of Title No. 4207 issued by the Register of Deeds of Rizal. CATALINA,
CANUTO, and VICTORIANO each owned an aliquot 10/70 share or 1,335 square meters
of Lot 2.2

On 20 November 1951, CANUTO had Lot 2 surveyed and subdivided into eight lots (Lot
Nos. 2-A to 2-H) through Subdivision Plan Psd 34713 which the Director of Lands
approved on 30 May 1952. Lot No. 2-A, with an area of 670 square meters, and Lot No.
2-E, with an area of 2,000 square meters, were placed under CANUTO’s name. Three
other individuals took the remaining lots.3

On 26 September 1956, CANUTO and CONSOLACION executed a Kasulatan ng Bilihang

Tuluyan4("KASULATAN"). Under the KASULATAN, CANUTO sold his 10/70 share in Lot 2
in favor of CONSOLACION for P2,250.00. The KASULATAN, notarized by Notary Public
Jose T. de los Santos of Navotas, provides:

Na ako, CANUTO SIOSON, mamamayang Pilipino, may katampatang gulang, kasal

kay Raymunda San Diego, at naninirahan sa Tanza, Navotas, Rizal, sa bisa at
pamamagitan ng kasulatang ito ay nagpapatunay at nagpapatibay:

1. Na ako ang lubos at tunay na may-ari ng 10/70 bahaging hindi hati

(10/70 porcion pro-indiviso) ng isang lagay na lupa (Lote No. 2, Plano Psu-
13245), na nasa sa nayon ng Tanza, Municipio ng Navotas, Provincia ng
Rizal, at ang descripcion o pagkakakilanlan ng nasabing lote ay nakasaad sa
Certificado Original, de Titulo No. 4207 ng Oficina ng Registrador de Titulos
ng Rizal, gaya ng sumusunod:

xxxx

2. Na dahil at alang-alang sa halagang Dalawang Libo Dalawang Daan at

Limampung Piso (P2,250.00), salaping Pilipino, na sa akin ay ibinayad ni
CONSOLACION SIOSON, kasal kay Ricardo S. Pascual, may sapat na gulang,
mamamayang Pilipino, at naninirahan sa Dampalit, Malabon, Rizal at ang
pagkakatanggap ng nasabing halaga ay aking inaamin at pinatutunayan, ay
aking ipinagbili, inilipat at isinalin, sa pamamagitan ng bilihang tuluyan at
walang pasubali a favor [sic] sa nasabing si CONSOLACION SIOSON, sa
 kanyang tagapagmana at mapaglilipatan ang lahat ng aking titulo,
karapatan at kaparti na binubuo ng 10/70 bahaging hindi hati (10/70
porcion pro-indiviso) ng loteng descrito or tinutukoy sa itaas nito. (Emphasis
supplied)

CONSOLACION immediately took possession of Lot Nos. 2-A and 2-E. She later
declared the land for taxation purposes and paid the corresponding real estate
taxes.5

On 23 October 1968, the surviving children of CANUTO, namely, Felicidad and Beatriz,
executed a joint affidavit6("JOINT AFFIDAVIT") affirming the KASULATAN in favor of
CONSOLACION. They also attested that the lots their father had sold to CONSOLACION
were Lot Nos. 2-A and 2-E of Subdivision Plan Psd 34713. The JOINT AFFIDAVIT reads:

KAMING sina FELICIDAD SIOSON at BEATRIZ SIOSON, pawang mga Pilipino,

kapuwa may sapat na gulang at naninirahan, ang una sa Tanza, Navotas at ang
ikalawa sa Concepcion, Malabon, lalawigan ng Rizal, sa ilalim ng isang ganap na
panunumpa alinsunod sa batas, ay malayang nagsasalaysay ng mga sumusunod:

Na kami ang mga buhay na anak na naiwan ni CANUTO SIOSON na

nagmamay-ari ng 10/70 bahaging hindi hati (10/70 porcion pro-indiviso) ng
isang lagay na lupa (Lote No. 2, plano Psu-13245), na nasa Nayon ng Tanza,
Navotas, Rizal, at ang mga palatandaan nito ay nasasaad sa Certificado
Original de Titulo No. 4207 ng Tanggapan ng Registrador de Titulos ng Rizal;

Na sa lubos naming kaalaman, ay ipinagbili ng aming Ama na si Canuto

Sioson ang kaniyang buong bahagi na 10/70 sa nasabing Lote No. 2, kay
CONSOLACION SIOSON, may-bahay ni Ricardo S. Pascual, na taga
Dampalit, Malabon, Rizal, sa halagang P2,250.00, salaping pilipino, noong
ika 16 [sic] ng Septiembre, 1956, sa pamamagitan ng isang KASULATAN NG
BILIHANG TULUYAN na pinagtibay sa harap ng Notario Publico Jose T. de los
Santos nang pechang nabanggit, sa Navotas, Rizal, (Doc. No. 194, Page No.
84; Book No. IV; Series of 1956);

Na ang nasabing lupa na ipinagbili ng aming Ama kay Consolacion Sioson ni

Pascual, ay nakikilala ngayong mga Lote No. 2-A at Lote 2-E ng Plano de
Subdivision Psd-34713; na pinagtibay ng Assistant Director of Lands noong
Mayo 30, 1952;

Na aming ngayong pinatitibayan ang pagka-pagbili ng bahagi ng aming Ama

kay Consolacion Sioson ni Pascual ng ngayo’y nakikilalang Lote No. 2-A at
Lote No. 2-E ng Plano de Subdivision Psd-34713. (Emphasis supplied)

On 28 October 1968, CONSOLACION registered the KASULATAN and the JOINT

AFFIDAVIT with the Office of the Register of Deeds of Rizal ("Register of Deeds"). Based
on these documents, the Register of Deeds issued to CONSOLACION Transfer Certificate
of Title No. (232252) 1321 covering Lot Nos. 2-A and 2-E of Subdivision Plan Psd 34713
with a total area of 2,670 square meters.

On 4 February 1988, REMEDIOS filed a complaint against CONSOLACION and her spouse
Ricardo Pascual in the Regional Trial Court of Malabon, Branch 165, for "Annulment or
Cancellation of Transfer Certificate [of Title] and Damages." REMEDIOS claimed that she
is the owner of Lot Nos. 2-A and 2-E because CATALINA devised these lots to her in
CATALINA’s last will and testament7 ("LAST WILL") dated 29 May 1964. REMEDIOS
added that CONSOLACION obtained title to these lots through fraudulent means since
the area covered by TCT (232252) 1321 is twice the size of CANUTO’s share in Lot 2.
REMEDIOS prayed for the cancellation of CONSOLACION’s title, the issuance of another
title in her name, and the payment to her of damages.

Petitioners sought to dismiss the complaint on the ground of prescription. Petitioners

claimed that the basis of the action is fraud, and REMEDIOS should have filed the action
within four years from the registration of CONSOLACION’s title on 28 October 1968 and
not some 19 years later on 4 February 1988. REMEDIOS opposed the motion, claiming
that she became aware of CONSOLACION’s adverse title only in February 1987.
CONSOLACION maintained that she had timely filed her complaint within the four-year
prescriptive on 4 February 1988.

In its order of 28 April 1988, the trial court denied petitioners’ motion to dismiss. The
trial court held that the reckoning of the prescriptive period for filing REMEDIOS’
complaint is evidentiary in nature and must await the presentation of the parties’
evidence during the trial. During the pre-trial stage, REMEDIOS clarified that she was
claiming only CATALINA’s 10/70 share in Lot 2, or 1,335 square meters, which
constitute ½ of the area of Lot Nos. 2-A and 2-E.8 The trial of the case then ensued.

The Ruling of the Trial Court

On 26 November 1990, the trial court rendered judgment dismissing the case and
ordering REMEDIOS to pay petitioners P10,000 as attorney’s fees and the cost of suit.
The trial court held that the action filed by REMEDIOS is based on fraud, covered by the
four-year prescriptive period. The trial court also held that REMEDIOS knew of
petitioners’ adverse title on 19 November 1982 when REMEDIOS testified against
petitioners in an ejectment suit petitioners had filed against their tenants in Lot Nos. 2-A
and 2-E. Thus, the complaint of REMEDIOS had already prescribed when she filed it on 4
February 1988.

The trial court further ruled that REMEDIOS has no right of action against petitioners
because CATALINA’s LAST WILL from which REMEDIOS claims to derive her title has not
been admitted to probate. Under Article 838 of the Civil Code, no will passes real or
personal property unless it is allowed in probate in accordance with the Rules of Court.
The dispositive portion of the trial court’s decision provides:

WHEREFORE, judgment is hereby rendered in favor of the defendants and against

plaintiff, ordering:

1. The dismissal of this case;

2. The plaintiff to pay the defendants the sum of Ten Thousand (P10,000.00)
Pesos as and for attorney’s fees; and

3. The plaintiff to pay the costs of suit.9

REMEDIOS appealed to the Court of Appeals.

The Ruling of the Court of Appeals

On 31 January 1994, the Court of Appeals rendered judgment reversing the decision of
the trial court. The appellate court held that what REMEDIOS filed was a suit to enforce
an implied trust allegedly created in her favor when CONSOLACION fraudulently
registered her title over Lot Nos. 2-A and 2-E. Consequently, the prescriptive period for
filing the complaint is ten years, not four. The Court of Appeals counted this ten-year
period from 19 November 1982. Thus, when REMEDIOS filed her complaint on 4
February 1988, the ten-year prescriptive period had not yet expired.

The appellate court held that CATALINA’s unprobated LAST WILL does not preclude
REMEDIOS from seeking reconveyance of Lot Nos. 2-A and 2-E as the LAST WILL may
subsequently be admitted to probate. The dispositive portion of the appellate court’s
ruling provides:

WHEREFORE, the decision appealed from is REVERSED and SET ASIDE. The
Registry of Deeds of Rizal or Metro Manila, District III, is ordered to place Transfer
Certificate of Title No. (232252) 1321 under the name of Remedios S. Eugenio-
Gino as executor of the will of Catalina Sioson and cancel the names of the
 Spouses Ricardo Pascual and Consolacion Sioson inscribed over said title as
owners of the covered lot. Defendants-appellees spouses Ricardo Pascual and
Consolacion Sioson are ordered to pay plaintiff-appellant Remedios S. Eugenio-
Gino moral damages in the amount of P50,000.00, exemplary damages
of P20,000[.00] and attorney’s fees of P20,000.00 and P500.00 per appearance.10

Petitioners sought reconsideration of the ruling. However, the Court of Appeals denied
their motion in its order dated 15 June 1994.

Hence, this petition.

The Issues

Petitioners allege the following assignment of errors:

I. THE COURT OF APPEALS ERRED IN HOLDING THAT PRIVATE RESPONDENT’S

CAUSE OF ACTION IS NOT BARRED BY PRESCRIPTION WHICH FINDING IS
MANIFESTLY CONTRARY TO LAW AND THE APPLICABLE DECISIONS OF THIS
HONORABLE COURT.

II. THE COURT OF APPEALS ERRED IN NOT HOLDING THAT PRIVATE RESPONDENT
DOES NOT HAVE ANY TITLE AND HAS UTTERLY FAILED TO PROVE ANY TITLE TO
THE LOTS INVOLVED IN THIS CASE, AND IN ORDERING THE CANCELLATION OF
THE CERTIFICATE OF TITLE OF PETITIONERS.

III. THE COURT OF APPEALS ACTED WITH GRAVE ABUSE OF DISCRETION

AMOUNTING TO LACK OF JURISDICTION AND IN GROSS VIOLATION OF THE
RULES OF COURT IN ORDERING THE ENTIRE PROPERTY COVERED BY TRANSFER
CERTIFICATE OF TITLE NO. (232252) 1321 TO BE PLACED IN THE NAME OF
PRIVATE RESPONDENT, BECAUSE THE CLAIM OF PRIVATE RESPONDENT IS
LIMITED ONLY TO ONE-HALF (1/2) PORTION OF THE PROPERTY, AND THE OTHER
HALF THEREOF UNQUESTIONABLY BELONGS TO PETITIONERS.

IV. THE COURT OF APPEALS ERRED IN HOLDING THAT PETITIONERS ACTED

FRAUDULENTLY AND IN BAD FAITH IN SECURING THEIR CERTIFICATE OF TITLE
TO THE PROPERTY INVOLVED IN THIS CASE, AND IN ORDERING PETITIONERS TO
PAY PRIVATE RESPONDENTS MORAL DAMAGES, EXEMPLARY DAMAGES AND
ATTORNEY’S FEES.11

The pivotal questions are: (1) whether prescription bars the action filed by REMEDIOS,
and (2) whether REMEDIOS is a real party-in-interest.

The Ruling of the Court

The petition has merit.

The Action is Barred by Prescription

The trial court held that the action filed by REMEDIOS is one based on fraud. REMEDIOS’
action seeks to recover real property that petitioners allegedly acquired through fraud.
Consequently, the trial court held that the action prescribes in four years counted from
REMEDIOS’ actual discovery of petitioners’ adverse title. The trial court concluded that
REMEDIOS belatedly filed her suit on 4 February 1988 because she actually knew of
petitioners’ adverse title since 19 November 1982.

On the other hand, the Court of Appeals held that what REMEDIOS filed was a suit to
enforce an implied trust. REMEDIOS had ten years counted from actual notice of the
breach of trust, that is, the assertion of adverse title, within which to bring her action.
The appellate court held that REMEDIOS seasonably filed her complaint on 4 February
1988 because she allegedly discovered petitioners’ adverse title only on 19 November
1982.
What REMEDIOS filed was an action to enforce an implied trust but the same is already
barred by prescription.

Prescriptive Period is 10 Years Counted

From Registration of Adverse Title

The four-year prescriptive period relied upon by the trial court applies only if the fraud
does not give rise to an implied trust, and the action is to annul a voidable contract
under Article 139012 of the Civil Code. In such a case, the four-year prescriptive period
under Article 139113 begins to run from the time of discovery of the mistake, violence,
intimidation, undue influence or fraud.

In the present case, REMEDIOS does not seek to annul the KASULATAN. REMEDIOS
does not assail the KASULATAN as a voidable contract. In fact, REMEDIOS admits the
validity of the sale of 1,335 square meters of land under the KASULATAN. However,
REMEDIOS alleges that the excess area of 1,335 meters is not part of the sale under the
KASULATAN. REMEDIOS seeks the removal of this excess area from TCT No. (232252)
1321 that was issued to CONSOLACION. Consequently, REMEDIOS’ action is for
"Annulment or Cancellation of Transfer Certificate [of Title] and Damages."14

REMEDIOS’ action is based on an implied trust under Article 1456 since she claims that
the inclusion of the additional 1,335 square meters in TCT No. (232252) 1321 was
without basis. In effect, REMEDIOS asserts that CONSOLACION acquired the additional
1,335 square meters through mistake or fraud and thus CONSOLACION should be
considered a trustee of an implied trust for the benefit of the rightful owner of the
property. Clearly, the applicable prescriptive period is ten years under Article 1144 and
not four years under Articles 1389 and 1391.

It is now well-settled that the prescriptive period to recover property obtained by fraud
or mistake, giving rise to an implied trust under Article 1456 15 of the Civil Code, is ten
years pursuant to Article 1144.16 This ten-year prescriptive period begins to run from the
date the adverse party repudiates the implied trust, which repudiation takes place when
the adverse party registers the land.17

REMEDIOS filed her complaint on 4 February 1988 or more than 19 years after
CONSOLACION registered her title over Lot Nos. 2-A and 2-E on 28 October 1968.
Unquestionably, REMEDIOS filed the complaint late thus warranting its dismissal. As the
Court recently declared in Spouses Alfredo v. Spouses Borras,18 —

Following Caro,19 we have consistently held that an action for reconveyance based on an
implied trust prescribes in ten years. We went further by specifying the reference point
of the ten-year prescriptive period as the date of the registration of the deed or the
issuance of the title.

The Court of Appeals’ Reckoning of Prescriptive Period from Actual Notice of

Adverse Title Not Justified

In holding that the action filed by REMEDIOS has not prescribed, the Court of Appeals
invoked this Court’s ruling in Adille v. Court of Appeals.20 In Adille, the Court reckoned
the ten-year prescriptive period for enforcing implied trusts not from registration of the
adverse title but from actual notice of the adverse title by the cestui que trust. However,
the Court, in justifying its deviation from the general rule, explained:

[W]hile actions to enforce a constructive trust prescribes (sic) in ten years, reckoned
from the date of the registration of the property, we x x x are not prepared to count the
period from such date in this case. We note the petitioner’s sub rosa efforts to get hold
of the property exclusively for himself beginning with his fraudulent misrepresentation in
his unilateral affidavit of extrajudicial settlement that he is "the only heir and child of his
mother Feliza["] with the consequence that he was able to secure title in his name also.
(Emphasis supplied)
Such commission of specific fraudulent conduct is absent in the present case. Other than
asserting that petitioners are guilty of fraud because they secured title to Lot Nos. 2-A
and 2-E with an area twice bigger than what CANUTO allegedly sold to CONSOLACION,
REMEDIOS did not present any other proof of petitioners’ fraudulent conduct akin
to Adille.

CONSOLACION obtained title to Lot Nos. 2-A and 2-E through the KASULATAN executed
by CANUTO and the JOINT AFFIDAVIT executed by his surviving children, one of whom,
Felicidad, is the mother of REMEDIOS. The KASULATAN referred to the sale of CANUTO’s
10/70 share in Lot 2 without specifying the area of the lot sold. The JOINT AFFIDAVIT
referred to the "Plano de Subdivision Psd-34713" without also specifying the area of the
lot sold. However, Subdivision Plan Psd 34713, as certified by the Assistant Director of
Lands on 30 May 1952, showed an area of 2,670 square meters in the name of CANUTO.
Based on these documents, the Register of Deeds issued TCT No. (232252) 1321 to
CONSOLACION covering an area of 2,670 square meters.

REMEDIOS does not assail the KASULATAN or the JOINT AFFIDAVIT as fictitious or
forged. REMEDIOS even admits the authenticity of Subdivision Plan Psd 34713 as
certified by the Assistant Director of Lands.21 Moreover, REMEDIOS has not contested
petitioners’ claim that CANUTO doubled his share in Lot 2 by acquiring VICTORIANO’s
share.22

Plainly, the increase in the area sold from 1,335 square meters to 2,670 square meters
is a glaring mistake. There is, however, no proof whatsoever that this increase in area
was the result of fraud. Allegations of fraud in actions to enforce implied trusts must be
proved by clear and convincing evidence.23 Adille, which is anchored on fraud,24cannot
apply to the present case.

At any rate, even if we apply Adille to this case, prescription still bars REMEDIOS’
complaint. As executrix of CATALINA’s LAST WILL, REMEDIOS submitted to the then
Court of First Instance of Caloocan in Special Proceedings Case No. C-208 the inventory
of all the property comprising CATALINA’s estate, which included Lot Nos. 2-A and 2-E.
In a motion dated 7 November 1977, CONSOLACION sought the exclusion of these lots
from the inventory, invoking her title over them. REMEDIOS was served a copy of the
motion on 8 November 1977 against which she filed an opposition. Nevertheless, the
trial court overruled REMEDIOS’ objection. In its order of 3 January 1978, the trial court
granted CONSOLACION’s motion and ordered the exclusion of Lot Nos. 2-A and 2-E from
the estate of CATALINA. REMEDIOS did not appeal from this ruling.

REMEDIOS thus had actual notice of petitioners’ adverse title on 8 November 1977. Even
if, for the sake of argument, the ten-year prescriptive period begins to run upon actual
notice of the adverse title, still REMEDIOS’ right to file this suit has prescribed.
REMEDIOS had until 11 November 1987 within which to file her complaint. When she did
so on 4 February 1988, the prescriptive period had already lapsed.

Respondent is Not a Real Party-in-Interest

Not only does prescription bar REMEDIOS’ complaint. REMEDIOS is also not a real party-
in-interest who can file the complaint, as the trial court correctly ruled.

The 1997 Rules of Civil Procedure require that every action must be prosecuted or
defended in the name of the real party-in-interest who is the party who stands to benefit
or suffer from the judgment in the suit. 25 If one who is not a real party-in-interest brings
the action, the suit is dismissible for lack of cause of action.26

REMEDIOS anchored her claim over Lot Nos. 2-A and 2-E (or over its one-half portion)
on the devise of these lots to her under CATALINA’s LAST WILL. However, the trial court
found that the probate court did not issue any order admitting the LAST WILL to
probate. REMEDIOS does not contest this finding. Indeed, during the trial, REMEDIOS
admitted that Special Proceedings Case No. C-208 is still pending.27
Article 838 of the Civil Code states that "[N]o will shall pass either real or personal
property unless it is proved and allowed in accordance with the Rules of Court." This
Court has interpreted this provision to mean, "until admitted to probate, [a will] has no
effect whatever and no right can be claimed thereunder."28 REMEDIOS anchors her right
in filing this suit on her being a devisee of CATALINA’s LAST WILL. However, since the
probate court has not admitted CATALINA’s LAST WILL, REMEDIOS has not acquired any
right under the LAST WILL. REMEDIOS is thus without any cause of action either to seek
reconveyance of Lot Nos. 2-A and 2-E or to enforce an implied trust over these lots.

The appellate court tried to go around this deficiency by ordering the reconveyance of
Lot Nos. 2-A and 2-E to REMEDIOS in her capacity as executrix of CATALINA’s LAST
WILL. This is inappropriate because REMEDIOS sued petitioners not in such capacity but
as the alleged owner of the disputed lots. Thus, REMEDIOS alleged in her complaint:

3. The plaintiff is a niece and compulsory heir of the late CATALINA SIOSON who died
single and without any child of her own and who, during her lifetime, was the owner of
those two (2) parcels of land located at Tanza, Navotas, Rizal (now Metro Manila),
formerly covered by Original Certificate of Title No. 4207 of the Registry of Deeds for the
Province of Rizal, x x x.

4. The plaintiff, aside from being the compulsory heir of the deceased CATALINA
SIOSON, has sole and exclusive claim of ownership over the above-mentioned two (2)
parcels of land by virtue of a will or "Huling Habilin at Pagpapasiya" executed by Catalina
Sioson on May 19, 1964 before Notary Public Efren Y. Angeles at Navotas, Rizal, in
which document the deceased Catalina Sioson specifically and exclusively bequeathed to
the plaintiff the above-mentioned Lots 2-A and 2-E of Psd-34713 approved by the
Bureau of Lands on May 30, 1952. Copy of the "Huling Habilin at Pagpapasiya"
consisting of four (4) pages is hereto attached and forms an integral part hereof as
Annex "A;"

5. Sometime on or about February, 1987, plaintiff discovered that the above-mentioned

Lots 2-A and 2-E of subdivision plan Psd-34713 are now registered or titled in the name
of the defendants under Transfer Certificate of Title No. (232252) 1321 of the Registry
of Deeds of Rizal, now Metro-Manila District III. Copy of the title is hereto attached and
forms an integral part hereof as Annex "B;"

6. Upon further inquiry and investigation, plaintiff discovered that the defendants were
able to obtain title in their name of the said parcels of land by virtue of a "Kasulatan ng
Bilihang Tuluyan" allegedly executed by Canuto Sioson on September 26, 1956 before
Notary Public Jose [T.] de los Santos of Navotas, Metro-Manila. Copy of the said
document is hereto attached and forms an integral part hereof as Annex "C;"

7. The plaintiff also discovered that although x x x the original sale did not specify the
parcels of land sold by Canuto Sioson, the defendants submitted an alleged Affidavit
executed by Felicidad Sioson and Beatriz Sioson identifying the lots sold by Canuto
Sioson to the defendants as Lots 2-A and 2-E of subdivision plan Psd-34713. Copy of the
Affidavit dated October 3, 1968 on the basis of which the present Transfer Certificate of
Title No. (232252) 1321 was issued to the defendants is hereto attached and forms an
integral part hereof as Annex "D;"

8. The defendants are clearly guilty of fraud in presenting the aforementioned Affidavit
(Annex "D") to the Register of Deeds as the basis of their claim to Lots 2-A and 2-E in
view of the fact that the parcels sold to them by Canuto Sioson, assuming there was
such a sale, were different parcels of land, Lots 2-A and 2-E being the properties of the
late Catalina Sioson who bequeathed the same to the plaintiff.

xxxx

12. Because of the defendants’ fraudulent actuations on this matter, plaintiff suffered

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

Indeed, all throughout the proceedings below and even in her Comment to this petition,
REMEDIOS continued to pursue her claim as the alleged owner of one-half of the
disputed lots.

Other Matters Raised in the Petition

The Court deems it unnecessary to pass upon the other errors petitioners assigned
concerning the award of damages and attorneys fees to REMEDIOS. Such award
assumes that REMEDIOS is a real party-in-interest and that she timely filed her
complaint. As earlier shown, this is not the case.

WHEREFORE, we GRANT the petition. The Decision of the Court of Appeals dated 31
January 1994 and its Resolution dated 15 June 1994 are SET ASIDE. The complaint filed
by respondent Remedios Eugenio-Gino, dated 2 February 1988 is DISMISSED.
G.R. No. 144915             February 23, 2004

CAROLINA CAMAYA, FERDINAND CAMAYA, EDGARDO CAMAYA and ANSELMO

MANGULABNAN,petitioners 
vs.
BERNARDO PATULANDONG, respondent.

DECISION

CARPIO-MORALES, J.:

Before this Court is a petition for review on certiorari under Rule 45 of the 1997 Revised
Rules of Court seeking the reversal of the Court of Appeals Decision dated June 19, 2000
in CA-G.R. CV No. 53757, "In re: Petition for the Probate of the Codicil (Will) of Rufina
Reyes; Bernardo Patulandong v. Anselmo Mangulabnan v. Carolina G. Camaya,
Ferdinand Camaya and Edgardo Camaya."

On November 17, 1972, Rufina Reyes (testatrix) executed a notarized will wherein she
devised, among others, Lot No. 288-A to her grandson Anselmo Mangulabnan
(Mangulabnan). The pertinent portion of her will reads:

IKALIMA. - Aking inihahayag at ginagawa na tagapagmana, sa aking kusang loob, ang

pinalaki kong APO na si ANSELMO P. MANGULABNAN, may sapat na gulang, kasal kay
Flora Umagap, at naninirahan sa San Lorenzo, Gapan, Nueva Ecija, at anak ng aking
anak na si SIMPLICIA, at sa aking APO na si ANSELMO ay aking ipinagkakaloob at
ipinamamana, sa aking pagkamatay, ang mga sumusunod kong pagaari:

LOT NO. TITLE NO. KINALALAGYAN NABANGGIT SA

288-A NT-47089 Sta. Cruz (1) p. 2
3348-A 100629 Poblacion (2) p. 2
3349-B 100630 Poblacion (3) p. 2

xxx1 (Underscoring in the original; emphasis supplied)

The testatrix’s son Bernardo Patulandong (Patulandong), respondent herein, was in the
will appointed as the executor.

During her lifetime, the testatrix herself filed a petition for the probate of her will before
the then Court of First Instance (CFI) of Nueva Ecija where it was docketed as Sp. Pro.
No. 128.

By Order2 of January 11, 1973, the CFI admitted the will to probate.

On June 27, 1973, the testatrix executed a codicil modifying above-quoted paragraph
five of her will in this wise:

UNA. - Ang Lote No. 288-A na nakalagay sa barrio ng Sta. Cruz, Gapan, Nueva Ecija,
magsukat 36,384 metro cuadrados, at nagtataglay ng TCT No. NT-47089, na aking
ipinamana sa aking apong si ANSELMO P. MANGULABNAN, sangayon sa Pangkat
IKA-LIMA, pp. 5-6, ng aking HULING HABILIN (Testamento), ay ipinasiya kong
ipagkaloob at ipamana sa aking mga anak na sina BERNARDO, SIMPLICIA, GUILLERMA
at JUAN nagaapellidong PATULANDONG, at sa aking apong si ANSELMO P.
MANGULABNAN, sa magkakaparehong bahagi na tig-ikalimang bahagi bawat isa sa
kanila.

IKALAWA. - Na maliban sa pagbabagong ito, ang lahat ng mga tadhana ng aking

HULING HABILIN ay aking pinagtitibay na muli.
x x x3 (Underscoring in the original; emphasis supplied) On May 14, 1988, the testatrix
died.

Mangulabnan later sought the delivery to him by executor Patulandong of the title to Lot
288-A. Patulandong refused to heed the request, however, in view of the codicil which
modified the testator’s will.

Mangulabnan thus filed an "action for partition" against Patulandong with the Regional
Trial Court of Gapan, Nueva Ecija, docketed as Civil Case No. 552 (the partition case).

On June 8, 1989, the trial court rendered a decision in the partition case, 4 the dispositive
portion of which reads:

WHEREFORE, the court orders the partitioning of the properties and the defendant to
deliver the copy of the Transfer Certificate of Title No. NT-47089.

However, in view of the case cited by the plaintiff himself, the court holds that the
partition is without prejudice [to]... the probate of the codicil in accordance with the
Rules of Court, [P]alacios vs. Catimbang Palacios cited by the plaintiff:

"After a will has been probated during the lifetime of the testator, it does not necessarily
mean that he cannot alter or revoke the same before his death. Should he make a new
will, it would also be allowable of his petition and if he should die before he had a chance
to present such petition, the ordinary probate proceedings after the testator’s death
would be in order."

The Court also orders that the right of the tenants of the agricultural land in question
should be protected meaning to say that the tenants should not be ejected. (Emphasis
and underscoring supplied)

On July 17, 1989 Patulandong filed before the Regional Trial Court of Nueva Ecija a
petition5 for probate of the codicil of the testatrix, docketed as Sp. Proc. No. 218.

On December 28, 1989, the probate court issued an Order 6 setting the petition for
hearing and ordering the publication of said order.

On February 7, 1991, by virtue of the decision in the partition case, Mangulabnan

caused the cancellation of the title of the testatrix over Lot No. 288-A and TCT No. NT-
2157507 was issued in his name.

Mangulabnan later sold to herein petitioners Camayas Lot No. 288-A by a Deed of Sale
dated February 19, 1991.8TCT No. NT-215750 was thus cancelled and TCT No. NT-
2164469 was issued in the name of the Camayas.

On January 16, 1996, the trial rendered a decision10 in Sp. Proc. No. 218 admitting the
codicil to probate and disposing as follows:

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

1. Declaring Transfer Certificate of Title No. NT-215750 issued by the Register of

Deeds of Nueva Ecija in the name of Anselmo Mangulabnan dated February 7,
1991 and the Deed of Absolute Sale executed by him in favor of the intervenors
Carolina, Ferdinand and Edgardo, all surnamed Camaya on February 19, 1991 and
Transfer Certificate of Title No. NT-216446 under date March 18, 1991 issued in
the names of the above-named intervenors as NULL and VOID and of no force and
effect; and,

2. Ordering the Register of Deeds of Nueva Ecija to cancel Transfer of Certificate of

Title Nos. NT-215750 and NT-216446 and reissue the corresponding Certificate of
Titles to Bernardo R. Patulandong, Filipino, married to Gorgonia Mariano residing
 at San Vicente, Gapan, Nueva Ecija, Juan R. Patulandong, Filipino, widower and
residing at San Lorenzo, Gapan, Nueva Ecija; Guillerma R. Patulandong Linsangan
of legal age, Filipino, widow and residing at San Vicente, Gapan, Nueva Ecija,
Simplicia R. Patulandong Mangulabnan, of legal age, widow, and residing at San
Lorenzo, Gapan, Nueva Ecija and her grandson, Anselmo Mangulabnan with full
personal circumstances stated herein to the extent of one fifth (1/5) each pursuant
to the approved codicil (will) of Rufina Reyes dated June 27, 1973.11

The Camayas who had been allowed to intervene in Sp. Proc. No. 218, and
Mangulabnan, filed a Motion for Reconsideration of the above-said decision but it was
denied by Order12 of February 28,1996.

On appeal to the Court of Appeals, the Camayas and Mangulabnan (hereinafter referred
to as petitioners) raised the following errors:

1. THERE WERE SERIOUS SUBSTANTIAL DEPARTURES FROM THE FORMALITIES

REQUIRED BY THE RULES, THE LAW, AND THE AUTHORITY OF THE REGIONAL
TRIAL COURT SETTING AS A PROBATE COURT.

2. THE OPPOSITOR DID NOT ONLY ACQUIRE LOT NO. 288-A BY WILL BUT HE
ALSO ACQUIRED THE SAME BY PARTITION IN A CIVIL CASE WHERE THE
DECISION HAS ALREADY REACHED ITS FINALITY AND THEREFORE CAN NO
LONGER BE NEGATED BY A QUESTIONABLE CODICIL.

3. THAT THE SUBJECT LOT 288-A IS NO LONGER WITHIN THE REACHED (sic) OF
THE PETITIONER CONSIDERING THAT THE OPPOSITOR VENDOR HAD A CLEAN
TITLE AND THAT THE INTERVENORS-VENDEED HAD ACQUIRED THE SAME BY WAY
OF SALE AS INNOCENT PURCHASER IN GOOD FAITH AND FOR VALUE.13

By Decision14 of June 19, 2000, the Court of Appeals affirmed that of the trial court.

Hence, the present petition for Review on Certiorari proffering the following issues:

1. Whether the probate court exceeded its jurisdiction when it declared null and
void and ordered the cancellation of the TCTs of petitioners and the deed of sale;
and

2. Whether the final judgment in Civil Case No. 552 bars the allowance of the
codicil.

As to the first issue, petitioners contend that the under the law, the probate court has no
power, authority, and jurisdiction to declare null and void the sale and titles of
petitioners;15 and that the probate court can only resolve the following issues:

1. Whether or not the instrument which is offered for probate is the last will and
testament of the decedent; in other words, the question is one of identity[;]

2. Whether or not the will has been executed in accordance with the formalities
prescribed by law; in other words, the question is one of due execution[; and]

3. Whether the testator had testamentary capacity at the time of the execution of
the will; in other words, the question is one of capacity.16

In Cuizon v. Ramolete,  17 this Court elucidated on the limited jurisdiction of a probate

court, to wit:

It is well-settled rule that a probate court or one in charge of proceedings whether

testate or intestate cannot adjudicate or determine title to properties claimed to be a
part of the estate and which are equally claimed to belong to outside parties. All that
said court could do as regards said properties is to determine whether they should or
should not be included in the inventory or list of properties to be administered by the
administrator. If there is no dispute, well and good; but if there is, then the parties, the
administrator, and the opposing parties have to resort to an ordinary action for a final
determination of the conflicting claims of title because the probate court cannot do so.

xxx

Having been apprised of the fact that the property in question was in the possession of
third parties and more important, covered by a transfer certificate of title issued in the
name of such third parties, the respondent court should have denied the motion of the
respondent administrator and excluded the property in question from the inventory of
the property of the estate. It had no authority to deprive such third persons of their
possession and ownership of the property. x x x (Emphasis and underscoring supplied)

Following Cuizon, the probate court exceeded its jurisdiction when it further declared the
deed of sale and the titles of petitioners null and void, it having had the effect of
depriving them possession and ownership of the property.

Moreover, following Section 48 of the Property Registry Decree which reads:

SECTION 48. Certificate not subject to collateral attack. - A certificate of title shall not
be subject to collateral attack. It cannot be altered, modified, or cancelled except in a
direct proceeding in accordance with law,

petitioners’ titles cannot, under probate proceedings, be declared null and void.

As to the second issue, petitioners argue that by allowing the codicil to probate, it in
effect amended the final judgment in the partition case which is not allowed by
law;18 and that petitioner Camayas are innocent purchasers for value and enjoy the legal
presumption that the transfer was lawful.19

Petitioners’ first argument does not persuade.

Though the judgment in the partition case had become final and executory as it was not
appealed, it specifically provided in its dispositive portion that the decision
was "without prejudice [to] ... the probate of the codicil." The rights of the
prevailing parties in said case were thus subject to the outcome of the probate of the
codicil.

The probate court being bereft of authority to rule upon the validity of petitioners’ titles,
there is no longer any necessity to dwell on the merits of petitioners Camayas’ claim
that they are innocent purchasers for value and enjoy the legal presumption that the
transfer was lawful.

WHEREFORE, the petition is GRANTED IN PART.

The Decision of the Court of Appeals dated June 19, 2000 in CA-G.R. CV No. 53757
affirming the January 16, 1996 Decision of Regional Trial Court, Branch 35, of Gapan,
Nueva Ecija, is hereby AFFIRMED with MODIFICATION.

The decision allowing the codicil is AFFIRMED, but the 1) declaration as null and void of
Transfer Certificate of Title No. NT-215750 issued on February 7, 1991 by the Register
of Deeds of Nueva Ecija in the name of Anselmo Mangulabnan, the February 19, 1991
Deed of Absolute Sale executed by him in favor of the intervenors - herein petitioners
Carolina, Ferdinand and Edgardo Camaya, and Transfer Certificate of Title No. NT-
216446 issued on March 18, 1991 in favor of the petitioners Camayas, and 2) the order
for the Register of Deeds of Nueva Ecija to cancel Transfer of Certificate of Title Nos. NT-
215750 and NT-216446 and reissue the corresponding Certificate of Titles to Bernardo
R. Patulandong, Juan R. Patulandong, Guillerma R. Patulandong Linsangan, Simplicia R.
Patulandong Mangulabnan, and Anselmo Mangulabnan to the extent of one-fifth (1/5)
each pursuant to the approved codicil are SET ASIDE, without prejudice to respondent
and his co-heirs’ ventilation of their right in an appropriate action.
G.R. No. 168156             December 6, 2006

HEIRS OF ROSENDO LASAM, Represented by Rogelio Lasam and Atty. Edward P.

Llonillo, petitioners, 
vs.
VICENTA UMENGAN, respondent.

DECISION

CALLEJO, SR., J.:

Before the Court is the petition for review on certiorari filed by the Heirs of Rosendo
Lasam, represented by Rogelio M. Lasam and Atty. Edward P. Llonillo, seeking the
reversal of the Decision1 dated February 16, 2005 of the Court of Appeals (CA) in CA-
G.R. SP No. 80032. The assailed decision reversed and set aside the decision of the
Regional Trial Court (RTC) of Tuguegarao City, Cagayan and dismissed, for lack of merit,
the complaint for unlawful detainer file by the said heirs against respondent Vicenta
Umengan.

The RTC decision affirmed that of the Municipal Trial Court in Cities (MTCC) of the same
city, Branch III, which had rendered judgment in favor of the heirs of Rosendo Lasam
and directed the ejectment of respondent Vicenta Umengan from the lot subject of
litigation.

The present petition likewise seeks the reversal of the CA Resolution dated May 17,
2005 denying the motion for reconsideration filed by the heirs of Rosendo Lasam.

As culled from the records, the backdrop of the present case is as follows –

The lot subject of the unlawful detainer case is situated in Tuguegarao City, Cagayan. It
is the eastern half portion of Lot No. 5427 and Lot No. 990. The first lot, Lot No. 5427
containing an area of 1,037 square meters, is covered by Original Certificate of Title
(OCT) No. 196. The second lot, Lot No. 990 containing an area of 118 sq m, is covered
by OCT No. 1032. These lots are registered in the names of the original owners, spouses
Pedro Cuntapay and Leona Bunagan.

In an instrument denominated as Deed of Confirmation and acknowledged before a

notary public on June 14, 1979, the heirs of the said spouses conveyed the ownership of
Lots Nos. 990 and 5427 in favor of their two children, Irene Cuntapay and Isabel
Cuntapay. In another instrument entitled Partition Agreement and acknowledged before
a notary public on December 28, 1979, it was agreed that the eastern half portion
(subject lot) of Lots Nos. 990 and 5427 shall belong to the heirs of Isabel Cuntapay. On
the other hand, the remaining portion thereof (the west portion) shall belong to the
heirs of Irene Cuntapay. The subject lot (eastern half portion) has an area of 554 sq m.

Isabel Cuntapay had four children by her first husband, Domingo Turingan, namely:
Abdon, Sado (deceased), Rufo and Maria. When Domingo Turingan passed away, Isabel
Cuntapay remarried Mariano Lasam. She had two other children by him, namely:
Trinidad and Rosendo.

Sometime in January 2001, the heirs of Rosendo Lasam (son of Isabel Cuntapay by her
second husband) filed with the MTCC a complaint for unlawful detainer against Vicenta
Umengan, who was then occupying the subject lot. Vicenta Umengan is the daughter of
Abdon Turingan (son of Isabel Cuntapay by her first husband).

In their complaint, the heirs of Rosendo Lasam alleged that they are the owners of the
subject lot, having inherited it from their father. Rosendo Lasam was allegedly the sole
heir of the deceased Pedro Cuntapay through Isabel Cuntapay. During his lifetime,
Rosendo Lasam allegedly temporarily allowed Vicenta Umengan to occupy the subject lot
sometime in 1955. The latter and her husband allegedly promised that they would
vacate the subject lot upon demand. However, despite written notice and demand by the
heirs of Rosendo Lasam, Vicenta Umengan allegedly unlawfully refused to vacate the
subject lot and continued to possess the same. Accordingly, the heirs of Rosendo Lasam
were constrained to institute the action for ejectment.

In her Answer with Counterclaim, Vicenta Umengan specifically denied the material
allegations in the complaint. She countered that when Isabel Cuntapay passed away, the
subject lot was inherited by her six children by her first and second marriages through
intestate succession. Each of the six children allegedly had a pro indiviso share of 1/6 of
the subject lot.

It was further alleged by Vicenta Umengan that her father, Abdon Turingan, purchased
the respective 1/6 shares in the subject lot of his siblings Maria and Sado. These
conveyances were allegedly evidenced by the Deed of Sale dated March 3, 1975,
appearing as Doc. No. 88, Page No. 36, Book No. XIV, series of 1975 of the notarial
book of Atty. Pedro Lagui.

Prior thereto, Rufo already sold his 1/6 share in the subject lot to Vicenta Umengan and
her husband as evidenced by the Deed of Sale dated June 14, 1961, appearing as Doc.
No. 539, Page No. 41, Book No. V, series of 1961 of the notarial book of Atty. Pedro
Lagui. Also on June 14, 1961, Abdon donated his 1/6 share in the subject lot to her
daughter Vicenta Umengan as evidenced by the Deed of Donation appearing as Doc. No.
538, Page No. 41, Book No. V, series of 1961 of the notarial book of the same notary
public.

According to Vicenta Umengan, the children of Isabel Cuntapay by her second husband
(Rosendo and Trinidad Lasam) own only 2/6 portion of the subject lot. She thus prayed
that the complaint for ejectment be dismissed and that the heirs of Rosendo Lasam be
ordered to pay her damages.

The MTCC rendered judgment in favor of the heirs of Rosendo Lasam and directed the
ejectment of Vicenta Umengan. In so ruling, the MTCC gave credence to the newly
discovered last will and testament (entitled Testamento Abierto) purportedly executed
by Isabel Cuntapay where she bequeathed the subject lot to her son, Rosendo Lasam,
thus:

x x x my share 1/5th (one-fifth) of the Cuntapay heirs, bordered on the North by

Sr. Elia Canapi; to the South, by Calle Aguinaldo; to the East, by Calle P. Burgos
and the West, by the late Don Luis Alonso; on the property which is my share
stands a house of light materials where I presently reside; this 1/5th (one-fifth)
share of my inheritance from the Cuntapays I leave to my son Rosendo Lasam and
also the aforementioned house of light material x x x2

The MTCC reasoned that the heirs of Rosendo Lasam anchored their claim over the
subject lot on the last will and testament of Isabel Cuntapay while Vicenta Umengan
hinged hers on intestate succession and legal conveyances. Citing jurisprudence3 and
Article 10804 of the Civil Code, the MTCC opined that testacy was favored and that
intestacy should be avoided and the wishes of the testator should prevail. It observed
that the last will and testament of Isabel Cuntapay was not yet probated as required by
law; nonetheless, the institution of a probate proceeding was not barred by prescription.

With the finding that the subject lot was already bequeathed by Isabel Cuntapay to
Rosendo Lasam, the MTCC held that the siblings Abdon, Sado, Rufo and Maria Turingan
no longer had any share therein. Consequently, they could not convey to Vicenta
Umengan what they did not own. On the issue then of who was entitled to possession of
the subject lot, the MTCC ruled in favor of the heirs of Rosendo Lasam as it found that
Vicenta Umengan’s possession thereof was by mere tolerance. The dispositive portion of
the MTCC decision reads:
 WHEREFORE, in the light of the foregoing considerations, this Court Resolve[d] to
order the EJECTMENT of VICENTA T. UMENGAN and in her place INSTITUTE THE
HEIRS OF ROSENDO LASAM.

It is further ordered the defendant shall pay the Heirs of Rosendo Lasam the sum
of P500.00 pesos representing the monthly rental of the land from August 2000 to
the time this case shall have been terminated.

Ordering the defendant to pay the plaintiffs the amount of P20,000.00 attorney’s
fees plus cost of this litigation.

So Ordered.5

On appeal, the RTC affirmed in toto the decision of the MTCC. The RTC echoed the
reasoning of the MTCC that the testamentary disposition of the property of Isabel
Cuntapay should be respected, and that the heirs of Rosendo Lasam have a better right
to possess the subject lot.

Undaunted, Vicenta Umengan filed an appeal with the CA. She argued that the MTCC
had no jurisdiction over the case as it involved the recovery of ownership of the subject
lot, not merely recovery of possession or unlawful detainer. She also assailed the RTC’s
and the MTCC’s holding that the purported Testamento Abierto of Isabel Cuntapay
prevails over Vicenta Umengan’s muniments of title and, consequently, the heirs of
Rosendo Lasam have a better right to the subject lot than Vicenta Umengan.

In the assailed Decision dated February 16, 2005, the CA reversed and set aside the
decision of the RTC. The appellate court preliminarily upheld the jurisdiction of the MTCC
over the subject matter as it found that the allegations in the complaint made out a case
for unlawful detainer. The heirs of Rosendo Lasam in their complaint, according to the
CA, only sought for Vicenta Umengan to vacate and surrender possession of the subject
lot. The CA also rejected the contention of the heirs of Rosendo Lasam that the issue of
ownership of the subject lot had already been settled in another case, Civil Case No.
4917, before RTC (Branch 3) of Tuguegarao City. The CA stated that the trial court’s
order dismissing the said case was not a "judgment on the merits" as to constitute res
judicata.

However, the CA declared that the RTC, as well as the MTCC, erred in ruling that, by
virtue of the purported last will and testament of Isabel Cuntapay, the heirs of Rosendo
Lasam have a better right to the subject lot over Vicenta Umengan. The CA explained
that the said last will and testament did not comply with the formal requirements of the
law on wills.6

Specifically, the CA found that the pages of the purported last will and testament were
not numbered in accordance with the law. Neither did it contain the requisite attestation
clause. Isabel Cuntapay as testator and the witnesses to the will did not affix their
respective signatures on the second page thereof. The said instrument was likewise not
acknowledged before a notary public by the testator and the witnesses. The CA even
raised doubts as to its authenticity, noting that while Isabel Cuntapay died in 1947 and
the heirs of Rosendo Lasam claimed that they discovered the same only in 1997, a date
– May 19, 1956 – appears on the last page of the purported will. The CA opined that if
this was the date of execution, then the will was obviously spurious. On the other hand,
if this was the date of its discovery, then the CA expressed bafflement as to why the
heirs of Rosendo Lasam, through their mother, declared in the Partition Agreement
dated December 28, 1979 that Isabel Cuntapay died intestate.

It was observed by the CA that as against these infirmities in the claim of the heirs of
Rosendo Lasam, Vicenta Umengan presented a Deed of Sale and a Deed of Donation to
justify her possession of the subject lot. The CA noted that she has also possessed the
subject property since 1955. Such prior possession, the CA held, gave Vicente Umengan
the right to remain in the subject lot until a person with a better right lawfully ejects
her. The heirs of Rosendo Lasam do not have such a better right. The CA stressed that
the ruling on the issue of physical possession does not affect the title to the subject lot
nor constitute a binding and conclusive adjudication on the merits on the issue of
ownership. The parties are not precluded from filing the appropriate action to directly
contest the ownership of or the title to the subject lot.

The decretal portion of the assailed decision of the CA reads:

WHEREFORE, premises considered, the appeal is GRANTED. The August 29, 2003
decision of the RTC, Branch 1, Tuguegarao City, Cagayan in Civil Case No. 5924 is
hereby REVERSED and SET ASIDE. Private respondents’ complaint for unlawful
detainer against petitioner is dismissed for lack of merit.

SO ORDERED.7

The heirs of Rosendo Lasam sought the reconsideration thereof but their motion was
denied by the CA in its Resolution dated May 17, 2005.

The heirs of Rosendo Lasam (petitioners) now come to the Court alleging that the CA
committed reversible error in setting aside the decision of the RTC, which had affirmed
that of the MTCC, and dismissing their complaint for unlawful detainer against
respondent Vicenta Umengan.

Petitioners argue that the CA erred when it held, on one hand, that the MTCC had
jurisdiction over the subject matter of the complaint as the allegations therein make out
a case for unlawful detainer but, on the other hand, proceeded to discuss the validity of
the last will and testament of Isabel Cuntapay.

Petitioners insist that respondent is holding the subject lot by mere tolerance and that
they, as the heirs of Rosendo Lasam who was the rightful owner of the subject lot, have
a better right thereto. It was allegedly error for the CA to declare the last will and
testament of Isabel Cuntapay as null and void for its non-compliance with the formal
requisites of the law on wills. The said matter cannot be resolved in an unlawful detainer
case, which only involves the issue of material or physical possession of the disputed
property. In any case, they maintain that the said will complied with the formal
requirements of the law.

It was allegedly also erroneous for the CA to consider in respondent’s favor the deed of
sale and deed of donation covering portions of the subject lot, when these documents
had already been passed upon by the RTC (Branch 3) of Tuguegarao City in Civil Case
No. 4917 when it dismissed the respondent’s complaint for partition of the subject lot.
The said order allegedly constituted res judicata and may no longer be reviewed by the
CA.

Petitioners emphasize that in an unlawful detainer case, the only issue to be resolved is
who among the parties is entitled to the physical or material possession of the property
in dispute. On this point, the MTCC held (and the same was affirmed by the RTC) that
petitioners have a better right since the "merely tolerated" possession of the respondent
had already expired upon the petitioners’ formal demand on her to vacate. In support of
this claim, they point to the affidavit of Heliodoro Turingan, full brother of the
respondent, attesting that the latter’s possession of the subject lot was by mere
tolerance of Rosendo Lasam who inherited the same from Isabel Cuntapay.

According to petitioners, respondent’s predecessors-in-interest from whom she derived

her claim over the subject lot by donation and sale could not have conveyed portions
thereof to her, as she had claimed, because until the present, it is still covered by OCT
Nos. 196 and 1032 under the names of Pedro and Leona Cuntapay. Their respective
estates have not been settled up to now.

It is also the contention of petitioners that the CA should have dismissed outright
respondent’s petition filed therewith for failure to comply with the technical requirements
of the Rules of Court. Specifically, the petition was not allegedly properly verified, lacked
statement of material dates and written explanation on why personal service was not
made.

This last contention of petitioners deserves scant consideration. The technical

requirements for filing an appeal are not sacrosanct. It has been held that while the
requirements for perfecting an appeal must be strictly followed as they are considered
indispensable interdictions against needless delays and for orderly discharge of judicial
business, the law does admit of exceptions when warranted by circumstances.8 In the
present case, the CA cannot be faulted in choosing to overlook the technical defects of
respondent’s appeal. After all, technicality should not be allowed to stand in the way of
equitably and completely resolving the rights and obligations of the parties.9

The Court shall now resolve the substantive issues raised by petitioners.

It is well settled that in ejectment suits, the only issue for resolution is the physical or
material possession of the property involved, independent of any claim of ownership by
any of the party litigants. However, the issue of ownership may be provisionally ruled
upon for the sole purpose of determining who is entitled to possession de facto.10

In the present case, petitioners base their claim of right to possession on the theory that
their father, Rosendo Lasam, was the sole owner of the subject lot by virtue of the newly
discovered last will and testament of Isabel Cuntapay bequeathing the same to him.
Respondent is allegedly holding the subject lot by mere tolerance of Rosendo Lasam
and, upon the petitioners’ formal demand on her to vacate the same, respondent’s right
to possess it has expired.

On the other hand, respondent hinges her claim of possession on the legal conveyances
made to her by the children of Isabel Cuntapay by her first husband, namely, Maria,
Rufo, Sado and Abdon. These conveyances were made through the sale and donation by
the said siblings of their respective portions in the subject lot to respondent as
evidenced by the pertinent deeds.

The CA correctly held that, as between the respective claims of petitioners and
respondent, the latter has a better right to possess the subject lot.

As earlier stated, petitioners rely on the last will and testament of Isabel Cuntapay that
they had allegedly newly discovered. On the basis of this instrument, the MTCC and RTC
ruled that petitioners have a better right to the possession of the subject lot because,
following the law on succession, it should be respected and should prevail over intestate
succession.

However, contrary to the ruling of the MTCC and RTC, the purported last will and
testament of Isabel Cuntapay could not properly be relied upon to establish petitioners’
right to possess the subject lot because, without having been probated, the said last will
and testament could not be the source of any right.

Article 838 of the Civil Code is instructive:

Art. 838. No will shall pass either real or personal property unless it is proved and
allowed in accordance with the Rules of Court.

The testator himself may, during his lifetime, petition the court having jurisdiction
for the allowance of his will. In such case, the pertinent provisions of the Rules of
Court for the allowance of wills after the testator’s death shall govern.

The Supreme Court shall formulate such additional Rules of Court as may be
necessary for the allowance of wills on petition of the testator.

Subject to the right of appeal, the allowance of the will, either during the lifetime
of the testator or after his death, shall be conclusive as to its due execution.
In Cañiza v. Court of Appeals,11 the Court ruled that: "[a] will is essentially ambulatory;
at any time prior to the testator’s death, it may be changed or revoked; and until
admitted to probate, it has no effect whatever and no right can be claimed thereunder,
the law being quite explicit: ‘No will shall pass either real or personal property unless it
is proved and allowed in accordance with the Rules of Court.’"12

Dr. Tolentino, an eminent authority on civil law, also explained that "[b]efore any will
can have force or validity it must be probated. To probate a will means to prove before
some officer or tribunal, vested by law with authority for that purpose, that the
instrument offered to be proved is the last will and testament of the deceased person
whose testamentary act it is alleged to be, and that it has been executed, attested and
published as required by law, and that the testator was of sound and disposing mind. It
is a proceeding to establish the validity of the will."13 Moreover, the presentation of the
will for probate is mandatory and is a matter of public policy.14

Following the above truisms, the MTCC and RTC, therefore, erroneously ruled that
petitioners have a better right to possess the subject lot on the basis of the purported
last will and testament of Isabel Cuntapay, which, to date, has not been probated.
Stated in another manner, Isabel Cuntapay’s last will and testament, which has not been
probated, has no effect whatever and petitioners cannot claim any right thereunder.

Hence, the CA correctly held that, as against petitioners’ claim, respondent has shown a
better right of possession over the subject lot as evidenced by the deeds of conveyances
executed in her favor by the children of Isabel Cuntapay by her first marriage.

Contrary to the claim of petitioners, the dismissal of respondent’s action for partition in
Civil Case No. 4917 before the RTC (Branch 3) of Tuguegarao City does not constitute
res judicata on the matter of the validity of the said conveyances or even as to the issue
of the ownership of the subject lot. The order dismissing respondent’s action for partition
in Civil Case No. 4917 stated thus:

For resolution is a motion to dismiss based on defendants’ [referring to the

petitioners herein] affirmative defenses consisting inter alia in the discovery of a
last will and testament of Isabel Cuntapay, the original owner of the land in
dispute.

xxx

It appears, however, that the last will and testament of the late Isabel Cuntapay
has not yet been allowed in probate, hence, there is an imperative need to petition
the court for the allowance of said will to determine once and for all the proper
legitimes of legatees and devisees before any partition of the property may be
judicially adjudicated.

It is an elementary rule in law that testate proceedings take precedence over any
other action especially where the will evinces the intent of the testator to dispose
of his whole estate.

With the discovery of the will of the late Isabel Cuntapay in favor of the
defendants, the Court can order the filing of a petition for the probate of the same
by the interested party.

WHEREFORE, in light of the foregoing considerations, let the above-entitled case

be as it is hereby DISMISSED.

SO ORDERED.15

For there to be res judicata, the following elements must be present: (1) finality of the
former judgment; (2) the court which rendered it had jurisdiction over the subject
matter and the parties; (3) it must be a judgment on the merits; and (4) there must be,
between the first and second actions, identity of parties, subject matter and causes of
action.16 The third requisite, i.e., that the former judgment must be a judgment on the
merits, is not present between the action for partition and the complaint a quo for
unlawful detainer. As aptly observed by the CA:

Our reading of the Orders (dated June 16, 1997 and October 13, 1997) in Civil
Case No. 4917 reveals that the RTC, Branch 3, Tuguegarao, Cagayan, dismissed
the complaint for partition because of the discovery of the alleged last will and
testament of Isabel Cuntapay. The court did not declare respondents [referring to
the petitioners herein] the owners of the disputed property. It simply ordered
them to petition the court for the allowance of the will to determine the proper
legitimes of the heirs prior to any partition. Instead of filing the appropriate
petition for the probate of Isabel Cuntapay’s will, the respondents filed the present
complaint for unlawful detainer. Viewed from this perspective, we have no doubt
that the court’s Orders cited by the respondents are not "judgments on the merits"
that would result in the application of the principle of res judicata. Where the trial
court merely refrained from proceeding with the case and granted the motion to
dismiss with some clarification without conducting a trial on the merits, there is no
res judicata.17

Further, it is not quite correct for petitioners to contend that the children of Isabel
Cuntapay by her first marriage could not have conveyed portions of the subject lot to
respondent, as she had claimed, because until the present, it is still covered by OCT
Nos. 196 and 1032 under the names of Pedro and Leona Cuntapay. To recall, it was
already agreed by the heirs of the said spouses in a Partition Agreement dated
December 28, 1979 that the subject lot would belong to Isabel Cuntapay. The latter died
leaving her six children by both marriages as heirs. Considering that her purported last
will and testament has, as yet, no force and effect for not having been probated, her six
children are deemed to be co-owners of the subject lot having their respective pro
indiviso shares. The conveyances made by the children of Isabel Cuntapay by her first
marriage of their respective pro indiviso shares in the subject lot to respondent are valid
because the law recognizes the substantive right of heirs to dispose of their ideal share
in the co-heirship and/co-ownership among the heirs. The Court had expounded the
principle in this wise:

This Court had the occasion to rule that there is no doubt that an heir can sell
whatever right, interest, or participation he may have in the property under
administration. This is a matter which comes under the jurisdiction of the probate
court.

The right of an heir to dispose of the decedent’s property, even if the same is
under administration, is based on the Civil Code provision stating that the
possession of hereditary property is deemed transmitted to the heir without
interruption and from the moment of the death of the decedent, in case the
inheritance is accepted. Where there are however, two or more heirs, the whole
estate of the decedent is, before its partition, owned in common by such heirs.

The Civil Code, under the provisions of co-ownership, further qualifies this right.
Although it is mandated that each co-owner shall have the full ownership of his
part and of the fruits and benefits pertaining thereto, and thus may alienate,
assign or mortgage it, and even substitute another person in its enjoyment, the
effect of the alienation or the mortgage, with respect to the co-owners, shall be
limited to the portion which may be allotted to him in the division upon the
termination of the co-ownership. In other words, the law does not prohibit a co-
owner from selling, alienating or mortgaging his ideal share in the property held in
common.

As early as 1942, this Court has recognized said right of an heir to dispose of
property under administration. In the case of Teves de Jakosalem vs. Rafols, et
al., it was said that the sale made by an heir of his share in an inheritance, subject
to the result of the pending administration, in no wise, stands in the way of such
administration. The Court then relied on the provision of the old Civil Code, Article
 440 and Article 399 which are still in force as Article 533 and Article 493,
respectively, in the new Civil Code. The Court also cited the words of a noted
civilist, Manresa: "Upon the death of a person, each of his heirs ‘becomes the
undivided owner of the whole estate left with respect to the part or portion which
might be adjudicated to him, a community of ownership being thus formed among
the co-owners of the estate which remains undivided.’"18

Contrary to the assertion of petitioners, therefore, the conveyances made by the

children of Isabel Cuntapay by her first marriage to respondent are valid insofar as
their pro indiviso shares are concerned. Moreover, the CA justifiably held that these
conveyances, as evidenced by the deed of donation and deed of sale presented by
respondent, coupled with the fact that she has been in possession of the subject lot
since 1955, establish that respondent has a better right to possess the same as against
petitioners whose claim is largely based on Isabel Cuntapay’s last will and testament
which, to date, has not been probated; hence, has no force and effect and under which
no right can be claimed by petitioners. Significantly, the probative value of the other
evidence relied upon by petitioners to support their claim, which was the affidavit of
Heliodoro Turingan, was not passed upon by the MTCC and the RTC. Their respective
decisions did not even mention the same.

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

x x x our ruling on the issue of physical possession does not affect title to the
property nor constitute a binding and conclusive adjudication on the merits on the
issue of ownership. The parties are not precluded from filing the appropriate action
directly contesting the ownership of or the title to the property.19

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

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

dated February 16, 2005 and the Resolution dated May 17, 2005 of the Court of Appeals
in CA-G.R. SP No. 80032 are AFFIRMED.
G.R. No. L-12207           December 24, 1959

JUAN PALACIOS, petitioner-appellant, 
vs.
MARIA CATIMBANG PALACIOS, oppositor-appellee.

Augusto Francisco and Vicente Reyes Villavicencio for appellant.

Laureano C. Alano and Enrique A. Amador for appellee.

BAUTISTA ANGELO, J.:

Juan Palacios executed his last will and testament on June 25, 1946 and availing himself
of the provisions of the new Civil Code, he filed on May 23, 1956 before the Court of
First Instance of Batangas a petition for its approval. In said will, he instituted as his
sole heirs his natural children Antonio C. Palacios and Andrea C. Palacios.

On June 21, 1956, Maria Catimbang filed a opposition to the probate of the will alleging
that she is the acknowledged natural daughter of petitioner but that she was completely
ignored in said will thus impairing here legitime.

After the presentation of petitioner's evidence relative to the essential requisites and
formalities provided by law for the validity of a will, the court on July 6, 1956 issued an
order admitting the will to probate. The court, however, set a date for the hearing of the
opposition relative to the intrinsic validity of the will and, after proper hearing
concerning this incident, the court issued another order declaring oppositor to be the
natural child of petitioner and annulling the will insofar as it impairs her legitime, with
costs against petitioner.

From this last order, petitioner gave notice of his intention to appeal directly to the
Supreme Court, and accordingly, the record was elavated to this Court.

It should be noted that petition instituted the present proceeding in order to secure the
probate of his will availing himself of the provisions of Article 838, paragraph 2, of the
new Civil Code, which permit a testator to petition the proper court during his lifetime
for the allowance of his will, but to such petition on Maria Catimbang filed an opposition
alleging that she is the acknowledged natural daughter of petitioner but that she was
completely ignored in the will thus impairing her object to the probate of the will insofar
as it due execution is concerned or on the ground that it has not complied with the
formalities prescribed by law; rather she objects to its intrinsic validity or to the legality
of the provisions of the will.

We hold that such opposition cannot be entertained in this proceeding because its only
purpose is merely to determine if the will has been executed in accordance with the
requirements of the law, much less if the purpose of the opposition is to show that the
oppositor is an acknowledged natural child who allegedly has been ignored in the will for
issue cannot be raised here but in a separate action. This is especially so when the
testator, as in the present case, is still alive and has merely filed a petition for the
allowance of his will leaving the effects thereof after his death.lawphi1.net

This is in line with our ruling in Montañano vs. Suesa, 14 Phil., 676, wherein we said:
"The authentication of the will decides no other questions than such as touch upon the
capacity of the testator and the compliance with those requisites or solemnities which
the law prescribes for the validity of a will. It does not determine nor even by implication
prejudge the validity or efficiency of the provisions; that may be impugned as being
vicious or null, notwithstanding its authentication. The questions relating to these points
remain entirely un-affected, and may be raised even after the will has been
authenticated."
On the other hand, "after a will has been probated during the lifetime of a testator, it
does not necessarily mean that he cannot alter or revoke the same before he has had a
chance to present such petition, the ordinary probate proceedings after the testator's
death would be in order" (Report of the Code Commission, pp. 53-54).The reason for
this comment is that the rights to the succession are transmitted from the moment of
the death of the decedent (Article 777, new Civil Code.).

It is clear that the trial court erred in entertaining the opposition and in annulling the
portion of the will which allegedly impairs the legitime of the oppositor on the ground
that, as it has found, she is an extraneous matter which should be treshed out in a
separate action. Wherefore, the order appealed from is set aside, without
pronouncement as to costs.
G.R. No. L-16763 December 22, 1921

PASCUAL COSO, petitioner-appellant, 
vs.
FERMINA FERNANDEZ DEZA, ET AL., objectors-appellees.

Eduardo Gutierrez Repide & Felix Socias for appellant. 

Jose Varela Calderon & Benito Jimenez Zoboli for appellees.

OSTRAND, J.:

This is an appeal from a decision of the Court of First Instance of Manila setting aside a
will on the ground of undue influence alleged to have been exerted over the mind of a
testator by one Rosario Lopez. The will gives the tercio de libre disposicion to an
illegitimate son had by the testator with said Rosario Lopez, and also provides for the
payment to her of nineteen hundred Spanish duros by way the reimbursement for
expenses incurred by her in taking care of the testator in Barcelona during the years
1909 to 1916, when he is alleged to have suffered from a severe illness.

The evidence shows that the testator, a married man and resident of the Philippine
Islands, became acquainted with Rosario Lopez in Spain in 1898 and that he had illicit
returns with her for many years thereafter. After his return to the Philippines she
followed him, arriving in Manila in February, 1918, and remained in close communication
with him until his death in February, 1919. There is no doubt that she exercised some
influence over him and the only question for our determination is whether this influence
was of such a character as to vitiate the will.

The English and American rule in regard to undue influence is thus stated in 40 Cyc.,
1144-1149.

Mere general or reasonable influence over a testator is not sufficient to invalidate a

will; to have that effect the influence must be "undue." The rule as to what
constitutes "undue influence" has been variously stated, but the substance of the
different statements is that, to be sufficient to avoid a will, the influence exerted
must be of a kind that so overpowers and subjugates the mind of the testator as
to destroy his free agency and make his express the will of another, rather than
his own.1awphil.net

. . . such influence must be actually exerted on the mind of the testator in regard
to the execution of the will in question, either at time of the execution of the will,
or so near thereto as to be still operative, with the object of procuring a will in
favor of particular parties, and it must result in the making of testamentary
dispositions which the testator would not otherwise have made. . . .

. . . and while the same amount of influence may become "undue" when exercised
by one occupying an improper and adulterous relation to testator, the mere fact
that some influence is exercised by a person sustaining that relation does not
invalidate a will, unless it is further shown that the influence destroys the
testator's free agency.

The burden is upon the parties challenging the will to show that undue influence, in the
sense above expressed, existed at the time of its execution and we do not think that this
burden has been carried in the present case. While it is shown that the testator
entertained strong affections for Rosario Lopez, it does not appear that her influence so
overpowered and subjugated his mind as to "destroy his free agency and make him
express the will of another rather than his own." He was an intelligent man, a lawyer by
profession, appears to have known his own mind, and may well have been actuated only
by a legitimate sense of duty in making provisions for the welfare of his illegitimate son
and by a proper feeling of gratitude in repaying Rosario Lopez for the sacrifices she had
made for him. Mere affection, even if illegitimate, is not undue influence and does not
invalidate a will. No imposition or fraud has been shown in the present case.

Influence gained by kindness and affection will not be regarded as `undue,' if no

imposition or fraud be practiced, even though it induces the testator to make an
unequal and unjust disposition of his property in favor of those who have
contributed to his comfort and ministered to his wants, if such disposition is
voluntarily made. (Mackall vs. Mackall, 135 U. S., 1677.)

It may be further observed that under the Civil Law the right of a person with legal heirs
to dispose of his property by will is limited to only a portion of his estate, and that under
the law in force in these Islands before the enactment of the Code of Civil Procedure, the
only outside influences affecting the validity of a will were duress, deceit, and fraud. The
present doctrine of undue influence originated in a legal system where the right of the
testator to dispose of his property by will was nearly unlimited. Manifestly, greater
safeguards in regard to execution of wills may be warranted when the right to so dispose
of property is unlimited than when it is restricted to the extent it is in this jurisdiction.
There is, therefore, certainly no reason for giving the doctrine of undue influence a wider
scope here than it enjoys in the United States.

For the reasons stated, the decision of the lower court disallowing the will of Federico
Gimenez Zoboli is hereby reversed and it is ordered that the will be admitted to probate.
No costs will be allowed. So ordered.
G.R. No. 106720 September 15, 1994

SPOUSES ROBERTO AND THELMA AJERO, petitioners, 

vs.
THE COURT OF APPEALS AND CLEMENTE SAND, respondents.

Miguel D. Larida for petitioners.

Montilla Law Office for private respondent.

PUNO, J.:

This is an appeal by certiorari from the Decision of the Court of 

1
Appeals   in CA-G.R. CV No. 22840, dated March 30, 1992, the dispositive portion of
which reads;

PREMISES CONSIDERED, the questioned decision of November 19, 1988 of

the trial court is hereby REVERSED and SET ASIDE, and the petition for
probate is hereby DISMISSED. No costs.

The earlier Decision was rendered by the RTC of Quezon City, Branch 94, 2 in Sp.
Proc. No. Q-37171, and the instrument submitted for probate is the holographic
will of the late Annie Sand, who died on November 25, 1982.

In the will, decedent named as devisees, the following: petitioners Roberto and Thelma
Ajero, private respondent Clemente Sand, Meriam S. Arong, Leah Sand, Lilia Sand,
Edgar Sand, Fe Sand, Lisa S. Sand, and Dr. Jose Ajero, Sr., and their children.

On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for allowance of
decedent's holographic will. They alleged that at the time of its execution, she was of
sound and disposing mind, not acting under duress, fraud or undue influence, and was in
every respect capacitated to dispose of her estate by will.

Private respondent opposed the petition on the grounds that: neither the testament's
body nor the signature therein was in decedent's handwriting; it contained alterations
and corrections which were not duly signed by decedent; and, the will was procured by
petitioners through improper pressure and undue influence. The petition was likewise
opposed by Dr. Jose Ajero. He contested the disposition in the will of a house and lot
located in Cabadbaran, Agusan Del Norte. He claimed that said property could not be
conveyed by decedent in its entirety, as she was not its sole owner.

Notwithstanding the oppositions, the trial court admitted the decedent's holographic will
to probate. It found, inter alia:

Considering then that the probate proceedings herein must decide only the
question of identity of the will, its due execution and the testamentary
capacity of the testatrix, this probate court finds no reason at all for the
disallowance of the will for its failure to comply with the formalities
prescribed by law nor for lack of testamentary capacity of the testatrix.

For one, no evidence was presented to show that the will in question is
different from the will actually executed by the testatrix. The only objections
raised by the oppositors . . . are that the will was not written in the
handwriting of the testatrix which properly refers to the question of its due
execution, and not to the question of identity of will. No other will was
alleged to have been executed by the testatrix other than the will herein
presented. Hence, in the light of the evidence adduced, the identity of the
will presented for probate must be accepted, i.e., the will submitted in Court
must be deemed to be the will actually executed by the testatrix.
xxx xxx xxx

While the fact that it was entirely written, dated and signed in the
handwriting of the testatrix has been disputed, the petitioners, however,
have satisfactorily shown in Court that the holographic will in question was
indeed written entirely, dated and signed in the handwriting of the testatrix.
Three (3) witnesses who have convincingly shown knowledge of the
handwriting of the testatrix have been presented and have explicitly and
categorically identified the handwriting with which the holographic will in
question was written to be the genuine handwriting and signature of the
testatrix. Given then the aforesaid evidence, the requirement of the law that
the holographic will be entirely written, dated and signed in the handwriting
of the testatrix has been complied with.

xxx xxx xxx

As to the question of the testamentary capacity of the testratix, (private

respondent) Clemente Sand himself has testified in Court that the testatrix
was completely in her sound mind when he visited her during her birthday
celebration in 1981, at or around which time the holographic will in question
was executed by the testatrix. To be of sound mind, it is sufficient that the
testatrix, at the time of making the will, knew the value of the estate to be
disposed of, the proper object of her bounty, and the characterof the
testamentary act . . . The will itself shows that the testatrix even had
detailed knowledge of the nature of her estate. She even identified the lot
number and square meters of the lots she had conveyed by will. The objects
of her bounty were likewise identified explicitly. And considering that she
had even written a nursing book which contained the law and jurisprudence
on will and succession, there is more than sufficient showing that she knows
the character of the testamentary act.

In this wise, the question of identity of the will, its due execution and the
testamentary capacity of the testatrix has to be resolved in favor of the
allowance of probate of the will submitted herein.

Likewise, no evidence was presented to show sufficient reason for the

disallowance of herein holographic will. While it was alleged that the said will
was procured by undue and improper pressure and influence on the part of
the beneficiary or of some other person, the evidence adduced have not
shown any instance where improper pressure or influence was exerted on
the testatrix. (Private respondent) Clemente Sand has testified that the
testatrix was still alert at the time of the execution of the will, i.e., at or
around the time of her birth anniversary celebration in 1981. It was also
established that she is a very intelligent person and has a mind of her own.
Her independence of character and to some extent, her sense of superiority,
which has been testified to in Court, all show the unlikelihood of her being
unduly influenced or improperly pressured to make the aforesaid will. It
must be noted that the undue influence or improper pressure in question
herein only refer to the making of a will and not as to the specific
testamentary provisions therein which is the proper subject of another
proceeding. Hence, under the circumstances, this Court cannot find
convincing reason for the disallowance of the will herein.

Considering then that it is a well-established doctrine in the law on

succession that in case of doubt, testate succession should be preferred over
intestate succession, and the fact that no convincing grounds were
presented and proven for the disallowance of the holographic will of the late
Annie Sand, the aforesaid will submitted herein must be admitted to
probate. 3 (Citations omitted.)
On appeal, said Decision was reversed, and the petition for probate of decedent's will
was dismissed. The Court of Appeals found that, "the holographic will fails to meet the
requirements for its validity." 4 It held that the decedent did not comply with Articles 813
and 814 of the New Civil Code, which read, as follows:

Art. 813: When a number of dispositions appearing in a holographic will are

signed without being dated, and the last disposition has a signature and
date, such date validates the dispositions preceding it, whatever be the time
of prior dispositions.

Art. 814: In case of insertion, cancellation, erasure or alteration in a

holographic will, the testator must authenticate the same by his full
signature.

It alluded to certain dispositions in the will which were either unsigned and undated, or
signed but not dated. It also found that the erasures, alterations and cancellations made
thereon had not been authenticated by decedent.

Thus, this appeal which is impressed with merit.

Section 9, Rule 76 of the Rules of Court provides that will shall be disallowed in any of
the following cases:

(a) If not executed and attested as required by law;

(b) If the testator was insane, or otherwise mentally incapable to make a

will, at the time of its execution;

(c) If it was executed under duress, or the influence of fear, or threats;

(d) If it was procured by undue and improper pressure and influence, on the
part of the beneficiary, or of some other person for his benefit;

(e) If the signature of the testator was procured by fraud or trick, and he did
not intend that the instrument should be his will at the time of fixing his
signature thereto.

In the same vein, Article 839 of the New Civil Code reads:

Art. 839: The will shall be disallowed in any of the following cases;

(1) If the formalities required by law have not been complied

with;

(2) If the testator was insane, or otherwise mentally incapable of

making a will, at the time of its execution;

(3) If it was executed through force or under duress, or the

influence of fear, or threats;

(4) If it was procured by undue and improper pressure and

influence, on the part of the beneficiary or of some other person;

(5) If the signature of the testator was procured by fraud;

(6) If the testator acted by mistake or did not intend that the
instrument he signed should be his will at the time of affixing his
signature thereto.

These lists are exclusive; no other grounds can serve to disallow a will. 5 Thus, in a
petition to admit a holographic will to probate, the only issues to be resolved are: (1)
whether the instrument submitted is, indeed, the decedent's last will and testament; (2)
whether said will was executed in accordance with the formalities prescribed by law; (3)
whether the decedent had the necessary testamentary capacity at the time the will was
executed; and, (4) whether the execution of the will and its signing were the voluntary
acts of the decedent. 6

In the case at bench, respondent court held that the holographic will of Anne Sand was
not executed in accordance with the formalities prescribed by law. It held that Articles
813 and 814 of the New Civil Code, ante, were not complied with, hence, it disallowed
the probate of said will. This is erroneous.

We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479 (1919), that:

The object of the solemnities surrounding the execution of wills is to close

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

For purposes of probating non-holographic wills, these formal solemnities include the
subscription, attestation, and acknowledgment requirements under Articles 805 and 806
of the New Civil Code.

In the case of holographic wills, on the other hand, what assures authenticity is the
requirement that they be totally autographic or handwritten by the testator himself, 7 as
provided under Article 810 of the New Civil Code, thus:

A person may execute a holographic will which must be entirely written,

dated, and signed by the hand of the testator himself. It is subject to no
other form, and may be made in or out of the Philippines, and need not be
witnessed. (Emphasis supplied.)

Failure to strictly observe other formalities will not result in the disallowance of a
holographic will that is unquestionably handwritten by the testator.

A reading of Article 813 of the New Civil Code shows that its requirement affects the
validity of the dispositions contained in the holographic will, but not its probate. If the
testator fails to sign and date some of the dispositions, the result is that these
dispositions cannot be effectuated. Such failure, however, does not render the whole
testament void.

Likewise, a holographic will can still be admitted to probate, notwithstanding non-

compliance with the provisions of Article 814. In the case of Kalaw vs. Relova 132 SCRA
237 242 (1984), this Court held:

Ordinarily, when a number of erasures, corrections, and interlineations made

by the testator in a holographic Will have not been noted under his
signature, . . . the Will is not thereby invalidated as a whole, but at most
only as respects the particular words erased, corrected or interlined.
Manresa gave an identical commentary when he said "la omission de la
salvedad no anula el testamento, segun la regla de jurisprudencia
establecida en la sentencia de 4 de Abril de 1985." 8 (Citations omitted.)

Thus, unless the unauthenticated alterations, cancellations or insertions were made on

the date of the holographic will or on testator's signature, 9 their presence does not
invalidate the will itself. 10 The lack of authentication will only result in disallowance of
such changes.

It is also proper to note that the requirements of authentication of changes and signing
and dating of dispositions appear in provisions (Articles 813 and 814) separate from that
which provides for the necessary conditions for the validity of the holographic will
(Article 810). The distinction can be traced to Articles 678 and 688 of the Spanish Civil
Code, from which the present provisions covering holographic wills are taken. They read
as follows:

Art. 678: A will is called holographic when the testator writes it himself in
the form and with the requisites required in Article 688.

Art. 688: Holographic wills may be executed only by persons of full age.

In order that the will be valid it must be drawn on stamped paper

corresponding to the year of its execution, written in its entirety by the
testator and signed by him, and must contain a statement of the year,
month and day of its execution.

If it should contain any erased, corrected, or interlined words, the testator

must identify them over his signature.

Foreigners may execute holographic wills in their own language.

This separation and distinction adds support to the interpretation that only the
requirements of Article 810 of the New Civil Code — and not those found in Articles 813
and 814 of the same Code — are essential to the probate of a holographic will.

The Court of Appeals further held that decedent Annie Sand could not validly dispose of
the house and lot located in Cabadbaran, Agusan del Norte, in its entirety. This is correct
and must be affirmed.

As a general rule, courts in probate proceedings are limited to pass only upon the
extrinsic validity of the will sought to be probated. However, in exceptional instances,
courts are not powerless to do what the situation constrains them to do, and pass upon
certain provisions of the will. 11 In the case at bench, decedent herself indubitably stated
in her holographic will that the Cabadbaran property is in the name of her late father,
John H. Sand (which led oppositor Dr. Jose Ajero to question her conveyance of the
same in its entirety). Thus, as correctly held by respondent court, she cannot validly
dispose of the whole property, which she shares with her father's other heirs.

IN VIEW WHEREOF, the instant petition is GRANTED. The Decision of the Court of
Appeals in CA-G.R. CV No. 22840, dated March 30, 1992, is REVERSED and SET ASIDE,
except with respect to the invalidity of the disposition of the entire house and lot in
Cabadbaran, Agusan del Norte. The Decision of the Regional Trial Court of Quezon City,
Branch 94 in Sp. Proc. No. Q-37171, dated November 19, 1988, admitting to probate
the holographic will of decedent Annie Sand, is hereby REINSTATED, with the above
qualification as regards the Cabadbaran property. No costs.
G.R. No. 76648 February 26, 1988

THE HEIRS OF THE LATE MATILDE MONTINOLA-SANSON, petitioners, 

vs.
COURT OF APPEALS and EDUARDO F. HERNANDEZ, respondents.

GANCAYCO, J.:

This is a petition for review on certiorari of the decision of the Court of

Appeals 1 promulgated August 29,1986 affirming in toto the decision of the Regional
Trial Court of Manila, Branch XXII 2 dated March 21, 1985, the dispositive part of which
reads:

WHEREFORE, the Court renders judgment declaring the holographic will

marked in evidence as Exhibit "H" as one wholly written, dated, and signed
freely by the late Herminia Montinola in accordance with law while in
possession of full testamentary capacity, and allowing and admitting the
same to probate.

Upon the finality of the decision, let letters testamentary issue to the
executor, Eduardo F. Hernandez, as well as the certificate of probate
prescribed under Section 13 of Rule 76 of the Rules of Court.

SO ORDERED. 3

This case arose from a petition filed by private respondent Atty. Eduardo F. Hernandez
on April 22, 1981 with the Court of First Instance of Manila (now Regional Trial Court)
seeking the probate of the holographic will of the late Herminia Montinola executed on
January 28, 1980. 4 The testatrix, who died single, parentless and childless on March
29,1981 at the age of 70 years, devised in this will several of her real properties to
specified persons.

On April 29,1981, private respondent who was named executor in the will filed an urgent
motion for appointment of special administrator. 5 With the conformity of all the relatives
and heirs of the testatrix except oppositor, the court in its order of May 5,
1981 6 appointed private respondent as Special Administrator of the testate estate of
deceased.

On June 29,1981, Matilde Montinola Sanson (petitioner), the only surviving sister of the
deceased but who was not named in the said win, filed her Opposition to Probate of
Will, 7 alleging inter alia: that the subject will was not entirely written, dated and signed
by the testatrix herself and the same was falsely dated or antedated; that the testatrix
was not in full possession of her mental faculties to make testamentary dispositions;
that undue influence was exerted upon the person and mind of the testatrix by the
beneficiaries named in the win; and that the will failed to institute a residual heir to the
remainder of the estate.

After a hearing on the merits, the probate court, finding the evidence presented in
support of the petition to be conclusive and overwhelming, rendered its decision allowing
the probate of the disputed will.

Petitioner thus appealed the decision of the probate court to the Court of Appeals which
affirmed in toto the decision. 8

On September 24,1986, petitioner filed with the respondent court a motion for new
trial. 9 Attached to her motion was the Affidavit of Merit of Gregorio Montinola Sanson,
petitioner's son, alleging that witnesses have been located whose testimonies could shed
light as to the ill health of the testatrix as well as undue influence exerted on the latter.
The appellate court in its resolution of October 13, 1986, 10 denied the motion for new
trial of petitioner on the following grounds: (1) the Affidavit of merit attached to the
motion alleged that efforts were exerted to locate unnamed witnesses only after the
court's decision was handed down, and (2) the unnamed witnesses would allegedly shed
light on the fact of grave illness of the testatrix as well as the undue influence exerted
on her which are merely corroborative or cumulative since these facts were brought to
light during the trial.

The motion for reconsideration of petitioner dated October 27, 1986 11 was likewise
denied by the appellate court in its resolution of November 20, 1986 12 on the ground
that the affidavit of one Patricia Delgado submitted with the motion constitutes
cumulative evidence and the motion being in reality a second motion for reconsideration
which is prescribed by law.

In the petition now before Us, petitioner assigned the following errors:

THE RESPONDENT COURT OF APPEALS ERRED IN DENYING PETITIONERS'

MOTION FOR NEW TRIAL ON THE GROUND THAT THE EVIDENCE SOUGHT
TO BE PRESENTED IS MERELY CUMULATIVE.

II

THE SAID COURT ERRED IN DENYING PETITIONERS' MOTION FOR

RECONSIDERATION OF THE RESOLUTION DENYING THE AFORESAID
MOTION FOR NEW TRIAL.

III

AT ANY RATE, THE SAID COURT ERRED IN HOLDING THAT THE

HOLOGRAPHIC WILL IN QUESTION WAS WHOLLY WRITTEN, DATED AND
SIGNED BY THE LATE HERMINIA MONTINOLA.

IV

THE SAID COURT ERRED IN NOT FINDING THAT THE ALLEGED WILL WAS
FRAUDULENTLY ANTEDATED TO CONCEAL ITS ACTUAL DATE OF EXECUTION
AND TO SHIELD IT FROM PROBABLE DISPUTES AS TO THE TESTAMENTARY
CAPACITY ON THE PART OF THE ALLEGED TESTATRIX AT THE TIME OF ITS
ACTUAL EXECUTION.

THE SAID COURT ERRED IN HOLDING THAT THE LATE HERMINIA

MONTINOLA WAS NOT SUBJECTED TO UNDUE PRESSURE AND
IMPROPERIMPORTUNINGS ON THE PART OF THOSE STANDING TO BENEFIT
FROM THE ALLEGED WILL.

VI

THE SAID COURT ERRED IN ALLOWING THE HOLOGRAPHIC WILL IN

QUESTION TO PROBATE.

In the meantime, petitioner who passed away on November 3, 1986, was substituted by
her heirs.

In the first and second assigned errors, petitioners maintain that the appellate court
erred in denying the motion for new trial insisting that the new evidence sought to be
presented is not merely corroborative or cumulative.
On the other hand, the contention of private respondent is that the motion for new trial
was a pro-forma motion because it was not in accordance with Sec. 1, Rule 53 of the
Rules of Court. We find merit in this contention.

Section 1, Rule 53 provides —

Before a final order or judgment rendered by the Court of appeals becomes

executory, a motion for new trial may be filed on the ground of newly
discovered evidence which could not have been discovered prior to the trial
in the court below by the exercise of the diligence and which is of such a
character as would probably change the result. The motion shall be
accompanied by affidavits showing the facts constituting the grounds
therefor and the newly discovered evidence.

The affidavit of merit executed by Gregorio Montinola Sanson alleged the following:

xxx xxx xxx

3. That in her plea for new trial in the said case, I have exerted efforts to
locate witnesses whose whereabouts were not known to us during the trial in
the lower court, but I have finally succeeded in tracking them down;

4. That despite their initial reluctance to testify in this case,I am convinced

that they would testify under proper subpoena for purposes of shedding light
on the fact that the testatrix was gravely ill at or but the time that the
questioned will was allegedly executed;

5. That they had the clear opportunity to know the circumstances under
which the purported will was executed; and that they know for a fact that
there was 'undue influence' exerted by petitioner and other relatives to
procure improper favors from the testatrix;

xxx xxx xxx 13

Said motion for new trial is not in substantial compliance with the requirements of Rule
53. The lone affidavit of a witness who was already presented said the hearing is hardly
sufficient to justify the holding of new trial. The alleged new witnesses were unnamed
without any certainty as, to their appearance before the court to testify. Affiant attests
only on his belief that they would testify if and when they are subpoenaed by the court.
Furthermore, the allegations in the affidavit as to the undue influence exerted on the
testatrix are mere conclusions and not statement of facts. The requisite affidavits must
state facts and not mere conclusions or opinions, otherwise they are not valid. 14 The
affidavits are required to avoid waste of the court's time if the newly discovered
evidence turns out to be immaterial or of any evidentiary weight.

Moreover, it could not be said that the evidence sought to be presented is new having
been discovered only after the trial. It is apparent from the allegations of affiant that
efforts to locate the witnesses were exerted only after the decision of the appellate court
was handed down. The trial lasted for about four years so that petitioner had ample time
to find said alleged witnesses who were admittedly known to her. The evidence which
the petitioner now propose to present could have been discovered and presented during
the hearing of the case, and there is no sufficient reason for concluding that had the
petitioner exercised proper diligence she would not have been able to discover said
evidence. 15

In addition, We agree with the appellate court that since the alleged illness of the
testatrix as well as the charges of undue influence exerted upon her had been brought
to light during the trial, and new evidence on this point is merely corroborative and
cumulative which is generally not a ground for new trial. 16 Accordingly, such evidence
even if presented win not carry much probative weight which can alter the judgment. 17
It is very patent that the motion for new trial was filed by petitioner only for the purpose
of delaying the proceedings. In fact, petitioners son in his manifestation admitted that
he had to request a new law firm to do everything legally possible to meet the deadline
for the filing of a motion for reconsideration and/or for new trial. 18 This would explain
the haphazard preparation of the motion, thus failing to comply with the requirements of
rule 53, which was filed on the last day of the reglementary period of appeal so that the
veracity of the ground relied upon is questionable. The appellate court correctly denied
the motion for new trial.

The motion for new trial being pro-forma, it does not interrupt the running of the period
for appeal. 19 Since petitioner's motion was filed on September 24,1986, the fifteenth or
last day of the period to appeal, the decision of the respondent court became final on
the following day, September 25. And when the motion for reconsideration of petitioner
was filed on October 30,1986, it was obviously filed out of time.

Since the questioned decision has already become final and executory, it is no longer
within the province of this Court to review it. This being so, the findings of the probate
court as to the due execution of the will and the testamentary capacity of testatrix are
now conclusive. 20

At any rate, even assuming that We can still review this case on its merits, the petition
will also have to fail.

During the hearing before the probate court, not only were three (3) close relatives of
the testatrix presented but also two (2) expert witnesses who declared that the
contested will and signature are in the handwriting of the testatrix. These testimonies
more than satisfy the requirements of Art. 811 of the Civil Code 21 in conjunction with
Section 11 of Rule 76, Revised Rules of Court, 22 or the probate of holographic wills.

As regards the alleged antedating of the will, petitioner failed to present competent
proof that the will was actually executed sometime in June 1980 when the testatrix was
already seriously ill and dying of terminal lung cancer. She relied only on the supposed
inconsistencies in the testimony of Asuncion Gemperle, niece and constant companion of
testatrix, which upon careful examination did not prove such claim of antedating.

The factual findings of the probate court and the Court of Appeals that the will in
question was executed according to the formalities required by law are conclusive on the
Supreme Court when supported by evidence. 23 We have examined the records of this
case and find no error in the conclusion arrived at by the respondent court that the
contested will was duly executed in accordance with law.

Petitioner alleges that her exclusion from the alleged holographic will was without rhyme
or reason, being the only surviving sister of the testatrix with whom she shares an
intimate relationship, thus demonstrating the lack of testamentary capacity of testatrix.

In the case of Pecson v. Coronel, 24 it was held —

The appellants emphasize the fact that family ties in this country are very
strongly knit and that the exclusion of a relative from one's estate is an
exceptional case. It is true that the ties of relationship in the Philippines are
very strong, but we understand that cases of preterition of relatives from the
inheritance are not rare. The liberty to dispose of one's estate by will when
there are no forced heirs is rendered sacred by the Civil Code in force in the
Philippines since 1889...

Article 842 of the Civil Code provides that one who has no compulsory heirs may dispose
by will of all his estate or any part of it in favor of any person having capacity to
succeed.

It is within the right of the testatrix not to include her only sister who is not a
compulsory heir in her will. Nevertheless, per testimony of Asuncion Gemperle, the latter
had reserved two boxes of jewelry worth P850,000.00 for petitioner. Furthermore,
petitioner's son Francis was instituted as an heir in the contested will.

Petitioner still insists that the fact that in her holographic will the testatrix failed to
dispose of all of her estate is an indication of the unsoundness of her mind.

We cannot subscribe to this contention. Art. 841 of the Civil Code provides —

A will shall be valid even though it should not contain an institution of an

heir, or such institution should not comprise the entire estate, and even
though the person so instituted should not accept the inheritance or should
be incapacitated to succeed.

In such cases, the testamentary dispositions made in accordance with law

shall be complied with and the remainder of the estate shall pass to the legal
heirs.

Thus, the fact that in her holographic will, testatrix disposed of only eleven (11) of her
real properties does not invalidate the will, or is it an indication that the testatrix was of
unsound mind. The portion of the estate undisposed of shall pass on to the heirs of the
deceased in intestate succession.

Neither is undue influence present just because blood relatives, other than compulsory
heirs have been omitted, for while blood ties are strong in the Philippines, it is the
testator's right to disregard non-compulsory heirs. 25 The fact that some heirs are more
favored than others is proof of neither fraud or undue influence. 26 Diversity of
apportionment is the usual reason for making a testament, otherwise, the decedent
might as well die intestate. 27

The contention of the petitioner that the will was obtained by undue influence or
improper pressure exerted by the beneficiaries of the will cannot be sustained on mere
conjecture or suspicion; as it is not enough that there was opportunity to exercise undue
influence or a possibility that it may have been exercised. 28 The exercise of improper
pressure and undue influence must be supported by substantial evidence that it was
actually exercised. 29

Finally, We quote with approval the observation of the respondent court —

There is likewise no question as to the due execution of the subject Will. To

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

1. Spontaneity, freedom, and speed of writing

xxx xxx xxx

3. good line quality.

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

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

IN VIEW OF THE FOREGOING CONSIDERATIONS, the petition is DENIED for lack of merit
with costs against petitioner. The decision of respondent court dated August 29, 1986 in
toto the decision of the Regional Trial Court of Manila dated March 21, 1985 is hereby
declared to be immediately executory.
G.R. No. L-20374             October 11, 1923

In re  of Dolores Coronel, deceased. 

LORENZO PECSON, applicant-appellee, 
vs.
AGUSTIN CORONEL, ET AL., opponents-appellants.

Fisher, DeWitt, Perkins and Brady for appellants. 

Ross and Lawrence and Guillermo Lualhati for appellee.

ROMUALDEZ, J.:

On November 28, 1922, the Court of First Instance of Pampanga probated as the last
will and testament of Dolores Coronel, the document Exhibit A, which translated is as
follows:

In the name of God, Amen:

I, Dolores Coronel, resident of Betis, Guagua, Pampanga, Philippine Islands, in the

full exercise of my mental faculties, do hereby make my last will and testament,
and revoke all former wills by me executed.

I direct and order that my body be buried in conformity with my social standing.

That having no forced heirs, I will all my properties, both movable and immovable,
to my nephew, Lorenzo Pecson, who is married to my niece Angela Coronel, in
consideration of the good services with he has rendered, and is rendering to me
with good will and disinterestedness and to my full satisfaction.

I name and appoint my aforesaid nephew, Lorenzo Pecson, executor of all that is
willed and ordained in this my will, without bond. Should he not be able to
discharge his duties as such executor for any reason whatsoever, I name and
appoint as substitute executor my grandson Victor Pecson, a native and resident of
the town of Betis, without requiring him to give bond. 1awph!l.net

All my real and paraphernal property as well as my credits for I declare that I have
no debts, are specified in an inventory.

In testimony whereof and as I do not know how to write my name, I have

requested Vicente J. Francisco to write my name at the foot hereof and on the left
margin of each of its sheet before me and all the undersigned witnesses this July
1, 1918.

VICENTE J. FRANCISCO           
"For the testatrix Dolores Coronel

The foregoing document was executed and declared by Dolores Coronel to be her
last will and testament in our presence, and as the testatrix does not know how to
write her name, she requested Vicente J. Francisco to sign her name under her
express direction in our presence, at the foot, and on the left margin of each and
every sheet, hereof. In testimony whereof, each of us signed these presents in the
presence of others and of the testatrix at the foot hereof and on the margin of
each and everyone of the two sheets of which this document is composed, which
are numbered "one" and "two" on the upper part of the face thereof.

(Sgd.)           "MAXIMO VERGARA           SOTERO DUMAUAL           MARCOS DE

LOS SANTOS
                       MARIANO L. CRISOSTOMO           PABLO BARTOLOME          
MARCOS DE LA CRUZ           DAMIAN CRISOSTOMO

On the left margin of the two sheets of the will the following signatures also
appear:

Mariano L. Crisostomo, Vicente J. Francisco for the testatrix Dolores Coronel,

M. Vergara, Pablo Bartolome, Sotero Dumaual Crisostomo, Marcos de la Cruz,
Marcos de los Santos.

The petitioner for the probate of the will is Lorenzo Pecson, husband of Angela Coronel,
who is a niece of the deceased Dolores Coronel.

The opponents are: Eriberto Coronel, Tito Coronel, Julian Gozum, Cirila Santiago, widow
of the deceased Macario Gozum, in her own behalf and that of her three minor children,
Hilarion Coronel, Geronimo Coronel, Maria Coronel and her husband Eladio Gongco,
Juana Bituin, widow of the deceased Hipolito Coronel, in her own behalf and that of her
three children, Generosa, Maria, and Jose, all minors, Rosario Coronel, Agustin Coronel,
Filomeno Coronel, Casimiro Coronel, Alejo Coronel, Maria Coronel, Severina Coronel,
Serapia Coronel, Maria Juana de Ocampo, widow of the deceased Manuel Coronel,
Dionisia Coronel, and her husband Pantaleon Gunlao.

The probate of this will is impugned on the following grounds: (a) That the proof does
not that the document Exhibit A above copied contains the last will of Dolores Coronel,
and (b) that the attestation clause is not in accordance with the provisions of section
618 of the Code of Civil Procedure, as amended by Act No. 2645.

These are the two principal questions which are debated in this case and which we will
now examine separately.

As to the first, which is the one raised in the first assignment of error, the appellants
argue: First, that it was improbable and exceptional that Dolores Coronel should dispose
of her estate, as set forth in the document Exhibit A, her true being that the same be
distributed among her blood relatives; and second, that if such will not expressed in
fact, it was due to extraneous illegal influence.

Let us examine the first point.

The opponents contend that it was not, nor could it be, the will of the testatrix, because
it is not natural nor usual that she should completely exclude her blood relatives from
her vast estate, in order to will the same to one who is only a relative by affinity, there
appearing no sufficient motive for such exclusion, inasmuch as until the death of Dolores
Coronel, she maintained very cordial relations with the aforesaid relatives who had
helped her in the management and direction of her lands. It appears, however, from the
testimony of Attorney Francisco (page 71, transcript of the stenographic notes) that
Dolores Coronel revealed to him her suspicion against some of her nephews as having
been accomplices in a robbery of which she had been a victim.

As to whether or not Lorenzo Pecson rendered services to Dolores Coronel, the

opponents admit that he rendered them at least from the year 1914, although there is
proof showing that he rendered such services long before that time.

The appellants emphasize the fact that family ties in this country are very strongly knit
and that the exclusion of relative one's estate an exceptional case. It is true that ties of
relationship in the Philippines are very strong, but we understand that cases of
preterition of relatives from the inheritance are not rare. The liberty to dispose of one's
estate by will when there are no forced heirs is rendered sacred by the civil Code in
force in the Philippines since 1889. It is so provided in the first paragraph of article in
the following terms:
 Any person who was no forced heirs may dispose by will of all his property or any
part of it in favor of any person qualified to acquire it.

Even ignoring the precedents of this legal precept, the Code embodying it has been in
force in the Philippines for more than a quarter of a century, and for this reason it is not
tenable to say that the excercise of the liberty thereby granted is necessarily
exceptional, where it is not shown that the inhabitants of this country whose customs
must have been take into consideration by the legislator in adopting this legal precept,
are averse to such a liberty.

As to preference given to Lorenzo Pecson, it is not purely arbitrary, nor a caprice or a

whim of the moment. The proof adduced by this appelle, although contradicted, shows
by a preponderance of evidence that besides the services which the opponents admit
had been rendered by him to Dolores Coronel since the year 1914, he had also rendered
services prior to that time and was the administrator and manager of the affairs of said
Dolores in the last years of her life. And that this was not a whim of the moment is
shown by the fact that six years before the execution of the will in question, said
Lorenzo Pecson was named and appointed by Dolores Coronel as her sole heir in the
document Exhibit B, which, translated, is as follows:

1. That my present property was acquired by me by inheritance from my parents,

but a great part thereof was acquired by me by my own efforts and exertions;

2. That I have made no inventory of my properties, but they can be seen in the
title deeds in my possession and in the declarations of ownership;

3. That I institute Lorenzo Pecson, married to Angela Coronel, and a known

resident of the town, my heir to succeed to all my properties;

4. That I appoint my said heir, Lorenzo Pecson, as executor, and, in his default,
Victor Pecson, a resident of the same town;

5. That as to my burial and other things connected with the eternal rest of my
soul, I leave them to the sound direction of the aforesaid Lorenzo Pecson;

6. That as I cannot write I requested Martin Pangilinan, a native and resident of

this town, to write this will in accordance with my wishes and precise instructions.

In testimony whereof I had the said Martin Pangilinan write my name and
surname, and affixed my mark between my name and surname, and don Francisco
Dumaual, Don Mariano Sunglao, Don Sotero Dumaual, Don Marcos de la Cruz and
Don Martin Pangilinan signed as witnesses, they having been present at the
beginning of, during, and after, the execution of this my last will.

(Sgd.)          "DOLORES CORONEL          

Witnesses:

(Sgd.)          "MARIANO SUNGLAO

                    MARCOS DE LA CRUZ
                    FRANCISCO DUMAUAL
                    SOTERO DUMAUAL
                    MARTIN PANGILINAN"

The appellants find in the testament Exhibit B something to support their contention that
the intention of Dolores Coronel was to institute the said Pecson not as sole beneficiary,
but simply as executor and distributor of all her estate among her heirs, for while
Lorenzo Pecson's contention that he was appointed sold beneficiary is based on the fact
that he enjoyed the confidence of Dolores Coronel in 1918 and administered all her
property, he did not exclusively have this confidence and administration in the year
1912. Although such administration and confidence were enjoyed by Pecson always
jointly with others and never exclusively, this fact does not show that the will of the
testatrix was to appoint Pecson only as executor and distributor of her estate among the
heirs, nor does it prevent her, the testatrix, from instituting him in 1912 or 1918 as sole
beneficiary; nor does it constitute, lastly, a test for determining whether or not such
institution in favor of Pecson was the true will of the testatrix.

We find, therefore, nothing strange in the preterition made by Dolores Coronel of her
blood relatives, nor in the designation of Lorenzo Pecson as her sole beneficiary.
Furthermore, although the institution of the beneficiary here would not seem the most
usual and customary, still this would not be null per se.

In the absence of any statutory restriction every person possesses absolute

dominion over his property, and may bestow it upon whomsoever he pleases
without regard to natural or legal claim upon his bounty. If the testator possesses
the requisite capacity to make a will, and the disposition of his property is not
affected by fraud of undue influence, the will is not rendered invalid by the fact
that it is unnatural, unreasonable, or unjust. Nothing can prevent the testator from
making a will as eccentric, as injudicious, or as unjust as caprice, frivolity, or
revenge can dictate. However, as has already been shown, the unreasonable or
unjustice of a will may be considered on the question of testamentary capacity.
(40 Cyc., 1079.)

The testamentary capacity of Dolores Coronel is not disputed in this case.

Passing to the second question, to wit, whether or not the true last will of Dolores
Coronel was expressed in the testament Exhibit A, we will begin with expounding how
the idea of making the aforesaid will here controverted was borne and carried out.

About the year 1916 or 1917, Dolores showed the document Exhibit B to Attorney
Francisco who was then her legal adviser and who, considering that in order to make the
expression of her last will more legally valid, though it necessary that the statement be
prepared in conformity with the laws in force at time of the death of the testatrix, and
observing that the will Exhibit B lacked the extrinsic formalities required by Act No. 2645
enacted after its execution, advised Dolores Coronel that the will be remade. She
followed the advice, and Attorney Francisco, after receiving her instructions, drew the
will Exhibit A in accordance therewith, and brought it to the house of Dolores Coronel for
its execution.

Pablo Bartolome read Exhibit A to Dolores Coronel in her presence and that of the
witnesses and asked her whether the will was in accordance with her wishes. Dolores
Coronel answer that it was, and requested her attorney, Mr. Francisco, to sign the will
for her, which the attorney accordingly did in the presence of the witnesses, who in turn
signed it before the testatrix and in the presence of each other.

Upon the filing of the motion for a rehearing on the first order allowing the probate of
the will, the opponents presented an affidavit of Pablo Bartolome to the effect that,
following instructions of Lorenzo Pecson, he had informed the testatrix that the contents
of the will were that she entrusted Pecson with the distribution of all her property among
the relatives of the said Dolores. But during the new trial Pablo Bartolome, in spite of
being present in the court room on the day of the trial, was not introduced as a witness,
without such an omission having been satisfactorily accounted for.

While it is true that the petitioner was bound to present Pablo Bartolome, being one of
the witnesses who signed the will, at the second hearing when the probate was
controverted, yet we cannot consider this point against the appellee for this was not
raised in any of the assignments of error made by the appellants. (Art. 20, Rules of the
Supreme Court.)

On the other hand, it was incumbent upon the opponents to present Pablo Bartolome to
prove before the court the statement by him in his affidavit, since it was their duty to
prove what they alleged, which was that Dolores Coronel had not understood the true
contents of the will Exhibit A. Having suppressed, without explanation, the testimony of
Pablo Bartolome, the presumption is against the opponents and that is, that such a
testimony would have been adverse had it been produced at the hearing of the case
before the court. (Sec 334, subsec. 5, Code of Civil Procedure.)

The opponents call our attention to the fourth clause of the document which says: "I
name and appoint my aforesaid nephew, Lorenzo Pecson, executor of all that is willed
and ordained in this my will, without bond. Should he not be able to discharge his duties
as such executor for any reason whatsoever, I name and appoint as a substitute
executor my grandson Victor Pecson, resident of the town of Betis, without requiring him
to give bond," and contend that this clause is repugnant to the institution of Lorenzo
Pecson as sole beneficiary of all her estate, for if such was the intention of the testatrix,
there would have been no necessity of appointing an executor, nor any reason for
designating a substitute in case that the first one should not be able to discharge his
duties, and they perceived in this clause the idea which, according to them, was not
expressed in the document, and which was that Pecson was simply to be a mere
executor entrusted with the distribution to the estate among the relatives of the
testatrix, and that should he not be able to do so, this duty would devolved upon his
substitutes.

But it is not the sole duty of an executor to distribute the estate, which in estate
succession, such as the instant case, has to be distributed with the intervention of the
court. All executor has, besides, other duties and general and special powers intended
for the preservation, defense, and liquidation of the estate so long as the same has not
reached, by order of the court, the hands of those entitled thereto.

The fact that Dolores Coronel foresaw the necessity of an executor does not imply a
negation of her desire to will all her estate to Lorenzo Pecson. It is to be noted,
furthermore, that in the will, it was ordered that her body be given a burial in
accordance with her social standing and she had a perfect right to designate a person
who should see to it that this order was complied with. One of the functions of an
executor is the fulfillment of what is ordained in the will.

It is argued that the will of the testatrix was to will her estate to her blood relatives, for
such was the promise made to Maria Coronel, whom Rosario Coronel tends to
corroborate. We do not find such a promise to have been sufficiently proven, and much
less to have been seriously made and coupled with a positive intention on the part of
Dolores Coronel to fulfill the same. In the absence of sufficient proof of fraud, or undue
influence, we cannot take such a promise into account, for even if such a promise was in
fact made, Dolores Coronel could retract or forget it afterwards and dispose of her estate
as she pleased. Wills themselves, which contain more than mere promises, are
essentially revocable.

It is said that the true will of Dolores Coronel not expressed in the will can be inferred
from the phrase used by Jose M. Reyes in his deposition when speaking of the purpose
for which Lorenzo Pecson was to receive the estate, to wit:

in order that the latter might dispose of the estate in the most appropriate manner

Weight is given to this phrase from the circumstance that its author was requested by
Attorney Francisco to explain the contents of Exhibit B and had acted as interpreter
between Dolores Coronel and Attorney Francisco at their interviews previous to the
preparation of Exhibit A, and had translated into the Pampango dialect this last
document, and, lastly, was present at the execution of the will in question.

The disputed phrase "in order that the latter might dispose of the estate in the most
appropriate manner" was used by the witness Reyes while sick in a hospital and
testifying in the course of the taking of his deposition.

The appellants interpret the expression "dispose in the most appropriate manner" as
meaning to say "distribute it among the heirs." Limiting ourselves to its meaning, the
expression is a broad one, for the disposition may be effected in several and various
ways, which may not necessarily be a "distribution among the heirs," and still be a
"disposition in the most appropriate manner." "To dispose" is not the same as "to
distribute."

To judge correctly the import of this phrase, the circumstances under which it was used
must be taken into account in this particular instance. The witness Reyes, the author of
the phrase, was not expressing his own original ideas when he used it, but was
translating into Spanish what Dolores Coronel had told him. According to the facts, the
said witness is not a Spaniard, that is to say, the Spanish language is not his native
tongue, but, perhaps, the Pampango dialect. It is an admitted fact based on reason and
experience that when a person translates from one language to another, it is easier for
him to express with precision and accuracy when the version is from a foreign language
to a native one than vice-versa. The witness Reyes translated from the Pampango
dialect, which must be more familiar to him, to the Spanish language which is not his
own tongue. And judging from the language used by him during his testimony in this
case, it cannot be said that this witness masters the Spanish language. Thus is explained
the fact that when asked to give the reason for the appointment of an executor in the
will, he should say at the morning session that "Dolores Coronel did appoint Don
Lorenzo Pecson and in his default, Victor Pecson, to act during her lifetime, but not after
he death," which was explained at the afternoon session by saying "that Dolores Coronel
did appoint Don Lorenzo Pecson executor of all her estate during his lifetime and that in
his default, either through death or incapacity, Mr. Victor Pecson was appointed
executor." Taking into account all the circumstances of this witness, there is ground to
attribute his inaccuracy as to the discharge of the duties of an executor, not to
ignorance of the elementary rule of law on the matter, for the practice of which he was
qualified, but to a non-mastery of the Spanish language. We find in this detail of
translation made by the witness Reyes no sufficient reason to believe that the will
expressed by Dolores Coronel at the said interview with Attorney Francisco was to
appoint Lorenzo Pecson executor and mere distributor of her estate among her heirs.

As to whether or not the burden of proof was on the petitioner to establish that he was
the sole legatee to the exclusion of the relatives of Dolores Coronel, we understand that
it was not his duty to show the reasons which the testatrix may have had for excluding
her relatives from her estate, giving preference to him. His duty was to prove that the
will was voluntary and authentic and he, who alleges that the estate was willed to
another, has the burden of proving his allegation.

Attorney Francisco is charged with having employed improper means of making Lorenzo
Pecson appear in the will as sole beneficiary. However, after an examination of all the
proceedings had, we cannot find anything in the behavior of this lawyer, relative to the
preparation and execution of the will, that would justify an unfavorable conclusion as to
his personal and professional conduct, nor that he should harbor any wrongful or
fraudulent purpose.

We find nothing censurable in his conduct in advising Dolores Coronel to make a new will
other than the last one, Exhibit B (in the drawing of which he does not appear to her
intervened), so that the instrument might be executed with all the new formalities
required by the laws then in force; nor in the preparation of the new will substantially in
accordance with the old one; nor in the selection of attesting witnesses who were
persons other than the relatives of Dolores Coronel. Knowing, as he did, that Dolores
was excluding her blood relatives from the inheritance, in spite of her having been asked
by him whether their exclusion was due to a mere inadvertence, there is a satisfactory
explanation, compatible with honorable conduct, why said attorney should prescind from
such relatives in the attesting of the will, to the end that no obstacle be placed in the
way to the probating thereof.

The fact that this attorney should presume that Dolores was to ask him to sign the will
for her and that he should prepare it containing this detail is not in itself fraudulent.
There was in this case reason so to presume, and it appears that he asked her, through
Pablo Bartolome, whom she wanted to sign the document in her stead.
No imputation can be made to this attorney of any interest in favoring Lorenzo Pecson in
the will, because the latter was already his client at the execution of said will. Attorney
Francisco denied this fact, which we cannot consider proven after examining the
evidence.

The conduct observed by this attorney after the death of Dolores Coronel in connection
with the attempted arrangement between Lorenzo Pecson and the opponents, does not,
in our opinion, constitute any data leading to the conclusion that an heir different from
the true one intended by the testatrix should have been fraudulently made to appear
instituted in the will exhibit A. His attitude towards the opponents, as can be gathered
from the proceedings and especially from his letter Exhibit D, does not show any
perverse or fraudulent intent, but rather a conciliatory purpose. It is said that such a
step was well calculated to prevent every possible opposition to the probate of the will.
Even admitting that one of his objects in entering into such negotiations was to avoid
every possible to the probate of the will, such object is not incompatible with good faith,
nor does it necessarily justify the inference that the heir instituted in the instrument was
not the one whom the testatrix wanted appointed.

The appellants find rather suspicious the interest shown by the said attorney in trying to
persuade Lorenzo Pecson to give them some share of the estate. These negotiations
were not carried out by the attorney out of his own initiative, but at the instance of the
same opponent, Agustin Coronel, made by the latter in his own behalf and that of his
coopponents.

As to Lorenzo Pecson, we do not find in the record sufficient proof to believe that he
should have tried, through fraud or any undue influence, to frustrate the alleged
intention of the testatrix to leave her estate to her blood relatives. The opponents
insinuate that Lorenzo Pecson employed Attorney Francisco to carry out his reproachable
designs, but such depraved instrumentality was not proven, nor was it shown that said
lawyer, or Lorenzo Pecson, should have contrived or put into execution any
condemnable plan, nor that both should have conspired for illegal purposes at the time
of the preparation and execution of the will Exhibit A.

Although Norberto Paras testified having heard, when the will was being read to Dolores
Coronel, the provision whereby the estate was ordered distributed among the heirs, the
preponderance of the evidence is to the effect that said Norberto Paras was not present
at such reading of the will. Appellant do not insist on the probative force of the
testimony of this witness, and do not oppose its being stricken out.

The data furnished by the case do not show, to our mind, that Dolores Coronel should
have had the intention of giving her estate to her blood relatives instead of to Lorenzo
Pecson at the time of the execution of the will Exhibit A, nor that fraud or whatever
other illegal cause or undue influence should have intervened in the execution of said
testament. Neither fraud nor evil is presumed and the record does not show either.

Turning to the second assignment of error, which is made to consist in the will having
been probated in spite of the fact that the attestation clause was not in conformity with
the provision of section 618 of the Code of Civil Procedure, as amended by Act No. 2645,
let us examine the tenor of such clause which literally is as follows:

The foregoing document was executed and declared by Dolores Coronel to be her
last will testament in our presence, and as testatrix does not know how to write
her name, she requested Vicente J. Francisco to sign her name under her express
direction in our presence at the foot and on the left margin of each and every
sheet hereof. In testimony whereof, each of us signed these presents in the
presence of others of the testatrix at the foot hereof and on the margin of each
and everyone of the two pages of which this document is composed. These sheets
are numbered correlatively with the words "one and "two on the upper part of the
face thereof.
(Sgd.)          "Maximo Vergara,          Sotero Dumaual,          Marcos de los Santos,         
Mariano L. Crisostomo,           Pablo Bartolome,           Marcos de la Cruz,           Damian
Crisostomo."

Appellants remark that it is not stated in this clause that the will was signed by the
witnesses in the presence of the testatrix and of each other, as required by section 618
of the Code of Civil Procedure, as amended, which on this particular point provides the
following:

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.

Stress is laid on the phrase used in the attestation clause above copied, to wit:

each of us signed in the presence of others.

Two interpretations can absolutely be given here to the expression "of others." One, that
insinuated by the appellants, namely, that it is equivalent to "of other persons," and the
other, that contended by the appellee, to wit, that the phrase should be held to
mean "of the others," the article "the" having inadvertently been omitted.

Should the first interpretation prevail and "other persons" be taken to mean persons
different from the attesting witnesses, then one of the solemnities required by law would
be lacking. Should the second be adopted and "of others" construed as meaning the
other witnesses to the will, then the law would have been complied with in this respect.

Including the concomitant words, the controverted phrase results thus: "each of us

signed these presents in the presence of others and of the testatrix."

If we should omit the words "of others and," the expression would be reduced to "each
of us signed these presents in the presence of the testatrix," and the statement that the
witnesses signed each in the presence of the others would be lacking. But as a matter of
fact, these words "of others and" are present. Then, what for are they there? Is it to say
that the witnesses signed in the presence of other persons foreign to the execution of
the will, which is completely useless and to no purpose in the case, or was it for some
useful, rational, necessary object, such as that of making it appear that the witnesses
signed the will each in the presence of the others? The first theory presupposes that the
one who drew the will, who is Attorney Francisco, was an unreasonable man, which is an
inadmissible hypothesis, being repugnant to the facts shown by the record. The second
theory is the most obvious, logical and reasonable under the circumstances. It is true
that the expression proved to be deficient. The deficiency may have been caused by the
drawer of the will or by the typist. If by the typist, then it must be presumed to have
been merely accidental. If by the drawer, it is explainable taking into account that
Spanish is not only not the native language of the Filipinos, who, in general, still speak
until nowadays their own dialects, but also that such language is not even the only
official language since several years ago.

In Re will of Abangan (40 Phil., 476), this court said:

The object of the solemnities surrounding the execution of wills is to close the door
against bad faith and fraud, to avoid substitution of wills and testaments and to
guarantee their truth and authenticity. Therefore the laws on this subject should
be interpreted in such a way as to attain these primordial ends. But, on the other
hand, also one must not lose sight of the fact that it is not the object of the law to
restrain and curtail the exercise of the right to make a will. So when an
interpretation already given assures such ends, any other interpretation
whatsoever, that adds nothing but demands more requisite entirely unnecesary,
useless and frustrative of the testator's last will, must be disregarded.
We believe it to be more reasonable to construe the disputed phrase "of others" as
meaning "of the other witnesses," and that a grammatical or clerical error was
committed consisting in the omission of the article "the".

Grammatical or clerical errors are not usually considered of vital importance when the
intention is manifest in the will.

The court may correct clerical mistakes in writing, and disregard technical rules of
grammar as to the construction of the language of the will when it becomes
necessary for it to do so in order to effectuate the testators manifest intention as
ascertained from the context of the will. But unless a different construction is so
required the ordinary rules of grammar should be adhered to in construing the
will. (40 Cyc., 1404).

And we understand that in the present case the interpretation we adopt is imperative,
being the most adequate and reasonable.

The case of In the matter of the estate of Geronima Uy Coque (43 Phil., 405), decided
by this court and invoked by the appellants, refers so far as pertinent to the point herein
at issue, to an attestation clause wherein the statement that the witnesses signed the
will in the presence of each other is totally absent. In the case at bar, there is the
expression "in the presence of others" whose reasonable interpretation is, as we have
said, "in the presence of the other witnesses." We do not find any party between the
present case and that of Re Estate of Geronima Uy Coque above cited.

Finally, we will take up the question submitted by the opponents as to the alleged
insufficiency of the evidence to show that the attesting witnesses Damian Crisostomo
and Sotero Dumaual were present at the execution of the will in controversy. Although
this point is raised in the first assignment of error made by the appellants, and not in
the second, it is discussed in this place because it refers to the very fact of attestation.
However, we do not believe it necessary to analyze in detail the evidence of both parties
on this particular point. The evidence leads us to the conclusion that the two witnesses
aforementioned were present at the execution and signing of the will. Such is also the
conclusion of the trial judge who, in this respect, states the following, in his decision:

As to the question of whether or not the testatrix and witnesses signed the document
Exhibit A in accordance with the provisions of law on the matter, that is, whether or not
the testatrix signed the will, or caused it to be signed, in the presence of the witnesses,
and the latter in turn signed in her presence and that of each other, the court, after
observing the demeanor of the witnesses for both parties, is of the opinion that those
for the petitioner spoke the truth. It is neither probable nor likely that a man versed in
the law, such as Attorney Francisco, who was present at the execution of the will in
question, and to whose conscientiousness in the matter of compliance with all the
extrinsic formalities of the execution of a will, and to nothing else, was due the fact that
the testatrix had cancelled her former will (Exhibit B) and had new one (Exhibit A)
prepared and executed, should have consented the omission of formality compliance
with which would have required little or no effort; namely, that of seeing to it that the
testatrix and the attesting witnesses were all present when their respective signatures
were affixed to the will." And the record does not furnish us sufficient ground for
deviating from the line reasoning and findings of the trial judge.

In conclusion we hold that the assignments of error made by the appellants are not
supported by the evidence of record. The judgment appealed from if affirmed with costs
against the appellants. So ordered.
G.R. No. L-23079 February 27, 1970

RUBEN AUSTRIA, CONSUELO AUSTRIA-BENTA and LAURO AUSTRIA

MOZO, petitioners, 
vs.
HON. ANDRES REYES, Judge, Court of First Instance of Rizal, PERFECTO CRUZ,
BENITA CRUZ-MENEZ ISAGANI CRUZ, ALBERTO CRUZ and LUZ CRUZ-
SALONGA respondents.

Salonga, Ordoñez, Yap, Sicat and Associates for petitioners.

Ruben Austria for himself and co-petitioners.

De los Santos, De los Santos and De los Santos for respondent Perfecto Cruz.

Villareal, Almacen, Navarra and Amores for other respondents.

CASTRO, J.:

On July 7, 1956 Basilia Austria vda. de Cruz filed with the Court of First Instance of Rizal
(Special Proceedings 2457) a petition for probate, ante mortem, of her last will and
testament. The probate was opposed by the present petitioners Ruben Austria, Consuelo
Austria-Benta and Lauro Austria Mozo, and still others who, like the petitioner, are
nephews and nieces of Basilia. This opposition was, however, dismissed and the probate
of the will allowed after due hearing.

The bulk of the estate of Basilia, admittedly, was destined under the will to pass on to
the respondents Perfecto Cruz, Benita Cruz-Meñez, Isagani Cruz, Alberto Cruz, and Luz
Cruz-Salonga, all of whom had been assumed and declared by Basilia as her own legally
adopted children.

On April 23, 1959, more than two years after her will was allowed to probate, Basilia
died. The respondent Perfecto Cruz was appointed executor without bond by the same
court in accordance with the provisions of the decedent's will, notwithstanding the
blocking attempt pursued by the petitioner Ruben Austria.

Finally, on November 5, 1959, the present petitioners filed in the same proceedings a
petition in intervention for partition alleging in substance that they are the nearest of kin
of Basilia, and that the five respondents Perfecto Cruz, et al., had not in fact been
adopted by the decedent in accordance with law, in effect rendering these respondents
mere strangers to the decedent and without any right to succeed as heirs.

Notwithstanding opposition by the respondent Perfecto Cruz, as executor of the estate,

the court a quo allowed the petitioners' intervention by its order of December 22, 1959,
couched in broad terms, as follows: "The Petition in Intervention for Partition filed by the
above-named oppositors [Ruben Austria, et al.,] dated November 5, 1959 is hereby
granted."

In the meantime, the contending sides debated the matter of authenticity or lack of it of
the several adoption papers produced and presented by the respondents. On motion of
the petitioners Ruben Austria, et al., these documents were referred to the National
Bureau of Investigation for examination and advice. N.B.I. report seems to bear out the
genuineness of the documents, but the petitioners, evidently dissatisfied with the
results, managed to obtain a preliminary opinion from a Constabulary questioned-
document examiner whose views undermine the authenticity of the said documents. The
petitioners Ruben Austria, et al., thus moved the lower court to refer the adoption
papers to the Philippine Constabulary for further study. The petitioners likewise located
former personnel of the court which appeared to have granted the questioned adoption,
and obtained written depositions from two of them denying any knowledge of the
pertinent adoption proceedings.
On February 6, 1963, more than three years after they were allowed to intervene, the
petitioners Ruben Austria, let al., moved the lower court to set for hearing the matter of
the genuineness of the adoption of the respondents Perfecto Cruz, et al., by the late
Basilia. Before the date set by the court for hearing arrived, however, the respondent
Benita Cruz-Meñez who entered an appearance separately from that of her brother
Perfecto Cruz, filed on February 28, 1963 a motion asking the lower court, by way of
alternative relief, to confine the petitioners' intervention, should it be permitted, to
properties not disposed of in the will of the decedent.

On March 4, 1963, the lower court heard the respondent Benita's motion. Both sides
subsequently submitted their respective memoranda, and finally, the lower court issued
an order on June 4, 1963, delimiting the petitioners' intervention to the properties of the
deceased which were not disposed of in the will.

The petitioners moved the lower court to reconsider this latest order, eliciting thereby an
opposition, from the respondents. On October 25, 1963 the same court denied the
petitioners' motion for reconsideration.

A second motion for reconsideration which set off a long exchange of memoranda from
both sides, was summarily denied on April 21, 1964.

Hence this petition for certiorari, praying this Court to annul the orders of June 4 and
October 25, 1963 and the order of April 21, 1964, all restricting petitioners' intervention
to properties that were not included in the decedent's testamentary dispositions.

The uncontested premises are clear. Two interests are locked in dispute over the bulk of
the estate of the deceased. Arrayed on one side are the petitioners Ruben Austria,
Consuelo Austria-Benta and Lauro Austria Mozo, three of a number of nephews and
nieces who are concededly the nearest surviving blood relatives of the decedent. On the
other side are the respondents brothers and sisters, Perfecto Cruz, Benita Cruz-Meñez,
Isagani Cruz, Alberto Cruz and Luz Cruz-Salonga, all of whom heirs in the will of the
deceased Basilia, and all of whom claim kinship with the decedent by virtue of legal
adoption. At the heart of the controversy is Basilia's last will — immaculate in its
extrinsic validity since it bears the imprimatur of duly conducted probate proceedings.

The complaint in intervention filed in the lower court assails the legality of the tie which
the respondent Perfecto Cruz and his brothers and sisters claim to have with the
decedent. The lower court had, however, assumed, by its orders in question, that the
validity or invalidity of the adoption is not material nor decisive on the efficacy of the
institution of heirs; for, even if the adoption in question were spurious, the respondents
Perfecto Cruz, et al., will nevertheless succeed not as compulsory heirs but as
testamentary heirs instituted in Basilia's will. This ruling apparently finds support in
article, 842 of the Civil Code which reads:

One who has no compulsory heirs may dispose of by will all his estate or any
part of it in favor of any person having capacity to succeed.

One who has compulsory heirs may dispose of his estate provided he does
not contravene the provisions of this Code with regard to the legitime of said
heirs.

The lower court must have assumed that since the petitioners nephews and niece are
not compulsory heirs, they do not possess that interest which can be prejudiced by a
free-wheeling testamentary disposition. The petitioners' interest is confined to
properties, if any, that have not been disposed of in the will, for to that extent intestate
succession can take place and the question of the veracity of the adoption acquires
relevance.

The petitioners nephews and niece, upon the other hand, insist that the entire estate
should descend to them by intestacy by reason of the intrinsic nullity of the institution of
heirs embodied in the decedent's will. They have thus raised squarely the issue of
whether or not such institution of heirs would retain efficacy in the event there exists
proof that the adoption of the same heirs by the decedent is false.

The petitioners cite, as the controlling rule, article 850 of the Civil Code which reads:

The statement of a false cause for the institution of an heir shall be

considered as not written, unless it appears from the will that the testator
would not have made such institution if he had known the falsity of such
cause.

Coming closer to the center of the controversy, the petitioners have called the attention
of the lower court and this Court to the following pertinent portions of the will of the
deceased which recite:

III

Ang aking mga sapilitang tagapagmana (herederos forzosos) ay ang aking

itinuturing na mga anak na tunay (Hijos legalmente adoptados) na sina
Perfecto, Alberto, Luz, Benita at Isagani, na pawang may apelyidong Cruz.

xxx xxx xxx

Kung ako ay bawian ng Dios ng buhay, ay aking ipinamamana ang aking

mga ari-ariang maiiwan, sa kaparaanang sumusunod:

A.—Aking ipinamamana sa aking nabanggit na limang anak na sina Perfecto,

Alberto, Luz, Benita at Isagani, na pawang may apelyidong Cruz, na
parepareho ang kaparti ng bawa't isa at walang lamangan (en partes
iguales), bilang kanilang sapilitang mana (legiti[ma]), ang kalahati (½) ng
aking kaparti sa lahat ng aming ari-ariang gananciales ng aking yumaong
asawang Pedro Cruz na napapaloob sa Actuacion Especial No. 640 ng
Hukumang Unang Dulugan ng Rizal at itinutukoy sa No. 1 ng parafo IV ng
testamentong ito, ang kalahati (½) ng mga lagay na lupa at palaisdaan na
nasa Obando at Polo, Bulacan, na namana ko sa aking yumaong ama na si
Calixto Austria, at ang kalahati (½) ng ilang lagay na lupa na nasa Tinejeros,
Malabon, Rizal, na aking namana sa yumao kong kapatid na si Fausto
Austria.

The tenor of the language used, the petitioners argue, gives rise to the inference that
the late Basilia was deceived into believing that she was legally bound to bequeath one-
half of her entire estate to the respondents Perfecto Cruz, et al. as the latter's legitime.
The petitioners further contend that had the deceased known the adoption to be
spurious, she would not have instituted the respondents at all — the basis of the
institution being solely her belief that they were compulsory heirs. Proof therefore of the
falsity of the adoption would cause a nullity of the institution of heirs and the opening of
the estate wide to intestacy. Did the lower court then abuse its discretion or act in
violation of the rights of the parties in barring the petitioners nephews and niece from
registering their claim even to properties adjudicated by the decedent in her will?

Before the institution of heirs may be annulled under article 850 of the Civil Code, the
following requisites must concur: First, the cause for the institution of heirs must be
stated in the will; second, the cause must be shown to be false; and third, it must
appear from the face of the will that the testator would not have made such institution if
he had known the falsity of the cause.

The petitioners would have us imply, from the use of the terms, "sapilitang
tagapagmana" (compulsory heirs) and "sapilitang mana" (legitime), that the impelling
reason or cause for the institution of the respondents was the testatrix's belief that
under the law she could not do otherwise. If this were indeed what prompted the
testatrix in instituting the respondents, she did not make it known in her will. Surely if
she was aware that succession to the legitime takes place by operation of law,
independent of her own wishes, she would not have found it convenient to name her
supposed compulsory heirs to their legitimes. Her express adoption of the rules on
legitimes should very well indicate her complete agreement with that statutory scheme.
But even this, like the petitioners' own proposition, is highly speculative of what was in
the mind of the testatrix when she executed her will. One fact prevails, however, and it
is that the decedent's will does not state in a specific or unequivocal manner the cause
for such institution of heirs. We cannot annul the same on the basis of guesswork or
uncertain implications.

And even if we should accept the petitioners' theory that the decedent instituted the
respondents Perfecto Cruz, et al. solely because she believed that the law commanded
her to do so, on the false assumption that her adoption of these respondents was valid,
still such institution must stand.

Article 850 of the Civil Code, quoted above, is a positive injunction to ignore whatever
false cause the testator may have written in his will for the institution of heirs. Such
institution may be annulled only when one is satisfied, after an examination of the will,
that the testator clearly would not have made the institution if he had known the cause
for it to be false. Now, would the late Basilia have caused the revocation of the
institution of heirs if she had known that she was mistaken in treating these heirs as her
legally adopted children? Or would she have instituted them nonetheless?

The decedent's will, which alone should provide the answer, is mute on this point or at
best is vague and uncertain. The phrases, "mga sapilitang tagapagmana" and "sapilitang
mana," were borrowed from the language of the law on succession and were used,
respectively, to describe the class of heirs instituted and the abstract object of the
inheritance. They offer no absolute indication that the decedent would have willed her
estate other than the way she did if she had known that she was not bound by law to
make allowance for legitimes. Her disposition of the free portion of her estate (libre
disposicion) which largely favored the respondent Perfecto Cruz, the latter's children,
and the children of the respondent Benita Cruz, shows a perceptible inclination on her
part to give to the respondents more than what she thought the law enjoined her to give
to them. Compare this with the relatively small devise of land which the decedent had
left for her blood relatives, including the petitioners Consuelo Austria-Benta and Lauro
Mozo and the children of the petitioner Ruben Austria. Were we to exclude the
respondents Perfecto Cruz, et al. from the inheritance, then the petitioners and the other
nephews and nieces would succeed to the bulk of the testate by intestacy — a result
which would subvert the clear wishes of the decedent.

Whatever doubts one entertains in his mind should be swept away by these explicit
injunctions in the Civil Code: "The words of a will are to receive an interpretation which
will give to every expression some effect, rather than one which will render any of the
expressions inoperative; and of two modes of interpreting a will, that is to be preferred
which will prevent intestacy." 1

Testacy is favored and doubts are resolved on its side, especially where the will evinces
an intention on the part of the testator to dispose of practically his whole estate, 2 as was
done in this case. Moreover, so compelling is the principle that intestacy should be
avoided and the wishes of the testator allowed to prevail, that we could even vary the
language of the will for the purpose of giving it effect. 3 A probate court has found, by
final judgment, that the late Basilia Austria Vda. de Cruz was possessed of testamentary
capacity and her last will executed free from falsification, fraud, trickery or undue
influence. In this situation, it becomes our duty to give full expression to her will.4

At all events, the legality of the adoption of the respondents by the testatrix can be
assailed only in a separate action brought for that purpose, and cannot be the subject of
a collateral attack.5

To the petitioners' charge that the lower court had no power to reverse its order of
December 22, 1959, suffice it to state that, as borne by the records, the subsequent
orders complained of served merely to clarify the first — an act which the court could
legally do. Every court has the inherent power to amend and control its processes and
orders so as to make them conformable to law and justices.6 That the court a quo has
limited the extent of the petitioners' intervention is also within its powers as articulated
by the Rules of Court.7 ACCORDINGLY, the present petition is denied, at petitioners cost.
G.R. No. L-23445             June 23, 1966

REMEDIOS NUGUID, petitioner and appellant, 

vs.
FELIX NUGUID and PAZ SALONGA NUGUID, oppositors and appellees.

Custodio O. Partade for petitioner and appellant.

Beltran, Beltran and Beltran for oppositors and appellees.

SANCHEZ, J.:

Rosario Nuguid, a resident of Quezon City, died on December 30, 1962, single, without
descendants, legitimate or illegitimate. Surviving her were her legitimate parents, Felix
Nuguid and Paz Salonga Nuguid, and six (6) brothers and sisters, namely: Alfredo,
Federico, Remedios, Conrado, Lourdes and Alberto, all surnamed Nuguid.

On May 18, 1963, petitioner Remedios Nuguid filed in the Court of First Instance of Rizal
a holographic will allegedly executed by Rosario Nuguid on November 17, 1951, some
11 years before her demise. Petitioner prayed that said will be admitted to probate and
that letters of administration with the will annexed be issued to her.

On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid, concededly the legitimate
father and mother of the deceased Rosario Nuguid, entered their opposition to the
probate of her will. Ground therefor, inter alia, is that by the institution of petitioner
Remedios Nuguid as universal heir of the deceased, oppositors — who are compulsory
heirs of the deceased in the direct ascending line — were illegally preterited and that in
consequence the institution is void.

On August 29, 1963, before a hearing was had on the petition for probate and objection
thereto, oppositors moved to dismiss on the ground of absolute preterition.

On September 6, 1963, petitioner registered her opposition to the motion to

dismiss.1äwphï1.ñët

The court's order of November 8, 1963, held that "the will in question is a complete
nullity and will perforce create intestacy of the estate of the deceased Rosario Nuguid"
and dismissed the petition without costs.

A motion to reconsider having been thwarted below, petitioner came to this Court on
appeal.

1. Right at the outset, a procedural aspect has engaged our attention. The case is for
the probate of a will. The court's area of inquiry is limited — to an examination of, and
resolution on, the extrinsic validity of the will. The due execution thereof, the testatrix's
testamentary capacity, and the compliance with the requisites or solemnities by law
prescribed, are the questions solely to be presented, and to be acted upon, by the court.
Said court at this stage of the proceedings — is not called upon to rule on
the intrinsic validity or efficacy of the provisions of the will, the legality of any devise or
legacy therein.1

A peculiar situation is here thrust upon us. The parties shunted aside the question of
whether or not the will should be allowed probate. For them, the meat of the case is the
intrinsic validity of the will. Normally, this comes only after the court has declared that
the will has been duly authenticated.2 But petitioner and oppositors, in the court below
and here on appeal, travelled on the issue of law, to wit: Is the will intrinsically a nullity?

We pause to reflect. If the case were to be remanded for probate of the will, nothing will
be gained. On the contrary, this litigation will be protracted. And for aught that appears
in the record, in the event of probate or if the court rejects the will, probability exists
that the case will come up once again before us on the same issue of the intrinsic
validity or nullity of the will. Result: waste of time, effort, expense, plus added anxiety.
These are the practical considerations that induce us to a belief that we might as well
meet head-on the issue of the validity of the provisions of the will in question. 3 After all,
there exists a justiciable controversy crying for solution.

2. Petitioner's sole assignment of error challenges the correctness of the conclusion

below that the will is a complete nullity. This exacts from us a study of the disputed will
and the applicable statute.

Reproduced hereunder is the will:

Nov. 17, 1951

I, ROSARIO NUGUID, being of sound and disposing mind and memory, having amassed
a certain amount of property, do hereby give, devise, and bequeath all of the property
which I may have when I die to my beloved sister Remedios Nuguid, age 34, residing
with me at 38-B Iriga, Q.C. In witness whereof, I have signed my name this seventh day
of November, nineteen hundred and fifty-one.

(Sgd.) Illegible

T/ ROSARIO NUGUID

The statute we are called upon to apply in Article 854 of the Civil Code which, in part,
provides:

ART. 854. The preterition or omission of one, some, or all of the compulsory heirs
in the direct line, whether living at the time of the execution of the will or born
after the death of the testator, shall annul the institution of heir; but the devises
and legacies shall be valid insofar as they are not inofficious. ...

Except for inconsequential variation in terms, the foregoing is a reproduction of Article

814 of the Civil Code of Spain of 1889, which is similarly herein copied, thus —

Art. 814. The preterition of one or all of the forced heirs in the direct line, whether
living at the time of the execution of the will or born after the death of the
testator, shall void the institution of heir; but the legacies and betterments4 shall
be valid, in so far as they are not inofficious. ...

A comprehensive understanding of the term preterition employed in the law becomes a

necessity. On this point Manresa comments:

La pretericion consiste en omitar al heredero en el testamento. O no se le nombra

siquiera o aun nombrandole como padre, hijo, etc., no se le instituya heredero ni
se le deshereda expresamente ni se le asigna parte alguna de los bienes,
resultando privado de un modo tacito de su derecho a legitima.

Para que exista pretericion, con arreglo al articulo 814, basta que en el testamento
omita el testador a uno cualquiera de aquellos a quienes por su muerte
corresponda la herencia forzosa.

Se necesita, pues, a) Que la omision se refiera a un heredero forzoso. b) Que la

omision sea completa; que el heredero forzoso nada reciba en el testamento.

It may now appear trite bat nonetheless helpful in giving us a clear perspective of the
problem before us, to have on hand a clear-cut definition of the word annul:

To "annul" means to abrogate, to make void ... In re Morrow's Estate, 54 A. 342,

343, 204 Pa. 484.6
 The word "annul" as used in statute requiring court to annul alimony provisions of
divorce decree upon wife's remarriage means to reduce to nothing; to annihilate;
obliterate; blot out; to make void or of no effect; to nullify; to abolish. N.J.S.A.
2:50 — 38 (now N.J.S. 2A:34-35). Madden vs. Madden, 40 A. 2d 611, 614, 136
N..J Eq. 132.7

ANNUL. To reduce to nothing; annihilate; obliterate; to make void or of no effect;

to nullify; to abolish; to do away with. Ex parte Mitchell, 123 W. Va. 283, 14 S.E.
2d. 771, 774.8

And now, back to the facts and the law. The deceased Rosario Nuguid left no
descendants, legitimate or illegitimate. But she left forced heirs in the direct ascending
line her parents, now oppositors Felix Nuguid and Paz Salonga Nuguid. And, the will
completely omits both of them: They thus received nothing by the testament; tacitly,
they were deprived of their legitime; neither were they expressly disinherited. This is a
clear case of preterition. Such preterition in the words of Manresa "anulara siempre la
institucion de heredero, dando caracter absoluto a este ordenamiento referring to the
mandate of Article 814, now 854 of the Civil Code. 9 The one-sentence will here institutes
petitioner as the sole, universal heir — nothing more. No specific legacies or bequests
are therein provided for. It is in this posture that we say that the nullity is complete.
Perforce, Rosario Nuguid died intestate. Says Manresa:

En cuanto a la institucion de heredero, se anula. Lo que se anula deja de existir,

en todo o en parte? No se añade limitacion alguna, como en el articulo 851, en el
que se expresa que se anulara la institucion de heredero en cuanto prejudique a la
legitima del deseheredado Debe, pues, entenderse que la anulacion es completa o
total, y que este articulo como especial en el caso que le motiva rige con
preferencia al 817. 10

The same view is expressed by Sanchez Roman: —

La consecuencia de la anulacion o nulidad de la institucion de heredero por

pretericion de uno, varios o todos los forzosos en linea recta, es la apertura de la
sucesion intestada total o parcial. Sera total, cuando el testador que comete la
pretericion, hubiese dispuesto de todos los bienes por titulo universal de herencia
en favor de los herederos instituidos, cuya institucion se anula, porque asi lo exige
la generalidad del precepto legal del art. 814, al determinar, como efecto de la
pretericion, el de que "anulara la institucion de heredero." ... 11

Really, as we analyze the word annul employed in the statute, there is no escaping the

conclusion that the universal institution of petitioner to the entire inheritance results
in totally abrogating the will. Because, the nullification of such institution of universal
heir — without any other testamentary disposition in the will — amounts to a declaration
that nothing at all was written. Carefully worded and in clear terms, Article 854 offers no
leeway for inferential interpretation. Giving it an expansive meaning will tear up by the
roots the fabric of the statute. On this point, Sanchez Roman cites the "Memoria annual
del Tribunal Supreme, correspondiente a 1908", which in our opinion expresses the rule
of interpretation, viz:

... El art. 814, que preceptua en tales casos de pretericion la nulidad de la

institucion de heredero, no consiente interpretacion alguna favorable a la persona
instituida en el sentido antes expuesto aun cuando parezca, y en algun caso
pudiera ser, mas o menos equitativa, porque una nulidad no significa en Derecho
sino la suposicion de que el hecho o el acto no se ha realizado, debiendo por lo
tanto procederse sobre tal base o supuesto, y consiguientemente, en un
testamento donde falte la institucion, es obligado llamar a los herederos forzosos
en todo caso, como habria que llamar a los de otra clase, cuando el testador no
hubiese distribudo todos sus bienes en legados, siendo tanto mas obligada esta
consecuencia legal cuanto que, en materia de testamentos, sabido es, segun tiene
declarado la jurisprudencia, con repeticion, que no basta que sea conocida la
voluntad de quien testa si esta voluntad no aparece en la forma y en las
 condiciones que la ley ha exigido para que sea valido y eficaz, por lo que
constituiria una interpretacion arbitraria, dentro del derecho positivo, reputar
como legatario a un heredero cuya institucion fuese anulada con pretexto de que
esto se acomodaba mejor a la voluntad del testador, pues aun cuando asi fuese,
sera esto razon para modificar la ley, pero no autoriza a una interpretacion
contraria a sus terminos y a los principios que informan la testamentifaccion, pues
no porque parezca mejor una cosa en el terreno del Derecho constituyente, hay
razon para convereste juicio en regla de interpretacion, desvirtuando y anulando
por este procedimiento lo que el legislador quiere establecer. 12

3. We should not be led astray by the statement in Article 854 that, annullment
notwithstanding, "the devises and legacies shall be valid insofar as they are not
inofficious". Legacies and devises merit consideration only when they are so expressly
given as such in a will. Nothing in Article 854 suggests that the mere institution of a
universal heir in a will — void because of preterition — would give the heir so instituted
a share in the inheritance. As to him, the will is inexistent. There must be, in addition to
such institution, a testamentary disposition granting him bequests or legacies apart and
separate from the nullified institution of heir. Sanchez Roman, speaking of the two
component parts of Article 814, now 854, states that preterition annuls the institution of
the heir "totalmente por la pretericion"; but added (in reference to legacies and
bequests) "pero subsistiendo ... todas aquellas otras disposiciones que no se refieren a
la institucion de heredero ... . 13 As Manresa puts it, annulment throws open to intestate
succession the entire inheritance including "la porcion libre (que) no hubiese dispuesto
en virtud de legado, mejora o donacion. 14

As aforesaid, there is no other provision in the will before us except the institution of
petitioner as universal heir. That institution, by itself, is null and void. And, intestate
succession ensues.

4. Petitioner's mainstay is that the present is "a case of ineffective disinheritance rather
than one of preterition". 15From this, petitioner draws the conclusion that Article 854
"does not apply to the case at bar". This argument fails to appreciate the distinction
between pretention and disinheritance.

Preterition "consists in the omission in the testator's will of the forced heirs or anyone of
them, either because they are not mentioned therein, or, though mentioned, they are
neither instituted as heirs nor are expressly disinherited." 16 Disinheritance, in turn, "is
a testamentary disposition depriving any compulsory heir of his share in the legitime for
a cause authorized by law. " 17 In Manresa's own words: "La privacion expresa de la
legitima constituye la desheredacion. La privacion tacita de la misma se
denomina pretericion." 18 Sanchez Roman emphasizes the distinction by stating that
disinheritance "es siempre voluntaria"; preterition, upon the other hand, is presumed to
be "involuntaria". 19 Express as disinheritance should be, the same must be supported by
a legal cause specified in the will itself. 20

The will here does not explicitly disinherit the testatrix's parents, the forced heirs. It
simply omits their names altogether. Said will rather than be labeled ineffective
disinheritance is clearly one in which the said forced heirs suffer from preterition.

On top of this is the fact that the effects flowing from preterition are totally different
from those of disinheritance. Preterition under Article 854 of the Civil Code, we repeat,
"shall annul the institution of heir". This annulment is in toto, unless in the will there are,
in addition, testamentary dispositions in the form of devises or legacies. In ineffective
disinheritance under Article 918 of the same Code, such disinheritance shall also "annul
the institution of heirs", put only "insofar as it may prejudice the person disinherited",
which last phrase was omitted in the case of preterition. 21 Better stated yet, in
disinheritance the nullity is limited to that portion of the estate of which the disinherited
heirs have been illegally deprived. Manresa's expressive language, in commenting on the
rights of the preterited heirs in the case of preterition on the one hand and legal
disinheritance on the other, runs thus: "Preteridos, adquiren el derecho a
todo; desheredados, solo les corresponde un tercio o dos tercios, 22 el caso. 23
5. Petitioner insists that the compulsory heirs ineffectively disinherited are entitled to
receive their legitimes, but that the institution of heir "is not invalidated," although the
inheritance of the heir so instituted is reduced to the extent of said legitimes. 24

This is best answered by a reference to the opinion of Mr. Chief Justice Moran in
the Neri case heretofore cited, viz:

But the theory is advanced that the bequest made by universal title in favor of the
children by the second marriage should be treated as legado and mejora and,
accordingly, it must not be entirely annulled but merely reduced. This theory, if
adopted, will result in a complete abrogation of Articles 814 and 851 of the Civil
Code. If every case of institution of heirs may be made to fall into the concept of
legacies and betterments reducing the bequest accordingly, then the provisions of
Articles 814 and 851 regarding total or partial nullity of the institution, would. be
absolutely meaningless and will never have any application at all. And the
remaining provisions contained in said article concerning the reduction of
inofficious legacies or betterments would be a surplusage because they would be
absorbed by Article 817. Thus, instead of construing, we would be destroying
integral provisions of the Civil Code.

The destructive effect of the theory thus advanced is due mainly to a failure to
distinguish institution of heirs from legacies and betterments, and a general from a
special provision. With reference to article 814, which is the only provision
material to the disposition of this case, it must be observed that the institution of
heirs is therein dealt with as a thing separate and distinct from legacies or
betterments. And they are separate and distinct not only because they are
distinctly and separately treated in said article but because they are in themselves
different. Institution of heirs is a bequest by universal title of property that is
undetermined. Legacy refers to specific property bequeathed by a particular or
special title. ... But again an institution of heirs cannot be taken as a legacy. 25

The disputed order, we observe, declares the will in question "a complete nullity". Article
854 of the Civil Code in turn merely nullifies "the institution of heir". Considering,
however, that the will before us solely provides for the institution of petitioner as
universal heir, and nothing more, the result is the same. The entire will is null. Upon the
view we take of this case, the order of November 8, 1963 under review is hereby
affirmed. No costs allowed. So ordered.
G.R. No. L-24365             June 30, 1966

IN THE MATTER OF THE INTESTATE ESTATE OF EDWARD E. CHRISTENSEN,

deceased. 
ADOLFO C. AZNAR, executor and appellee, 
vs.
MARIA LUCY CHRISTENSEN DUNCAN, oppositor and appellant. 
MARIA HELEN CHRISTENSEN, oppositor and appellee.

J. Salonga and L. M. Abellera for oppositor and appellee.

Carlos Dominguez, Jr. for executor-appellee.
M. R. Sotelo for appellant.

MAKALINTAL, J.:

Edward E. Christensen, a citizen of California with domicile in the Philippines, died

leaving a will executed on March 5, 1951. The will was admitted to probate by the Court
of First Instance of Davao in its decision of February 28, 1954. In that same decision the
court declared that Maria Helen Christensen Garcia (hereinafter referred to as Helen
Garcia) was a natural child of the deceased. The declaration was appealed to this Court,
and was affirmed in its decision of February 14, 1958 (G.R. No. L-11484).

In another incident relative to the partition of the deceased's estate, the trial court
approved the project submitted by the executor in accordance with the provisions of the
will, which said court found to be valid under the law of California. Helen Garcia
appealed from the order of approval, and this Court, on January 31, 1963, reversed the
same on the ground that the validity of the provisions of the will should be governed by
Philippine law, and returned the case to the lower court with instructions that the
partition be made as provided by said law (G.R. No. L-16749).

On October 29, 1964, the Court of First Instance of Davao issued an order approving the
project of partition submitted by the executor, dated June 30, 1964, wherein the
properties of the estate were divided equally between Maria Lucy Christensen Duncan
(named in the will as Maria Lucy Christensen Daney, and hereinafter referred to as
merely Lucy Duncan), whom the testator had expressly recognized in his will as his
daughter (natural) and Helen Garcia, who had been judicially declared as such after his
death. The said order was based on the proposition that since Helen Garcia had been
preterited in the will the institution of Lucy Duncan as heir was annulled, and hence the
properties passed to both of them as if the deceased had died intestate, saving only the
legacies left in favor of certain other persons, which legacies have been duly approved
by the lower court and distributed to the legatees.

The case is once more before us on appeal, this time by Lucy Duncan, on the sole
question of whether the estate, after deducting the legacies, should pertain to her and to
Helen Garcia in equal shares, or whether the inheritance of Lucy Duncan as instituted
heir should be merely reduced to the extent necessary to cover the legitime of Helen
Garcia, equivalent to 1/4 of the entire estate.

The will of Edward E. Christensen contains, among others, the following clauses which
are pertinent to the issue in this case:

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, 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; Provided, however, that
should the said MARIA LUCY CHRISTENSEN DANEY at anytime prior to her decease
having living issue, then and in that event, the life interest herein given shall
terminate, and if so terminated, then I give, devise, and bequeath to my
daughter, the said MARIA LUCY CHRISTENSEN DANEY the rest, remainder and
residue of my property with the same force and effect as if I had originally so
given, devised and bequeathed it to her; and provided, further, that should the
said MARIA LUCY CHRISTENSEN DANEY die without living issue, then, and in that
event, I give, devise and bequeath all the rest, remainder and residue of my
property one-half (1/2) to my well-beloved sister, Mrs. CARRIE LOUISE C.
BORTON, now residing at No. 2124, Twentieth Street, Bakersfield, California,
U.S.A., and one-half (1/2) to the children of my deceased brother, JOSEPH C.
CHRISTENSEN, namely: Mrs. Carol F. Ruggaver, of Los Angeles, California, U.S.A.,
and Joseph Raymond Christensen, of Manhattan Beach, California, U.S.A., share
and share alike, the share of any of the three above named who may predecease
me, to go in equal parts to the descendants of the deceased; and, provided
further, that should my sister Mrs. Carol Louise C. Borton die before my own
decease, then, and in that event, the share of my estate devised to her herein I
give, devise and bequeath to her children, Elizabeth Borton de Treviño, of Mexico
City Mexico; Barbara Borton Philips, of Bakersfield, California, U.S.A., and Richard
Borton, of Bakersfield, California, U.S.A., or to the heirs of any of them who may
die before my own decease, share and share alike.

The trial court ruled, and appellee now maintains, that there has been preterition of
Helen Garcia, a compulsory heir in the direct line, resulting in the annulment of the
institution of heir pursuant to Article 854 of the Civil Code, which provides:

ART. 854. The preterition or omission of one, some, or all of the compulsory heirs
in the direct line, whether living at the time of the execution of the will or born
after the death of the testator, shall annul the institution of heir; but the devises
and legacies shall be valid insofar as they are not inofficious.

On the other hand, appellant contends that this is not a case of preterition, but is
governed by Article 906 of the Civil Code, which says: "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." Appellant also suggests that considering the provisions
of the will whereby the testator expressly denied his relationship with Helen Garcia, but
left to her a legacy nevertheless although less than the amount of her legitime, she was
in effect defectively disinherited within the meaning of Article 918, which reads:

ART. 918. Disinheritance without a specification of the cause, or for a cause the
truth of which, if contradicted, is not proved, or which is not one of those set forth
 in this Code, shall annul the institution of heirs insofar as it may prejudice the
person disinherited; but the devices and legacies and other testamentary
dispositions shall be valid to such extent as will not impair the legitimate.

Thus, according to appellant, under both Article 906 and 918, Helen Garcia is entitled
only to her legitime, and not to a share of the estate equal that of Lucy Duncan as if the
succession were intestate.

Article 854 is a reproduction of Article 814 of the Spanish Civil Code; and Article 906 of
Article 815. Commenting on Article 815, Manresa explains:

Como dice Goyena, en el caso de pretericion puede presumirse ignorancia o falta

de memoria en el testador; en el de dejar algo al heredero forzoso no. Este no se
encuentra plivado totalmente de su legitima: ha recibido por cualquir titulo una
porcion de los bienes hereditarios, porcion que no alcanza a completar la legitima,
pero que influeye poderosamente en el animo del legislador para decidirle a
adoptar una solucion bien diferente de la señalada para el caso de pretericion.

El testador no ha olvidado por completo al heredero forzoso; le ha dejado bienes;

pero haciendo un calculo equivocado, ha repartido en favor de extraños o en favor
de otros legitimarios por via de legado donacion o mejora mayor cantidad de la
que la ley de consentia disponer. El heredero forzoso no puede perder su legitima,
pero tampoco puede pedir mas que la misma. De aqui su derecho a reclamar
solamente lo que le falta; al complemento de la porcion que forzosamente la
corresponde.

... Dejar el testador por cualquier titulo, equivale a disponer en testamento por
titulo de herencia legado o mejora, y en favor de legitimarios, de alguna cantidad
o porcion de bienes menos que la legitima o igual a la misma. Tal sentido, que es
el mas proprio en al articulo 815, no pugna tampoco con la doctrina de la
ley. Cuando en el testamento se deja algo al heredero forzoso, la pretericion es
incompleta: es mas formularia que real. Cuando en el testamento nada se deja el
legitimario, hay verdadera pretericion. (6 Manresa, 7th Ed., 1951, p. 437.)

On the difference between preterition of a compulsory heir and the right to ask for
completion of his legitime, Sanchez Roman says:

La desheredacion, como expresa, es siempre voluntaria; la pretericion puede serlo

pero se presume involuntaria la omision en que consiste en cuanto olvida o no
atiende el testador en su testamento a la satisfaccion del derecho a la legitima del
heredero forzoso preterido, prescindiendo absoluta y totalmente de el y no
mencionandole en ninguna de sus disposiciones testamentarias, o
no instituyendole en parte alguna de la herencia, ni por titulo de heredero ni por el
de legatar o aunque le mencionara o nombrara sin dejarle mas o menos bienes. Si
le dejara algunos, por pocos que sean e insuficientes para cubrir su legitima, ya no
seria caso de pretericion, sino de complemento de aquella. El primer supuesto o
de pretericion se regula por el articulo 814, y produce accion de nulidad de la
institucion de heredero; y el segundo, o de complemento de legitima por el 815 y
solo original la accion ad suplementum, para completar la legitima. (Sanchez
Roman, Tomo VI, Vol. 2, p. 1131.)

Manresa defines preterition as the omission of the heir in the will, either by not naming
him at all or, while mentioning him as father, son, etc., by not instituting him as heir
without disinheriting him expressly, nor assigning to him some part of the properties.
Manresa continues:

Se necesita pues (a) Que la omision se refiera a un heredero forzoso; (b) Que la
omision sea completa; que el heredero forzoso nada reciba en el
testamento.1äwphï1.ñët

xxx     xxx     xxx
 B. Que la omision sea completa — Esta condicion se deduce del mismo Articulo
814 y resulta con evidencia al relacionar este articulo con el 815. El heredero
forzoso a quien el testador deja algo por cualquier titulo en su testamento, no se
halla propiamente omitido pues se le nombra y se le reconoce participacion en los
bienes hereditarios. Podria discutirse en el Articulo 814 si era o no necesario que
se reconociese el derecho del heredero como tal heredero, pero el articulo 815
desvanece esta duda. Aquel se ocupa de privacion completa o total, tacita este, de
la privacion parcial. Los efectos deben ser y son, como veremos completamente
distintos (6 Manresa, p. 428.)

La privacion de la legitima puede ser total o parcial.

Privar totalmente de la legitima es negarla en absoluto al legitimario, despojarle

de ella por completo. A este caso se refiere el articulo 814. Privar parcialmente de
la legitima, es menguarla o reducirla dejar al legitimario una porcion, menor que la
que le corresponde. A este caso se refiere el articulo 815. El 813 sienta, pues, una
regla general, y las consecuencias del que brantamiento de esta regla se
determina en los articulos 814 y 815. (6 Manresa p. 418.)

Again Sanchez Roman:

QUE LA OMISSION SEA TOTAL. — Aunque el articulo 814 no consigna de modo

expreso esta circunstancia de que la pretericion o falta de mencion e institucion o
disposicion testamentaria a su favor, sea total, completa y absoluta, asi se deduce
de no hacer distincion o salvedad alguna empleandola en terminos generales; pero
sirve a confirmarlo de un modo indudable el siguiente articulo 815, al decir que el
heredero forzoso a quien el testador haya dejado por cualquier titulo, menos de la
legitima que la corresponda, podria pedir el complemento de la misma, lo cual
ya no son el caso ni los efectos de la pretericion, que anula la institucion, sino
simplemente los del suplemento necesario para cubrir su legitima. (Sanchez
Roman — Tomo VI, Vol. 2.0 p. 1133.)

The question may be posed: In order that the right of a forced heir may be limited only
to the completion of his legitime (instead of the annulment of the institution of heirs) is
it necessary that what has been left to him in the will "by any title," as by legacy, be
granted to him in his capacity as heir, that is, a titulo de heredero? In other words,
should he be recognized or referred to in the will as heir? This question is pertinent
because in the will of the deceased Edward E. Christensen Helen Garcia is not mentioned
as an heir — indeed her status as such is denied — but is given a legacy of P3,600.00.

While the classical view, pursuant to the Roman law, gave an affirmative answer to the
question, according to both Manresa (6 Manresa 7th 3rd. 436) and Sanchez Roman
(Tomo VI, Vol. 2.0 — p. 937), that view was changed by Article 645 of the "Proyecto de
Codigo de 1851," later on copied in Article 906 of our own Code. Sanchez Roman, in the
citation given above, comments as follows:

RESPECTO DEL COMPLEMENTO DE LA LEGITIMA. — Se inspira el Codigo en esta

materia en la doctrina clasica del Derecho romano y patrio (2); pero con alguna
racional modificacion. Concedian aquellos precedentes legales al heredero forzoso,
a quien no se le dejaba por titulo de tal el completo de su legitima, la accion para
invalidar la institucion hecha en el testamento y reclamar y obtener aquella
mediante el ejercicio de la querella de inoficioso, y aun cuando resultara
favorecido como donotario, por otro titulo que no fuera el de heredero, sino al
honor de que se le privaba no dandole este caracter, y solo cuando era instituido
heredero en parte o cantidad inferior a lo que le correspondiera por legitima, era
cuando bastaba el ejercicio de la accion ad suplementum para completarla, sin
necesidad de anular las otras instituciones de heredero o demas disposiciones
contenidas en el testamento.

El Articulo 851 se aparta de este criterio estricto y se ajusta a la unica necesidad

que le inspira cual es la de que se complete la legitima del heredero forzoso, a
 quien por cualquier titulo se haya dejado menos de lo que le corresponda, y se le
otorga tan solo el derecho de pedir el complemento de la misma sin necesidad de
que se anulen las disposiciones testamentarias, que se reduciran en lo que sean
inoficiosas conforme al articulo 817, cuya interpretacion y sentido tienen ya en su
apoyo la sancion de la jurisprudencia (3); siendo condicion precisa que lo que se
hubiere dejado de menos de la legitima al heredero forzoso, lo haya sido en el
testamento, o sea por disposicion del testador, segun lo revela el texto del
articulo, "el heredero forzoso a quien el testador haya dejado, etc., esto es por
titulo de legado o donacion mortis causa en el testamento y, no fuera de al.
(Sanchez Roman, Tomo VI, Vol. 2.0 — p. 937.)

Manresa cites particularly three decisions of the Supreme Court of Spain dated January
16, 1895, May 25, 1917, and April 23, 1932, respectively. In each one of those cases
the testator left to one who was a forced heir a legacy worth less than the legitime, but
without referring to the legatee as an heir or even as a relative, and willed the rest of
the estate to other persons. It was held that Article 815 applied, and the heir could not
ask that the institution of heirs be annulled entirely, but only that the legitime be
completed. (6 Manresa, pp. 438, 441.)

The foregoing solution is indeed more in consonance with the expressed wishes of the
testator in the present case as may be gathered very clearly from the provisions of his
will. He refused to acknowledge Helen Garcia as his natural daughter, and limited her
share to a legacy of P3,600.00. The fact that she was subsequently declared judicially to
possess such status is no reason to assume that had the judicial declaration come during
his lifetime his subjective attitude towards her would have undergone any change and
that he would have willed his estate equally to her and to Lucy Duncan, who alone was
expressly recognized by him.

The decision of this Court in Neri, et al. v. Akutin, 74 Phil. 185, is cited by appellees in
support of their theory of preterition. That decision is not here applicable, because it
referred to a will where "the testator left all his property by universal title to the children
by his second marriage, and (that) without expressly disinheriting the children by his
first marriage, he left nothing to them or, at least, some of them." In the case at bar the
testator did not entirely omit oppositor-appellee Helen Garcia, but left her a legacy of
P3,600.00.

The estate of the deceased Christensen upon his death consisted of 399 shares of stocks
in the Christensen Plantation Company and a certain amount in cash. One-fourth (1/4)
of said estate descended to Helen Garcia as her legitime. Since she became the owner of
her share as of the moment of the death of the decedent (Arts. 774, 777, Civil Code),
she is entitled to a corresponding portion of all the fruits or increments thereof
subsequently accruing. These include the stock dividends on the corporate holdings. The
contention of Lucy Duncan that all such dividends pertain to her according to the terms
of the will cannot be sustained, for it would in effect impair the right of ownership of
Helen Garcia with respect to her legitime.

One point deserves to be here mentioned, although no reference to it has been made in
the brief for oppositor-appellant. It is the institution of substitute heirs to the estate
bequeathed to Lucy Duncan in the event she should die without living issue. This
substitution results in effect from the fact that under paragraph 12 of the will she is
entitled only to the income from said estate, unless prior to her decease she should have
living issue, in which event she would inherit in full ownership; otherwise the property
will go to the other relatives of the testator named in the will. Without deciding this,
point, since it is not one of the issues raised before us, we might call attention to the
limitations imposed by law upon this kind of substitution, particularly that which says
that it can never burden the legitime (Art. 864 Civil Code), which means that the
legitime must descend to the heir concerned in fee simple.

Wherefore, the order of the trial court dated October 29, 1964, approving the project of
partition as submitted by the executor-appellee, is hereby set aside; and the case is
remanded with instructions to partition the hereditary estate anew as indicated in this
decision, that is, by giving to oppositor-appellee Maria Helen Christensen Garcia no more
than the portion corresponding to her as legitime, equivalent to one-fourth (1/4) of the
hereditary estate, after deducting all debts and charges, which shall not include those
imposed in the will of the decedent, in accordance with Article 908 of the Civil Code.
Costs against appellees in this instance.
G.R. No. 72706 October 27, 1987

CONSTANTINO C. ACAIN, petitioner, 
vs.
HON. INTERMEDIATE APPELLATE COURT (Third Special Cases Division),
VIRGINIA A. FERNANDEZ and ROSA DIONGSON, respondents.

PARAS, J.:

This is a petition for review on certiorari of the decision * of respondent. Court of

Appeals in AC-G.R. SP No. 05744 promulgated on August 30, 1985 (Rollo, p. 108)
ordering the dismissal of the petition in Special Proceedings No, 591 ACEB and its
Resolution issued on October 23, 1985 (Rollo, p. 72) denying respondents' (petitioners
herein) motion for reconsideration.

The dispositive portion of the questioned decision reads as follows:

WHEREFORE, the petition is hereby granted and respondent Regional Trial

Court of the Seventh Judicial Region, Branch XIII (Cebu City), is hereby
ordered to dismiss the petition in Special Proceedings No. 591 ACEB No
special pronouncement is made as to costs.

The antecedents of the case, based on the summary of the Intermediate Appellate
Court, now Court of Appeals, (Rollo, pp. 108-109) are as follows:

On May 29, 1984 petitioner Constantino Acain filed on the Regional Trial Court of Cebu
City Branch XIII, a petition for the probate of the will of the late Nemesio Acain and for
the issuance to the same petitioner of letters testamentary, docketed as Special
Proceedings No. 591 ACEB (Rollo, p. 29), on the premise that Nemesio Acain died
leaving a will in which petitioner and his brothers Antonio, Flores and Jose and his sisters
Anita, Concepcion, Quirina and Laura were instituted as heirs. The will allegedly
executed by Nemesio Acain on February 17, 1960 was written in Bisaya (Rollo, p. 27)
with a translation in English (Rollo, p. 31) submi'tted by petitioner without objection
raised by private respondents. The will contained provisions on burial rites, payment of
debts, and the appointment of a certain Atty. Ignacio G. Villagonzalo as the executor of
the testament. On the disposition of the testator's property, the will provided:

THIRD: All my shares that I may receive from our properties. house, lands
and money which I earned jointly with my wife Rosa Diongson shall all be
given by me to my brother SEGUNDO ACAIN Filipino, widower, of legal age
and presently residing at 357-C Sanciangko Street, Cebu City. In case my
brother Segundo Acain pre-deceased me, all the money properties, lands,
houses there in Bantayan and here in Cebu City which constitute my share
shall be given to me to his children, namely: Anita, Constantino, Concepcion,
Quirina, laura, Flores, Antonio and Jose, all surnamed Acain.

Obviously, Segundo pre-deceased Nemesio. Thus it is the children of Segundo who are
claiming to be heirs, with Constantino as the petitioner in Special Proceedings No. 591
ACEB

After the petition was set for hearing in the lower court on June 25, 1984 the oppositors
(respondents herein Virginia A. Fernandez, a legally adopted daughter of tile deceased
and the latter's widow Rosa Diongson Vda. de Acain filed a motion to dismiss on the
following grounds for the petitioner has no legal capacity to institute these proceedings;
(2) he is merely a universal heir and (3) the widow and the adopted daughter have been
pretirited. (Rollo, p. 158). Said motion was denied by the trial judge.

After the denial of their subsequent motion for reconsideration in the lower court,
respondents filed with the Supreme Court a petition for certiorari and prohibition with
preliminary injunction which was subsequently referred to the Intermediate Appellate
Court by Resolution of the Court dated March 11, 1985 (Memorandum for Petitioner, p.
3; Rollo, p. 159).

Respondent Intermediate Appellate Court granted private respondents' petition and

ordered the trial court to dismiss the petition for the probate of the will of Nemesio Acain
in Special Proceedings No. 591 ACEB

His motion for reconsideration having been denied, petitioner filed this present petition
for the review of respondent Court's decision on December 18, 1985 (Rollo, p. 6).
Respondents' Comment was filed on June 6, 1986 (Rollo, p. 146).

On August 11, 1986 the Court resolved to give due course to the petition (Rollo, p. 153).
Respondents' Memorandum was filed on September 22, 1986 (Rollo, p. 157); the
Memorandum for petitioner was filed on September 29, 1986 (Rollo, p. 177).

Petitioner raises the following issues (Memorandum for petitioner, p. 4):

(A) The petition filed in AC-G.R. No. 05744 for certiorari and prohibition with
preliminary injunction is not the proper remedy under the premises;

(B) The authority of the probate courts is limited only to inquiring into the
extrinsic validity of the will sought to be probated and it cannot pass upon
the intrinsic validity thereof before it is admitted to probate;

(C) The will of Nemesio Acain is valid and must therefore, be admitted to
probate. The preterition mentioned in Article 854 of the New Civil Code
refers to preterition of "compulsory heirs in the direct line," and does not
apply to private respondents who are not compulsory heirs in the direct line;
their omission shall not annul the institution of heirs;

(D) DICAT TESTATOR ET MERIT LEX. What the testator says will be the law;

(E) There may be nothing in Article 854 of the New Civil Code, that suggests
that mere institution of a universal heir in the will would give the heir so
instituted a share in the inheritance but there is a definite distinct intention
of the testator in the case at bar, explicitly expressed in his will. This is what
matters and should be in violable.

(F) As an instituted heir, petitioner has the legal interest and standing to file
the petition in Sp. Proc. No. 591 ACEB for probate of the will of Nemesio
Acain and

(G) Article 854 of the New Civil Code is a bill of attainder. It is therefore
unconstitutional and ineffectual.

The pivotal issue in this case is whether or not private respondents have been pretirited.

Article 854 of the Civil Code provides:

Art. 854. The preterition or omission of one, some, or all of the compulsory
heirs in the direct line, whether living at the time of the execution of the will
or born after the death of the testator, shall annul the institution of heir; but
the devisees and legacies shall be valid insofar as they are not; inofficious.

If the omitted compulsory heirs should die before the testator, the institution
shall he effectual, without prejudice to the right of representation.

Preterition consists in the omission in the testator's will of the forced heirs or anyone of
them either because they are not mentioned therein, or, though mentioned, they are
neither instituted as heirs nor are expressly disinherited (Nuguid v. Nuguid, 17 SCRA
450 [1966]; Maninang v. Court of Appeals, 114 SCRA 478 [1982]). Insofar as the widow
is concerned, Article 854 of the Civil Code may not apply as she does not ascend or
descend from the testator, although she is a compulsory heir. Stated otherwise, even if
the surviving spouse is a compulsory heir, there is no preterition even if she is omitted
from the inheritance, for she is not in the direct line. (Art. 854, Civil code) however, the
same thing cannot be said of the other respondent Virginia A. Fernandez, whose legal
adoption by the testator has not been questioned by petitioner (.Memorandum for the
Petitioner, pp. 8-9). Under Article 39 of P.D. No. 603, known as the Child and Youth
Welfare Code, adoption gives to the adopted person the same rights and duties as if he
were a legitimate child of the adopter and makes the adopted person a legal heir of the
adopter. It cannot be denied that she has totally omitted and preterited in the will of the
testator and that both adopted child and the widow were deprived of at least their
legitime. Neither can it be denied that they were not expressly disinherited. Hence, this
is a clear case of preterition of the legally adopted child.

Pretention annuls the institution of an heir and annulment throws open to intestate
succession the entire inheritance including "la porcion libre (que) no hubiese dispuesto
en virtual de legado mejora o donacion" Maniesa as cited in Nuguid v. Nuguid, supra;
Maninang v. Court of Appeals, 114 SCRA [1982]). The only provisions which do not
result in intestacy are the legacies and devises made in the will for they should stand
valid and respected, except insofar as the legitimes are concerned.

The universal institution of petitioner together with his brothers and sisters to the entire
inheritance of the testator results in totally abrogating the will because the nullification
of such institution of universal heirs-without any other testamentary disposition in the
will-amounts to a declaration that nothing at all was written. Carefully worded and in
clear terms, Article 854 of the Civil Code offers no leeway for inferential interpretation
(Nuguid v. Nuguid), supra. No legacies nor devises having been provided in the will the
whole property of the deceased has been left by universal title to petitioner and his
brothers and sisters. The effect of annulling the "Institution of heirs will be, necessarily,
the opening of a total intestacy (Neri v. Akutin, 74 Phil. 185 [1943]) except that proper
legacies and devises must, as already stated above, be respected.

We now deal with another matter. In order that a person may be allowed to intervene in
a probate proceeding he must have an interest iii the estate, or in the will, or in the
property to be affected by it either as executor or as a claimant of the estate and an
interested party is one who would be benefited by the estate such as an heir or one who
has a claim against the estate like a creditor (Sumilang v. Ramagosa, 21 SCRA
1369/1967). Petitioner is not the appointed executor, neither a devisee or a legatee
there being no mention in the testamentary disposition of any gift of an individual item
of personal or real property he is called upon to receive (Article 782, Civil Code). At the
outset, he appears to have an interest in the will as an heir, defined under Article 782 of
the Civil Code as a person called to the succession either by the provision of a will or by
operation of law. However, intestacy having resulted from the preterition of respondent
adopted child and the universal institution of heirs, petitioner is in effect not an heir of
the testator. He has no legal standing to petition for the probate of the will left by the
deceased and Special Proceedings No. 591 A-CEB must be dismissed.

As a general rule certiorari cannot be a substitute for appeal, except when the
questioned order is an oppressive exercise of j judicial authority (People v. Villanueva,
110 SCRA 465 [1981]; Vda. de Caldito v. Segundo, 117 SCRA 573 [1982]; Co Chuan
Seng v. Court of Appeals, 128 SCRA 308 [1984]; and Bautista v. Sarmiento, 138 SCRA
587 [1985]). It is axiomatic that the remedies of certiorari and prohibition are not
available where the petitioner has the remedy of appeal or some other plain, speedy and
adequate remedy in the course of law (DD Comendador Construction Corporation v.
Sayo (118 SCRA 590 [1982]). They are, however, proper remedies to correct a grave
abuse of discretion of the trial court in not dismissing a case where the dismissal is
founded on valid grounds (Vda. de Bacang v. Court of Appeals, 125 SCRA 137 [1983]).

Special Proceedings No. 591 ACEB is for the probate of a will. As stated by respondent
Court, the general rule is that the probate court's authority is limited only to the
extrinsic validity of the will, the due execution thereof, the testator's testamentary
capacity and the compliance with the requisites or solemnities prescribed by law. The
intrinsic validity of the will normally comes only after the Court has declared that the will
has been duly authenticated. Said court at this stage of the proceedings is not called
upon to rule on the intrinsic validity or efficacy of the provisions of the will (Nuguid v.
Nuguid, 17 SCRA 449 [1966]; Sumilang v. Ramagosa, supra; Maninang v. Court of
Appeals, 114 SCRA 478 [1982]; Cayetano v. Leonides, 129 SCRA 522 [1984]; and
Nepomuceno v. Court of Appeals, 139 SCRA 206 [1985]).

The rule, however, is not inflexible and absolute. Under exceptional circumstances, the
probate court is not powerless to do what the situation constrains it to do and pass upon
certain provisions of the will (Nepomuceno v. Court of Appeals, supra). In Nuguid v.
Nuguid the oppositors to the probate moved to dismiss on the ground of absolute
preteriton The probate court acting on the motion held that the will in question was a
complete nullity and dismissed the petition without costs. On appeal the Supreme Court
upheld the decision of the probate court, induced by practical considerations. The Court
said:

We pause to reflect. If the case were to be remanded for probate of the will,
nothing will be gained. On the contrary, this litigation will be protracted. And
for aught that appears in the record, in the event of probate or if the court
rejects the will, probability exists that the case will come up once again
before us on the same issue of the intrinsic validity or nullity of the will.
Result: waste of time, effort, expense, plus added anxiety. These are the
practical considerations that induce us to a belief that we might as well meet
head-on the issue of the validity of the provisions of the will in question.
After all there exists a justiciable controversy crying for solution.

In Saguimsim v. Lindayag (6 SCRA 874 [1962]) the motion to dismiss the petition by
the surviving spouse was grounded on petitioner's lack of legal capacity to institute the
proceedings which was fully substantiated by the evidence during the hearing held in
connection with said motion. The Court upheld the probate court's order of dismissal.

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

petition deals with the validity of the provisions of the will. Respondent Judge allowed
the probate of the will. The Court held that as on its face the will appeared to have
preterited the petitioner the respondent judge should have denied its probate outright.
Where circumstances demand that intrinsic validity of testamentary provisions be passed
upon even before the extrinsic validity of the will is resolved, the probate court should
meet the issue. (Nepomuceno v. Court of Appeals, supra; Nuguid v. Nuguid, supra).

In the instant case private respondents filed a motion to dismiss the petition in Sp.
Proceedings No. 591 ACEB of the Regional Trial Court of Cebu on the following grounds:
(1) petitioner has no legal capacity to institute the proceedings; (2) he is merely a
universal heir; and (3) the widow and the adopted daughter have been preterited (Rollo,
p. 158). It was denied by the trial court in an order dated January 21, 1985 for the
reason that "the grounds for the motion to dismiss are matters properly to be resolved
after a hearing on the issues in the course of the trial on the merits of the case (Rollo, p.
32). A subsequent motion for reconsideration was denied by the trial court on February
15, 1985 (Rollo, p. 109).

For private respondents to have tolerated the probate of the will and allowed the case to
progress when on its face the will appears to be intrinsically void as petitioner and his
brothers and sisters were instituted as universal heirs coupled with the obvious fact that
one of the private respondents had been preterited would have been an exercise in
futility. It would have meant a waste of time, effort, expense, plus added futility. The
trial court could have denied its probate outright or could have passed upon the intrinsic
validity of the testamentary provisions before the extrinsic validity of the will was
resolved (Cayetano v. Leonides, supra; Nuquid v. Nuguid, supra. The remedies of
certiorari and prohibition were properly availed of by private respondents.
Thus, this Court ruled that where the grounds for dismissal are indubitable, the
defendants had the right to resort to the more speedy, and adequate remedies of
certiorari and prohibition to correct a grave abuse of discretion, amounting to lack of
jurisdiction, committed by the trial court in not dismissing the case, (Vda. de Bacang v.
Court of Appeals, supra) and even assuming the existence of the remedy of appeal, the
Court harkens to the rule that in the broader interests of justice, a petition for certiorari
may be entertained, particularly where appeal would not afford speedy and adequate
relief. (Maninang Court of Appeals, supra).

PREMISES CONSIDERED, the petition is hereby DENIED for lack of merit and the
questioned decision of respondent Court of Appeals promulgated on August 30, 1985
and its Resolution dated October 23, 1985 are hereby AFFIRMED.
G.R. No. L-41971 November 29, 1983

ZONIA ANA T. SOLANO, petitioner, 

vs.
THE COURT OF APPEALS, BIENVENIDO S. GARCIA, and EMETERIA S.
GARCIA, respondents.

Benjamin H. Aquino for petitioner.

Alfredo Kallos for respondents.

MELENCIO HERRERA, J.:

A Petition for Review on certiorari of the Decision of the then Court of Appeals affirming
the judgment rendered by the former Court of First Instance of Albay, Branch II, in Civil
Case No. 3956, an action for Recognition.

On July 7, 1969, Bienvenido Garcia and Emeteria Garcia (GARCIAS), claiming to be

illegitimate children of Dr. Meliton SOLANO, filed an action for recognition against him.
In his Answer, SOLANO denied paternity. On February 3, 1970, during the pendency of
the suit, SOLANO died. Petitioner ZONIA Ana Solano was ordered substituted for the
DECEDENT as the only surviving heir mentioned in his Last Will and Testament probated
on March 10, 1969, or prior to his death, in Special Proceedings No. 842 of the same
Court. ZONIA entered her formal appearance as a "substitute defendant" on March 4,
1970 claiming additionally that she was the sole heir of her father, SOLANO, and asking
that she be allowed to assume her duties as executrix of the probated Will with the least
interference from the GARCIAS who were "mere pretenders to be illegitimate children of
SOLANO".

On April 6, 1970, the GARCIAS filed their "Reply to ZONIA's Appearance and
Supplemental Cause of Action" impugning the recognition of ZONIA as an acknowledged
natural child with the prayer that she be declared instead, like them, as an adulterous
child of the DECEDENT. ZONIA did not file any responsive pleading and the case
proceeded to trial. The GARCIAS further moved for the impleading of the SOLANO estate
in addition to ZONIA, which was opposed by the latter, but which the Trial Court granted
in its Order dated April 15, 1970. 1

In the hearing of May 13, 1970, the Trial Court specified the legal issues to be treated in
the parties' respective Memoranda as: 1) the question of recognition of the GARCIAS; 2)
the correct status of ZONIA, and 3) the hereditary share of each of them in view of the
probated Will. 2

On July 14, 1970, the Trial Court, presided by Judge Ezequiel S. Grageda, rendered
judgment the dispositive portion of which decrees: têñ.£îhqwâ£

WHEREFORE, judgment is hereby rendered declaring the plaintiffs

Bienvenido S. Garcia and Emeteria S. Garcia and the defendant Sonia Ana
Tuagnon as the illegitimate children of the late Dr. Meliton Solano under the
class of ADULTEROUS CHILDREN, with all the rights granted them by law.
The institution of Sonia Ana Solano as sole and universal heir of the said
deceased in the will is hereby declared null and void and the three (3)
children shall share equally the estate or one- third (1/3) each, without
prejudice to the legacy given to Trinidad Tuagnon and the right of any
creditors of the estate. No pronouncement as to costs.

Appealed to the Court of Appeals by ZONIA, said Court affirmed the judgment in
toto (CA-G.R. No. 49018).

ZONIA seeks a reversal of that affirmance in this petition, which was given due course.
At the outset, we should state that we are bound by the findings of fact of both the Trial
Court and the Appellate Court, particularly, the finding that the GARCIAS and ZONIA
are, in fact, illegitimate children of the DECEDENT. The oral testimony and the
documentary evidence of record inevitably point to that conclusion, as may be gleaned
from the following background facts: SOLANO, a resident of Tabaco, Albay, married Pilar
Riosa. The latter died. On a world tour he met a French woman, Lilly Gorand, who
became his second wife in 1928. The union was short-lived as she left him in 1929. In
the early part of 1930, SOLANO started having amorous relations with Juana Garcia, out
of which affair was born Bienvenido Garcia on March 24, 1931 (Exhibits "A" & "3"); and
on November 3, 1935, Emeteria Garcia was born (Exhibits "B " & "2"). Their birth
certificates and baptismal certificates mention only the mother's name without the
father's name. The facts establish, however, that SOLANO during his lifetime recognized
the GARCIAS as his children by acts of support and provisions for their education.

In 1935, SOLANO started living with Trinidad Tuagnon. Three children were born out of
this relation but only petitioner ZONIA Ana Tuagnon, born on July 26, 1941, is living. In
her Birth Certificate, her status was listed as "illegitimate"; her mother as Trinidad
Tuagnon; her father as "P.N.C. " (Exhibit "V"), or "padre no conocido".

During the Japanese occupation, SOLANO obtained a divorce from Lilly Gorand on
November 29, 1943 (Exhibits "R-1" and "S-1"). On December 22, 1943, SOLANO and
Trinidad Tuagnon executed an "Escritura de Reconocimiento de Unit Hija Natural"
(Exhibit "Q"; "7"), acknowledging ZONIA as a "natural child" and giving her the right to
use the name ZONIA Ana Solano y Tuagnon. The document was registered with the
Local Civil Registrar on the same date.

On January 18, 1969, SOLANO executed his "Ultima Voluntad y Testamento" (Exhibit
"11"), instituting ZONIA as his universal heir to all his personal and real properties in
Camalig, Tabaco and Malinao, all in the province of Albay, except for five parcels of land
in Bantayan, Tabaco, Albay, which were given to Trinidad Tuagnon in usufruct Upon
SOLANO's petition (Exhibit "10"), the Will was duly probated on March 10, 1969 in
Special Proceedings No. 842 of the Court of First Instance of Albay, Branch II, in a
Decision also rendered by Judge Ezequiel S. Grageda (Exhibit "12").

As above stated, these facts are not in question.

Petitioner maintains, however, that: têñ.£îhqwâ£

The Court of Appeals, as well as the trial Court, acted without jurisdiction or
in excess of jurisdiction in declaring substitute defendant Zonia Ana Solano,
now petitioner, an illegitimate child of the late Dr. Meliton Solano in an
action where private respondents, as plaintiffs in the Court below, sought
recognition as natural children of Dr. Meliton Solano.

II

The Court of Appeals, as well as the trial Court, acted without jurisdiction or
in excess of jurisdiction in ordering the division of the estate of Dr. Meliton
Solano between the petitioner and private respondents, when said estate is
under the jurisdiction and control of the probate Court in Special Proceedings
No. 842.

III

The Court of Appeals, as well as the trial Court, acted without jurisdiction or
in excess of jurisdiction in declaring nun and void the institution of heir in
the last will and testament of Dr. Meliton Solano, which was duly probated in
special proceedings No. 842 of the Court of First Instance of Albay, and in
concluding that total intestacy resulted there from. 3
Directly challenged is the jurisdiction of the lower Court, in an action for recognition: 1)
to declare ZONIA as an illegitimate child of SOLANO; 2) to order the division of the
estate in the same action despite the pendency of Special Proceedings No. 842; and 3)
to declare null and void the institution of heir in the Last Win and Testament of SOLANO,
which was duly probated in the same Special Proceedings No. 842, and concluding that
total intestacy resulted.

It is true that the action below was basically one for recognition. However, upon notice
of SOLANO's death, the Trial Court ordered his substitution by ZONIA, "the only
surviving heir ... as of as of now" 4 In her "Appearance of Substitute Defendant Zonia
Ana T. Solano ... Sole and Universal Heir", ZONIA specifically prayed that she be 6
allowed to assume her duties as executrix and administratrix of the probated will and
testament of the late Dr. Meliton Solano, under Special Proceedings No. 842, which is
already final and executory, with least interference from the plaintiffs (GARCIAS) who
may be classified for the moment as only pretenders to be illegitimate children". In other
words, ZONIA did not only rely upon SOLANO's Answer already of record but asserted
new rights in her capacity as sole and universal heir, "executrix and administratrix, "and
challenged the right of the GARCIAS to recognition. Thus, she was not defending the
case as a mere representative of the deceased but asserted rights and defenses in her
own personal capacity. So it was that the GARCIAS filed a "Reply to Appearance of
ZONIA ... and Supplemental Cause of Action ... "vigorously denying that ZONIA was
SOLANO's sole and universal heir; that ZONIA could not legally be considered as
SOLANO's acknowledged natural child because of a legal impediment; that the admission
to probate of SOLANO's Will was merely conclusive as to its due execution; that the
supposed recognition under a notarial instrument of ZONIA as an acknowledged natural
child was fraudulent and a product of misrepresentation; that ZONIA's recognition in the
Will as an acknowledged natural child is subject to nullification and that at most ZONIA
is, like them, an adulterous child of SOLANO with Trinidad Tuagnon.

During the trial, the GARCIAS presented evidence to prove their allegations not only in
their main complaint but also in their "Reply to Appearance and Supplemental Cause of
Action". ZONIA presented no objection to the presentation by the GARCIAS of their oral
and documentary evidence and even cross-examined their witnesses. ZONIA, for her
part, presented her own testimonial and documentary evidence, denied the relationship
of the GARCIAS' to SOLANO and presented the notarial recognition in her favor as an
acknowledged natural child by SOLANO and Trinidad Tuagnon (Exhibit "Q"). Thus, as
raised by the parties in their own pleadings and pursuant to their respective evidence
during the trial, the litigation was converted into a contest between the GARCIAS and
ZONIA precisely as to their correct status as heirs and their respective rights as such. No
error was committed by either the Trial Court or the Appellate Court, therefore, in
resolving the issue of ZONIA's status.

ZONIA additionally assails the jurisdiction of the Trial Court in declaring null and void the
institution of heir in SOLANO's will; in concluding that total intestacy resulted therefrom;
and distributing the shares of the parties in SOLANO's estate when said estate was
under the jurisdiction and control of the Probate Court in Special Proceedings No. 842.

Normally, this would be the general rule. However, a peculiar situation is thrust upon us
here. It should be recalled that SOLANO himself instituted the petition for probate of the
Will during his lifetime. That proceeding was not one to settle the estate of a deceased
person that would be deemed terminated only upon the final distribution of the residue
of the hereditary estate. With the Will allowed to probate, the case would have
terminated except that it appears that the parties, after SOLANO's death, continued to
file pleadings therein. Secondly, upon motion of the GARCIAS, and over the objection of
ZONIA, the Trial Court ordered the impleading of the estate of SOLANO and proceeded
on that basis. In effect, therefore, the two cases were consolidated. The records further
disclose that the action for recognition (Civil Case No. 3956) and Spec. Procs. No. 842
were pending before the same Branch of the Court and before the same presiding Judge.
Thirdly, it is settled that the allowance of a Will is conclusive only as to its due
execution.5 A probate decree is not concerned with the intrinsic validity or legality of the
provisions of the Will. 6
Thus, the Trial Court and the Appellate Court had jurisdiction to conclude that, upon the
facts, the GARCIAS and ZONIA were in the same category as illegitimate children; that
ZONIA's acknowledgment as a "natural child" in a notarial document executed by
SOLANO and Trinidad Tuagnon on December 22, 1943 was erroneous because at the
time of her birth in 1941, SOLANO was still married to Lilly Gorand, his divorce having
been obtained only in 1943, and, therefore, did not have the legal capacity to contract
marriage at the time of ZONIA's conception, 7 that being compulsory heirs, the GARCIAS
were, in fact, pretended from SOLANO's Last' Will and Testament; and that as a result of
said preterition, the institution of ZONIA as sole heir by SOLANO is null and void
pursuant to Article 854 of the Civil Code. têñ.£îhqwâ£

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. ... 8

As provided in the foregoing provision, the disposition in the Will giving the usufruct in
favor of Trinidad Tuagnon over the five parcels of land in Bantayan, Tabaco, Albay, is a
legacy, recognized in Article 563 of the Civil Code, 9and should be respected in so far as
it is not inofficious. 10

So also did the Trial Court have jurisdiction in resolving the issue of the hereditary
shares of the GARCIAS and ZONIA. However, contrary to the conclusions of the Courts
below, holding that the entire Will is void and intestacy ensues, the pretention of the
GARCIAS should annul the institution of ZONIA as heir only insofar as the legitime of the
omitted heirs is impaired. The Will, therefore, is valid subject to that limitation. 11 It is a
plain that the intention of the testator was to favor ZONIA with certain portions of his
property, which, under the law, he had a right to dispose of by Will, so that the
disposition in her favor should be upheld as to the one-half (1/2) portion of the property
that the testator could freely dispose of. 12 Since the legitime of illegitimate children
consists of one half (1/2) of the hereditary estate, 13 the GARCIAS and ZONIA each have
a right to participation therein in the proportion of one-third (1/3) each. ZONIA's
hereditary share will, therefore, be 1/2 + (1/3 of 1/2) or 4/6 of the estate, while the
GARCIAS will respectively be entitled to 1/3 of 1/2 or 1/6 of the value of the estate.

As heretofore stated, the usufruct in favor of Trinidad Tuagnon over the properties
indicated in the Will is valid and should be respected.

The case of Nuguid vs. Nuguid, et al., 14 reiterating the ruling in Neri, et al. vs. Akutin,
et al., 15 which held that where the institution of a universal heir is null and void due to
pretention, the Will is a complete nullity and intestate succession ensues, is not
applicable herein because in the Nuguid case, only a one-sentence Will was involved
with no other provision except the institution of the sole and universal heir; there was
no specification of individual property; there were no specific legacies or bequests. It
was upon that factual setting that this Court declared: têñ.£îhqwâ£

The disputed order, we observe, declares the will in question 'a complete
nullity. Article 854 of the Civil Code in turn merely nullifies 'the institution of
heir'. Considering, however, that the will before us solely provides for the
institution of petitioner as universal heir, and nothing more, the result is the
same. The entire will is null." (at p. 459)

In contrast, in the case at bar, there is a specific bequest or legacy so that Article 854 of
the Civil Code, supra, applies merely annulling the "institution of heir".

Lastly, it should be pointed out that the jurisdiction of the Trial Court and the Appellate
Court was never questioned before either Court. ZONIA herself had gone, without
objection, to trial on the issues raised and as defined by the Trial Court. Neither had
ZONIA assigned lack of jurisdiction of the Trial Court as an error before the Appellate
Court. She should now be held estopped to repudiate that jurisdiction to which she had
voluntarily submitted, after she had received an unfavorable judgment, The leading case
of Tijam vs. Sibonghanoy, 16 on this point, declared: têñ.£îhqwâ£

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 the same jurisdiction. The question whether the court has
jurisdiction either of the subject matter of the action or of the parties is not
because the judgment or order of the court is valid and conclusive as an
adjudication but for the reason that such practice cannot be tolerated
obviously for reasons of public policy. After voluntarily submitting a cause
and encountering an adverse decision on the merits, it is too late for the
loser to question the jurisdiction or power of the court.

WHEREFORE, the judgment under review is hereby modified in that the hereditary share
in the estate of the decedent of petitioner Zonia Ana T. Solano is hereby declared to be
(1/2 + (1/3 of 1/2) or 4/6 of said estate, while that of private respondents, Bienvenido
S. Garcia and Emeteria S. Garcia, shall each be (1/3 of 1/2) or (1/6) of the estate. The
usufruct in favor of Trinidad Tuagnon shall be respected. The judgment is affirmed in all
other respects. No costs.
G.R. No. L-57848 June 19, 1982

RAFAEL E. MANINANG and SOLEDAD L. MANINANG, petitioners, 

vs.
COURT OF APPEALS, HON. RICARDO L. PRONOVE, JR., as Judge of the Court of
First Instance of Rizal and BERNARDO S. ASENETA, respondents.

MELENCIO-HERRERA, J.:

A Petition to Review the Decision of April 28, 1981 of respondent Appellate Court in CA-
G.R. No. 12032-R entitled "Rafael E. Maninang and Soledad L. Maninang vs. Hon.
Ricardo Pronove, Judge of the Court of First Instance of Rizal, Pasig, Branch XI, and
Bernardo S. Aseneta".

Pertinent to the controversy are the following antecedental facts:

On May 21, 1977, Clemencia Aseneta, single, died at the Manila Sanitarium Hospital at
age 81. She left a holographic will, the pertinent portions of which are quoted
hereunder:

xxx xxx xxx

It is my will that all my real properties located in Manila, Makati, Quezon

City, Albay and Legaspi City and all my personal properties shagllbe
inherited upon my death by Dra. Soledad L. Maninang with whose family I
have lived continuously for around the last 30 years now. Dra. Maninang and
her husband Pamping have been kind to me. ... I have found peace and
happiness with them even during the time when my sisters were still alive
and especially now when I am now being troubled by my nephew Bernardo
and niece Salvacion. I am not incompetent as Nonoy would like me to
appear. I know what is right and wrong. I can decide for myself. I do not
consider Nonoy as my adopted son. He has made me do things against my
will.

xxx xxx xxx

On June 9, 1977, petitioner Soledad Maninang filed a Petition for probate of the Will of
the decedent with the Court of First Instance-Branch IV, Quezon City (Sp. Proc. No. Q-
23304, hereinafter referred to as the Testate Case).

On July 25, 1977, herein respondent Bernardo Aseneta, who, as the adopted son, claims
to be the sole heir of decedent Clemencia Aseneta, instituted intestate proceedings with
the Court of First Instance-Branch XI, Pasig, Rizal (Sp. Proc. No. 8569, called hereinafter
the Intestate Case" for brevity).

On December 23, 1977, the Testate and Intestate Cases were ordered consolidated
before Branch XI, presided by respondent Judge.

Respondent Bernardo then filed a Motion to Dismiss the Testate Case on the ground that
the holographic will was null and void because he, as the only compulsory heir, was
preterited and, therefore, intestacy should ensue. In support of said Motion to Dismiss,
respondent Bernardo cited the cases of Neri vs. Akutin (72 Phil. 322); Nuguid vs.
Nuguid (17 SCRA 449), and Ramos vs. Baldovino (2 CA Rep. 2nd, 878). 1

In her Opposition to said Motion to Dismiss, petitioner Soledad averred that it is still the
rule that in a case for probate of a Will, the Court's area of inquiry is limited to an
examination of and resolution on the extrinsic validity of the will; and that respondent
Bernardo was effectively disinherited by the decedent. 2
On September 8, 1980, the lower Court ordered the dismissal of the Testate Case in this
wise:

For reasons stated in the motion to dismiss filed by petitioner Bernardo S.

Aseneta which the Court finds meritorious, the petition for probate of will
filed by Soledad L. Maninang and which was docketed as Sp. Proc. No. Q-
23304 is DISMISSED, without pronouncement as to costs.

On December 19, 1980, the lower Court denied reconsideration for lack of merit and in
the same Order appointed Bernardo as the administrator of the intestate estate of the
deceased Clemencia Aseneta "considering that he is a forced heir of said deceased while
oppositor Soledad Maninang is not, and considering further that Bernardo Aseneta has
not been shown to be unfit to perform the duties of the trust. "

Petitioners Maninang resorted to a certiorari Petition before respondent Court of Appeals

alleging that the lower Court exceeded its jurisdiction in issuing the Orders of dismissal
of the Testate Case (September 8, 1980) and denial of reconsideration (December 19,
1980).

On April 28, 1981, respondent Court 3 denied certiorari and ruled that the trial Judge's
Order of dismissal was final in nature as it finally disposed of the Testate Case and,
therefore, appeal was the proper remedy, which petitioners failed to avail of. Continuing,
it said that even granting that the lower Court committed errors in issuing the
questioned Orders, those are errors of judgment reviewable only by appeal and not by
Certiorari. 'Thus, this Petition before us.

We find that the Court a quo a quo acted in excess of its jurisdiction when it dismissed
the Testate Case. Generally, the probate of a Will is mandatory.

No will shall pass either real or personal property unless it is proved and
allowed in accordance with the Rules of Court. 4

The law enjoins the probate of the Will and public policy requires it, because unless the
Will is probated and notice thereof given to the whole world, the right of a person to
dispose of his property by Will may be rendered nugatory. 5

Normally, the probate of a Will does not look into its intrinsic validity.

... The authentication of a will decides no other question than such as touch
upon the capacity of the testator and the compliance with those requisites or
solemnities which the law prescribes for the validity of wills. It does not
determine nor even by implication prejudge the validity or efficiency (sic) of
the provisions, these may be impugned as being vicious or null,
notwithstanding its authentication. The que0stions relating to these points
remain entirely unaffected, and may be raised even after the will has been
authenticated .... 6

Opposition to the intrinsic validity or legality of the provisions of the will

cannot be entertained in Probate proceeding because its only purpose is
merely to determine if the will has been executed in accordance with the
requirements of the law. 7

Respondent Bernardo, however, relies on the pronouncement in Nuguid vs. Nuguid  8,

reading:

In a proceeding for the probate of a will, the Court's area of inquiry is limited
to an examination of, and resolution on, the extrinsic validity of the will, the
due execution thereof, the testatrix's testamentary capacity and the
compliance with the requisites or solemnities prescribed by law. The intrinsic
validity of the will normally comes only after the court has declared that the
will has been duly authenticated. However, where practical considerations
 demand that the intrinsic validity of the will be passed upon, even before it
is probated, the Court should meet that issue. (Emphasis supplied)

Our ruling in Balanay vs. Hon. Martinez  9 had a similar thrust:

The trial court acted correctly in passing upon the will's intrinsic validity even
before its formal validity had been established. The probate of a will might
become an Idle ceremony if on its face it appears to be intrinsically void.
Where practical considerations demand that the intrinsic validity of the will
be passed upon, even before it is probated, the court should meet the issue.

The Nuguid and the Balanay cases provide the exception rather than the rule. The
intrinsic validity of the Wills in those cases was passed upon even before probate
because "practical considerations" so demanded. Moreover, for the parties in
the Nuguid case, the "meat of the controversy" was the intrinsic validity of the Will; in
fact, the parties in that case "shunted aside the question of whether or not the Will
should be allowed probate." Not so in the case before us now where the probate of the
Will is insisted on by petitioners and a resolution on the extrinsic validity of the Will
demanded.

Moreover, in the Nuguid case, this Court ruled that the Will was intrinsically invalid as it
completely preterited the parents of the testator. In the instant case, a crucial issue that
calls for resolution is whether under the terms of the decedent's Will, private respondent
had been preterited or disinherited, and if the latter, whether it was a valid
disinheritance. Preterition and disinheritance are two diverse concepts.

... Preterition "consists in the omission in the testator's will of the forced
heirs or anyone of them, either because they are not mentioned therein, or,
though mentioned, they are neither instituted as heirs nor are expressly
disinherited." (Neri vs. Akutin, 72 Phil. 325). Disinheritance, in turn, "is a
testamentary disposition depriving any compulsory heirs of his share in the
legitimate for a cause authorized by law." (Justice J.B.L. Reyes and R.C.
Puno, "An Outline of Philippine Civil Law", 1956 ed., Vol. III, p. 8, citing
cases) Disinheritance is always "voluntary", preterition upon the other hand,
is presumed to be "involuntary" (Sanchez Roman, Estudios de Derecho Civil
2nd edition, Volume 2.o p. 1131). 10

The effects of preterition and disinheritance are also totally different.

... The effects flowing from preterition are totally different from those of
disinheritance. Pretention under Article 854 of the New Civil Code shall annul
the institution of heir. This annulment is in toto, unless in the wail there are,
in addition, testamentary dispositions in the form of devises or legacies. In
ineffective disinheritance under Article 918 of the same Code, such
disinheritance shall also "annul the institution of heirs", but only "insofar as
it may prejudice the person disinherited", which last phrase was omitted in
the case of preterition (III Tolentino, Civil Code of the Philippines, 1961
Edition, p. 172). Better stated yet, in disinheritance the nullity is limited to
that portion of the estate of which the disinherited heirs have been illegally
deprived. 11

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

As held in the case of Vda. de Precilla vs. Narciso  12

... it is as important a matter of public interest that a purported will is not

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

WHEREFORE, the Decision in question is set aside and the Orders of the Court of First
Instance-Branch XI, Rizal, dated September 8, 1980 and December 19, 1980, are
nullified. Special Proceeding No. Q-23304 is hereby remanded to said Court of First
Instance-Branch XI. Rizal, therein to be reinstated and consolidated with Special
Proceeding No. 8569 for further proceedings.
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 Escolta, Manila............................................................. P500,000.00

Una sexta parte (1/6) proindiviso de dos

parcelas de terreno situadas en Antipolo, Rizal................... 658.34

Cuatrocientos noventa y uno (491) acciones

de la 'Central Azucarera de la Carlota a P17.00

por
accion ................................................................................8,347.00

Diez mil ochocientos seize (10,806) acciones

de la 'Central Luzon Milling Co.', disuelta y en

liquidacion a P0.15 por accion ..............................................1,620.90

Cuenta de Ahorros en el Philippine Trust

Co..............................................................................................
2,350.73

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 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 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 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 legitime; the other part or "free portion" shall go
to Jorge and Roberto Ramirez "en nuda propriedad." Furthermore, one third (1/3) of the
free portion is charged with the widow's usufruct and the remaining two-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
fideicommissary substitution "provided such substitution does not go beyond one degree
from the heir originally instituted."

What is meant by "one degree" from the first heir is explained by Tolentino as follows:

Scaevola Maura, and Traviesas construe "degree" as designation,

substitution, or transmission. The Supreme Court of Spain has decidedly
adopted this construction. From this point of view, there can be only one
tranmission or substitution, and the substitute need not be related to the
first heir. Manresa, Morell and Sanchez Roman, however, construe the word
"degree" as generation, and the present Code has obviously followed this
interpretation. by providing that the substitution shall not go beyond one
degree "from the heir originally instituted." The Code thus clearly indicates
that the second heir must be related to and be one generation from the first
heir.

From this, it follows that the fideicommissary can only be either a child or a
parent of the first heir. These are the only relatives who are one generation
or degree from the fiduciary (Op. cit., pp. 193-194.)

(b) There is no absolute duty imposed on Wanda to transmit the usufruct to the
substitutes as required by Arts. 865 and 867 of the Civil Code. In fact, the appellee
admits "that the testator contradicts the establishment of a fideicommissary substitution
when he permits the properties subject of the usufruct to be sold upon mutual
agreement of the usufructuaries and the naked owners." (Brief, p. 26.)

3. The usufruct of Wanda.

The appellants claim that the usufruct over real properties of the estate in favor of
Wanda is void because it violates the constitutional prohibition against the acquisition of
lands by aliens.

The 1935 Constitution which is controlling provides as follows:

SEC. 5. Save in cases of hereditary succession, no private agricultural land

shall be transferred or assigned except to individuals, corporations, or
associations qualified to acquire or hold lands of the public domain in the
Philippines. (Art. XIII.)

The court a quo upheld the validity of the usufruct given to Wanda on the ground that
the Constitution covers not only succession by operation of law but also testamentary
succession. We are of the opinion that the Constitutional provision which enables aliens
to acquire private lands does not extend to testamentary succession for otherwise the
prohibition will be for naught and meaningless. Any alien would be able to circumvent
the prohibition by paying money to a Philippine landowner in exchange for a devise of a
piece of land.

This opinion notwithstanding, We uphold the usufruct in favor of Wanda because a

usufruct, albeit a real right, does not vest title to the land in the usufructuary and it is
the vesting of title to land in favor of aliens which is proscribed by the Constitution.
IN VIEW OF THE FOREGOING, the estate of Jose Eugenio Ramirez is hereby ordered
distributed as follows:

One-half (1/2) thereof to his widow as her legitime;

One-half (1/2) thereof which is the free portion to Roberto and Jorge Ramirez in naked
ownership and the usufruct to Wanda de Wrobleski with a simple substitution in favor of
Juan Pablo Jankowski and Horace V. Ramirez.

The distribution herein ordered supersedes that of the court a quo. No special
pronouncement as to costs.
G.R. Nos. L-27860 and L-27896 March 29, 1974

PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, Administrator of the

Testate Estate of Charles Newton Hodges (Sp. Proc. No. 1672 of the Court of
First Instance of Iloilo), petitioner, 
vs.
THE HONORABLE VENICIO ESCOLIN, Presiding Judge of the Court of First
Instance of Iloilo, Branch II, and AVELINA A. MAGNO, respondents.

G.R. Nos. L-27936 & L-27937 March 29, 1974

TESTATE ESTATE OF THE LATE LINNIE JANE HODGES (Sp. Proc. No. 1307).
TESTATE ESTATE OF THE LATE CHARLES NEWTON HODGES (Sp. Proc. No.
1672). PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, administrator-
appellant, 
vs.
LORENZO CARLES, JOSE PABLICO, ALFREDO CATEDRAL, SALVADOR GUZMAN,
BELCESAR CAUSING, FLORENIA BARRIDO, PURIFICACION CORONADO,
GRACIANO LUCERO, ARITEO THOMAS JAMIR, MELQUIADES BATISANAN,
PEPITO IYULORES, ESPERIDION PARTISALA, WINIFREDO ESPADA, ROSARIO
ALINGASA, ADELFA PREMAYLON, SANTIAGO PACAONSIS, and AVELINA A.
MAGNO, the last as Administratrix in Sp. Proc. No. 1307, appellees, WESTERN
INSTITUTE OF TECHNOLOGY, INC., movant-appellee.

San Juan, Africa, Gonzales and San Agustin for Philippine Commercial and Industrial
Bank.

Manglapus Law Office, Antonio Law Office and Rizal R. Quimpo for private respondents
and appellees Avelina A. Magno, etc., et al.

BARREDO, J.:p

Certiorari and prohibition with preliminary injunction; certiorari to "declare all acts of the

respondent court in the Testate Estate of Linnie Jane Hodges (Sp. Proc. No. 1307 of the
Court of First Instance of Iloilo) subsequent to the order of December 14, 1957 as null
and void for having been issued without jurisdiction"; prohibition to enjoin the
respondent court from allowing, tolerating, sanctioning, or abetting private respondent
Avelina A. Magno to perform or do any acts of administration, such as those enumerated
in the petition, and from exercising any authority or power as Regular Administratrix of
above-named Testate Estate, by entertaining manifestations, motion and pleadings filed
by her and acting on them, and also to enjoin said court from allowing said private
respondent to interfere, meddle or take part in any manner in the administration of the
Testate Estate of Charles Newton Hodges (Sp. Proc. No. 1672 of the same court and
branch); with prayer for preliminary injunction, which was issued by this Court on
August 8, 1967 upon a bond of P5,000; the petition being particularly directed against
the orders of the respondent court of October 12, 1966 denying petitioner's motion of
April 22, 1966 and its order of July 18, 1967 denying the motion for reconsideration of
said order.

Related to and involving basically the same main issue as the foregoing petition, thirty-
three (33) appeals from different orders of the same respondent court approving or
otherwise sanctioning the acts of administration of the respondent Magno on behalf of
the testate Estate of Mrs. Hodges.

THE FACTS

On May 23, 1957, Linnie Jane Hodges died in Iloilo City leaving a will executed on
November 22, 1952 pertinently providing as follows:
 FIRST: I direct that all my just debts and funeral expenses be first paid out
of my estate.

SECOND: I give, devise and bequeath all of the rest, residue and remainder
of my estate, both personal and real, wherever situated, or located, to my
beloved husband, Charles Newton Hodges, to have and to hold unto him, my
said husband, during his natural lifetime.

THIRD: I desire, direct and provide that my husband, Charles Newton

Hodges, shall have the right to manage, control, use and enjoy said estate
during his lifetime, and he is hereby given the right to make any changes in
the physical properties of said estate, by sale or any part thereof which he
may think best, and the purchase of any other or additional property as he
may think best; to execute conveyances with or without general or special
warranty, conveying in fee simple or for any other term or time, any
property which he may deem proper to dispose of; to lease any of the real
property for oil, gas and/or other minerals, and all such deeds or leases shall
pass the absolute fee simple title to the interest so conveyed in such
property as he may elect to sell. All rents, emoluments and income from said
estate shall belong to him, and he is further authorized to use any part of
the principal of said estate as he may need or desire. It is provided herein,
however, that he shall not sell or otherwise dispose of any of the improved
property now owned by us located at, in or near the City of Lubbock, Texas,
but he shall have the full right to lease, manage and enjoy the same during
his lifetime, above provided. He shall have the right to subdivide any farm
land and sell lots therein. and may sell unimproved town lots.

FOURTH: At the death of my said husband, Charles Newton Hodges, I give,

devise and bequeath all of the rest, residue and remainder of my estate,
both real and personal, wherever situated or located, to be equally divided
among my brothers and sisters, share and share alike, namely:

Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Saddie Rascoe,
Era Roman and Nimroy Higdon.

FIFTH: In case of the death of any of my brothers and/or sisters named in

item Fourth, above, prior to the death of my husband, Charles Newton
Hodges, then it is my will and bequest that the heirs of such deceased
brother or sister shall take jointly the share which would have gone to such
brother or sister had she or he survived.

SIXTH: I nominate and appoint my said husband, Charles Newton Hodges,

to be executor of this, my last will and testament, and direct that no bond or
other security be required of him as such executor.

SEVENTH: It is my will and bequest that no action be had in the probate

court, in the administration of my estate, other than that necessary to prove
and record this will and to return an inventory and appraisement of my
estate and list of claims. (Pp. 2-4, Petition.)

This will was subsequently probated in aforementioned Special Proceedings No. 1307 of
respondent court on June 28, 1957, with the widower Charles Newton Hodges being
appointed as Executor, pursuant to the provisions thereof.

Previously, on May 27, 1957, the said widower (hereafter to be referred to as Hodges)
had been appointed Special Administrator, in which capacity he filed a motion on the
same date as follows:

URGENT EX-PARTE MOTION TO ALLOW OR AUTHORIZE PETITIONER TO

CONTINUE THE BUSINESS IN WHICH HE WAS ENGAGED AND TO PERFORM
ACTS WHICH HE HAD BEEN DOING WHILE DECEASED WAS LIVING
Come petitioner in the above-entitled special proceedings, thru his undersigned
attorneys, to the Hon. Court, most respectfully states:

1. — That Linnie Jane Hodges died leaving her last will and testament, a
copy of which is attached to the petition for probate of the same.

2. — That in said last will and testament herein petitioner Charles Newton
Hodges is directed to have the right to manage, control use and enjoy the
estate of deceased Linnie Jane Hodges, in the same way, a provision was
placed in paragraph two, the following: "I give, devise and bequeath all of
the rest, residue and remainder of my estate, to my beloved husband,
Charles Newton Hodges, to have and (to) hold unto him, my said husband,
during his natural lifetime."

3. — That during the lifetime of Linnie Jane Hodges, herein petitioner was
engaged in the business of buying and selling personal and real properties,
and do such acts which petitioner may think best.

4. — That deceased Linnie Jane Hodges died leaving no descendants or

ascendants, except brothers and sisters and herein petitioner as executor
surviving spouse, to inherit the properties of the decedent.

5. — That the present motion is submitted in order not to paralyze the

business of petitioner and the deceased, especially in the purchase and sale
of properties. That proper accounting will be had also in all these
transactions.

WHEREFORE, it is most respectfully prayed that, petitioner C. N. Hodges

(Charles Newton Hodges) be allowed or authorized to continue the business
in which he was engaged and to perform acts which he had been doing while
deceased Linnie Jane Hodges was living.

City of Iloilo, May 27, 1957. (Annex "D", Petition.)

which the respondent court immediately granted in the following order:

It appearing in the urgent ex-parte motion filed by petitioner C. N. Hodges,

that the business in which said petitioner and the deceased were engaged
will be paralyzed, unless and until the Executor is named and appointed by
the Court, the said petitioner is allowed or authorized to continue the
business in which he was engaged and to perform acts which he had been
doing while the deceased was living.

SO ORDERED.

City of Iloilo May 27, 1957. (Annex "E", Petition.)

Under date of December 11, 1957, Hodges filed as such Executor another motion thus:

MOTION TO APPROVE ALL SALES, CONVEYANCES, LEASES, MORTGAGES

THAT THE EXECUTOR HAD MADE FURTHER AND SUBSEQUENT
TRANSACTIONS WHICH THE EXECUTOR MAY DO IN ACCORDANCE WITH
THE LAST WISH OF THE DECEASED LINNIE JANE HODGES.

Comes the Executor in the above-entitled proceedings, thru his undersigned

attorney, to the Hon. Court, most respectfully states:

1. — That according to the last will and testament of the deceased Linnie
Jane Hodges, the executor as the surviving spouse and legatee named in the
will of the deceased; has the right to dispose of all the properties left by the
deceased, portion of which is quoted as follows:
 Second: I give, devise and bequeath all of the rest, residue and remainder of
my estate, both personal and real, wherever situated, or located, to my
beloved husband, Charles Newton Hodges, to have and to hold unto him, my
said husband, during his natural lifetime.

Third: I desire, direct and provide that my husband, Charles Newton Hodges,
shall have the right to manage, control, use and enjoy said estate during his
lifetime, and he is hereby given the right to make any changes in the
physical properties of said estate, by sale or any part thereof which he may
think best, and the purchase of any other or additional property as he may
think best; to execute conveyances with or without general or special
warranty, conveying in fee simple or for any other term or time, any
property which he may deem proper to dispose of; to lease any of the real
property for oil, gas and/or other minerals, and all such deeds or leases shall
pass the absolute fee simple title to the interest so conveyed in such
property as he may elect to sell. All rents, emoluments and income from said
estate shall belong to him, and he is further authorized to use any part of
the principal of said estate as he may need or desire. ...

2. — That herein Executor, is not only part owner of the properties left as
conjugal, but also, the successor to all the properties left by the deceased
Linnie Jane Hodges. That during the lifetime of herein Executor, as Legatee
has the right to sell, convey, lease or dispose of the properties in the
Philippines. That inasmuch as C.N. Hodges was and is engaged in the buy
and sell of real and personal properties, even before the death of Linnie Jane
Hodges, a motion to authorize said C.N. Hodges was filed in Court, to allow
him to continue in the business of buy and sell, which motion was favorably
granted by the Honorable Court.

3. — That since the death of Linnie Jane Hodges, Mr. C.N. Hodges had been
buying and selling real and personal properties, in accordance with the
wishes of the late Linnie Jane Hodges.

4. — That the Register of Deeds for Iloilo, had required of late the herein
Executor to have all the sales, leases, conveyances or mortgages made by
him, approved by the Hon. Court.

5. — That it is respectfully requested, all the sales, conveyances leases and

mortgages executed by the Executor, be approved by the Hon. Court. and
subsequent sales conveyances, leases and mortgages in compliances with
the wishes of the late Linnie Jane Hodges, and within the scope of the terms
of the last will and testament, also be approved;

6. — That the Executor is under obligation to submit his yearly accounts,

and the properties conveyed can also be accounted for, especially the
amounts received.

WHEREFORE, it is most respectfully prayed that, all the sales, conveyances,

leases, and mortgages executed by the Executor, be approved by the Hon.
Court, and also the subsequent sales, conveyances, leases, and mortgages
in consonance with the wishes of the deceased contained in her last will and
testament, be with authorization and approval of the Hon. Court.

City of Iloilo, December 11, 1967.

(Annex "G", Petition.)

which again was promptly granted by the respondent court on December 14, 1957 as
follows:

ORDER
 As prayed for by Attorney Gellada, counsel for the Executor for the reasons
stated in his motion dated December 11, 1957, which the Court considers
well taken all the sales, conveyances, leases and mortgages of all properties
left by the deceased Linnie Jane Hodges executed by the Executor Charles N.
Hodges are hereby APPROVED. The said Executor is further authorized to
execute subsequent sales, conveyances, leases and mortgages of the
properties left by the said deceased Linnie Jane Hodges in consonance with
the wishes conveyed in the last will and testament of the latter.

So ordered.

Iloilo City. December 14, 1957.

(Annex "H", Petition.)

On April 14, 1959, in submitting his first statement of account as Executor for approval,
Hodges alleged:

Pursuant to the provisions of the Rules of Court, herein executor of the

deceased, renders the following account of his administration covering the
period from January 1, 1958 to December 31, 1958, which account may be
found in detail in the individual income tax return filed for the estate of
deceased Linnie Jane Hodges, to wit:

That a certified public accountant has examined the statement of net worth
of the estate of Linnie Jane Hodges, the assets and liabilities, as well as the
income and expenses, copy of which is hereto attached and made integral
part of this statement of account as Annex "A".

IN VIEW OF THE FOREGOING, it is most respectfully prayed that, the

statement of net worth of the estate of Linnie Jane Hodges, the assets and
liabilities, income and expenses as shown in the individual income tax return
for the estate of the deceased and marked as Annex "A", be approved by the
Honorable Court, as substantial compliance with the requirements of the
Rules of Court.

That no person interested in the Philippines of the time and place of

examining the herein accounts be given notice, as herein executor is the
only devisee or legatee of the deceased, in accordance with the last will and
testament already probated by the Honorable court.

City of Iloilo April 14, 1959.

(Annex "I", Petition.)

The respondent court approved this statement of account on April 21, 1959 in its order
worded thus:

Upon petition of Atty. Gellada, in representation of the Executor, the

statement of net worth of the estate of Linnie Jane Hodges, assets and
liabilities, income and expenses as shown in the individual income tax return
for the estate of the deceased and marked as Annex "A" is approved.

SO ORDERED.

City of Iloilo April 21, 1959.

(Annex "J", Petition.)

His accounts for the periods January 1, 1959 to December 31, 1959 and January 1,
1960 to December 31, 1960 were submitted likewise accompanied by allegations
identical mutatis mutandis to those of April 14, 1959, quoted above; and the respective
orders approving the same, dated July 30, 1960 and May 2, 1961, were substantially
identical to the above-quoted order of April 21, 1959. In connection with the statements
of account just mentioned, the following assertions related thereto made by respondent-
appellee Magno in her brief do not appear from all indications discernible in the record to
be disputable:

Under date of April 14, 1959, C.N. Hodges filed his first "Account by the
Executor" of the estate of Linnie Jane Hodges. In the "Statement of
Networth of Mr. C.N. Hodges and the Estate of Linnie Jane Hodges" as of
December 31, 1958 annexed thereto, C.N. Hodges reported that the
combined conjugal estate earned a net income of P328,402.62, divided
evenly between him and the estate of Linnie Jane Hodges. Pursuant to this,
he filed an "individual income tax return" for calendar year 1958 on the
estate of Linnie Jane Hodges reporting, under oath, the said estate as having
earned income of P164,201.31, exactly one-half of the net income of his
combined personal assets and that of the estate of Linnie Jane Hodges. (p.
91, Appellee's Brief.)

xxx xxx xxx

Under date of July 21, 1960, C.N. Hodges filed his second "Annual
Statement of Account by the Executor" of the estate of Linnie Jane Hodges.
In the "Statement of Networth of Mr. C.N. Hodges and the Estate of Linnie
Jane Hodges" as of December 31, 1959 annexed thereto, C.N. Hodges
reported that the combined conjugal estate earned a net income of
P270,623.32, divided evenly between him and the estate of Linnie Jane
Hodges. Pursuant to this, he filed an "individual income tax return" for
calendar year 1959 on the estate of Linnie Jane Hodges reporting, under
oath, the said estate as having earned income of P135,311.66, exactly one-
half of the net income of his combined personal assets and that of the estate
of Linnie Jane Hodges. (pp. 91-92. Appellee's Brief.)

xxx xxx xxx

Under date of April 20, 1961, C.N. Hodges filed his third "Annual Statement
of Account by the Executor for the Year 1960" of the estate of Linnie Jane
Hodges. In the "Statement of Net Worth of Mr. C.N. Hodges and the Estate
of Linnie Jane Hodges" as of December 31, 1960 annexed thereto, C.N.
Hodges reported that the combined conjugal estate earned a net income of
P314,857.94, divided evenly between him and the estate of Linnie Jane
Hodges. Pursuant to this, he filed an "individual income tax return" for
calendar year 1960 on the estate of Linnie Jane Hodges reporting, under
oath, the said estate as having earned income of P157,428.97, exactly one-
half of the net income of his combined personal assets and that of the estate
of Linnie Jane Hodges. (Pp. 92-93, Appellee's Brief.)

Likewise the following:

In the petition for probate that he (Hodges) filed, he listed the seven
brothers and sisters of Linnie Jane as her "heirs" (see p. 2, Green ROA). The
order of the court admitting the will to probate unfortunately omitted one of
the heirs, Roy Higdon (see p. 14, Green ROA). Immediately, C.N. Hodges
filed a verified motion to have Roy Higdon's name included as an heir,
stating that he wanted to straighten the records "in order the heirs of
deceased Roy Higdon may not think or believe they were omitted, and that
they were really and are interested in the estate of deceased Linnie Jane
Hodges. .

As an executor, he was bound to file tax returns for the estate he was
administering under American law. He did file such as estate tax return on
 August 8, 1958. In Schedule "M" of such return, he answered "Yes" to the
question as to whether he was contemplating "renouncing the will". On the
question as to what property interests passed to him as the surviving
spouse, he answered:

"None, except for purposes of administering the Estate, paying

debts, taxes and other legal charges. It is the intention of the
surviving husband of deceased to distribute the remaining
property and interests of the deceased in their Community
estate to the devisees and legatees named in the will when the
debts, liabilities, taxes and expenses of administration are finally
determined and paid."

Again, on August 9, 1962, barely four months before his death, he executed
an "affidavit" wherein he ratified and confirmed all that he stated in
Schedule "M" of his estate tax returns as to his having renounced what was
given him by his wife's will.1

As appointed executor, C.N. Hodges filed an "Inventory" dated May 12,

1958. He listed all the assets of his conjugal partnership with Linnie Jane
Hodges on a separate balance sheet and then stated expressly that her
estate which has come into his possession as executor was "one-half of all
the items" listed in said balance sheet. (Pp. 89-90, Appellee's Brief.)

Parenthetically, it may be stated, at this juncture, that We are taking pains to quote
wholly or at least, extensively from some of the pleadings and orders whenever We feel
that it is necessary to do so for a more comprehensive and clearer view of the important
and decisive issues raised by the parties and a more accurate appraisal of their
respective positions in regard thereto.

The records of these cases do not show that anything else was done in the above-
mentioned Special Proceedings No. 1307 until December 26, 1962, when on account of
the death of Hodges the day before, the same lawyer, Atty. Leon P. Gellada, who had
been previously acting as counsel for Hodges in his capacity as Executor of his wife's
estate, and as such had filed the aforequoted motions and manifestations, filed the
following:

URGENT EX-PARTE MOTION FOR THE APPOINTMENT OF A 

SPECIAL ADMINISTRATRIX

COMES the undersigned attorney for the Executor in the above-entitled

proceedings, to the Honorable Court, most respectfully states:

1. That in accordance with the Last Will and Testament of Linnie Jane
Hodges (deceased), her husband, Charles Newton Hodges was to act as
Executor, and in fact, in an order issued by this Hon. Court dated June 28,
1957, the said Charles Newton Hodges was appointed Executor and had
performed the duties as such.

2. That last December 22, 1962, the said Charles Newton Hodges was
stricken ill, and brought to the Iloilo Mission Hospital for treatment, but
unfortunately, he died on December 25, 1962, as shown by a copy of the
death certificate hereto attached and marked as Annex "A".

3. That in accordance with the provisions of the last will and testament of
Linnie Jane Hodges, whatever real and personal properties that may remain
at the death of her husband Charles Newton Hodges, the said properties
shall be equally divided among their heirs. That there are real and personal
properties left by Charles Newton Hodges, which need to be administered
and taken care of.
 4. That the estate of deceased Linnie Jane Hodges, as well as that of Charles
Newton Hodges, have not as yet been determined or ascertained, and there
is necessity for the appointment of a general administrator to liquidate and
distribute the residue of the estate to the heirs and legatees of both
spouses. That in accordance with the provisions of Section 2 of Rule 75 of
the Rules of Court, the conjugal partnership of Linnie Jane Hodges and
Charles Newton Hodges shall be liquidated in the testate proceedings of the
wife.

5. That the undersigned counsel, has perfect personal knowledge of the

existence of the last will and testament of Charles Newton Hodges, with
similar provisions as that contained in the last will and testament of Linnie
Jane Hodges. However, said last will and testament of Charles Newton
Hodges is kept inside the vault or iron safe in his office, and will be
presented in due time before this honorable Court.

6. That in the meantime, it is imperative and indispensable that, an

Administratrix be appointed for the estate of Linnie Jane Hodges and a
Special Administratrix for the estate of Charles Newton Hodges, to perform
the duties required by law, to administer, collect, and take charge of the
goods, chattels, rights, credits, and estate of both spouses, Charles Newton
Hodges and Linnie Jane Hodges, as provided for in Section 1 and 2, Rule 81
of the Rules of Court.

7. That there is delay in granting letters testamentary or of administration,

because the last will and testament of deceased, Charles Newton Hodges, is
still kept in his safe or vault, and in the meantime, unless an administratrix
(and,) at the same time, a Special Administratrix is appointed, the estate of
both spouses are in danger of being lost, damaged or go to waste.

8. That the most trusted employee of both spouses Linnie Jane Hodges and
C.N. Hodges, who had been employed for around thirty (30) years, in the
person of Miss Avelina Magno, (should) be appointed Administratrix of the
estate of Linnie Jane Hodges and at the same time Special Administratrix of
the estate of Charles Newton Hodges. That the said Miss Avelina Magno is of
legal age, a resident of the Philippines, the most fit, competent, trustworthy
and well-qualified person to serve the duties of Administratrix and Special
Administratrix and is willing to act as such.

9. That Miss Avelina Magno is also willing to file bond in such sum which the
Hon. Court believes reasonable.

WHEREFORE, in view of all the foregoing, it is most respectfully prayed that,

Miss AVELINA A. MAGNO be immediately appointed Administratrix of the
estate of Linnie Jane Hodges and as Special Administratrix of the estate of
Charles Newton Hodges, with powers and duties provided for by law. That
the Honorable Court fix the reasonable bond of P1,000.00 to be filed by
Avelina A. Magno.

(Annex "O", Petition.)

which respondent court readily acted on in its order of even date thus: .

For the reasons alleged in the Urgent Ex-parte Motion filed by counsel for

the Executor dated December 25, 1962, which the Court finds meritorious,
Miss AVELINA A. MAGNO, is hereby appointed Administratrix of the estate of
Linnie Jane Hodges and as Special Administratrix of the estate of Charles
Newton Hodges, in the latter case, because the last will of said Charles
Newton Hodges is still kept in his vault or iron safe and that the real and
personal properties of both spouses may be lost, damaged or go to waste,
unless a Special Administratrix is appointed.
 Miss Avelina A. Magno is required to file bond in the sum of FIVE THOUSAND
PESOS (P5,000.00), and after having done so, let letters of Administration
be issued to her." (Annex "P", Petition.)

On December 29, 1962, however, upon urgent ex-parte petition of

respondent Magno herself, thru Atty. Gellada, Harold, R. Davies, "a
representative of the heirs of deceased Charles Newton Hodges (who had)
arrived from the United States of America to help in the administration of
the estate of said deceased" was appointed as Co-Special Administrator of
the estate of Hodges, (pp. 29-33, Yellow - Record on Appeal) only to be
replaced as such co-special administrator on January 22, 1963 by Joe
Hodges, who, according to the motion of the same attorney, is "the nephew
of the deceased (who had) arrived from the United States with instructions
from the other heirs of the deceased to administer the properties or estate
of Charles Newton Hodges in the Philippines, (Pp. 47-50, id.)

Meanwhile, under date of January 9, 1963, the same Atty. Gellada filed in Special
Proceedings 1672 a petition for the probate of the will of Hodges, 2 with a prayer for the
issuance of letters of administration to the same Joe Hodges, albeit the motion was
followed on February 22, 1963 by a separate one asking that Atty. Fernando Mirasol be
appointed as his co-administrator. On the same date this latter motion was filed, the
court issued the corresponding order of probate and letters of administration to Joe
Hodges and Atty. Mirasol, as prayed for.

At this juncture, again, it may also be explained that just as, in her will, Mrs. Hodges
bequeathed her whole estate to her husband "to have and to hold unto him, my said
husband, during his natural lifetime", she, at the same time or in like manner, provided
that "at the death of my said husband — I give devise and bequeath all of the rest,
residue and remainder of my estate, both real and personal, wherever situated or
located, to be equally divided among my brothers and sisters, share and share alike —".
Accordingly, it became incumbent upon Hodges, as executor of his wife's will, to duly
liquidate the conjugal partnership, half of which constituted her estate, in order that
upon the eventuality of his death, "the rest, residue and remainder" thereof could be
determined and correspondingly distributed or divided among her brothers and sisters.
And it was precisely because no such liquidation was done, furthermore, there is the
issue of whether the distribution of her estate should be governed by the laws of the
Philippines or those of Texas, of which State she was a national, and, what is more, as
already stated, Hodges made official and sworn statements or manifestations indicating
that as far as he was concerned no "property interests passed to him as surviving
spouse — "except for purposes of administering the estate, paying debts, taxes and
other legal charges" and it was the intention of the surviving husband of the deceased to
distribute the remaining property and interests of the deceased in their Community
Estate to the devisees and legatees named in the will when the debts, liabilities, taxes
and expenses of administration are finally determined and paid", that the incidents and
controversies now before Us for resolution arose. As may be observed, the situation that
ensued upon the death of Hodges became rather unusual and so, quite understandably,
the lower court's actuations presently under review are apparently wanting in
consistency and seemingly lack proper orientation.

Thus, We cannot discern clearly from the record before Us the precise perspective from
which the trial court proceeded in issuing its questioned orders. And, regretably, none of
the lengthy briefs submitted by the parties is of valuable assistance in clearing up the
matter.

To begin with, We gather from the two records on appeal filed by petitioner, as appellant
in the appealed cases, one with green cover and the other with a yellow cover, that at
the outset, a sort of modus operandi had been agreed upon by the parties under which
the respective administrators of the two estates were supposed to act conjointly, but
since no copy of the said agreement can be found in the record before Us, We have no
way of knowing when exactly such agreement was entered into and under what specific
terms. And while reference is made to said modus operandi in the order of September
11, 1964, on pages 205-206 of the Green Record on Appeal, reading thus:

The present incident is to hear the side of administratrix, Miss Avelina A.

Magno, in answer to the charges contained in the motion filed by Atty. Cesar
Tirol on September 3, 1964. In answer to the said charges, Miss Avelina A.
Magno, through her counsel, Atty. Rizal Quimpo, filed a written
manifestation.

After reading the manifestation here of Atty. Quimpo, for and in behalf of the
administratrix, Miss Avelina A. Magno, the Court finds that everything that
happened before September 3, 1964, which was resolved on September 8,
1964, to the satisfaction of parties, was simply due to a misunderstanding
between the representative of the Philippine Commercial and Industrial Bank
and Miss Magno and in order to restore the harmonious relations between
the parties, the Court ordered the parties to remain in status quo as to their
modus operandi before September 1, 1964, until after the Court can have a
meeting with all the parties and their counsels on October 3, as formerly
agreed upon between counsels, Attys. Ozaeta, Gibbs and Ozaeta, Attys. Tirol
and Tirol and Atty. Rizal Quimpo.

In the meantime, the prayers of Atty. Quimpo as stated in his manifestation

shall not be resolved by this Court until October 3, 1964.

SO ORDERED.

there is nothing in the record indicating whatever happened to it afterwards, except that
again, reference thereto was made in the appealed order of October 27, 1965, on pages
292-295 of the Green Record on Appeal, as follows:

On record is an urgent motion to allow PCIB to open all doors and locks in
the Hodges Office at 206-208 Guanco Street, Iloilo City, to take immediate
and exclusive possession thereof and to place its own locks and keys for
security purposes of the PCIB dated October 27, 1965 thru Atty. Cesar Tirol.
It is alleged in said urgent motion that Administratrix Magno of the testate
estate of Linnie Jane Hodges refused to open the Hodges Office at 206-208
Guanco Street, Iloilo City where PCIB holds office and therefore PCIB is
suffering great moral damage and prejudice as a result of said act. It is
prayed that an order be issued authorizing it (PCIB) to open all doors and
locks in the said office, to take immediate and exclusive possession thereof
and place thereon its own locks and keys for security purposes; instructing
the clerk of court or any available deputy to witness and supervise the
opening of all doors and locks and taking possession of the PCIB.

A written opposition has been filed by Administratrix Magno of even date

(Oct. 27) thru counsel Rizal Quimpo stating therein that she was compelled
to close the office for the reason that the PCIB failed to comply with the
order of this Court signed by Judge Anacleto I. Bellosillo dated September
11, 1964 to the effect that both estates should remain in status quo to
their modus operandi as of September 1, 1964.

To arrive at a happy solution of the dispute and in order not to interrupt the
operation of the office of both estates, the Court aside from the reasons
stated in the urgent motion and opposition heard the verbal arguments of
Atty. Cesar Tirol for the PCIB and Atty. Rizal Quimpo for Administratix
Magno.

After due consideration, the Court hereby orders Magno to open all doors
and locks in the Hodges Office at 206-208 Guanco Street, Iloilo City in the
presence of the PCIB or its duly authorized representative and deputy clerk
 of court Albis of this branch not later than 7:30 tomorrow morning October
28, 1965 in order that the office of said estates could operate for business.

Pursuant to the order of this Court thru Judge Bellosillo dated September 11,
1964, it is hereby ordered:

(a) That all cash collections should be deposited in the joint account of the
estates of Linnie Jane Hodges and estates of C.N. Hodges;

(b) That whatever cash collections that had been deposited in the account of
either of the estates should be withdrawn and since then deposited in the
joint account of the estate of Linnie Jane Hodges and the estate of C.N.
Hodges;

(c) That the PCIB should countersign the check in the amount of P250 in
favor of Administratrix Avelina A. Magno as her compensation as
administratrix of the Linnie Jane Hodges estate chargeable to the testate
estate of Linnie Jane Hodges only;

(d) That Administratrix Magno is hereby directed to allow the PCIB to inspect
whatever records, documents and papers she may have in her possession in
the same manner that Administrator PCIB is also directed to allow
Administratrix Magno to inspect whatever records, documents and papers it
may have in its possession;

(e) That the accountant of the estate of Linnie Jane Hodges shall have
access to all records of the transactions of both estates for the protection of
the estate of Linnie Jane Hodges; and in like manner the accountant or any
authorized representative of the estate of C.N. Hodges shall have access to
the records of transactions of the Linnie Jane Hodges estate for the
protection of the estate of C.N. Hodges.

Once the estates' office shall have been opened by Administratrix Magno in
the presence of the PCIB or its duly authorized representative and deputy
clerk Albis or his duly authorized representative, both estates or any of the
estates should not close it without previous consent and authority from this
court.

SO ORDERED.

As may be noted, in this order, the respondent court required that all collections from
the properties in the name of Hodges should be deposited in a joint account of the two
estates, which indicates that seemingly the so-called modus operandi was no longer
operative, but again there is nothing to show when this situation started.

Likewise, in paragraph 3 of the petitioner's motion of September 14, 1964, on pages

188-201 of the Green Record on Appeal, (also found on pp. 83-91 of the Yellow Record
on Appeal) it is alleged that:

3. On January 24, 1964 virtually all of the heirs of C.N. Hodges, Joe Hodges
and Fernando P. Mirasol acting as the two co-administrators of the estate of
C.N. Hodges, Avelina A. Magno acting as the administratrix of the estate of
Linnie Jane Hodges and Messrs. William Brown and Ardell Young acting for
all of the Higdon family who claim to be the sole beneficiaries of the estate
of Linnie Jane Hodges and various legal counsel representing the
aforementioned parties entered into an amicable agreement, which was
approved by this Honorable Court, wherein the parties thereto agreed that
certain sums of money were to be paid in settlement of different claims
against the two estates and that the assets (to the extent they existed) of
both estates would be administered jointly by the PCIB as administrator of
the estate of C.N. Hodges and Avelina A. Magno as administratrix of the
 estate of Linnie Jane Hodges, subject, however, to the aforesaid October 5,
1963 Motion, namely, the PCIB's claim to exclusive possession and
ownership of one hundred percent (100%) (or, in the alternative, seventy-
five percent (75%) of all assets owned by C.N. Hodges or Linnie Jane
Hodges situated in the Philippines. On February 1, 1964 (pp. 934-935, CFI
Rec., S.P. No. 1672) this Honorable Court amended its order of January 24,
1964 but in no way changed its recognition of the afore-described basic
demand by the PCIB as administrator of the estate of C.N. Hodges to one
hundred percent (100%) of the assets claimed by both estates.

but no copy of the mentioned agreement of joint administration of the two estates exists
in the record, and so, We are not informed as to what exactly are the terms of the same
which could be relevant in the resolution of the issues herein.

On the other hand, the appealed order of November 3, 1965, on pages 313-320 of the
Green Record on Appeal, authorized payment by respondent Magno of, inter alia, her
own fees as administratrix, the attorney's fees of her lawyers, etc., as follows:

Administratrix Magno thru Attys. Raul S. Manglapus and Rizal. R. Quimpo

filed a Manifestation and Urgent Motion dated June 10, 1964 asking for the
approval of the Agreement dated June 6, 1964 which Agreement is for the
purpose of retaining their services to protect and defend the interest of the
said Administratrix in these proceedings and the same has been signed by
and bears the express conformity of the attorney-in-fact of the late Linnie
Jane Hodges, Mr. James L. Sullivan. It is further prayed that the
Administratrix of the Testate Estate of Linnie Jane Hodges be directed to pay
the retailers fee of said lawyers, said fees made chargeable as expenses for
the administration of the estate of Linnie Jane Hodges (pp. 1641-1642, Vol.
V, Sp. 1307).

An opposition has been filed by the Administrator PCIB thru Atty. Herminio
Ozaeta dated July 11, 1964, on the ground that payment of the retainers fee
of Attys. Manglapus and Quimpo as prayed for in said Manifestation and
Urgent Motion is prejudicial to the 100% claim of the estate of C. N. Hodges;
employment of Attys. Manglapus and Quimpo is premature and/or
unnecessary; Attys. Quimpo and Manglapus are representing conflicting
interests and the estate of Linnie Jane Hodges should be closed and
terminated (pp. 1679-1684, Vol, V, Sp. 1307).

Atty. Leon P. Gellada filed a memorandum dated July 28, 1964 asking that
the Manifestation and Urgent Motion filed by Attys. Manglapus and Quimpo
be denied because no evidence has been presented in support thereof. Atty.
Manglapus filed a reply to the opposition of counsel for the Administrator of
the C. N. Hodges estate wherein it is claimed that expenses of
administration include reasonable counsel or attorney's fees for services to
the executor or administrator. As a matter of fact the fee agreement dated
February 27, 1964 between the PCIB and the law firm of Ozaeta, Gibbs &
Ozaeta as its counsel (Pp. 1280-1284, Vol. V, Sp. 1307) which stipulates the
fees for said law firm has been approved by the Court in its order dated
March 31, 1964. If payment of the fees of the lawyers for the administratrix
of the estate of Linnie Jane Hodges will cause prejudice to the estate of C. N.
Hodges, in like manner the very agreement which provides for the payment
of attorney's fees to the counsel for the PCIB will also be prejudicial to the
estate of Linnie Jane Hodges (pp. 1801-1814, Vol. V, Sp. 1307).

Atty. Herminio Ozaeta filed a rejoinder dated August 10, 1964 to the reply to
the opposition to the Manifestation and Urgent Motion alleging principally
that the estates of Linnie Jane Hodges and C. N. Hodges are not similarly
situated for the reason that C. N. Hodges is an heir of Linnie Jane Hodges
whereas the latter is not an heir of the former for the reason that Linnie Jane
Hodges predeceased C. N. Hodges (pp. 1839-1848, Vol. V, Sp. 1307); that
Attys. Manglapus and Quimpo formally entered their appearance in behalf of
Administratrix of the estate of Linnie Jane Hodges on June 10, 1964 (pp.
1639-1640, Vol. V, Sp. 1307).

Atty. Manglapus filed a manifestation dated December 18, 1964 stating

therein that Judge Bellosillo issued an order requiring the parties to submit
memorandum in support of their respective contentions. It is prayed in this
manifestation that the Manifestation and Urgent Motion dated June 10, 1964
be resolved (pp. 6435-6439, Vol. VII, Sp. 1307).

Atty. Roman Mabanta, Jr. for the PCIB filed a counter- manifestation dated
January 5, 1965 asking that after the consideration by the court of all
allegations and arguments and pleadings of the PCIB in connection therewith
(1) said manifestation and urgent motion of Attys. Manglapus and Quimpo
be denied (pp. 6442-6453, Vol. VII, Sp. 1307). Judge Querubin issued an
order dated January 4, 1965 approving the motion dated June 10, 1964 of
the attorneys for the administratrix of the estate of Linnie Jane Hodges and
agreement annexed to said motion. The said order further states: "The
Administratrix of the estate of Linnie Jane Hodges is authorized to issue or
sign whatever check or checks may be necessary for the above purpose and
the administrator of the estate of C. N. Hodges is ordered to countersign the
same. (pp. 6518-6523, Vol VII, Sp. 1307).

Atty. Roman Mabanta, Jr. for the PCIB filed a manifestation and motion
dated January 13, 1965 asking that the order of January 4, 1965 which was
issued by Judge Querubin be declared null and void and to enjoin the clerk
of court and the administratrix and administrator in these special
proceedings from all proceedings and action to enforce or comply with the
provision of the aforesaid order of January 4, 1965. In support of said
manifestation and motion it is alleged that the order of January 4, 1965 is
null and void because the said order was never delivered to the deputy clerk
Albis of Branch V (the sala of Judge Querubin) and the alleged order was
found in the drawer of the late Judge Querubin in his office when said drawer
was opened on January 13, 1965 after the death of Judge Querubin by
Perfecto Querubin, Jr., the son of the judge and in the presence of Executive
Judge Rovira and deputy clerk Albis (Sec. 1, Rule 36, New Civil Code) (Pp.
6600-6606, Vol. VIII, Sp. 1307).

Atty. Roman Mabanta, Jr. for the PCIB filed a motion for reconsideration
dated February 23, 1965 asking that the order dated January 4, 1964 be
reversed on the ground that:

1. Attorneys retained must render services to the estate not to the personal
heir;

2. If services are rendered to both, fees should be pro-rated between them;

3. Attorneys retained should not represent conflicting interests; to the

prejudice of the other heirs not represented by said attorneys;

4. Fees must be commensurate to the actual services rendered to the

estate;

5. There must be assets in the estate to pay for said fees (Pp. 6625-6636,
Vol. VIII, Sp. 1307).

Atty. Quimpo for Administratrix Magno of the estate of Linnie Jane Hodges
filed a motion to submit dated July 15, 1965 asking that the manifestation
and urgent motion dated June 10, 1964 filed by Attys. Manglapus and
Quimpo and other incidents directly appertaining thereto be considered
 submitted for consideration and approval (pp. 6759-6765, Vol. VIII, Sp.
1307).

Considering the arguments and reasons in support to the pleadings of both

the Administratrix and the PCIB, and of Atty. Gellada, hereinbefore
mentioned, the Court believes that the order of January 4, 1965 is null and
void for the reason that the said order has not been filed with deputy clerk
Albis of this court (Branch V) during the lifetime of Judge Querubin who
signed the said order. However, the said manifestation and urgent motion
dated June 10, 1964 is being treated and considered in this instant order. It
is worthy to note that in the motion dated January 24, 1964 (Pp. 1149-
1163, Vol. V, Sp. 1307) which has been filed by Atty. Gellada and his
associates and Atty. Gibbs and other lawyers in addition to the stipulated
fees for actual services rendered. However, the fee agreement dated
February 27, 1964, between the Administrator of the estate of C. N. Hodges
and Atty. Gibbs which provides for retainer fee of P4,000 monthly in addition
to specific fees for actual appearances, reimbursement for expenditures and
contingent fees has also been approved by the Court and said lawyers have
already been paid. (pp. 1273-1279, Vol. V, Sp. Proc. 1307 pp. 1372-1373,
Vol. V, Sp. Proc. 1307).

WHEREFORE, the order dated January 4, 1965 is hereby declared null and
void.

The manifestation and motion dated June 10, 1964 which was filed by the
attorneys for the administratrix of the testate estate of Linnie Jane Hodges is
granted and the agreement annexed thereto is hereby approved.

The administratrix of the estate of Linnie Jane Hodges is hereby directed to

be needed to implement the approval of the agreement annexed to the
motion and the administrator of the estate of C. N. Hodges is directed to
countersign the said check or checks as the case may be.

SO ORDERED.

thereby implying somehow that the court assumed the existence of independent but
simultaneous administrations.

Be that as it may, again, it appears that on August 6, 1965, the court, acting on a
motion of petitioner for the approval of deeds of sale executed by it as administrator of
the estate of Hodges, issued the following order, also on appeal herein:

Acting upon the motion for approval of deeds of sale for registered land of
the PCIB, Administrator of the Testate Estate of C. N. Hodges in Sp. Proc.
1672 (Vol. VII, pp. 2244-2245), dated July 16, 1965, filed by Atty. Cesar T.
Tirol in representation of the law firms of Ozaeta, Gibbs and Ozaeta and Tirol
and Tirol and the opposition thereto of Atty. Rizal R. Quimpo (Vol. VIII, pp.
6811-6813) dated July 22, 1965 and considering the allegations and reasons
therein stated, the court believes that the deeds of sale should be signed
jointly by the PCIB, Administrator of the Testate Estate of C. N. Hodges and
Avelina A. Magno, Administratrix of the Testate Estate of Linnie Jane Hodges
and to this effect the PCIB should take the necessary steps so that
Administratrix Avelina A. Magno could sign the deeds of sale.

SO ORDERED. (p. 248, Green Record on Appeal.)

Notably this order required that even the deeds executed by petitioner, as administrator
of the Estate of Hodges, involving properties registered in his name, should be co-signed
by respondent Magno.3 And this was not an isolated instance.

In her brief as appellee, respondent Magno states:

After the lower court had authorized appellee Avelina A. Magno to execute
final deeds of sale pursuant to contracts to sell executed by C. N. Hodges on
February 20, 1963 (pp. 45-46, Green ROA), motions for the approval of final
deeds of sale (signed by appellee Avelina A. Magno and the administrator of
the estate of C. N. Hodges, first Joe Hodges, then Atty. Fernando Mirasol and
later the appellant) were approved by the lower court upon petition of
appellee Magno's counsel, Atty. Leon P. Gellada, on the basis of section 8 of
Rule 89 of the Revised Rules of Court. Subsequently, the appellant, after it
had taken over the bulk of the assets of the two estates, started presenting
these motions itself. The first such attempt was a "Motion for Approval of
Deeds of Sale for Registered Land and Cancellations of Mortgages" dated
July 21, 1964 filed by Atty. Cesar T. Tirol, counsel for the appellant, thereto
annexing two (2) final deeds of sale and two (2) cancellations of mortgages
signed by appellee Avelina A. Magno and D. R. Paulino, Assistant Vice-
President and Manager of the appellant (CFI Record, Sp. Proc. No. 1307, Vol.
V, pp. 1694-1701). This motion was approved by the lower court on July 27,
1964. It was followed by another motion dated August 4, 1964 for the
approval of one final deed of sale again signed by appellee Avelina A. Magno
and D. R. Paulino (CFI Record, Sp. Proc. No. 1307. Vol. V, pp. 1825-1828),
which was again approved by the lower court on August 7, 1964. The gates
having been opened, a flood ensued: the appellant subsequently filed similar
motions for the approval of a multitude of deeds of sales and cancellations of
mortgages signed by both the appellee Avelina A. Magno and the appellant.

A random check of the records of Special Proceeding No. 1307 alone will
show Atty. Cesar T. Tirol as having presented for court approval deeds of
sale of real properties signed by both appellee Avelina A. Magno and D. R.
Paulino in the following numbers: (a) motion dated September 21, 1964 — 6
deeds of sale; (b) motion dated November 4, 1964 — 1 deed of sale; (c)
motion dated December 1, 1964 — 4 deeds of sale; (d) motion dated
February 3, 1965 — 8 deeds of sale; (f) motion dated May 7, 1965 — 9
deeds of sale. In view of the very extensive landholdings of the Hodges
spouses and the many motions filed concerning deeds of sale of real
properties executed by C. N. Hodges the lower court has had to constitute
special separate expedientes in Special Proceedings Nos. 1307 and 1672 to
include mere motions for the approval of deeds of sale of the conjugal
properties of the Hodges spouses.

As an example, from among the very many, under date of February 3, 1965,
Atty. Cesar T. Tirol, as counsel for the appellant, filed "Motion for Approval of
Deeds of Sale for Registered Land and Cancellations of Mortgages" (CFI
Record, Sp. Proc. No. 1307, Vol. VIII, pp. 6570-6596) the allegations of
which read:

"1. In his lifetime, the late C. N. Hodges executed "Contracts to Sell" real
property, and the prospective buyers under said contracts have already paid
the price and complied with the terms and conditions thereof;

"2. In the course of administration of both estates, mortgage debtors have

already paid their debts secured by chattel mortgages in favor of the late C.
N. Hodges, and are now entitled to release therefrom;

"3. There are attached hereto documents executed jointly by the

Administratrix in Sp. Proc. No. 1307 and the Administrator in Sp. Proc. No.
1672, consisting of deeds of sale in favor —

Fernando Cano, Bacolod City, Occ. Negros

Fe Magbanua, Iloilo City
Policarpio M. Pareno, La Paz, Iloilo City
Rosario T. Libre, Jaro, Iloilo City
Federico B. Torres, Iloilo City
 Reynaldo T. Lataquin, La Paz, Iloilo City
Anatolio T. Viray, Iloilo City
Benjamin Rolando, Jaro, Iloilo City

and cancellations of mortgages in favor of —

Pablo Manzano, Oton, Iloilo

Ricardo M. Diana, Dao, San Jose, Antique
Simplicio Tingson, Iloilo City
Amado Magbanua, Pototan, Iloilo
Roselia M. Baes, Bolo, Roxas City
William Bayani, Rizal Estanzuela, Iloilo City
Elpidio Villarete, Molo, Iloilo City
Norma T. Ruiz, Jaro, Iloilo City

"4. That the approval of the aforesaid documents will not reduce
the assets of the estates so as to prevent any creditor from
receiving his full debt or diminish his dividend."

And the prayer of this motion is indeed very revealing:

"WHEREFORE, it is respectfully prayed that, under Rule 89, Section 8 of the

Rules of Court, this honorable court approve the aforesaid deeds of sale and
cancellations of mortgages." (Pp. 113-117, Appellee's Brief.)

None of these assertions is denied in Petitioner's reply brief.

Further indicating lack of concrete perspective or orientation on the part of the

respondent court and its hesitancy to clear up matters promptly, in its other appealed
order of November 23, 1965, on pages 334-335 of the Green Record on Appeal, said
respondent court allowed the movant Ricardo Salas, President of appellee Western
Institute of Technology (successor of Panay Educational Institutions, Inc.), one of the
parties with whom Hodges had contracts that are in question in the appeals herein, to
pay petitioner, as Administrator of the estate of Hodges and/or respondent Magno, as
Administrator of the estate of Mrs. Hodges, thus:

Considering that in both cases there is as yet no judicial declaration of heirs

nor distribution of properties to whomsoever are entitled thereto, the Court
believes that payment to both the administrator of the testate estate of C.
N. Hodges and the administratrix of the testate estate of Linnie Jane Hodges
or to either one of the two estates is proper and legal.

WHEREFORE, movant Ricardo T. Salas can pay to both estates or either of

them.

SO ORDERED.

(Pp. 334-335, Green Record on Appeal.)

On the other hand, as stated earlier, there were instances when respondent Magno was
given authority to act alone. For instance, in the other appealed order of December 19,
1964, on page 221 of the Green Record on Appeal, the respondent court approved
payments made by her of overtime pay to some employees of the court who had helped
in gathering and preparing copies of parts of the records in both estates as follows:

Considering that the expenses subject of the motion to approve payment of

overtime pay dated December 10, 1964, are reasonable and are believed by
this Court to be a proper charge of administration chargeable to the testate
estate of the late Linnie Jane Hodges, the said expenses are hereby
APPROVED and to be charged against the testate estate of the late Linnie
Jane Hodges. The administrator of the testate estate of the late Charles
 Newton Hodges is hereby ordered to countersign the check or checks
necessary to pay the said overtime pay as shown by the bills marked Annex
"A", "B" and "C" of the motion.

SO ORDERED.

(Pp. 221-222, Green Record on Appeal.)

Likewise, the respondent court approved deeds of sale executed by respondent Magno
alone, as Administratrix of the estate of Mrs. Hodges, covering properties in the name of
Hodges, pursuant to "contracts to sell" executed by Hodges, irrespective of whether they
were executed by him before or after the death of his wife. The orders of this nature
which are also on appeal herein are the following:

1. Order of March 30, 1966, on p. 137 of the Green Record on Appeal, approving the
deed of sale executed by respondent Magno in favor of appellee Lorenzo Carles on
February 24, 1966, pursuant to a "contract to sell" signed by Hodges on June 17, 1958,
after the death of his wife, which contract petitioner claims was cancelled by it for failure
of Carles to pay the installments due on January 7, 1965.

2. Order of April 5, 1966, on pp. 139-140, id., approving the deed of sale executed by
respondent Magno in favor of appellee Salvador Guzman on February 28, 1966 pursuant
to a "contract to sell" signed by Hodges on September 13, 1960, after the death of his
wife, which contract petitioner claims it cancelled on March 3, 1965 in view of failure of
said appellee to pay the installments on time.

3. Order of April 20, 1966, on pp. 167-168, id., approving the deed of sale executed by
respondent Magno in favor of appellee Purificacion Coronado on March 28, 1966
pursuant to a "contract to sell" signed by Hodges on August 14, 1961, after the death of
his wife.

4. Order of April 20, 1966, on pp. 168-169, id., approving the deed of sale executed by
respondent Magno in favor of appellee Florenia Barrido on March 28, 1966, pursuant to
a "contract to sell" signed by Hodges on February 21, 1958, after the death of his wife.

5. Order of June 7, 1966, on pp. 184-185, id., approving the deed of sale executed by
respondent Magno in favor of appellee Belcezar Causing on May 2, 1966, pursuant to a
"contract to sell" signed by Hodges on February 10, 1959, after the death of his wife.

6. Order of June 21, 1966, on pp. 211-212, id., approving the deed of sale executed by
respondent Magno in favor of appellee Artheo Thomas Jamir on June 3, 1966, pursuant
to a "contract to sell" signed by Hodges on May 26, 1961, after the death of his wife.

7. Order of June 21, 1966, on pp. 212-213, id., approving the deed of sale executed by
respondent Magno in favor of appellees Graciano Lucero and Melquiades Batisanan on
June 6 and June 3, 1966, respectively, pursuant to "contracts to sell" signed by Hodges
on June 9, 1959 and November 27, 1961, respectively, after the death of his wife.

8. Order of December 2, 1966, on pp. 303-304, id., approving the deed of sale executed
by respondent Magno in favor of appellees Espiridion Partisala, Winifredo Espada and
Rosario Alingasa on September 6, 1966, August 17, 1966 and August 3, 1966,
respectively, pursuant to "contracts to sell" signed by Hodges on April 20, 1960, April
18, 1960 and August 25, 1958, respectively, that is, after the death of his wife.

9. Order of April 5, 1966, on pp. 137-138, id., approving the deed of sale executed by
respondent Magno in favor of appellee Alfredo Catedral on March 2, 1966, pursuant to a
"contract to sell" signed by Hodges on May 29, 1954, before the death of his wife, which
contract petitioner claims it had cancelled on February 16, 1966 for failure of appellee
Catedral to pay the installments due on time.
10. Order of April 5, 1966, on pp. 138-139, id., approving the deed of sale executed by
respondent Magno in favor of appellee Jose Pablico on March 7, 1966, pursuant to a
"contract to sell" signed by Hodges on March 7, 1950, after the death of his wife, which
contract petitioner claims it had cancelled on June 29, 1960, for failure of appellee
Pablico to pay the installments due on time.

11. Order of December 2, 1966, on pp. 303-304, id., insofar as it approved the deed of
sale executed by respondent Magno in favor of appellee Pepito Iyulores on September 6,
1966, pursuant to a "contract to sell" signed by Hodges on February 5, 1951, before the
death of his wife.

12. Order of January 3, 1967, on pp. 335-336, id., approving three deeds of sale
executed by respondent Magno, one in favor of appellees Santiago Pacaonsis and two in
favor of appellee Adelfa Premaylon on December 5, 1966 and November 3, 1966,
respectively, pursuant to separate "promises to sell" signed respectively by Hodges on
May 26, 1955 and January 30, 1954, before the death of his wife, and October 31, 1959,
after her death.

In like manner, there were also instances when respondent court approved deeds of sale
executed by petitioner alone and without the concurrence of respondent Magno, and
such approvals have not been the subject of any appeal. No less than petitioner points
this out on pages 149-150 of its brief as appellant thus:

The points of fact and law pertaining to the two abovecited assignments of
error have already been discussed previously. In the first abovecited error,
the order alluded to was general, and as already explained before, it was, as
admitted by the lower court itself, superseded by the particular orders
approving specific final deeds of sale executed by the appellee, Avelina A.
Magno, which are subject of this appeal, as well as the particular orders
approving specific final deeds of sale executed by the appellant, Philippine
Commercial and Industrial Bank, which were never appealed by the
appellee, Avelina A. Magno, nor by any party for that matter, and which are
now therefore final.

Now, simultaneously with the foregoing incidents, others of more fundamental and all
embracing significance developed. On October 5, 1963, over the signature of Atty.
Allison J. Gibbs in representation of the law firm of Ozaeta, Gibbs & Ozaeta, as counsel
for the co-administrators Joe Hodges and Fernando P. Mirasol, the following self-
explanatory motion was filed:

URGENT MOTION FOR AN ACCOUNTING AND DELIVERY TO

ADMINISTRATION OF THE ESTATE OF C. N. HODGES OF ALL OF
THE ASSETS OF THE CONJUGAL PARTNERSHIP OF THE
DECEASED LINNIE JANE HODGES AND C N. HODGES EXISTING
AS OF MAY 23, 1957 PLUS ALL THE RENTS, EMOLUMENTS AND
INCOME THEREFROM.

COMES NOW the co-administrator of the estate of C. N. Hodges, Joe Hodges,

through his undersigned attorneys in the above-entitled proceedings, and to
this Honorable Court respectfully alleges:

(1) On May 23, 1957 Linnie Jane Hodges died in Iloilo City.

(2) On June 28, 1957 this Honorable Court admitted to probate the Last Will
and Testament of the deceased Linnie Jane Hodges executed November 22,
1952 and appointed C. N. Hodges as Executor of the estate of Linnie Jane
Hodges (pp. 24-25, Rec. Sp. Proc. 1307).

(3) On July 1, 1957 this Honorable Court issued Letters Testamentary to C.

N. Hodges in the Estate of Linnie Jane Hodges (p. 30, Rec. Sp. Proc. 1307).
 (4) On December 14, 1957 this Honorable Court, on the basis of the
following allegations in a Motion dated December 11, 1957 filed by Leon P.
Gellada as attorney for the executor C. N. Hodges:

"That herein Executor, (is) not only part owner of the properties
left as conjugal, but also, the successor to all the properties left
by the deceased Linnie Jane Hodges."

(p. 44, Rec. Sp. Proc. 1307; emphasis supplied.)

issued the following order:

"As prayed for by Attorney Gellada, counsel for the

Executory, for the reasons stated in his motion dated December
11, 1957 which the court considers well taken, all the sales,
conveyances, leases and mortgages of all properties left by the
deceased Linnie Jane Hodges are hereby APPROVED. The said
executor is further authorized to execute subsequent sales,
conveyances, leases and mortgages of the properties left by the
said deceased Linnie Jane Hodges in consonance with the wishes
contained in the last will and testament of the latter."

(p. 46, Rec. Sp. Proc. 1307; emphasis supplied.)

(5) On April 21, 1959 this Honorable Court approved the inventory and
accounting submitted by C. N. Hodges through his counsel Leon P. Gellada
on April 14, 1959 wherein he alleged among other things

"That no person interested in the Philippines of the time and

place of examining the herein account, be given notice,
as herein executor is the only devisee or legatee of the
deceased, in accordance with the last will and testament already
probated by the Honorable Court."

(pp. 77-78, Rec. Sp. Proc. 1307; emphasis supplied.).

(6) On July 30, 1960 this Honorable Court approved the "Annual Statement
of Account" submitted by C. N. Hodges through his counsel Leon P. Gellada
on July 21, 1960 wherein he alleged among other things:

"That no person interested in the Philippines of the time and

place of examining the herein account, be given notice as herein
executor is the only devisee or legatee of the deceased Linnie
Jane Hodges, in accordance with the last will and testament of
the deceased, already probated by this Honorable Court."

(pp. 81-82. Rec. Sp. Proc. 1307; emphasis supplied.)

(7) On May 2, 1961 this Honorable court approved the "Annual Statement of
Account By The Executor for the Year 1960" submitted through Leon P.
Gellada on April 20, 1961 wherein he alleged:

That no person interested in the Philippines be given notice, of

the time and place of examining the herein account, as herein
Executor is the only devisee or legatee of the deceased Linnie
Jane Hodges, in accordance with the last will and testament of
the deceased, already probated by this Honorable Court.

(pp. 90-91. Rec. Sp. Proc. 1307; emphasis supplied.)

(8) On December 25, 1962, C.N. Hodges died.

(9) On December 25, 1962, on the Urgent Ex-parte Motion of Leon P.
Gellada filed only in Special Proceeding No. 1307, this Honorable Court
appointed Avelina A. Magno

"Administratrix of the estate of Linnie Jane Hodges and as Special

Administratrix of the estate of Charles Newton Hodges, in the latter case,
because the last will of said Charles Newton Hodges is still kept in his vault
or iron safe and that the real and personal properties of both spouses may
be lost, damaged or go to waste, unless a Special Administratrix is
appointed."

(p. 100. Rec. Sp. Proc. 1307)

(10) On December 26, 1962 Letters of Administration were issued to Avelina

Magno pursuant to this Honorable Court's aforesaid Order of December 25,
1962

"With full authority to take possession of all the property of said

deceased in any province or provinces in which it may be
situated and to perform all other acts necessary for the
preservation of said property, said Administratrix and/or Special
Administratrix having filed a bond satisfactory to the Court."

(p. 102, Rec. Sp. Proc. 1307)

(11) On January 22, 1963 this Honorable Court on petition of Leon P.

Gellada of January 21, 1963 issued Letters of Administration to:

(a) Avelina A. Magno as Administratrix of the estate of Linnie Jane Hodges;

(b) Avelina A. Magno as Special Administratrix of the Estate of Charles

Newton Hodges; and

(c) Joe Hodges as Co-Special Administrator of the Estate of Charles Newton

Hodges.

(p. 43, Rec. Sp. Proc. 1307)

(12) On February 20, 1963 this Honorable Court on the basis of a motion
filed by Leon P. Gellada as legal counsel on February 16, 1963 for Avelina A.
Magno acting as Administratrix of the Estate of Charles Newton Hodges (pp.
114-116, Sp. Proc. 1307) issued the following order:

"... se autoriza a aquella (Avelina A. Magno) a firmar escrituras

de venta definitiva de propiedades cubiertas por contratos para
vender, firmados, en vida, por el finado Charles Newton Hodges,
cada vez que el precio estipulado en cada contrato este
totalmente pagado. Se autoriza igualmente a la misma a firmar
escrituras de cancelacion de hipoteca tanto de bienes reales
como personales cada vez que la consideracion de cada hipoteca
este totalmente pagada.

"Cada una de dichas escrituras que se otorguen debe ser

sometida para la aprobacion de este Juzgado."

(p. 117, Sp. Proc. 1307).

[Par 1 (c), Reply to Motion For Removal of Joe Hodges]

(13) On September l6, 1963 Leon P. Gellada, acting as attorney for Avelina
A. Magno as Administratrix of the estate of Linnie Jane Hodges, alleges:
 3. — That since January, 1963, both estates of Linnie Jane
Hodges and Charles Newton Hodges have been receiving in full,
payments for those "contracts to sell" entered into by C. N.
Hodges during his lifetime, and the purchasers have been
demanding the execution of definite deeds of sale in their favor.

4. — That hereto attached are thirteen (13) copies deeds of sale

executed by the Administratrix and by the co-administrator
(Fernando P. Mirasol) of the estate of Linnie Jane Hodges and
Charles Newton Hodges respectively, in compliance with the
terms and conditions of the respective "contracts to sell"
executed by the parties thereto."

(14) The properties involved in the aforesaid motion of September 16, 1963
are all registered in the name of the deceased C. N. Hodges.

(15) Avelina A. Magno, it is alleged on information and belief, has been

advertising in the newspaper in Iloilo thusly:

For Sale

Testate Estate of Linnie Jane Hodges and Charles Newton Hodges.

All Real Estate or Personal Property will be sold on First Come First Served
Basis.

Avelina A. Magno
Administratrix

(16) Avelina A. Magno, it is alleged on information and belief, has paid and
still is paying sums of money to sundry persons.

(17) Joe Hodges through the undersigned attorneys manifested during the
hearings before this Honorable Court on September 5 and 6, 1963 that the
estate of C. N. Hodges was claiming all of the assets belonging to the
deceased spouses Linnie Jane Hodges and C. N. Hodges situated in
Philippines because of the aforesaid election by C. N. Hodges wherein he
claimed and took possession as sole owner of all of said assets during the
administration of the estate of Linnie Jane Hodges on the ground that he
was the sole devisee and legatee under her Last Will and Testament.

(18) Avelina A. Magno has submitted no inventory and accounting of her

administration as Administratrix of the estate of Linnie Jane Hodges and
Special Administratrix of the estate of C. N. Hodges. However, from
manifestations made by Avelina A. Magno and her legal counsel, Leon P.
Gellada, there is no question she will claim that at least fifty per cent (50%)
of the conjugal assets of the deceased spouses and the rents, emoluments
and income therefrom belong to the Higdon family who are named in
paragraphs Fourth and Fifth of the Will of Linnie Jane Hodges (p. 5, Rec. Sp.
Proc. 1307).

WHEREFORE, premises considered, movant respectfully prays that this

Honorable Court, after due hearing, order:

(1) Avelina A. Magno to submit an inventory and accounting of all of the

funds, properties and assets of any character belonging to the deceased
Linnie Jane Hodges and C. N. Hodges which have come into her possession,
with full details of what she has done with them;
 (2) Avelina A. Magno to turn over and deliver to the Administrator of the
estate of C. N. Hodges all of the funds, properties and assets of any
character remaining in her possession;

(3) Pending this Honorable Court's adjudication of the aforesaid issues,

Avelina A. Magno to stop, unless she first secures the conformity of Joe
Hodges (or his duly authorized representative, such as the undersigned
attorneys) as the Co-administrator and attorney-in-fact of a majority of the
beneficiaries of the estate of C. N. Hodges:

(a) Advertising the sale and the sale of the properties of the estates:

(b) Employing personnel and paying them any compensation.

(4) Such other relief as this Honorable Court may deem just and equitable in
the premises. (Annex "T", Petition.)

Almost a year thereafter, or on September 14, 1964, after the co-administrators Joe
Hodges and Fernando P. Mirasol were replaced by herein petitioner Philippine
Commercial and Industrial Bank as sole administrator, pursuant to an agreement of all
the heirs of Hodges approved by the court, and because the above motion of October 5,
1963 had not yet been heard due to the absence from the country of Atty. Gibbs,
petitioner filed the following:

MANIFESTATION AND MOTION, INCLUDING MOTION TO SET

FOR HEARING AND RESOLVE "URGENT MOTION FOR AN
ACCOUNTING AND DELIVERY TO ADMINISTRATORS OF THE
ESTATE OF C. N. HODGES OF ALL THE ASSETS OF THE
CONJUGAL PARTNERSHIP OF THE DECEASED LINNIE JANE
HODGES AND C. N. HODGES EXISTING AS OF MAY 23, 1957
PLUS ALL OF THE RENTS, EMOLUMENTS AND INCOME
THEREFROM OF OCTOBER 5, 1963.

COMES NOW Philippine Commercial and Industrial Bank (hereinafter referred

to as PCIB), the administrator of the estate of C. N. Hodges, deceased, in
Special Proceedings No. 1672, through its undersigned counsel, and to this
Honorable Court respectfully alleges that:

1. On October 5, 1963, Joe Hodges acting as the co-administrator of the

estate of C. N. Hodges filed, through the undersigned attorneys, an "Urgent
Motion For An Accounting and Delivery To Administrator of the Estate of C.
N. Hodges of all Of The Assets Of The Conjugal Partnership of The Deceased
Linnie Jane Hodges and C. N. Hodges Existing as Of May, 23, 1957 Plus All
Of The Rents, Emoluments and Income Therefrom" (pp. 536-542, CFI Rec.
S. P. No. 1672).

2. On January 24, 1964 this Honorable Court, on the basis of an amicable

agreement entered into on January 23, 1964 by the two co-administrators of
the estate of C. N. Hodges and virtually all of the heirs of C. N. Hodges (p.
912, CFI Rec., S. P. No. 1672), resolved the dispute over who should act as
administrator of the estate of C. N. Hodges by appointing the PCIB as
administrator of the estate of C. N. Hodges (pp. 905-906, CFI Rec. S. P. No.
1672) and issuing letters of administration to the PCIB.

3. On January 24, 1964 virtually all of the heirs of C. N. Hodges, Joe Hodges
and Fernando P. Mirasol acting as the two co-administrators of the estate of
C. N. Hodges, Avelina A. Magno acting as the administratrix of the estate of
Linnie Jane Hodges, and Messrs. William Brown and Ardel Young Acting for
all of the Higdon family who claim to be the sole beneficiaries of the estate
of Linnie Jane Hodges and various legal counsel representing the
aforenamed parties entered into an amicable agreement, which was
approved by this Honorable Court, wherein the parties thereto agreed that
certain sums of money were to be paid in settlement of different claims
against the two estates and that the assets (to the extent they existed)of
both estates would be administrated jointly by the PCIB as administrator of
the estate of C. N. Hodges and Avelina A. Magno as administratrix of the
estate of Linnie Jane Hodges, subject, however, to the aforesaid October 5,
1963 Motion, namely, the PCIB's claim to exclusive possession and
ownership of one-hundred percent (10017,) (or, in the alternative, seventy-
five percent [75%] of all assets owned by C. N. Hodges or Linnie Jane
Hodges situated in the Philippines. On February 1, 1964 (pp. 934-935, CFI
Rec., S. P. No. 1672) this Honorable Court amended its order of January 24,
1964 but in no way changes its recognition of the aforedescribed basic
demand by the PCIB as administrator of the estate of C. N. Hodges to one
hundred percent (100%) of the assets claimed by both estates.

4. On February 15, 1964 the PCIB filed a "Motion to Resolve" the aforesaid
Motion of October 5, 1963. This Honorable Court set for hearing on June 11,
1964 the Motion of October 5, 1963.

5. On June 11, 1964, because the undersigned Allison J. Gibbs was absent in
the United States, this Honorable Court ordered the indefinite postponement
of the hearing of the Motion of October 5, 1963.

6. Since its appointment as administrator of the estate of C. N. Hodges the

PCIB has not been able to properly carry out its duties and obligations as
administrator of the estate of C. N. Hodges because of the following acts,
among others, of Avelina A. Magno and those who claim to act for her as
administratrix of the estate of Linnie Jane Hodges:

(a) Avelina A. Magno illegally acts as if she is in exclusive control

of all of the assets in the Philippines of both estates including
those claimed by the estate of C. N. Hodges as evidenced in part
by her locking the premises at 206-208 Guanco Street, Iloilo City
on August 31, 1964 and refusing to reopen same until ordered to
do so by this Honorable Court on September 7, 1964.

(b) Avelina A. Magno illegally acts as though she alone may

decide how the assets of the estate of C.N. Hodges should be
administered, who the PCIB shall employ and how much they
may be paid as evidenced in party by her refusal to sign checks
issued by the PCIB payable to the undersigned counsel pursuant
to their fee agreement approved by this Honorable Court in its
order dated March 31, 1964.

(c) Avelina A. Magno illegally gives access to and turns over

possession of the records and assets of the estate of C.N.
Hodges to the attorney-in-fact of the Higdon Family, Mr. James
L. Sullivan, as evidenced in part by the cashing of his personal
checks.

(d) Avelina A. Magno illegally refuses to execute checks prepared

by the PCIB drawn to pay expenses of the estate of C. N. Hodges
as evidenced in part by the check drawn to reimburse the PCIB's
advance of P48,445.50 to pay the 1964 income taxes reported
due and payable by the estate of C.N. Hodges.

7. Under and pursuant to the orders of this Honorable Court, particularly

those of January 24 and February 1, 1964, and the mandate contained in its
Letters of Administration issued on January 24, 1964 to the PCIB, it has
 "full authority to take possession of all the property
of the deceased C. N. Hodges

"and to perform all other acts necessary for the preservation of

said property." (p. 914, CFI Rec., S.P. No. 1672.)

8. As administrator of the estate of C. N. Hodges, the PCIB claims the right

to the immediate exclusive possession and control of all of the properties,
accounts receivables, court cases, bank accounts and other assets, including
the documentary records evidencing same, which existed in the Philippines
on the date of C. N. Hodges' death, December 25, 1962, and were in his
possession and registered in his name alone. The PCIB knows of no assets in
the Philippines registered in the name of Linnie Jane Hodges, the estate of
Linnie Jane Hodges, or, C. N. Hodges, Executor of the Estate of Linnie Jane
Hodges on December 25, 1962. All of the assets of which the PCIB has
knowledge are either registered in the name of C. N. Hodges, alone or were
derived therefrom since his death on December 25, 1962.

9. The PCIB as the current administrator of the estate of C. N. Hodges,

deceased, succeeded to all of the rights of the previously duly appointed
administrators of the estate of C. N. Hodges, to wit:

(a) On December 25, 1962, date of C. N. Hodges' death, this

Honorable Court appointed Miss Avelina A. Magno simultaneously
as:

(i) Administratrix of the estate of Linnie Jane Hodges (p. 102,

CFI Rec., S.P. No. 1307) to replace the deceased C. N. Hodges
who on May 28, 1957 was appointed Special Administrator (p.
13. CFI Rec. S.P. No. 1307) and on July 1, 1957 Executor of the
estate of Linnie Jane Hodges (p. 30, CFI Rec., S. P. No. 1307).

(ii) Special Administratrix of the estate of C. N. Hodges (p. 102,

CFI Rec., S.P. No. 1307).

(b) On December 29, 1962 this Honorable Court appointed

Harold K. Davies as co-special administrator of the estate of C.N.
Hodges along with Avelina A. Magno (pp. 108-111, CFI Rec., S.
P. No. 1307).

(c) On January 22, 1963, with the conformity of Avelina A.

Magno, Harold K. Davies resigned in favor of Joe Hodges (pp.
35-36, CFI Rec., S.P. No. 1672) who thereupon was appointed
on January 22, 1963 by this Honorable Court as special co-
administrator of the estate of C.N. Hodges (pp. 38-40 & 43, CFI
Rec. S.P. No. 1672) along with Miss Magno who at that time was
still acting as special co-administratrix of the estate of C. N.
Hodges.

(d) On February 22, 1963, without objection on the part of

Avelina A. Magno, this Honorable Court appointed Joe Hodges
and Fernando P. Mirasol as co-administrators of the estate of
C.N. Hodges (pp. 76-78, 81 & 85, CFI Rec., S.P. No. 1672).

10. Miss Avelina A. Magno, pursuant to the orders of this Honorable Court of
December 25, 1962, took possession of all Philippine Assets now claimed by
the two estates. Legally, Miss Magno could take possession of the assets
registered in the name of C. N. Hodges alone only in her capacity as Special
Administratrix of the Estate of C.N. Hodges. With the appointment by this
Honorable Court on February 22, 1963 of Joe Hodges and Fernando P.
Mirasol as the co-administrators of the estate of C.N. Hodges, they legally
 were entitled to take over from Miss Magno the full and exclusive possession
of all of the assets of the estate of C.N. Hodges. With the appointment on
January 24, 1964 of the PCIB as the sole administrator of the estate of C.N.
Hodges in substitution of Joe Hodges and Fernando P. Mirasol, the PCIB
legally became the only party entitled to the sole and exclusive possession of
all of the assets of the estate of C. N. Hodges.

11. The PCIB's predecessors submitted their accounting and this Honorable
Court approved same, to wit:

(a) The accounting of Harold K. Davies dated January 18, 1963

(pp. 16-33, CFI Rec. S.P. No. 1672); which shows or its face
the:

(i) Conformity of Avelina A. Magno acting as "Administratrix of

the Estate of Linnie Jane Hodges and Special Administratrix of
the Estate of C. N. Hodges";

(ii) Conformity of Leslie Echols, a Texas lawyer acting for the

heirs of C.N. Hodges; and

(iii) Conformity of William Brown, a Texas lawyer acting for the

Higdon family who claim to be the only heirs of Linnie Jane
Hodges (pp. 18, 25-33, CFI Rec., S. P. No. 1672).

Note: This accounting was approved by this Honorable Court on January 22,
1963 (p. 34, CFI Rec., S. P. No. 1672).

(b) The accounting of Joe Hodges and Fernando P. Mirasol as of

January 23, 1964, filed February 24, 1964 (pp. 990-1000, CFI
Rec. S.P. No. 1672 and pp. 1806-1848, CFI Rec. S.P. No. 1307).

Note: This accounting was approved by this Honorable Court on March 3,

1964.

(c) The PCIB and its undersigned lawyers are aware of no report
or accounting submitted by Avelina A. Magno of her acts as
administratrix of the estate of Linnie Jane Hodges or special
administratrix of the estate of C.N. Hodges, unless it is the
accounting of Harold K. Davies as special co-administrator of the
estate of C.N. Hodges dated January 18, 1963 to which Miss
Magno manifested her conformity (supra).

12. In the aforesaid agreement of January 24, 1964, Miss Avelina A. Magno agreed to
receive P10,000.00

"for her services as administratrix of the estate of Linnie Jane

Hodges"

and in addition she agreed to be employed, starting February 1, 1964, at

"a monthly salary of P500.00 for her services as an employee of

both estates."

24 ems.

13. Under the aforesaid agreement of January 24, 1964 and the orders of
this Honorable Court of same date, the PCIB as administrator of the estate
of C. N. Hodges is entitled to the exclusive possession of all records,
properties and assets in the name of C. N. Hodges as of the date of his
death on December 25, 1962 which were in the possession of the deceased
C. N. Hodges on that date and which then passed to the possession of Miss
Magno in her capacity as Special Co-Administratrix of the estate of C. N.
Hodges or the possession of Joe Hodges or Fernando P. Mirasol as co-
administrators of the estate of C. N. Hodges.

14. Because of Miss Magno's refusal to comply with the reasonable request
of PCIB concerning the assets of the estate of C. N. Hodges, the PCIB
dismissed Miss Magno as an employee of the estate of C. N. Hodges effective
August 31, 1964. On September 1, 1964 Miss Magno locked the premises at
206-208 Guanco Street and denied the PCIB access thereto. Upon the
Urgent Motion of the PCIB dated September 3, 1964, this Honorable Court
on September 7, 1964 ordered Miss Magno to reopen the aforesaid premises
at 206-208 Guanco Street and permit the PCIB access thereto no later than
September 8, 1964.

15. The PCIB pursuant to the aforesaid orders of this Honorable Court is
again in physical possession of all of the assets of the estate of C. N.
Hodges. However, the PCIB is not in exclusive control of the aforesaid
records, properties and assets because Miss Magno continues to assert the
claims hereinabove outlined in paragraph 6, continues to use her own locks
to the doors of the aforesaid premises at 206-208 Guanco Street, Iloilo City
and continues to deny the PCIB its right to know the combinations to the
doors of the vault and safes situated within the premises at 206-208 Guanco
Street despite the fact that said combinations were known to only C. N.
Hodges during his lifetime.

16. The Philippine estate and inheritance taxes assessed the estate of Linnie
Jane Hodges were assessed and paid on the basis that C. N. Hodges is the
sole beneficiary of the assets of the estate of Linnie Jane Hodges situated in
the Philippines. Avelina A. Magno and her legal counsel at no time have
questioned the validity of the aforesaid assessment and the payment of the
corresponding Philippine death taxes.

17. Nothing further remains to be done in the estate of Linnie Jane Hodges
except to resolve the aforesaid Motion of October 5, 1963 and grant the
PCIB the exclusive possession and control of all of the records, properties
and assets of the estate of C. N. Hodges.

18. Such assets as may have existed of the estate of Linnie Jane Hodges
were ordered by this Honorable Court in special Proceedings No. 1307 to be
turned over and delivered to C. N. Hodges alone. He in fact took possession
of them before his death and asserted and exercised the right of exclusive
ownership over the said assets as the sole beneficiary of the estate of Linnie
Jane Hodges.

WHEREFORE, premises considered, the PCIB respectfully petitions that this

Honorable court:

(1) Set the Motion of October 5, 1963 for hearing at the earliest possible
date with notice to all interested parties;

(2) Order Avelina A. Magno to submit an inventory and accounting as

Administratrix of the Estate of Linnie Jane Hodges and Co-Administratrix of
the Estate of C. N. Hodges of all of the funds, properties and assets of any
character belonging to the deceased Linnie Jane Hodges and C. N. Hodges
which have come into her possession, with full details of what she has done
with them;

(3) Order Avelina A. Magno to turn over and deliver to the PCIB as
administrator of the estate of C. N. Hodges all of the funds, properties and
assets of any character remaining in her possession;
 (4) Pending this Honorable Court's adjudication of the aforesaid issues, order
Avelina A. Magno and her representatives to stop interferring with the
administration of the estate of C. N. Hodges by the PCIB and its duly
authorized representatives;

(5) Enjoin Avelina A. Magno from working in the premises at 206-208

Guanco Street, Iloilo City as an employee of the estate of C. N. Hodges and
approve her dismissal as such by the PCIB effective August 31, 1964;

(6) Enjoin James L. Sullivan, Attorneys Manglapus and Quimpo and others
allegedly representing Miss Magno from entering the premises at 206-208
Guanco Street, Iloilo City or any other properties of C. N. Hodges without
the express permission of the PCIB;

(7) Order such other relief as this Honorable Court finds just and equitable in
the premises. (Annex "U" Petition.)

On January 8, 1965, petitioner also filed a motion for "Official Declaration of Heirs of
Linnie Jane Hodges Estate" alleging:

COMES NOW Philippine Commercial and Industrial Bank (hereinafter referred to as

PCIB), as administrator of the estate of the late C. N. Hodges, through the undersigned
counsel, and to this Honorable Court respectfully alleges that:

1. During their marriage, spouses Charles Newton Hodges and Linnie Jane
Hodges, American citizens originally from the State of Texas, U.S.A.,
acquired and accumulated considerable assets and properties in the
Philippines and in the States of Texas and Oklahoma, United States of
America. All said properties constituted their conjugal estate.

2. Although Texas was the domicile of origin of the Hodges spouses, this
Honorable Court, in its orders dated March 31 and December 12, 1964 (CFI
Record, Sp. Proc. No. 1307, pp. ----; Sp. Proc. No. 1672, p. ----),
conclusively found and categorically ruled that said spouses had lived and
worked for more than 50 years in Iloilo City and had, therefore, acquired a
domicile of choice in said city, which they retained until the time of their
respective deaths.

3. On November 22, 1952, Linnie Jane Hodges executed in the City of Iloilo
her Last Will and Testament, a copy of which is hereto attached as Annex
"A". The bequests in said will pertinent to the present issue are the second,
third, and fourth provisions, which we quote in full hereunder.

SECOND: I give, devise and bequeath all of the rest, residue and
remainder of my estate, both personal and real, wherever
situated, or located, to my husband, Charles Newton Hodges, to
have and to hold unto him, my said husband during his natural
lifetime.

THIRD: I desire, direct and provide that my husband, Charles

Newton Hodges, shall have the right to manage, control, use and
enjoy said estate during his lifetime, and he is hereby given the
right to make any changes in the physical properties of said
estate by sale of any part thereof which he think best, and the
purchase of any other or additional property as he may think
best; to execute conveyances with or without general or special
warranty, conveying in fee simple or for any other term or time,
any property which he may deem proper to dispose of; to lease
any of the real property for oil, gas and/or other minerals, and
all such deeds or leases shall pass the absolute fee simple title to
the interest so conveyed in such property as he may elect to sell.
 All rents, emoluments and income from said estate shall belong
to him, and he is further authorized to use any part of the
principal of said estate as he may need or desire. It is provided
herein, however, that he shall not sell or otherwise dispose of
any of the improved property now owned by us located at, in or
near the City of Lubbock, Texas, but he shall have the full right
to lease, manage and enjoy the same during his lifetime, as
above provided. He shall have the right to sub-divide any
farmland and sell lots therein, and may sell unimproved town
lots.

FOURTH: At the death of my said husband, Charles Newton

Hodges, I give, devise and bequeath all of the rest, residue and
remainder of my estate both real and personal, wherever
situated or located, to be equally divided among my brothers
and sisters, share and share alike, namely:

"Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Sadie

Rascoe, Era Boman and Nimray Higdon."

4. On November 14, 1953, C. N. Hodges executed in the City of Iloilo his

Last Will and Testament, a copy of which is hereto attached as Annex "B
". In said Will, C. N. Hodges designated his wife, Linnie Jane Hodges, as his
beneficiary using the identical language she used in the second and third
provisos of her Will, supra.

5. On May 23, 1957 Linnie Jane Hodges died in Iloilo City, predeceasing her
husband by more than five (5) years. At the time of her death, she had no
forced or compulsory heir, except her husband, C. N. Hodges. She was
survived also by various brothers and sisters mentioned in her Will (supra),
which, for convenience, we shall refer to as the HIGDONS.

6. On June 28, 1957, this Honorable Court admitted to probate the Last Will
and Testament of the deceased Linnie Jane Hodges (Annex "A"), and
appointed C. N. Hodges as executor of her estate without bond. (CFI Record,
Sp. Proc. No. 1307, pp. 24-25). On July 1, 1957, this Honorable Court issued
letters testamentary to C. N. Hodges in the estate of Linnie Jane Hodges.
(CFI Record, Sp. Proc. No. 1307, p. 30.)

7. The Will of Linnie Jane Hodges, with respect to the order of succession,
the amount of successional rights, and the intrinsic of its testamentary
provisions, should be governed by Philippine laws because:

(a) The testatrix, Linnie Jane Hodges, intended Philippine laws to

govern her Will;

(b) Article 16 of the Civil Code provides that "the national law of
the person whose succession is under consideration, whatever
may be the nature of the property and regardless of the country
wherein said property may be found", shall prevail. However, the
Conflict of Law of Texas, which is the "national law" of the
testatrix, Linnie Jane Hodges, provide that the domiciliary law
(Philippine law — see paragraph 2, supra) should govern the
testamentary dispositions and successional rights over movables
(personal properties), and the law of the situs of the property
(also Philippine law as to properties located in the Philippines)
with regards immovable (real properties). Thus applying the
"Renvoi Doctrine", as approved and applied by our Supreme
Court in the case of "In The Matter Of The Testate Estate of
Eduard E. Christensen", G.R. No. 
L-16749, promulgated January 31, 1963, Philippine law should
 apply to the Will of Linnie Jane Hodges and to the successional
rights to her estate insofar as
her movable and immovable 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).

11. The late Linnie Jane Hodges designated her husband C.N. Hodges as her
sole and exclusive heir with full authority to do what he pleased, as exclusive
heir and owner of all the assets constituting her estate, except only with
regards certain properties "owned by us, located at, in or near the City of
Lubbock, Texas". Thus, even without relying on our laws of succession and
legitime, which we have cited above, C. N. Hodges, by specific testamentary
designation of his wife, was entitled to the entirely to his wife's estate in the
Philippines.

12. Article 777 of the New Civil Code provides that "the rights of the
successor are transmitted from the death of the decedent". Thus, title to the
estate of Linnie Jane Hodges was transmitted to C. N. Hodges immediately
upon her death on May 23, 1957. For the convenience of this Honorable
Court, we attached hereto as Annex "C" a graph of how the conjugal estate
of the spouses Hodges should be divided in accordance with Philippine law
and the Will of Linnie Jane Hodges.

13. In his capacity as sole heir and successor to the estate of Linnie Jane
Hodges as above-stated, C. N. Hodges, shortly after the death of Linnie Jane
Hodges, appropriated to himself the entirety of her estate. He operated all
the assets, engaged in business and performed all acts in connection with
the entirety of the conjugal estate, in his own name alone, just as he had
been operating, engaging and doing while the late Linnie Jane Hodges was
still alive. Upon his death on December 25, 1962, therefore, all said conjugal
assets were in his sole possession and control, and registered in his name
alone, not as executor, but as exclusive owner of all said assets.

14. All these acts of C. N. Hodges were authorized and sanctioned expressly
and impliedly by various orders of this Honorable Court, as follows:

(a) In an Order dated May 27, 1957, this Honorable Court ruled that C. N.
Hodges "is allowed or authorized to continue the business in which he was
engaged, and to perform acts which he had been doing while the deceased
was living." (CFI Record, Sp. Proc. No. 1307, p. 11.)

(b) On December 14, 1957, this Honorable Court, on the basis of the
following fact, alleged in the verified Motion dated December 11, 1957 filed
by Leon P. Gellada as attorney for the executor C. N. Hodges:

That herein Executor, (is) not only part owner of the properties left as
conjugal, but also, the successor to all the properties left by the deceased
Linnie Jane Hodges.' (CFI Record, Sp. Proc. No. 1307, p. 44; emphasis
supplied.)

issued the following order:

"As prayed for by Attorney Gellada, counsel for the Executor, for the
reasons stated in his motion dated December 11, 1957, which the Court
considers well taken, all the sales, conveyances, leases and mortgages of all
the properties left by the deceased Linnie Jane Hodges executed by the
Executor, Charles Newton Hodges are hereby APPROVED. The said Executor
is further authorized to execute subsequent sales, conveyances, leases and
mortgages of the properties left by the said deceased Linnie Jane Hodges in
consonance with the wishes contained in the last will and testament of the
latter." (CFI Record. Sp. Proc. No. 1307, p. 46; emphasis supplied.)

24 ems

(c) On April 21, 1959, this Honorable Court approved the verified inventory
and accounting submitted by C. N. Hodges through his counsel Leon P.
Gellada on April 14, 1959 wherein he alleged among other things,

"That no person interested in the Philippines of the time and

place of examining the herein account, be given notice, as
herein executor is the only devisee or legatee of the deceased,
in accordance with the last will and testament already probated
by the Honorable Court." (CFI Record, Sp. Proc. No. 1307, pp.
77-78; emphasis supplied.)

(d) On July 20, 1960, this Honorable Court approved the verified "Annual
Statement of Account" submitted by C. N. Hodges through his counsel Leon
P. Gellada on July 21, 1960 wherein he alleged, among other things.

"That no person interested in the Philippines of the time and

place of examining the herein account, be given notice as herein
 executor is the only devisee or legatee of the deceased Linnie
Jane Hodges, in accordance with the last will and testament
ofthe deceased, already probated by this Honorable Court." (CFI
Record, Sp. Proc. No. 1307, pp. 81-82; emphasis supplied.)

(e) On May 2, 1961, this Honorable Court approved the verified "Annual
Statement of Account By The Executor For the Year 1960" submitted
through Leon P. Gellada on April 20, 1961 wherein he alleged:

"That no person interested in the Philippines be given notice, ofthe time and
place of examining the herein account, as herein executor is the only
devisee or legatee of the deceased Linnie Jane Hodges, in accordance with
the last will and testament ofthe deceased, already probated by this
Honorable Court." (CFI Record, Sp. Proc. No. 1307, pp. 90-91; emphasis
supplied.)

15. Since C. N. Hodges was the sole and exclusive heir of Linnie Jane
Hodges, not only by law, but in accordance with the dispositions of her will,
there was, in fact, no need to liquidate the conjugal estate of the spouses.
The entirely of said conjugal estate pertained to him exclusively, therefore
this Honorable Court sanctioned and authorized, as above-stated, C. N.
Hodges to manage, operate and control all the conjugal assets as owner.

16. By expressly authorizing C. N. Hodges to act as he did in connection with

the estate of his wife, this Honorable Court has (1) declared C. N. Hodges as
the sole heir of the estate of Linnie Jane Hodges, and (2) delivered and
distributed her estate to C. N. Hodges as sole heir in accordance with the
terms and conditions of her Will. Thus, although the "estate of Linnie Jane
Hodges" still exists as a legal and juridical personality, it had no assets or
properties located in the Philippines registered in its name whatsoever at the
time of the death of C. N. Hodges on December 25, 1962.

17. The Will of Linnie Jane Hodges (Annex "A"), fourth paragraph, provides
as follows:

"At the death of my said husband, Charles Newton Hodges, I

give, devise and bequeath all of the rest, residue and remainder
of my estate both real and personal, wherever situated or
located, to be equally divided among my brothers and sisters,
share and share alike, namely:

"Esta Higdon, Emma Howell, Leonard Higdon, Roy

Higdon, Sadie Rascoe, Era Boman and Nimray
Higdon."

Because of the facts hereinabove set out there is no "rest, residue and
remainder", at least to the extent of the Philippine assets, which remains to
vest in the HIGDONS, assuming this proviso in Linnie Jane Hodges' Will is
valid and binding against the estate of C. N. Hodges.

18. Any claims by the HIGDONS under the above-quoted provision of Linnie
Jane Hodges' Will is without merit because said provision is void and invalid
at least as to the Philippine assets. It should not, in anyway, affect the rights
of the estate of C. N. Hodges or his heirs to the properties, which C. N.
Hodges acquired by way of inheritance from his wife Linnie Jane Hodges
upon her death.

(a) In spite of the above-mentioned provision in the Will of

Linnie Jane Hodges, C. N. Hodges acquired, not merely a
usufructuary right, but absolute title and ownership to her
estate. In a recent case involving a very similar testamentary
 provision, the Supreme Court held that the heir first designated
acquired full ownership of the property bequeathed by the will,
not mere usufructuary rights. (Consolacion Florentino de
Crisologo, et al., vs. Manuel Singson, G. R. No. L-13876,
February 28, 1962.)

(b) Article 864, 872 and 886 of the New Civil Code clearly
provide that no charge, condition or substitution whatsoever
upon the legitime can be imposed by a testator. Thus, under the
provisions of Articles 900, 995 and 1001 of the New Civil Code,
the legitime of a surviving spouse is 1/2 of the estate of the
deceased spouse. Consequently, the above-mentioned provision
in the Will of Linnie Jane Hodges is clearly invalid insofar as the
legitime of C. N. Hodges was concerned, which consisted of 1/2
of the 1/2 portion of the conjugal estate, or 1/4 of the entire
conjugal estate of the deceased.

(c) There are generally only two kinds of substitution provided

for and authorized by our Civil Code (Articles 857-870), namely,
(1) simple or common substitution, sometimes referred to
as vulgar substitution (Article 859), and (2) fideicommissary
substitution (Article 863). All other substitutions are merely
variations of these. The substitution provided for by paragraph
four of the Will of Linnie Jane Hodges is not fideicommissary
substitution, because there is clearly no obligation on the part of
C. N. Hodges as the first heir designated, to preserve the
properties for the substitute heirs. (Consolacion Florentino de
Crisologo et al. vs. Manuel Singson, G. R. No. 
L-13876.) At most, it is a vulgar or simple substitution. However,
in order that a vulgar or simple substitution can be valid, three
alternative conditions must be present, namely, that the first
designated heir (1) should die before the testator; or (2) should
not wish to accept the inheritance; or (3) should be
incapacitated to do so. None of these conditions apply to C. N.
Hodges, and, therefore, the substitution provided for by the
above-quoted provision of the Will is not authorized by the Code,
and, therefore, it is void. Manresa, commenting on these kisses
of substitution, meaningfully stated that: "... cuando el testador
instituyeun primer heredero, y por fallecimiento de este nombra
otro u otros, ha de entenderse que estas segundas
designaciones solo han de llegar a tener efectividad en el caso
de que el primer instituido muera antes que el testador, fuera o
no esta su verdadera intencion. ...". (6 Manresa, 7 a ed., pag.
175.) In other words, when another heir is designated to inherit
upon the death of a first heir, the second designation can have
effect only in case the first instituted heir dies before the
testator, whether or not that was the true intention of said
testator. Since C. N. Hodges did not die before Linnie Jane
Hodges, the provision for substitution contained in Linnie Jane
Hodges' Willis void.

(d) In view of the invalidity of the provision for substitution in

the Will, C. N. Hodges' inheritance to the entirety of the Linnie
Jane Hodges estate is irrevocable and final.

19. Be that as it may, at the time of C. N. Hodges' death, the entirety of the
conjugal estate appeared and was registered in him exclusively as owner.
Thus, the presumption is that all said assets constituted his estate.
Therefore —
 (a) If the HIGDONS wish to enforce their dubious rights as substituted heirs
to 1/4 of the conjugal estate (the other 1/4 is covered by the legitime of C.
N. Hodges which can not be affected by any testamentary disposition), their
remedy, if any, is to file their claim against the estate of C. N. Hodges, which
should be entitled at the present time to full custody and control of all the
conjugal estate of the spouses.

(b) The present proceedings, in which two estates exist under separate
administration, where the administratrix of the Linnie Jane Hodges estate
exercises an officious right to object and intervene in matters affecting
exclusively the C. N. Hodges estate, is anomalous.

WHEREFORE, it is most respectfully prayed that after trial and reception of

evidence, this Honorable Court declare:

1. That the estate of Linnie Jane Hodges was and is composed exclusively of
one-half (1/2) share in the conjugal estate of the spouses Hodges, computed
as of the date of her death on May 23, 1957;

2. That the other half of the conjugal estate pertained exclusively to C. N.

Hodges as his share as partner in the conjugal partnership;

3. That all "rents, emoluments and income" of the conjugal estate accruing
after Linnie Jane Hodges' death pertains to C. N. Hodges;

4. That C. N. Hodges was the sole and exclusive heir of the estate of Linnie
Jane Hodges;

5. That, therefore, the entire conjugal estate of the spouses located in the
Philippines, plus all the "rents, emoluments and income" above-mentioned,
now constitutes the estate of C. N. Hodges, capable of distribution to his
heirs upon termination of Special Proceedings No. 1672;

6. That PCIB, as administrator of the estate of C. N. Hodges, is entitled to

full and exclusive custody, control and management of all said properties;
and

7. That Avelina A. Magno, as administratrix of the estate of Linnie Jane

Hodges, as well as the HIGDONS, has no right to intervene or participate in
the administration of the C. N. Hodges estate.

PCIB further prays for such and other relief as may be deemed just and
equitable in the premises."

(Record, pp. 265-277)

Before all of these motions of petitioner could be resolved, however, on December 21,
1965, private respondent Magno filed her own "Motion for the Official Declaration of
Heirs of the Estate of Linnie Jane Hodges" as follows:

COMES NOW the Administratrix of the Estate of Linnie Jane Hodges and,
through undersigned counsel, unto this Honorable Court most respectfully
states and manifests:

1. That the spouses Charles Newton Hodges and Linnie Jane Hodges were
American citizens who died at the City of Iloilo after having amassed and
accumulated extensive properties in the Philippines;

2. That on November 22, 1952, Linnie Jane Hodges executed a last will and
testament (the original of this will now forms part of the records of these
proceedings as Exhibit "C" and appears as Sp. Proc. No. 1307, Folio I, pp.
17-18);

3. That on May 23, 1957, Linnie Jane Hodges died at the City of Iloilo at the
time survived by her husband, Charles Newton Hodges, and several relatives
named in her last will and testament;

4. That on June 28, 1957, a petition therefor having been priorly filed and
duly heard, this Honorable Court issued an order admitting to probate the
last will and testament of Linnie Jane Hodges (Sp. Proc. No. 1307, Folio I,
pp. 24-25, 26-28);

5. That the required notice to creditors and to all others who may have any
claims against the decedent, Linnie Jane Hodges has already been printed,
published and posted (Sp. Proc. No. 1307, Folio I. pp. 34-40) and the
reglamentary period for filing such claims has long ago lapsed and expired
without any claims having been asserted against the estate of Linnie Jane
Hodges, approved by the Administrator/Administratrix of the said estate, nor
ratified by this Honorable Court;

6. That the last will and testament of Linnie Jane Hodges already admitted to
probate contains an institution of heirs in the following words:

"SECOND: I give, devise and bequeath all of the rest, residue

and remainder of my estate, both personal and real, wherever
situated or located, to my beloved husband, Charles Newton
Hodges to have and to hold unto him, my said husband, during
his natural lifetime.

THIRD: I desire, direct and provide that my husband, Charles

Newton Hodges, shall have the right to manage, control, use and
enjoy said estate during his lifetime, and, he is hereby given the
right to make any changes in the physical properties of said
estate, by sale of any part thereof which he may think best, and
the purchase of any other or additional property as he may think
best; to execute conveyances with or without general or special
warranty, conveying in fee simple or for any other term or time,
any property which he may deem proper to dispose of; to lease
any of the real property for oil, gas and/or other minerals, and
all such deeds or leases shall pass the absolute fee simple title to
the interest so conveyed in such property as he elect to sell. All
rents, emoluments and income from said estate shall belong to
him, and he is further authorized to use any part of the principal
of said estate as he may need or desire. It is provided herein,
however, that he shall not sell or otherwise dispose of any of the
improved property now owned by us located at, in or near the
City of Lubbock Texas, but he shall have the full right to lease,
manage and enjoy the same during his lifetime, above provided.
He shall have the right to subdivide any farm land and sell lots
therein, and may sell unimproved town lots.

FOURTH: At the death of my said husband, Charles Newton

Hodges, I give, devise and bequeath all of the rest, residue and
remainder of my estate, both real and personal, wherever
situated or located, to be equally divided among my brothers
and sisters, share and share alike, namely:

Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Sadie

Rascoe, Era Boman and Nimroy Higdon.
 FIFTH: In case of the death of any of my brothers and/or sisters
named in item Fourth, above, prior to the death of my husband,
Charles Newton Hodges, then it is my will and bequest that the
heirs of such deceased brother or sister shall take jointly the
share which would have gone to such brother or sister had she
or he survived."

7. That under the provisions of the last will and testament already above-
quoted, Linnie Jane Hodges gave a life-estate or a usufruct over all her
estate to her husband, Charles Newton Hodges, and a vested remainder-
estate or the naked title over the same estate to her relatives named
therein;

8. That after the death of Linnie Jane Hodges and after the admission to
probate of her last will and testament, but during the lifetime of Charles
Newton Hodges, the said Charles Newton Hodges with full and complete
knowledge of the life-estate or usufruct conferred upon him by the will since
he was then acting as Administrator of the estate and later as Executor of
the will of Linnie Jane Hodges, unequivocably and clearly through oral and
written declarations and sworn public statements, renounced, disclaimed and
repudiated his life-estate and usufruct over the estate of Linnie Jane
Hodges;

9. That, accordingly, the only heirs left to receive the estate of Linnie Jane
Hodges pursuant to her last will and testament, are her named brothers and
sisters, or their heirs, to wit: Esta Higdon, Emma Howell, Leonard Higdon,
Aline Higdon and David Higdon, the latter two being the wife and son
respectively of the deceased Roy Higdon, Sadie Rascoe Era Boman and
Nimroy Higdon, all of legal ages, American citizens, with residence at the
State of Texas, United States of America;

10. That at the time of the death of Linnie Jane Hodges on May 23, 1957,
she was the co-owner (together with her husband Charles Newton Hodges)
of an undivided one-half interest in their conjugal properties existing as of
that date, May 23, 1957, which properties are now being administered
sometimes jointly and sometimes separately by the Administratrix of the
estate of Linnie Jane Hodges and/or the Administrator of the estate of C. N.
Hodges but all of which are under the control and supervision of this
Honorable Court;

11. That because there was no separation or segregation of the interests of

husband and wife in the combined conjugal estate, as there has been no
such separation or segregation up to the present, both interests have
continually earned exactly the same amount of "rents, emoluments and
income", the entire estate having been continually devoted to the business
of the spouses as if they were alive;

12. That the one-half interest of Linnie Jane Hodges in the combined
conjugal estate was earning "rents, emoluments and income" until her death
on May 23, 1957, when it ceased to be saddled with any more charges or
expenditures which are purely personal to her in nature, and her estate kept
on earning such "rents, emoluments and income" by virtue of their having
been expressly renounced, disclaimed and repudiated by Charles Newton
Hodges to whom they were bequeathed for life under the last will and
testament of Linnie Jane Hodges;

13. That, on the other hand, the one-half interest of Charles Newton Hodges
in the combined conjugal estate existing as of May 23, 1957, while it may
have earned exactly the same amount of "rents, emoluments and income"
as that of the share pertaining to Linnie Jane Hodges, continued to be
burdened by charges, expenditures, and other dispositions which are purely
 personal to him in nature, until the death of Charles Newton Hodges himself
on December 25, 1962;

14. That of all the assets of the combined conjugal estate of Linnie Jane
Hodges and Charles Newton Hodges as they exist today, the estate of Linnie
Jane Hodges is clearly entitled to a portion more than fifty percent (50%) as
compared to the portion to which the estate of Charles Newton Hodges may
be entitled, which portions can be exactly determined by the following
manner:

a. An inventory must be made of the assets of the combined

conjugal estate as they existed on the death of Linnie Jane
Hodges on May 23, 1957 — one-half of these assets belong to
the estate of Linnie Jane Hodges;

b. An accounting must be made of the "rents, emoluments and

income" of all these assets — again one-half of these belong to
the estate of Linnie Jane Hodges;

c. Adjustments must be made, after making a deduction of

charges, disbursements and other dispositions made by Charles
Newton Hodges personally and for his own personal account
from May 23, 1957 up to December 25, 1962, as well as other
charges, disbursements and other dispositions made for him and
in his behalf since December 25, 1962 up to the present;

15. That there remains no other matter for disposition now insofar as the
estate of Linnie Jane Hodges is concerned but to complete the liquidation of
her estate, segregate them from the conjugal estate, and distribute them to
her heirs pursuant to her last will and testament.

WHEREFORE, premises considered, it is most respectfully moved and prayed

that this Honorable Court, after a hearing on the factual matters raised by
this motion, issue an order:

a. Declaring the following persons, to wit: Esta Higdon, Emma Howell,

Leonard Higdon, Aline Higdon, David Higdon, Sadie Rascoe, Era Boman and
Nimroy Higdon, as the sole heirs under the last will and testament of Linnie
Jane Hodges and as the only persons entitled to her estate;

b. Determining the exact value of the estate of Linnie Jane Hodges in

accordance with the system enunciated in paragraph 14 of this motion;

c. After such determination ordering its segregation from the combined

conjugal estate and its delivery to the Administratrix of the estate of Linnie
Jane Hodges for distribution to the heirs to whom they properly belong and
appertain.

(Green Record on Appeal, pp. 382-391)

whereupon, instead of further pressing on its motion of January 8, 1965 aforequoted, as

it had been doing before, petitioner withdrew the said motion and in addition to
opposing the above motion of respondent Magno, filed a motion on April 22, 1966
alleging in part that:

1. That it has received from the counsel for the administratrix of the
supposed estate of Linnie Jane Hodges a notice to set her "Motion for Official
Declaration of Heirs of the Estate of Linnie Jane Hodges";

2. That before the aforesaid motion could be heard, there are matters
pending before this Honorable Court, such as:
 a. The examination already ordered by this Honorable Court of
documents relating to the allegation of Avelina Magno that
Charles Newton Hodges "through ... written declarations and
sworn public statements, renounced, disclaimed and repudiated
life-estate and usufruct over the estate of Linnie Jane Hodges';

b. That "Urgent Motion for An Accounting and Delivery to the

Estate of C. N. Hodges of All the Assets of the Conjugal
Partnership of the Deceased Linnie Jane Hodges and C. N.
Hodges Existing as of May 23, 1957 Plus All the Rents,
Emoluments and Income Therefrom";

c. Various motions to resolve the aforesaid motion;

d. Manifestation of September 14, 1964, detailing acts of

interference of Avelina Magno under color of title as
administratrix of the Estate of Linnie Jane Hodges;

which are all prejudicial, and which involve no issues of fact, all facts
involved therein being matters of record, and therefore require only the
resolution of questions of law;

3. That whatever claims any alleged heirs or other persons may have could
be very easily threshed out in the Testate Estate of Charles Newton Hodges;

4. That the maintenance of two separate estate proceedings and two

administrators only results in confusion and is unduly burdensome upon the
Testate Estate of Charles Newton Hodges, particularly because the bond filed
by Avelina Magno is grossly insufficient to answer for the funds and property
which she has inofficiously collected and held, as well as those which she
continues to inofficiously collect and hold;

5. That it is a matter of record that such state of affairs affects and

inconveniences not only the estate but also third-parties dealing with it;"
(Annex "V", Petition.)

and then, after further reminding the court, by quoting them, of the relevant allegations
of its earlier motion of September 14, 1964, Annex U, prayed that:

1. Immediately order Avelina Magno to account for and deliver to the

administrator of the Estate of C. N. Hodges all the assets of the conjugal
partnership of the deceased Linnie Jane Hodges and C. N. Hodges, plus all
the rents, emoluments and income therefrom;

2. Pending the consideration of this motion, immediately order Avelina

Magno to turn over all her collections to the administrator Philippine
Commercial & Industrial Bank;

3. Declare the Testate Estate of Linnie Jane Hodges (Sp. Proc. No. 1307)
closed;

4. Defer the hearing and consideration of the motion for declaration of heirs
in the Testate Estate of Linnie Jane Hodges until the matters hereinabove set
forth are resolved.
(Prayer, Annex "V" of Petition.)

On October 12, 1966, as already indicated at the outset of this opinion, the respondent
court denied the foregoing motion, holding thus:

ORDER
On record is a motion (Vol. X, Sp. 1672, pp. 4379-4390) dated April 22,
1966 of administrator PCIB praying that (1) Immediately order Avelina
Magno to account for and deliver to the administrator of the estate of C. N.
Hodges all assets of the conjugal partnership of the deceased Linnie Jane
Hodges and C. N. Hodges, plus all the rents, emoluments and income
therefrom; (2) Pending the consideration of this motion, immediately order
Avelina Magno to turn over all her collections to the administrator PCIB; (3)
Declare the Testate Estate of Linnie Jane Hodges (Sp. Proc. No. 1307)
closed; and (4) Defer the hearing and consideration of the motion for
declaration of heirs in the Testate Estate of Linnie Jane Hodges until the
matters hereinabove set forth are resolved.

This motion is predicated on the fact that there are matters pending before
this court such as (a) the examination already ordered by this Honorable
Court of documents relating to the allegation of Avelina Magno that Charles
Newton Hodges thru written declaration and sworn public statements
renounced, disclaimed and repudiated his life-estate and usufruct over the
estate of Linnie Jane Hodges (b) the urgent motion for accounting and
delivery to the estate of C. N. Hodges of all the assets of the conjugal
partnership of the deceased Linnie Jane Hodges and C. N. Hodges existing as
of May 23, 1957 plus all the rents, emoluments and income therefrom; (c)
various motions to resolve the aforesaid motion; and (d) manifestation of
September 14, 1964, detailing acts of interference of Avelina Magno under
color of title as administratrix of the estate of Linnie Jane Hodges.

These matters, according to the instant motion, are all pre-judicial involving
no issues of facts and only require the resolution of question of law; that in
the motion of October 5, 1963 it is alleged that in a motion dated December
11, 1957 filed by Atty. Leon Gellada as attorney for the executor C. N.
Hodges, the said executor C. N. Hodges is not only part owner of the
properties left as conjugal but also the successor to all the properties left by
the deceased Linnie Jane Hodges.

Said motion of December 11, 1957 was approved by the Court in

consonance with the wishes contained in the last will and testament of Linnie
Jane Hodges.

That on April 21, 1959 this Court approved the inventory and accounting
submitted by C. N. Hodges thru counsel Atty. Leon Gellada in a motion filed
on April 14, 1959 stating therein that executor C. N. Hodges is the only
devisee or legatee of Linnie Jane Hodges in accordance with the last will and
testament already probated by the Court.

That on July 13, 1960 the Court approved the annual statement of accounts
submitted by the executor C. N. Hodges thru his counsel Atty. Gellada on
July 21, 1960 wherein it is stated that the executor, C. N. Hodges is the only
devisee or legatee of the deceased Linnie Jane Hodges; that on May 2, 1961
the Court approved the annual statement of accounts submitted by
executor, C. N. Hodges for the year 1960 which was submitted by Atty.
Gellada on April 20, 1961 wherein it is stated that executor Hodges is the
only devisee or legatee of the deceased Linnie Jane Hodges;

That during the hearing on September 5 and 6, 1963 the estate of C. N.

Hodges claimed all the assets belonging to the deceased spouses Linnie Jane
Hodges and C. N. Hodges situated in the Philippines; that administratrix
Magno has executed illegal acts to the prejudice of the testate estate of C.
N. Hodges.

An opposition (Sp. 1672, Vol. X, pp. 4415-4421) dated April 27, 1966 of
administratrix Magno has been filed asking that the motion be denied for
lack of merit and that the motion for the official declaration of heirs of the
estate of Linnie Jane Hodges be set for presentation and reception of
evidence.

It is alleged in the aforesaid opposition that the examination of documents

which are in the possession of administratrix Magno can be made prior to
the hearing of the motion for the official declaration of heirs of the estate of
Linnie Jane Hodges, during said hearing.

That the matters raised in the PCIB's motion of October 5, 1963 (as well as
the other motion) dated September 14, 1964 have been consolidated for the
purpose of presentation and reception of evidence with the hearing on the
determination of the heirs of the estate of Linnie Jane Hodges. It is further
alleged in the opposition that the motion for the official declaration of heirs
of the estate of Linnie Jane Hodges is the one that constitutes a prejudicial
question to the motions dated October 5 and September 14, 1964 because if
said motion is found meritorious and granted by the Court, the PCIB's
motions of October 5, 1963 and September 14, 1964 will become moot and
academic since they are premised on the assumption and claim that the only
heir of Linnie Jane Hodges was C. N. Hodges.

That the PCIB and counsel are estopped from further questioning the
determination of heirs in the estate of Linnie Jane Hodges at this stage since
it was PCIB as early as January 8, 1965 which filed a motion for official
declaration of heirs of Linnie Jane Hodges that the claim of any heirs of
Linnie Jane Hodges can be determined only in the administration
proceedings over the estate of Linnie Jane Hodges and not that of C. N.
Hodges, since the heirs of Linnie Jane Hodges are claiming her estate and
not the estate of C. N. Hodges.

A reply (Sp. 1672, Vol. X, pp. 4436-4444) dated May 11, 1966 of the PCIB
has been filed alleging that the motion dated April 22, 1966 of the PCIB is
not to seek deferment of the hearing and consideration of the motion for
official declaration of heirs of Linnie Jane Hodges but to declare the testate
estate of Linnie Jane Hodges closed and for administratrix Magno to account
for and deliver to the PCIB all assets of the conjugal partnership of the
deceased spouses which has come to her possession plus all rents and
income.

A rejoinder (Sp. 1672, Vol. X, pp. 4458-4462) of administratrix Magno dated

May 19, 1966 has been filed alleging that the motion dated December 11,
1957 only sought the approval of all conveyances made by C. N. Hodges and
requested the Court authority for all subsequent conveyances that will be
executed by C. N. Hodges; that the order dated December 14, 1957 only
approved the conveyances made by C. N. Hodges; that C. N. Hodges
represented by counsel never made any claim in the estate of Linnie Jane
Hodges and never filed a motion to declare himself as the heir of the said
Linnie Jane Hodges despite the lapse of more than five (5) years after the
death of Linnie Jane Hodges; that it is further alleged in the rejoinder that
there can be no order of adjudication of the estate unless there has been a
prior express declaration of heirs and so far no declaration of heirs in the
estate of Linnie Jane Hodges (Sp. 1307) has been made.

Considering the allegations and arguments in the motion and of the PCIB as
well as those in the opposition and rejoinder of administratrix Magno, the
Court finds the opposition and rejoinder to be well taken for the reason that
so far there has been no official declaration of heirs in the testate estate of
Linnie Jane Hodges and therefore no disposition of her estate.

WHEREFORE, the motion of the PCIB dated April 22, 1966 is hereby DENIED.
(Annex "W", Petition)
In its motion dated November 24, 1966 for the reconsideration of this order, petitioner
alleged inter alia that:

It cannot be over-stressed that the motion of December 11, 1957 was based
on the fact that:

a. Under the last will and testament of the deceased, Linnie Jane
Hodges, the late Charles Newton Hodges was the sole heir
instituted insofar as her properties in the Philippines are
concerned;

b. Said last will and testament vested upon the said late Charles
Newton Hodges rights over said properties which, in sum, spell
ownership, absolute and in fee simple;

c. Said late Charles Newton Hodges was, therefore, "not only

part owner of the properties left as conjugal, but also, the
successor to all the properties left by the deceased Linnie Jane
Hodges.

Likewise, it cannot be over-stressed that the aforesaid motion was granted

by this Honorable Court "for the reasons stated" therein.

Again, the motion of December 11, 1957 prayed that not only "all the sales,
conveyances, leases, and mortgages executed by" the late Charles Newton
Hodges, but also all "the subsequent sales, conveyances, leases, and
mortgages ..." be approved and authorized. This Honorable Court, in its
order of December 14, 1957, "for the reasons stated" in the aforesaid
motion, granted the same, and not only approved all the sales, conveyances,
leases and mortgages of all properties left by the deceased Linnie Jane
Hodges executed by the late Charles Newton Hodges, but also authorized
"all subsequent sales, conveyances, leases and mortgages of the properties
left by the said deceased Linnie Jane Hodges. (Annex "X", Petition)

and reiterated its fundamental pose that the Testate Estate of Linnie Jane Hodges had
already been factually, although not legally, closed with the virtual declaration of Hodges
and adjudication to him, as sole universal heir of all the properties of the estate of his
wife, in the order of December 14, 1957, Annex G. Still unpersuaded, on July 18, 1967,
respondent court denied said motion for reconsideration and held that "the court
believes that there is no justification why the order of October 12, 1966 should be
considered or modified", and, on July 19, 1967, the motion of respondent Magno "for
official declaration of heirs of the estate of Linnie Jane Hodges", already referred to
above, was set for hearing.

In consequence of all these developments, the present petition was filed on August 1,
1967 (albeit petitioner had to pay another docketing fee on August 9, 1967, since the
orders in question were issued in two separate testate estate proceedings, Nos. 1307
and 1672, in the court below).

Together with such petition, there are now pending before Us for resolution herein,
appeals from the following:

1. The order of December 19, 1964 authorizing payment by respondent

Magno of overtime pay, (pp. 221, Green Record on Appeal) together with
the subsequent orders of January 9, 1965, (pp. 231-232,id.) October 27,
1965, (pp. 227, id.) and February 15, 1966 (pp. 455-456, id.) repeatedly
denying motions for reconsideration thereof.

2. The order of August 6, 1965 (pp. 248, id.) requiring that deeds executed
by petitioner to be co-signed by respondent Magno, as well as the order of
October 27, 1965 (pp. 276-277) denying reconsideration.
 3. The order of October 27, 1965 (pp. 292-295, id.) enjoining the deposit of
all collections in a joint account and the same order of February 15, 1966
mentioned in No. 1 above which included the denial of the reconsideration of
this order of October 27, 1965.

4. The order of November 3, 1965 (pp. 313-320, id.) directing the payment

of attorney's fees, fees of the respondent administratrix, etc. and the order
of February 16, 1966 denying reconsideration thereof.

5. The order of November 23, 1965 (pp. 334-335, id.) allowing appellee

Western Institute of Technology to make payments to either one or both of
the administrators of the two estates as well as the order of March 7, 1966
(p. 462, id.) denying reconsideration.

6. The various orders hereinabove earlier enumerated approving deeds of

sale executed by respondent Magno in favor of appellees Carles, Catedral,
Pablito, Guzman, Coronado, Barrido, Causing, Javier, Lucero and Batisanan,
(see pp. 35 to 37 of this opinion), together with the two separate orders
both dated December 2, 1966 (pp. 306-308, and pp. 308-309, Yellow
Record on Appeal) denying reconsideration of said approval.

7. The order of January 3, 1967, on pp. 335-336, Yellow Record on Appeal,

approving similar deeds of sale executed by respondent Magno, as those in
No. 6, in favor of appellees Pacaonsis and Premaylon, as to which no motion
for reconsideration was filed.

8. Lastly, the order of December 2, 1966, on pp. 305-306, Yellow Record on

Appeal, directing petitioner to surrender to appellees Lucero, Batisanan,
Javier, Pablito, Barrido, Catedral, Causing, Guzman, and Coronado, the
certificates of title covering the lands involved in the approved sales, as to
which no motion for reconsideration was filed either.

Strictly speaking, and considering that the above orders deal with different matters, just
as they affect distinctly different individuals or persons, as outlined by petitioner in its
brief as appellant on pp. 12-20 thereof, there are, therefore, thirty-three (33) appeals
before Us, for which reason, petitioner has to pay also thirty-one (31) more docket fees.

It is as well perhaps to state here as elsewhere in this opinion that in connection with
these appeals, petitioner has assigned a total of seventy-eight (LXXVIII) alleged errors,
the respective discussions and arguments under all of them covering also the
fundamental issues raised in respect to the petition for certiorari and prohibition, thus
making it feasible and more 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

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.

THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN

FAVOR OF THE APPELLEE, BELCESAR CAUSING, EXECUTED BY THE
APPELLEE, AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED BY
THE DECEASED, CHARLES NEWTON HODGES, AND THE CONTRACTS TO
SELL COVERING WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME.

LI
 THE LOWER COURT ERRED IN APPROVING THE DEEDS OF SALE IN FAVOR
OF THE APPELLEE, BELCESAR CAUSING, ALTHOUGH HE WAS IN ARREARS
IN THE PAYMENTS AGREED UPON IN THE ORIGINAL CONTRACT TO SELL
WHICH HE EXECUTED WITH THE DECEASED, CHARLES NEWTON HODGES,
IN THE AMOUNT OF P2,337.50.

LII

THE LOWER COURT ERRED IN APPROVING THE DEED OF SALE IN FAVOR OF

THE APPELLEE, BELCESAR CAUSING, ALTHOUGH THE SAME WAS NOT
EXECUTED IN ACCORDANCE WITH THE RULES OF COURT.

LIII to LXI

THE LOWER COURT ERRED IN ORDERING THE APPELLANT, PHILIPPINE

COMMERCIAL AND INDUSTRIAL BANK TO SURRENDER THE OWNER'S
DUPLICATE CERTIFICATES OF TITLE OVER THE RESPECTIVE LOTS COVERED
BY THE DEEDS OF SALE EXECUTED BY THE APPELLEE, AVELINA A. MAGNO,
IN FAVOR OF THE OTHER APPELLEES, JOSE PABLICO, ALFREDO CATEDRAL,
SALVADOR S. GUZMAN, FLRENIA BARRIDO, PURIFICACION CORONADO,
BELCESAR CAUSING, ARITEO THOMAS JAMIR, MAXIMA BATISANAN AND
GRACIANO L. LUCERO.

LXII

THE LOWER COURT ERRED IN RESOLVING THE MOTION OF THE APPELLEE,

WESTERN INSTITUTE OF TECHNOLOGY, DATED NOVEMBER 3, 1965,
WITHOUT ANY COPY THEREOF HAVING BEEN SERVED UPON THE
APPELLANT, PHILIPPINE COMMERCIAL & INDUSTRIAL BANK.

LXIII

THE LOWER COURT ERRED IN HEARING AND CONSIDERING THE MOTION

OF THE APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY, DATED
NOVEMBER 3rd, 1965, ON NOVEMBER 23, 1965, WHEN THE NOTICE FOR
THE HEARING THEREOF WAS FOR NOVEMBER 20, 1965.

LXIV

THE LOWER COURT ERRED IN GRANTING THE APPELLEE, WESTERN

INSTITUTE OF TECHNOLOGY A RELIEF OTHER THAN THAT PRAYED FOR IN
ITS MOTION, DATED NOVEMBER 3, 1965, IN THE ABSENCE OF A PRAYER
FOR GENERAL RELIEF CONTAINED THEREIN.

LXV

THE LOWER COURT ERRED IN ALLOWING THE APPELLEE, WESTERN

INSTITUTE OF TECHNOLOGY, TO CONTINUE PAYMENTS UPON A CONTRACT
TO SELL THE TERMS AND CONDITIONS OF WHICH IT HAS FAILED TO
FULFILL.

LXVI

THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF THE

APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY OVER THE REAL
PROPERTY SUBJECT MATTER OF THE CONTRACT TO SELL IT EXECUTED
WITH THE DECEASED, CHARLES NEWTON HODGES, WHILE ACTING AS A
PROBATE COURT.

LXVII
 LOWER COURT ERRED IN ALLOWING THE CONTINUATION OF PAYMENTS BY
THE APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY, UPON A CONTRACT
TO SELL EXECUTED BY IT AND THE DECEASED, CHARLES NEWTON
HODGES, TO A PERSON OTHER THAN HIS LAWFULLY APPOINTED
ADMINISTRATOR.

LXVIII

THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF RETAINER'S

FEES FROM THE SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE
HODGES, WHEN THERE IS NEITHER SUCH ESTATE NOR ASSETS THEREOF.

LXIX

THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF RETAINER'S

FEES OF LAWYERS OF ALLEGED HEIRS TO THE SUPPOSED ESTATE OF THE
DECEASED, LINNIE JANE HODGES.

LXX

THE LOWER COURT ERRED IN IMPLEMENTING THE ALLEGED AGREEMENT

BETWEEN THE HEIRS OF THE SUPPOSED ESTATE OF THE DECEASED,
LINNIE JANE HODGES, AND THEIR LAWYERS.

LXXI

THE LOWER COURT ERRED IN ORDERING THE PREMATURE DISTRIBUTION

OF ESTATE ASSETS TO ALLEGED HEIRS OR BENEFICIARIES THEREOF, BY
WAY OF RETAINER'S FEES.

LXXII

THE LOWER COURT ERRED IN ORDERING THAT ALL FINAL DEEDS OF SALE
EXECUTED PURSUANT TO CONTRACTS TO SELL ENTERED INTO BY THE
DECEASED, CHARLES NEWTON HODGES, DURING HIS LIFETIME, BE
SIGNED JOINTLY BY THE APPELLEE, AVELINA A. MAGNO, AND THE
APPELLANT, PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, AND NOT BY
THE LATTER ONLY AS THE LAWFULLY APPOINTED ADMINISTRATOR OF HIS
ESTATE.

LXXIII

THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF LEGAL

EXPENSES FROM THE SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE
HODGES, WHEN THERE IS NEITHER SUCH ESTATE NOR ASSETS THEREOF.

LXXIV

THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF LEGAL

EXPENSES OF LAWYERS OF ALLEGED HEIRS TO THE SUPPOSED ESTATE OF
THE DECEASED, LINNIE JANE HODGES.

LXXV

THE LOWER COURT ERRED IN ORDERING THE PREMATURE DISTRIBUTION

OF ESTATE ASSETS TO ALLEGED HEIRS OR BENEFICIARIES THEREOF, BY
WAY OF LEGAL EXPENSES.

LXXVI
 THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF COMPENSATION
TO THE PURPORTED ADMINISTRATRIX OF THE SUPPOSED ESTATE OF THE
DECEASED, LINNIE JANE HODGES, THE INSTANT APPELLEE, AVELINA A.
MAGNO, WHEN THERE IS NEITHER SUCH ESTATE NOR ASSETS THEREOF.

LXXVII

THE LOWER COURT ERRED IN ORDERING THAT THE FUNDS OF THE

TESTATE ESTATE OF THE DECEASED, CHARLES NEWTON HODGES, BE
PLACED IN A JOINT ACCOUNT OF THE APPELLANT, PHILIPPINE COMMERCIAL
AND INDUSTRIAL BANK, AND THE APPELLEE, AVELINA A. MAGNO, WHO IS
A COMPLETE STRANGER TO THE AFORESAID ESTATE.

LXXVIII

THE LOWER COURT ERRED IN ORDERING THAT THE APPELLEE, AVELINA A.

MAGNO, BE GIVEN EQUAL ACCESS TO THE RECORDS OF THE TESTATE
ESTATE OF THE DECEASED, CHARLES NEWTON HODGES, WHEN SHE IS A
COMPLETE STRANGER TO THE AFORESAID ESTATE. (Pp. 73-83, Appellant's
Brief.)

To complete this rather elaborate, and unavoidably extended narration of the factual
setting of these cases, it may also be mentioned that an attempt was made by the heirs
of Mrs. Hodges to have respondent Magno removed as administratrix, with the proposed
appointment of Benito J. Lopez in her place, and that respondent court did actually order
such proposed replacement, but the Court declared the said order of respondent court
violative of its injunction of August 8, 1967, hence without force and effect (see
Resolution of September 8, 1972 and February 1, 1973). Subsequently, Atty. Efrain B.
Trenas, one of the lawyers of said heirs, appeared no longer for the proposed
administrator Lopez but for the heirs themselves, and in a motion dated October 26,
1972 informed the Court that a motion had been filed with respondent court for the
removal of petitioner PCIB as administrator of the estate of C. N. Hodges in Special
Proceedings 1672, which removal motion alleged that 22.968149% of the share of C. N.
Hodges had already been acquired by the heirs of Mrs. Hodges from certain heirs of her
husband. Further, in this connection, in the answer of PCIB to the motion of respondent
Magno to have it declared in contempt for disregarding the Court's resolution of
September 8, 1972 modifying the injunction of August 8, 1967, said petitioner annexed
thereto a joint manifestation and motion, appearing to have been filed with respondent
court, informing said court that in addition to the fact that 22% of the share of C. N.
Hodges had already been bought by the heirs of Mrs. Hodges, as already stated, certain
other heirs of Hodges representing 17.343750% of his estate were joining cause with
the heirs of Mrs. Hodges as against PCIB, thereby making somewhat precarious, if not
possibly untenable, petitioners' continuation as administrator of the Hodges estate.

RESOLUTION OF ISSUES IN THE CERTIORARI AND

PROHIBITION CASES

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 of certiorari and prohibition, pursued by petitioner,
preferable, for purposes of resolving the common basic issues raised in all of them,
despite the conceded availability of appeal. Besides, the settling of such common
fundamental issues would naturally minimize the areas of conflict between the parties
and render more simple the determination of the secondary issues in each of them.
Accordingly, respondent Magno's objection to the present remedy of certiorariand
prohibition must be overruled.

We come now to the errors assigned by petitioner-appellant, Philippine Commercial &

Industrial Bank, (PCIB, for short) in the petition as well as in its main brief as appellant.

III

On Whether or Not There is Still Any Part of the Testate  Estate Mrs. Hodges that may
be Adjudicated to her brothers and sisters as her estate, of which respondent Magno is
the unquestioned Administratrix in special Proceedings 1307.

In the petition, it is the position of PCIB that the respondent court exceeded its
jurisdiction or gravely abused its discretion in further recognizing after December 14,
1957 the existence of the Testate Estate of Linnie Jane Hodges and in sanctioning
purported acts of administration therein of respondent Magno. Main ground for such
posture is that by the aforequoted order of respondent court of said date, Hodges was
already allowed to assert and exercise all his rights as universal heir of his wife pursuant
to the provisions of her will, quoted earlier, hence, nothing else remains to be done in
Special Proceedings 1307 except to formally close it. In other words, the contention of
PCIB is that in view of said order, nothing more than a formal declaration of Hodges as
sole and exclusive heir of his wife and the consequent formal unqualified adjudication to
him of all her estate remain to be done to completely close Special Proceedings 1307,
hence respondent Magno should be considered as having ceased to be Administratrix of
the Testate Estate of Mrs. Hodges since then.

After carefully going over the record, We feel constrained to hold that such pose is
patently untenable from whatever angle it is examined.

To start with, We cannot find anywhere in respondent Order of December 14, 1957 the
sense being read into it by PCIB. The tenor of said order bears no suggestion at all to
such effect. The declaration of heirs and distribution by the probate court of the estate
of a decedent is its most important function, and this Court is not disposed to encourage
judges of probate proceedings to be less than definite, plain and specific in making
orders in such regard, if for no other reason than that all parties concerned, like the
heirs, the creditors, and most of all the government, the devisees and legatees, should
know with certainty what are and when their respective rights and obligations ensuing
from the inheritance or in relation thereto would begin or cease, as the case may be,
thereby avoiding precisely the legal complications and consequent litigations similar to
those that have developed unnecessarily in the present cases. While it is true that in
instances wherein all the parties interested in the estate of a deceased person have
already actually distributed among themselves their respective shares therein to the
satisfaction of everyone concerned and no rights of creditors or third parties are
adversely affected, it would naturally be almost ministerial for the court to issue the final
order of declaration and distribution, still it is inconceivable that the special proceeding
instituted for the purpose may be considered terminated, the respective rights of all the
parties concerned be deemed definitely settled, and the executor or administrator
thereof be regarded as automatically discharged and relieved already of all functions and
responsibilities without the corresponding definite orders of the probate court to such
effect.

Indeed, the law on the matter is specific, categorical and unequivocal. Section 1 of Rule
90 provides:

SECTION 1. When order for distribution of residue made. — When the debts,
funeral charges, and expenses of administration, the allowance to the widow
and inheritance tax, if any, chargeable to the estate in accordance with law
have been paid, the court, on the application of the executor or
administrator, or of a person interested in the estate, and after hearing upon
notice, shall assign the residue of the estate to the persons entitled to the
same, naming them and the proportions, or parts, to which each is entitled,
and such persons may demand and recover their respective shares from the
executor or administrator, or any other person having the same in his
possession. If there is a controversy before the court as to who are the
lawful heirs of the deceased person or as to the distributive shares to which
each person is entitled under the law, the controversy shall be heard and
decided as in ordinary cases.

No distribution shall be allowed until the payment of the obligations above

mentioned has been made or provided for, unless the distributees, or any of
them give a bond, in a sum to be fixed by the court, conditioned for the
payment of said obligations within such time as the court directs.

These provisions cannot mean anything less than that in order that a proceeding for the
settlement of the estate of a deceased may be deemed ready for final closure, (1) there
should have been issued already an order of distribution or assignment of the estate of
the decedent among or to those entitled thereto by will or by law, but (2) such order
shall not be issued until after it is shown that the "debts, funeral expenses, expenses of
administration, allowances, taxes, etc. chargeable to the estate" have been paid, which
is but logical and proper. (3) Besides, such an order is usually issued upon proper and
specific application for the purpose of the interested party or parties, and not of the
court.

... it is only after, and not before, the payment of all debts, funeral charges,
expenses of administration, allowance to the widow, and inheritance tax
shall have been effected that the court should make a declaration of heirs or
of such persons as are entitled by law to the residue. (Moran, Comments on
the Rules of Court, 2nd ed., Vol. II, p. 397, citing Capistrano vs. Nadurata,
49 Phil., 726; Lopez vs. Lopez, 37 Off. Gaz., 3091.) (JIMOGA-ON v.
BELMONTE, 84 Phil. 545, 548) (p. 86, Appellee's Brief)

xxx xxx xxx

Under Section 753 of the Code of Civil Procedure, (corresponding to Section

1, Rule 90) what brings an intestate (or testate) proceeding to a close is the
 order of distribution directing delivery of the residue to the persons entitled
thereto after paying the indebtedness, if any, left by the deceased.
(Santiesteban vs. Santiesteban, 68 Phil. 367, 370.)

In the cases at bar, We cannot discern from the voluminous and varied facts, pleadings
and orders before Us that the above indispensable prerequisites for the declaration of
heirs and the adjudication of the estate of Mrs. Hodges had already been complied with
when the order of December 14, 1957 was issued. As already stated, We are not
persuaded that the proceedings leading to the issuance of said order, constituting barely
of the motion of May 27, 1957, Annex D of the petition, the order of even date, Annex E,
and the motion of December 11, 1957, Annex H, all aforequoted, are what the law
contemplates. We cannot see in the order of December 14, 1957, so much relied upon
by the petitioner, anything more than an explicit approval of "all the sales, conveyances,
leases and mortgages of all the properties left by the deceased Linnie Jane Hodges
executed by the Executor Charles N. Hodges" (after the death of his wife and prior to
the date of the motion), plus a general advance authorization to enable said "Executor
— to execute subsequent sales, conveyances, leases and mortgages of the properties
left the said deceased Linnie Jane Hodges in consonance with wishes conveyed in the
last will and testament of the latter", which, certainly, cannot amount to the order of
adjudication of the estate of the decedent to Hodges contemplated in the law. In fact,
the motion of December 11, 1957 on which the court predicated the order in question
did not pray for any such adjudication at all. What is more, although said motion did
allege that "herein Executor (Hodges) is not only part owner of the properties left as
conjugal, but also, the successor to all the properties left by the deceased Linnie Jane
Hodges", it significantly added that "herein Executor, as Legatee (sic), has the right to
sell, convey, lease or dispose of the properties in the Philippines — during his lifetime",
thereby indicating that what said motion contemplated was nothing more than either the
enjoyment by Hodges of his rights under the particular portion of the dispositions of his
wife's will which were to be operative only during his lifetime or the use of his own share
of the conjugal estate, pending the termination of the proceedings. In other words, the
authority referred to in said motions and orders is in the nature of that contemplated
either in Section 2 of Rule 109 which permits, in appropriate cases, advance or partial
implementation of the terms of a duly probated will before final adjudication or
distribution when the rights of third parties would not be adversely affected thereby or in
the established practice of allowing the surviving spouse to dispose of his own share of
he conjugal estate, pending its final liquidation, when it appears that no creditors of the
conjugal partnership would be prejudiced thereby, (see the Revised Rules of Court by
Francisco, Vol. V-B, 1970 ed. p. 887) albeit, from the tenor of said motions, We are
more inclined to believe that Hodges meant to refer to the former. In any event, We are
fully persuaded that the quoted allegations of said motions read together cannot be
construed as a repudiation of the rights unequivocally established in the will in favor of
Mrs. Hodges' brothers and sisters to whatever have not been disposed of by him up to
his death.

Indeed, nowhere in the record does it appear that the trial court subsequently acted
upon the premise suggested by petitioner. On the contrary, on November 23, 1965,
when the court resolved the motion of appellee Western Institute of Technology by its
order We have quoted earlier, it categorically held that as of said date, November 23,
1965, "in both cases (Special Proceedings 1307 and 1672) there is as yet no judicial
declaration of heirs nor distribution of properties to whomsoever are entitled thereto." In
this connection, it may be stated further against petitioner, by way of some kind of
estoppel, that in its own motion of January 8, 1965, already quoted in full on pages 54-
67 of this decision, it prayed inter alia that the court declare that "C. N. Hodges was the
sole and exclusive heir of the estate of Linnie Jane Hodges", which it would not have
done if it were really convinced that the order of December 14, 1957 was already the
order of adjudication and distribution of her estate. That said motion was later
withdrawn when Magno filed her own motion for determination and adjudication of what
should correspond to the brothers and sisters of Mrs. Hodges does not alter the
indubitable implication of the prayer of the withdrawn motion.
It must be borne in mind that while it is true that Mrs. Hodges bequeathed her whole
estate to her husband and gave him what amounts to full powers of dominion over the
same during his lifetime, she imposed at the same time the condition that whatever
should remain thereof upon his death should go to her brothers and sisters. In effect,
therefore, what was absolutely given to Hodges was only so much of his wife's estate as
he might possibly dispose of during his lifetime; hence, even assuming that by the
allegations in his motion, he did intend to adjudicate the whole estate to himself, as
suggested by petitioner, such unilateral act could not have affected or diminished in any
degree or manner the right of his brothers and sisters-in-law over what would remain
thereof upon his death, for surely, no one can rightly contend that the testamentary
provision in question allowed him to so adjudicate any part of the estate to himself as to
prejudice them. In other words, irrespective of whatever might have been Hodges'
intention in his motions, as Executor, of May 27, 1957 and December 11, 1957, the trial
court's orders granting said motions, even in the terms in which they have been worded,
could not have had the effect of an absolute and unconditional adjudication unto Hodges
of the whole estate of his wife. None of them could have deprived his brothers and
sisters-in-law of their rights under said will. And it may be added here that the fact that
no one appeared to oppose the motions in question may only be attributed, firstly, to
the failure of Hodges to send notices to any of them, as admitted in the motion itself,
and, secondly, to the fact that even if they had been notified, they could not have taken
said motions to be for the final distribution and adjudication of the estate, but merely for
him to be able, pending such final distribution and adjudication, to either exercise during
his lifetime rights of dominion over his wife's estate in accordance with the bequest in
his favor, which, as already observed, may be allowed under the broad terms of Section
2 of Rule 109, or make use of his own share of the conjugal estate. In any event, We do
not believe that the trial court could have acted in the sense pretended by petitioner, not
only because of the clear language of the will but also because none of the interested
parties had been duly notified of the motion and hearing thereof. Stated differently, if
the orders of May 27, 1957 and December 4, 1957 were really intended to be read in
the sense contended by petitioner, We would have no hesitancy in declaring them null
and void.

Petitioner cites the case of Austria vs. Ventenilla, G. R. No. L-10018, September 19,
1956, (unreported but a partial digest thereof appears in 99 Phil. 1069) in support of its
insistence that with the orders of May 27 and December 14, 1957, the closure of Mrs.
Hodges' estate has become a mere formality, inasmuch as said orders amounted to the
order of adjudication and distribution ordained by Section 1 of Rule 90. But the parallel
attempted to be drawn between that case and the present one does not hold. There the
trial court had in fact issued a clear, distinct and express order of adjudication and
distribution more than twenty years before the other heirs of the deceased filed their
motion asking that the administratrix be removed, etc. As quoted in that decision, the
order of the lower court in that respect read as follows:

En orden a la mocion de la administradora, el juzgado la encuentra

procedente bajo la condicion de que no se hara entrega ni adjudicacion de
los bienes a los herederos antes de que estos presten la fianza
correspondiente y de acuerdo con lo prescrito en el Art. 754 del Codigo de
Procedimientos: pues, en autos no aparece que hayan sido nombrados
comisionados de avaluo y reclamaciones. Dicha fianza podra ser por un valor
igual al de los bienes que correspondan a cada heredero segun el
testamento. Creo que no es obice para la terminacion del expediente el
hecho de que la administradora no ha presentado hasta ahora el inventario
de los bienes; pues, segun la ley, estan exentos de esta formalidad os
administradores que son legatarios del residuo o remanente de los bienes y
hayan prestado fianza para responder de las gestiones de su cargo, y
aparece en el testamento que la administradora Alejandra Austria reune
dicha condicion.

POR TODO LO EXPUESTO, el juzgado declara, 1.o: no haber lugar a la

mocion de Ramon Ventenilla y otros; 2.o, declara asimismo que los unicos
herederos del finado Antonio Ventenilla son su esposa Alejandra Austria,
 Maria Ventenilla, hermana del testador, y Ramon Ventenilla, Maria
Ventenilla, Ramon Soriano, Eulalio Soriano, Jose Soriano, Gabriela
Ventenilla, Lorenzo Ventenilla, Felicitas Ventenilla, Eugenio Ventenilla y
Alejandra Ventenilla, en representacion de los difuntos Juan, Tomas,
Catalino y Froilan, hermanos del testador, declarando, ademas que la
heredera Alejandra Austria tiene derecho al remanente de todos los bienes
dejados por el finado, despues de deducir de ellos la porcion que
corresponde a cada uno de sus coherederos, conforme esta mandado en las
clausulas 8.a, 9.a, 10.a, 11.a, 12.a y 13.a del testamento; 3.o, se aprueba
el pago hecho por la administradora de los gastos de la ultima enfermedad y
funerales del testador, de la donacion hecha por el testador a favor de la
Escuela a Publica del Municipio de Mangatarem, y de las misas en sufragio
del alma del finado; 4.o, que una vez prestada la fianza mencionada al
principio de este auto, se haga la entrega y adjudicacion de los bienes,
conforme se dispone en el testamento y se acaba de declarar en este auto;
5.o, y, finalmente, que verificada la adjudicacion, se dara por terminada la
administracion, revelandole toda responsabilidad a la administradora, y
cancelando su fianza.

ASI SE ORDENA.

Undoubtedly, after the issuance of an order of such tenor, the closure of any
proceedings for the settlement of the estate of a deceased person cannot be but
perfunctory.

In the case at bar, as already pointed out above, the two orders relied upon by
petitioner do not appear ex-facie to be of the same tenor and nature as the order just
quoted, and, what is more, the circumstances attendant to its issuance do not suggest
that such was the intention of the court, for nothing could have been more violative of
the will of Mrs. Hodges.

Indeed, to infer from Hodges' said motions and from his statements of accounts for the
years 1958, 1959 and 1960, A Annexes I, K and M, respectively, wherein he repeatedly
claimed that "herein executor (being) the only devisee or legatee of the deceased, in
accordance with the last will and testament already probated," there is "no (other)
person interested in the Philippines of the time and place of examining herein account to
be given notice", an intent to adjudicate unto himself the whole of his wife's estate in an
absolute manner and without regard to the contingent interests of her brothers and
sisters, is to impute bad faith to him, an imputation which is not legally permissible,
much less warranted by the facts of record herein. Hodges knew or ought to have known
that, legally speaking, the terms of his wife's will did not give him such a right.
Factually, there are enough circumstances extant in the records of these cases indicating
that he had no such intention to ignore the rights of his co-heirs. In his very motions in
question, Hodges alleged, thru counsel, that the "deceased Linnie Jane Hodges died
leaving no descendants and ascendants, except brothers and sisters and herein
petitioner, as surviving spouse, to inherit the properties of the decedent", and even
promised that "proper accounting will be had — in all these transactions" which he had
submitted for approval and authorization by the court, thereby implying that he was
aware of his responsibilities vis-a-vis his co-heirs. As alleged by respondent Magno in
her brief as appellee:

Under date of April 14, 1959, C. N. Hodges filed his first "Account by the
Executor" of the estate of Linnie Jane Hodges. In the "Statement of
Networth of Mr. C. N. Hodges and the Estate of Linnie Jane Hodges" as of
December 31, 1958 annexed thereto, C. N. Hodges reported that the
combined conjugal estate earned a net income of P328,402.62, divided
evenly between him and the estate of Linnie Jane Hodges. Pursuant to this,
he filed an "individual income tax return" for calendar year 1958 on the
estate of Linnie Jane Hodges reporting, under oath, the said estate as having
earned income of P164,201.31, exactly one-half of the net income of his
 combined personal assets and that of the estate of Linnie Jane Hodges. (p.
91, Appellee's Brief.)

Under date of July 21, 1960, C. N. Hodges filed his second "Annual
Statement of Account by the Executor" of the estate of Linnie Jane Hodges.
In the "Statement of Networth of Mr. C. N. Hodges and the Estate of Linnie
Jane Hodges" as of December 31, 1959 annexed thereto, C. N. Hodges
reported that the combined conjugal estate earned a net income of
P270,623.32, divided evenly between him and the estate of Linnie Jane
Hodges. Pursuant to this, he filed an "individual income tax return" for
calendar year 1959 on the estate of Linnie Jane Hodges reporting, under
oath, the said estate as having earned income of P135,311.66, exactly one-
half of the net income of his combined personal assets and that of the estate
of Linnie Jane Hodges. (pp. 91-92, id.)

Under date of April 20, 1961, C. N. Hodges filed his third "Annual Statement
of Account by the Executor for the year 1960" of the estate of Linnie Jane
Hodges. In the "Statement of Net Worth of Mr. C. N. Hodges and the Estate
of Linnie Jane Hodges" as of December 31, 1960 annexed thereto, C. N.
Hodges reported that the combined conjugal estate earned a net income of
P314,857.94, divided of Linnie Jane Hodges. Pursuant to this, he filed an
"individual evenly between him and the estate income tax return" for
calendar year 1960 on the estate of Linnie Jane Hodges reporting, under
oath, the said estate as having earned income of P157,428.97, exactly one-
half of the net income of his combined personal assets and that of the estate
of Linnie Jane Hodges. (pp. 92-93, id.)

In the petition for probate that he (Hodges) filed, he listed the seven
brothers and sisters of Linnie Jane as her "heirs" (see p. 2, Green ROA). The
order of the court admitting the will to probate unfortunately omitted one of
the heirs, Roy Higdon (see p. 14, Green ROA). Immediately, C. N. Hodges
filed a verified motion to have Roy Higdon's name included as an heir,
stating that he wanted to straighten the records "in order (that) the heirs of
deceased Roy Higdon may not think or believe they were omitted, and that
they were really and are interested in the estate of deceased Linnie Jane
Hodges".

Thus, he recognized, if in his own way, the separate identity of his wife's estate from his
own share of the conjugal partnership up to the time of his death, more than five years
after that of his wife. He never considered the whole estate as a single one belonging
exclusively to himself. The only conclusion one can gather from this is that he could
have been preparing the basis for the eventual transmission of his wife's estate, or, at
least, so much thereof as he would not have been able to dispose of during his lifetime,
to her brothers and sisters in accordance with her expressed desire, as intimated in his
tax return in the United States to be more extensively referred to anon. And assuming
that he did pay the corresponding estate and inheritance taxes in the Philippines on the
basis of his being sole heir, such payment is not necessarily inconsistent with his
recognition of the rights of his co-heirs. Without purporting to rule definitely on the
matter in these proceedings, We might say here that We are inclined to the view that
under the peculiar provisions of his wife's will, and for purposes of the applicable
inheritance tax laws, Hodges had to be considered as her sole heir, pending the actual
transmission of the remaining portion of her estate to her other heirs, upon the
eventuality of his death, and whatever adjustment might be warranted should there be
any such remainder then is a matter that could well be taken care of by the internal
revenue authorities in due time.

It is to be noted that the lawyer, Atty. Leon P. Gellada, who signed the motions of May
27, 1957 and December 11, 1957 and the aforementioned statements of account was
the very same one who also subsequently signed and filed the motion of December 26,
1962 for the appointment of respondent Magno as "Administratrix of the Estate of Mrs.
Linnie Jane Hodges" wherein it was alleged that "in accordance with the provisions of the
last will and testament of Linnie Jane Hodges, whatever real properties that may remain
at the death of her husband, Charles Newton Hodges, the said properties shall be
equally divided among their heirs." And it appearing that said attorney was Hodges'
lawyer as Executor of the estate of his wife, it stands to reason that his understanding of
the situation, implicit in his allegations just quoted, could somehow be reflective of
Hodges' own understanding thereof.

As a matter of fact, the allegations in the motion of the same Atty. Gellada dated July 1,
1957, a "Request for Inclusion of the Name of Roy Higdon in the Order of the Court
dated July 19, 1957, etc.", reference to which is made in the above quotation from
respondent Magno's brief, are over the oath of Hodges himself, who verified the motion.
Said allegations read:

1. — That the Hon. Court issued orders dated June 29, 1957, ordering the
probate of the will.

2. — That in said order of the Hon. Court, the relatives of the deceased
Linnie Jane Hodges were enumerated. However, in the petition as well as in
the testimony of Executor during the hearing, the name Roy Higdon was
mentioned, but deceased. It was unintentionally omitted the heirs of said
Roy Higdon who are his wife Aline Higdon and son David Higdon, all of age,
and residents of Quinlan, Texas, U.S.A.

3. — That to straighten the records, and in order the heirs of deceased Roy
Higdon may not think or believe they were omitted, and that they were
really and are interested in the estate of deceased Linnie Jane Hodges, it is
requested of the Hon. Court to insert the names of Aline Higdon and David
Higdon, wife and son of deceased Roy Higdon in the said order of the Hon.
Court dated June 29, 1957. (pars. 1 to 3, Annex 2 of Magno's Answer —
Record, p. 260)

As can be seen, these italicized allegations indicate, more or less, the real attitude of
Hodges in regard to the testamentary dispositions of his wife.

In connection with this point of Hodges' intent, We note that there are documents,
copies of which are annexed to respondent Magno's answer, which purportedly contain
Hodges' own solemn declarations recognizing the right of his co-heirs, such as the
alleged tax return he filed with the United States Taxation authorities, identified as
Schedule M, (Annex 4 of her answer) and his supposed affidavit of renunciation, Annex
5. In said Schedule M, Hodges appears to have answered the pertinent question thus:

2a. Had the surviving spouse the right to declare an election between (1) the
provisions made in his or her favor by the will and (11) dower, curtesy or a
statutory interest? (X) Yes ( ) No

2d. Does the surviving spouse contemplate renouncing the will and electing
to take dower, curtesy, or a statutory interest? (X) Yes ( ) No

3. According to the information and belief of the person or persons filing the
return, is any action described under question 1 designed or contemplated? (
) Yes (X) No (Annex 4, Answer — Record, p. 263)

and to have further stated under the item, "Description of property interests passing to
surviving spouse" the following:

None, except for purposes of administering the Estate, paying debts, taxes
and other legal charges. It is the intention of the surviving husband of
deceased to distribute the remaining property and interests of the deceased
in their Community Estate to the devisees and legatees named in the will
when the debts, liabilities, taxes and expenses of administration are finally
determined and paid. (Annex 4, Answer — Record, p. 263)
In addition, in the supposed affidavit of Hodges, Annex 5, it is stated:

I, C. N. Hodges, being duly sworn, on oath affirm that at the time the United
States Estate Tax Return was filed in the Estate of Linnie Jane Hodges on
August 8, 1958, I renounced and disclaimed any and all right to receive the
rents, emoluments and income from said estate, as shown by the statement
contained in Schedule M at page 29 of said return, a copy of which schedule
is attached to this affidavit and made a part hereof.

The purpose of this affidavit is to ratify and confirm, and I do hereby ratify
and confirm, the declaration made in Schedule M of said return and hereby
formally disclaim and renounce any right on my part to receive any of the
said rents, emoluments and income from the estate of my deceased wife,
Linnie Jane Hodges. This affidavit is made to absolve me or my estate from
any liability for the payment of income taxes on income which has accrued
to the estate of Linnie Jane Hodges since the death of the said Linnie Jane
Hodges on May 23, 1957. (Annex 5, Answer — Record, p. 264)

Although it appears that said documents were not duly presented as evidence in the
court below, and We cannot, therefore, rely on them for the purpose of the present
proceedings, still, We cannot close our eyes to their existence in the record nor fail to
note that their tenor jibes with Our conclusion discussed above from the circumstances
related to the orders of May 27 and December 14, 1957. 5 Somehow, these documents,
considering they are supposed to be copies of their originals found in the official files of
the governments of the United States and of the Philippines, serve to lessen any
possible apprehension that Our conclusion from the other evidence of Hodges' manifest
intent vis-a-vis the rights of his co-heirs is without basis in fact.

Verily, with such eloquent manifestations of his good intentions towards the other heirs
of his wife, We find it very hard to believe that Hodges did ask the court and that the
latter agreed that he be declared her sole heir and that her whole estate be adjudicated
to him without so much as just annotating the contingent interest of her brothers and
sisters in what would remain thereof upon his demise. On the contrary, it seems to us
more factual and fairer to assume that Hodges was well aware of his position as
executor of the will of his wife and, as such, had in mind the following admonition made
by the Court in Pamittan vs. Lasam, et al., 60 Phil., 908, at pp. 913-914:

Upon the death of Bernarda in September, 1908, said lands continued to be

conjugal property in the hands of the defendant Lasam. It is provided in
article 1418 of the Civil Code that upon the dissolution of the conjugal
partnership, an inventory shall immediately be made and this court in
construing this provision in connection with section 685 of the Code of Civil
Procedure (prior to its amendment by Act No. 3176 of November 24, 1924)
has repeatedly held that in the event of the death of the wife, the law
imposes upon the husband the duty of liquidating the affairs of the
partnership without delay (desde luego) (Alfonso vs. Natividad, 6 Phil., 240;
Prado vs. Lagera, 7 Phil., 395; De la Rama vs. De la Rama, 7 Phil., 745;
Enriquez vs. Victoria, 10 Phil., 10; Amancio vs. Pardo, 13 Phil., 297; Rojas
vs. Singson Tongson, 17 Phil., 476; Sochayseng vs. Trujillo, 31 Phil., 153;
Molera vs. Molera, 40 Phil., 566; Nable Jose vs. Nable Jose, 41 Phil., 713.)

In the last mentioned case this court quoted with approval the case
of Leatherwood vs. Arnold (66 Texas, 414, 416, 417), in which that court
discussed the powers of the surviving spouse in the administration of the
community property. Attention was called to the fact that the surviving
husband, in the management of the conjugal property after the death of the
wife, was a trustee of unique character who is liable for any fraud committed
by him with relation to the property while he is charged with its
administration. In the liquidation of the conjugal partnership, he had wide
powers (as the law stood prior to Act No. 3176) and the high degree of trust
reposed in him stands out more clearly in view of the fact that he was the
 owner of a half interest in his own right of the conjugal estate which he was
charged to administer. He could therefore no more acquire a title by
prescription against those for whom he was administering the conjugal
estate than could a guardian against his ward or a judicial administrator
against the heirs of estate. Section 38 of Chapter III of the Code of Civil
Procedure, with relation to prescription, provides that "this chapter shall not
apply ... in the case of a continuing and subsisting trust." The surviving
husband in the administration and liquidation of the conjugal estate occupies
the position of a trustee of the highest order and is not permitted by the law
to hold that estate or any portion thereof adversely to those for whose
benefit the law imposes upon him the duty of administration and liquidation.
No liquidation was ever made by Lasam — hence, the conjugal property
which came into his possession on the death of his wife in September, 1908,
still remains conjugal property, a continuing and subsisting trust. He should
have made a liquidation immediately (desde luego). He cannot now be
permitted to take advantage of his own wrong. One of the conditions of title
by prescription (section 41, Code of Civil Procedure) is possession "under a
claim of title exclusive of any other right". For a trustee to make such a
claim would be a manifest fraud.

And knowing thus his responsibilities in the premises, We are not convinced that Hodges
arrogated everything unto himself leaving nothing at all to be inherited by his wife's
brothers and sisters.

PCIB insists, however, that to read the orders of May 27 and December 14, 1957, not as
adjudicatory, but merely as approving past and authorizing future dispositions made by
Hodges in a wholesale and general manner, would necessarily render the said orders
void for being violative of the provisions of Rule 89 governing the manner in which such
dispositions may be made and how the authority therefor and approval thereof by the
probate court may be secured. If We sustained such a view, the result would only be
that the said orders should be declared ineffective either way they are understood,
considering We have already seen it is legally impossible to consider them as
adjudicatory. As a matter of fact, however, what surges immediately to the surface,
relative to PCIB's observations based on Rule 89, is that from such point of view, the
supposed irregularity would involve no more than some non-jurisdictional technicalities
of procedure, which have for their evident fundamental purpose the protection of parties
interested in the estate, such as the heirs, its creditors, particularly the government on
account of the taxes due it; and since it is apparent here that none of such parties are
objecting to said orders or would be prejudiced by the unobservance by the trial court of
the procedure pointed out by PCIB, We find no legal inconvenience in nor impediment to
Our giving sanction to the blanket approval and authority contained in said orders. This
solution is definitely preferable in law and in equity, for to view said orders in the sense
suggested by PCIB would result in the deprivation of substantive rights to the brothers
and sisters of Mrs. Hodges, whereas reading them the other way will not cause any
prejudice to anyone, and, withal, will give peace of mind and stability of rights to the
innocent parties who relied on them in good faith, in the light of the peculiar pertinent
provisions of the will of said decedent.

Now, the inventory submitted by Hodges on May 12, 1958 referred to the estate of his
wife as consisting of "One-half of all the items designated in the balance sheet, copy of
which is hereto attached and marked as "Annex A"." Although, regrettably, no copy of
said Annex A appears in the records before Us, We take judicial notice, on the basis of
the undisputed facts in these cases, that the same consists of considerable real and
other personal kinds of properties. And since, according to her will, her husband was to
be the sole owner thereof during his lifetime, with full power and authority to dispose of
any of them, provided that should there be any remainder upon his death, such
remainder would go to her brothers and sisters, and furthermore, there is no pretension,
much less any proof that Hodges had in fact disposed of all of them, and, on the
contrary, the indications are rather to the effect that he had kept them more or less
intact, it cannot truthfully be said that, upon the death of Hodges, there was no more
estate of Mrs. Hodges to speak of. It is Our conclusion, therefore, that properties do
exist which constitute such estate, hence Special Proceedings 1307 should not yet be
closed.

Neither is there basis for holding that respondent Magno has ceased to be the
Administratrix in said proceeding. There is no showing that she has ever been legally
removed as such, the attempt to replace her with Mr. Benito Lopez without authority
from the Court having been expressly held ineffective by Our resolution of September 8,
1972. Parenthetically, on this last point, PCIB itself is very emphatic in stressing that it
is not questioning said respondent's status as such administratrix. Indeed, it is not clear
that PCIB has any standing to raise any objection thereto, considering it is a complete
stranger insofar as the estate of Mrs. Hodges is concerned.

It is the contention of PCIB, however, that as things actually stood at the time of
Hodges' death, their conjugal partnership had not yet been liquidated and, inasmuch as
the properties composing the same were thus commingled pro indiviso and,
consequently, the properties pertaining to the estate of each of the spouses are not yet
identifiable, it is PCIB alone, as administrator of the estate of Hodges, who should
administer everything, and all that respondent Magno can do for the time being is to
wait until the properties constituting the remaining estate of Mrs. Hodges have been
duly segregated and delivered to her for her own administration. Seemingly, PCIB would
liken the Testate Estate of Linnie Jane Hodges to a party having a claim of ownership to
some properties included in the inventory of an administrator of the estate of a
decedent, (here that of Hodges) and who normally has no right to take part in the
proceedings pending the establishment of his right or title; for which as a rule it is
required that an ordinary action should be filed, since the probate court is without
jurisdiction to pass with finality on questions of title between the estate of the deceased,
on the one hand, and a third party or even an heir claiming adversely against the estate,
on the other.

We do not find such contention sufficiently persuasive. As We see it, the situation
obtaining herein cannot be compared with the claim of a third party the basis of which is
alien to the pending probate proceedings. In the present cases what gave rise to the
claim of PCIB of exclusive ownership by the estate of Hodges over all the properties of
the Hodges spouses, including the share of Mrs. Hodges in the community properties,
were the orders of the trial court issued in the course of the very settlement proceedings
themselves, more specifically, the orders of May 27 and December 14, 1957 so often
mentioned above. In other words, the root of the issue of title between the parties is
something that the court itself has done in the exercise of its probate jurisdiction. And
since in the ultimate analysis, the question of whether or not all the properties herein
involved pertain exclusively to the estate of Hodges depends on the legal meaning and
effect of said orders, the claim that respondent court has no jurisdiction to take
cognizance of and decide the said issue is incorrect. If it was within the competence of
the court to issue the root orders, why should it not be within its authority to declare
their true significance and intent, to the end that the parties may know whether or not
the estate of Mrs. Hodges had already been adjudicated by the court, upon the initiative
of Hodges, in his favor, to the exclusion of the other heirs of his wife instituted in her
will?

At this point, it bears emphasis again that the main cause of all the present problems
confronting the courts and the parties in these cases was the failure of Hodges to
secure, as executor of his wife's estate, from May, 1957 up to the time of his death in
December, 1962, a period of more than five years, the final adjudication of her estate
and the closure of the proceedings. The record is bare of any showing that he ever
exerted any effort towards the early settlement of said estate. While, on the one hand,
there are enough indications, as already discuss that he had intentions of leaving intact
her share of the conjugal properties so that it may pass wholly to his co-heirs upon his
death, pursuant to her will, on the other hand, by not terminating the proceedings, his
interests in his own half of the conjugal properties remained commingled pro-indiviso
with those of his co-heirs in the other half. Obviously, such a situation could not be
conducive to ready ascertainment of the portion of the inheritance that should appertain
to his co-heirs upon his death. Having these considerations in mind, it would be giving a
premium for such procrastination and rather unfair to his co-heirs, if the administrator of
his estate were to be given exclusive administration of all the properties in question,
which would necessarily include the function of promptly liquidating the conjugal
partnership, thereby identifying and segregating without unnecessary loss of time which
properties should be considered as constituting the estate of Mrs. Hodges, the remainder
of which her brothers and sisters are supposed to inherit equally among themselves.

To be sure, an administrator is not supposed to represent the interests of any particular

party and his acts are deemed to be objectively for the protection of the rights of
everybody concerned with the estate of the decedent, and from this point of view, it
maybe said that even if PCIB were to act alone, there should be no fear of undue
disadvantage to anyone. On the other hand, however, it is evidently implicit in section 6
of Rule 78 fixing the priority among those to whom letters of administration should be
granted that the criterion in the selection of the administrator is not his impartiality
alone but, more importantly, the extent of his interest in the estate, so much so that the
one assumed to have greater interest is preferred to another who has less. Taking both
of these considerations into account, inasmuch as, according to Hodges' own inventory
submitted by him as Executor of the estate of his wife, practically all their properties
were conjugal which means that the spouses have equal shares therein, it is but logical
that both estates should be administered jointly by representatives of both, pending
their segregation from each other. Particularly is such an arrangement warranted
because the actuations so far of PCIB evince a determined, albeit groundless, intent to
exclude the other heirs of Mrs. Hodges from their inheritance. Besides, to allow PCIB,
the administrator of his estate, to perform now what Hodges was duty bound to do as
executor is to violate the spirit, if not the letter, of Section 2 of Rule 78 which expressly
provides that "The executor of an executor shall not, as such, administer the estate of
the first testator." It goes without saying that this provision refers also to the
administrator of an executor like PCIB here.

We are not unmindful of the fact that under Section 2 of Rule 73, "When the marriage is
dissolved by the death of the husband or wife, the community property shall be
inventoried, administered, and liquidated, and the debts thereof paid, in the testate or
intestate proceedings of the deceased spouse. If both spouses have died, the conjugal
partnership shall be liquidated in the testate or intestate proceedings of either." Indeed,
it is true that the last sentence of this provision allows or permits the conjugal
partnership of spouses who are both deceased to be settled or liquidated in the testate
or intestate proceedings of either, but precisely because said sentence allows or permits
that the liquidation be made in either proceeding, it is a matter of sound judicial
discretion in which one it should be made. After all, the former rule referring to the
administrator of the husband's estate in respect to such liquidation was done away with
by Act 3176, the pertinent provisions of which are now embodied in the rule just cited.

Thus, it can be seen that at the time of the death of Hodges, there was already the
pending judicial settlement proceeding of the estate of Mrs. Hodges, and, more
importantly, that the former was the executor of the latter's will who had, as such, failed
for more than five years to see to it that the same was terminated earliest, which was
not difficult to do, since from ought that appears in the record, there were no serious
obstacles on the way, the estate not being indebted and there being no immediate heirs
other than Hodges himself. Such dilatory or indifferent attitude could only spell possible
prejudice of his co-heirs, whose rights to inheritance depend entirely on the existence of
any remainder of Mrs. Hodges' share in the community properties, and who are now
faced with the pose of PCIB that there is no such remainder. Had Hodges secured as
early as possible the settlement of his wife's estate, this problem would not arisen. All
things considered, We are fully convinced that the interests of justice will be better
served by not permitting or allowing PCIB or any administrator of the estate of Hodges
exclusive administration of all the properties in question. We are of the considered
opinion and so hold that what would be just and proper is for both administrators of the
two estates to act conjointly until after said estates have been segregated from each
other.
At this juncture, it may be stated that we are not overlooking the fact that it is PCIB's
contention that, viewed as a substitution, the testamentary disposition in favor of Mrs.
Hodges' brothers and sisters may not be given effect. To a certain extent, this
contention is correct. Indeed, legally speaking, Mrs. Hodges' will provides neither for a
simple or vulgar substitution under Article 859 of the Civil Code nor for a
fideicommissary substitution under Article 863 thereof. There is no vulgar substitution
therein because there is no provision for either (1) predecease of the testator by the
designated heir or (2) refusal or (3) incapacity of the latter to accept the inheritance, as
required by Article 859; and neither is there a fideicommissary substitution therein
because no obligation is imposed thereby upon Hodges to preserve the estate or any
part thereof for anyone else. But from these premises, it is not correct to jump to the
conclusion, as PCIB does, that the testamentary dispositions in question are therefore
inoperative and invalid.

The error in PCIB's position lies simply in the fact that it views the said disposition
exclusively in the light of substitutions covered by the Civil Code section on that subject,
(Section 3, Chapter 2, Title IV, Book III) when it is obvious that substitution occurs only
when another heir is appointed in a will "so that he may enter into inheritance in default
of the heir originally instituted," (Article 857, id.) and, in the present case, no such
possible default is contemplated. The brothers and sisters of Mrs. Hodges are not
substitutes for Hodges because, under her will, they are not to inherit what Hodges
cannot, would not or may not inherit, but what he would not dispose of from his
inheritance; rather, therefore, they are also heirs instituted simultaneously with Hodges,
subject, however, to certain conditions, partially resolutory insofar as Hodges was
concerned and correspondingly suspensive with reference to his brothers and sisters-in-
law. It is partially resolutory, since it bequeaths unto Hodges the whole of her estate to
be owned and enjoyed by him as universal and sole heir with absolute dominion over
them6 only during his lifetime, which means that while he could completely and
absolutely dispose of any portion thereof inter vivos to anyone other than himself, he
was not free to do so mortis causa, and all his rights to what might remain upon his
death would cease entirely upon the occurrence of that contingency, inasmuch as the
right of his brothers and sisters-in-law to the inheritance, although vested already upon
the death of Mrs. Hodges, would automatically become operative upon the occurrence of
the death of Hodges in the event of actual existence of any remainder of her estate
then.

Contrary to the view of respondent Magno, however, it was not the usufruct alone of her
estate, as contemplated in Article 869 of the Civil Code, that she bequeathed to Hodges
during his lifetime, but the full ownership thereof, although the same was to last also
during his lifetime only, even as there was no restriction whatsoever against his
disposing or conveying the whole or any portion thereof to anybody other than himself.
The Court sees no legal impediment to this kind of institution, in this jurisdiction or
under Philippine law, except that it cannot apply to the legitime of Hodges as the
surviving spouse, consisting of one-half of the estate, considering that Mrs. Hodges had
no surviving ascendants nor descendants. (Arts. 872, 900, and 904, New Civil Code.)

But relative precisely to the question of how much of Mrs. Hodges' share of the conjugal
partnership properties may be considered as her estate, the parties are in disagreement
as to how Article 16 of the Civil Code7 should be applied. On the one hand, petitioner
claims that inasmuch as Mrs. Hodges was a resident of the Philippines at the time of her
death, under said Article 16, construed in relation to the pertinent laws of Texas and the
principle of renvoi, what should be applied here should be the rules of succession under
the Civil Code of the Philippines, and, therefore, her estate could consist of no more than
one-fourth of the said conjugal properties, the other fourth being, as already explained,
the legitime of her husband (Art. 900, Civil Code) which she could not have disposed of
nor burdened with any condition (Art. 872, Civil Code). On the other hand, respondent
Magno denies that Mrs. Hodges died a resident of the Philippines, since allegedly she
never changed nor intended to change her original residence of birth in Texas, United
States of America, and contends that, anyway, regardless of the question of her
residence, she being indisputably a citizen of Texas, under said Article 16 of the Civil
Code, the distribution of her estate is subject to the laws of said State which, according
to her, do not provide for any legitime, hence, the brothers and sisters of Mrs. Hodges
are entitled to the remainder of the whole of her share of the conjugal partnership
properties consisting of one-half thereof. Respondent Magno further maintains that, in
any event, Hodges had renounced his rights under the will in favor of his co-heirs, as
allegedly proven by the documents touching on the point already mentioned earlier, the
genuineness and legal significance of which petitioner seemingly questions. Besides, the
parties are disagreed as to what the pertinent laws of Texas provide. In the interest of
settling the estates herein involved soonest, it would be best, indeed, if these conflicting
claims of the parties were determined in these proceedings. The Court regrets, however,
that it cannot do so, for the simple reason that neither the evidence submitted by the
parties in the court below nor their discussion, in their respective briefs and memoranda
before Us, of their respective contentions on the pertinent legal issues, of grave
importance as they are, appear to Us to be adequate enough to enable Us to render an
intelligent comprehensive and just resolution. For one thing, there is no clear and
reliable proof of what in fact the possibly applicable laws of Texas are. 7* Then also, the
genuineness of documents relied upon by respondent Magno is disputed. And there are a
number of still other conceivable related issues which the parties may wish to raise but
which it is not proper to mention here. In Justice, therefore, to all the parties concerned,
these and all other relevant matters should first be threshed out fully in the trial court in
the proceedings hereafter to be held therein for the purpose of ascertaining and
adjudicating and/or distributing the estate of Mrs. Hodges to her heirs in accordance
with her duly probated will.

To be more explicit, all that We can and do decide in connection with the petition
for certiorari and prohibition are: (1) that regardless of which corresponding laws are
applied, whether of the Philippines or of Texas, and taking for granted either of the
respective contentions of the parties as to provisions of the latter,8 and regardless also
of whether or not it can be proven by competent evidence that Hodges renounced his
inheritance in any degree, it is easily and definitely discernible from the inventory
submitted by Hodges himself, as Executor of his wife's estate, that there are properties
which should constitute the estate of Mrs. Hodges and ought to be disposed of or
distributed among her heirs pursuant to her will in said Special Proceedings 1307; (2)
that, more specifically, inasmuch as the question of what are the pertinent laws of Texas
applicable to the situation herein is basically one of fact, and, considering that the sole
difference in the positions of the parties as to the effect of said laws has reference to the
supposed legitime of Hodges — it being the stand of PCIB that Hodges had such a
legitime whereas Magno claims the negative - it is now beyond controversy for all future
purposes of these proceedings that whatever be the provisions actually of the laws of
Texas applicable hereto, the estate of Mrs. Hodges is at least, one-fourth of the conjugal
estate of the spouses; the existence and effects of foreign laws being questions of fact,
and it being the position now of PCIB that the estate of Mrs. Hodges, pursuant to the
laws of Texas, should only be one-fourth of the conjugal estate, such contention
constitutes an admission of fact, and consequently, it would be in estoppel in any further
proceedings in these cases to claim that said estate could be less, irrespective of what
might be proven later to be actually the provisions of the applicable laws of Texas; (3)
that Special Proceedings 1307 for the settlement of the testate estate of Mrs. Hodges
cannot be closed at this stage and should proceed to its logical conclusion, there having
been no proper and legal adjudication or distribution yet of the estate therein involved;
and (4) that respondent Magno remains and continues to be the Administratrix therein.
Hence, nothing in the foregoing opinion is intended to resolve the issues which, as
already stated, are not properly before the Court now, namely, (1) whether or not
Hodges had in fact and in law waived or renounced his inheritance from Mrs. Hodges, in
whole or in part, and (2) assuming there had been no such waiver, whether or not, by
the application of Article 16 of the Civil Code, and in the light of what might be the
applicable laws of Texas on the matter, the estate of Mrs. Hodges is more than the one-
fourth declared above. As a matter of fact, even our finding above about the existence
of properties constituting the estate of Mrs. Hodges rests largely on a general appraisal
of the size and extent of the conjugal partnership gathered from reference made thereto
by both parties in their briefs as well as in their pleadings included in the records on
appeal, and it should accordingly yield, as to which exactly those properties are, to the
more concrete and specific evidence which the parties are supposed to present in
support of their respective positions in regard to the foregoing main legal and factual
issues. In the interest of justice, the parties should be allowed to present such further
evidence in relation to all these issues in a joint hearing of the two probate proceedings
herein involved. After all, the court a quo has not yet passed squarely on these issues,
and it is best for all concerned that it should do so in the first instance.

Relative to Our holding above that the estate of Mrs. Hodges cannot be less than the
remainder of one-fourth of the conjugal partnership properties, it may be mentioned
here that during the deliberations, the point was raised as to whether or not said holding
might be inconsistent with Our other ruling here also that, since there is no reliable
evidence as to what are the applicable laws of Texas, U.S.A. "with respect to the order
of succession and to the amount of successional rights" that may be willed by a testator
which, under Article 16 of the Civil Code, are controlling in the instant cases, in view of
the undisputed Texan nationality of the deceased Mrs. Hodges, these cases should be
returned to the court a quo, so that the parties may prove what said law provides, it is
premature for Us to make any specific ruling now on either the validity of the
testamentary dispositions herein involved or the amount of inheritance to which the
brothers and sisters of Mrs. Hodges are entitled. After nature reflection, We are of the
considered view that, at this stage and in the state of the records before Us, the feared
inconsistency is more apparent than real. Withal, it no longer lies in the lips of petitioner
PCIB to make any claim that under the laws of Texas, the estate of Mrs. Hodges could in
any event be less than that We have fixed above.

It should be borne in mind that as above-indicated, the question of what are the laws of
Texas governing the matters herein issue is, in the first instance, one of fact, not of law.
Elementary is the rule that foreign laws may not be taken judicial notice of and have to
be proven like any other fact in dispute between the parties in any proceeding, with the
rare exception in instances when the said laws are already within the actual knowledge
of the court, such as when they are well and generally known or they have been actually
ruled upon in other cases before it and none of the parties concerned do not claim
otherwise. (5 Moran, Comments on the Rules of Court, p. 41, 1970 ed.) In Fluemer vs.
Hix, 54 Phil. 610, it was held:

It is the theory of the petitioner that the alleged will was executed in Elkins West
Virginia, on November 3, 1925, by Hix who had his residence in that jurisdiction, and
that the laws of West Virginia govern. To this end, there was submitted a copy of section
3868 of Acts 1882, c. 84 as found in West Virginia Code, Annotated, by Hogg Charles E.,
vol. 2, 1914, p. 1960, and as certified to by the Director of the National Library. But this
was far from a compliance with the law. The laws of a foreign jurisdiction do not prove
themselves in our courts. The courts of the Philippine Islands are not authorized to take
judicial notice of the laws of the various States of the American Union. Such laws must
be proved as facts. (In re Estate of Johnson [1918], 39 Phil., 156.) Here the
requirements of the law were not met. There was no showing that the book from which
an extract was taken was printed or published under the authority of the State of West
Virginia, as provided in section 300 of the Code of Civil Procedure. Nor was the extract
from the law attested by the certificate of the officer having charge of the original, under
the seal of the State of West Virginia, as provided in section 301 of the Code of Civil
Procedure. No evidence was introduced to show that the extract from the laws of West
Virginia was in force at the time the alleged will was executed."

No evidence of the nature thus suggested by the Court may be found in the records of
the cases at bar. Quite to the contrary, the parties herein have presented opposing
versions in their respective pleadings and memoranda regarding the matter. And even if
We took into account that in Aznar vs. Garcia, the Court did make reference to certain
provisions regarding succession in the laws of Texas, the disparity in the material dates
of that case and the present ones would not permit Us to indulge in the hazardous
conjecture that said provisions have not been amended or changed in the meantime.

On the other hand, in In re Estate of Johnson, 39 Phil. 156, We held:

 Upon the other point — as to whether the will was executed in conformity
with the statutes of the State of Illinois — we note that it does not
affirmatively appear from the transcription of the testimony adduced in the
trial court that any witness was examined with reference to the law of Illinois
on the subject of the execution of will. The trial judge no doubt was satisfied
that the will was properly executed by examining section 1874 of the
Revised Statutes of Illinois, as exhibited in volume 3 of Starr & Curtis's
Annotated Illinois Statutes, 2nd ed., p. 426; and he may have assumed that
he could take judicial notice of the laws of Illinois under section 275 of the
Code of Civil Procedure. If so, he was in our opinion mistaken. That section
authorizes the courts here to take judicial notice, among other things, of the
acts of the legislative department of the United States. These words clearly
have reference to Acts of the Congress of the United States; and we would
hesitate to hold that our courts can, under this provision, take judicial notice
of the multifarious laws of the various American States. Nor do we think that
any such authority can be derived from the broader language, used in the
same section, where it is said that our courts may take judicial notice of
matters of public knowledge "similar" to those therein enumerated. The
proper rule we think is to require proof of the statutes of the States of the
American Union whenever their provisions are determinative of the issues in
any action litigated in the Philippine courts.

Nevertheless, even supposing that the trial court may have erred in taking
judicial notice of the law of Illinois on the point in question, such error is not
now available to the petitioner, first, because the petition does not state any
fact from which it would appear that the law of Illinois is different from what
the court found, and, secondly, because the assignment of error and
argument for the appellant in this court raises no question based on such
supposed error. Though the trial court may have acted upon pure conjecture
as to the law prevailing in the State of Illinois, its judgment could not be set
aside, even upon application made within six months under section 113 of
the Code of Civil Procedure, unless it should be made to appear affirmatively
that the conjecture was wrong. The petitioner, it is true, states in general
terms that the will in question is invalid and inadequate to pass real and
personal property in the State of Illinois, but this is merely a conclusion of
law. The affidavits by which the petition is accompanied contain no reference
to the subject, and we are cited to no authority in the appellant's brief which
might tend to raise a doubt as to the correctness of the conclusion of the
trial court. It is very clear, therefore, that this point cannot be urged as of
serious moment.

It is implicit in the above ruling that when, with respect to certain aspects of the foreign
laws concerned, the parties in a given case do not have any controversy or are more or
less in agreement, the Court may take it for granted for the purposes of the particular
case before it that the said laws are as such virtual agreement indicates, without the
need of requiring the presentation of what otherwise would be the competent evidence
on the point. Thus, in the instant cases wherein it results from the respective
contentions of both parties that even if the pertinent laws of Texas were known and to
be applied, the amount of the inheritance pertaining to the heirs of Mrs. Hodges is as We
have fixed above, the absence of evidence to the effect that, actually and in fact, under
said laws, it could be otherwise is of no longer of any consequence, unless the purpose
is to show that it could be more. In other words, since PCIB, the petitioner-appellant,
concedes that upon application of Article 16 of the Civil Code and the pertinent laws of
Texas, the amount of the estate in controversy is just as We have determined it to be,
and respondent-appellee is only claiming, on her part, that it could be more, PCIB may
not now or later pretend differently.

To be more concrete, on pages 20-21 of its petition herein, dated July 31, 1967, PCIB
states categorically:
 Inasmuch as Article 16 of the Civil Code provides that "intestate and
testamentary successions both with respect to the order of succession and to
the amount of successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national law of the person
whose succession is under consideration, whatever may be the nature of the
property and regardless of the country wherein said property may be found",
while the law of Texas (the Hodges spouses being nationals of U.S.A., State
of Texas), in its conflicts of law rules, provides that the domiciliary law (in
this case Philippine law) governs the testamentary dispositions and
successional rights over movables or personal properties, while the law of
the situs (in this case also Philippine law with respect to all Hodges
properties located in the Philippines), governs with respect to immovable
properties, and applying therefore the 'renvoi doctrine' as enunciated and
applied by this Honorable Court in the case of In re Estate of Christensen
(G.R. No. L-16749, Jan. 31, 1963), there can be no question that Philippine
law governs the testamentary dispositions contained in the Last Will and
Testament of the deceased Linnie Jane Hodges, as well as the successional
rights to her estate, both with respect to movables, as well as to
immovables situated in the Philippines.

In its main brief dated February 26, 1968, PCIB asserts:

The law governing successional rights.

As recited above, there is no question that the deceased, Linnie Jane

Hodges, was an American citizen. There is also no question that she was a
national of the State of Texas, U.S.A. Again, there is likewise no question
that she had her domicile of choice in the City of Iloilo, Philippines, as this
has already been pronounced by the above-cited orders of the lower court,
pronouncements which are by now res adjudicata (par. [a], See. 49, Rule
39, Rules of Court; In re Estate of Johnson, 39 Phil. 156).

Article 16 of the Civil Code provides:

"Real property as well as personal property is subject to the law of the

country where it is situated.

However, intestate and testamentary successions, both with respect to the

order of succession and to the amount of successional rights and to the
intrinsic validity of testamentary provisions, shall be regulated by the
national law of the person whose succession is under consideration,
whatever may be the nature of the property and regardless of the country
wherein said property may be found."

Thus the aforecited provision of the Civil Code points towards the national
law of the deceased, Linnie Jane Hodges, which is the law of Texas, as
governing succession "both with respect to the order of succession and to
the amount of successional rights and to the intrinsic validity of
testamentary provisions ...". But the law of Texas, in its conflicts of law
rules, provides that the domiciliary law governs the testamentary
dispositions and successional rights over movables or personal property,
while the law of the situs governs with respect to immovable property. Such
that with respect to both movable property, as well as immovable property
situated in the Philippines, the law of Texas points to the law of the
Philippines.

Applying, therefore, the so-called "renvoi doctrine", as enunciated and

applied by this Honorable Court in the case of "In re Christensen" (G.R. No.
L-16749, Jan. 31, 1963), there can be no question that Philippine law
governs the testamentary provisions in the Last Will and Testament of the
deceased Linnie Jane Hodges, as well as the successional rights to her
 estate, both with respect to movables, as well as immovables situated in the
Philippines.

The subject of successional rights.

Under Philippine law, as it is under the law of Texas, the conjugal or

community property of the spouses, Charles Newton Hodges and Linnie Jane
Hodges, upon the death of the latter, is to be divided into two, one-half
pertaining to each of the spouses, as his or her own property. Thus, upon
the death of Linnie Jane Hodges, one-half of the conjugal partnership
property immediately pertained to Charles Newton Hodges as his own share,
and not by virtue of any successional rights. There can be no question about
this.

Again, Philippine law, or more specifically, Article 900 of the Civil Code
provides:

If the only survivor is the widow or widower, she or he shall be

entitled to one-half of the hereditary estate of the deceased
spouse, and the testator may freely dispose of the other half.

If the marriage between the surviving spouse and the testator

was solemnized in articulo mortis, and the testator died within
three months from the time of the marriage, the legitime of the
surviving spouse as the sole heir shall be one-third of the
hereditary estate, except when they have been living as husband
and wife for more than five years. In the latter case, the legitime
of the surviving spouse shall be that specified in the preceding
paragraph.

This legitime of the surviving spouse cannot be burdened by a

fideicommisary substitution (Art. 864, Civil code), nor by any charge,
condition, or substitution (Art, 872, Civil code). It is clear, therefore, that in
addition to one-half of the conjugal partnership property as his own conjugal
share, Charles Newton Hodges was also immediately entitled to one-half of
the half conjugal share of the deceased, Linnie Jane Hodges, or one-fourth of
the entire conjugal property, as his legitime.

One-fourth of the conjugal property therefore remains at issue.

In the summary of its arguments in its memorandum dated April 30, 1968, the following
appears:

Briefly, the position advanced by the petitioner is:

a. That the Hodges spouses were domiciled legally in the Philippines (pp. 19-
20, petition). This is now a matter of res adjudicata (p. 20, petition).

b. That under Philippine law, Texas law, and the renvoi doctrine, Philippine
law governs the successional rights over the properties left by the deceased,
Linnie Jane Hodges (pp. 20-21, petition).

c. That under Philippine as well as Texas law, one-half of the Hodges

properties pertains to the deceased, Charles Newton Hodges (p. 21,
petition). This is not questioned by the respondents.

d. That under Philippine law, the deceased, Charles Newton Hodges,

automatically inherited one-half of the remaining one-half of the Hodges
properties as his legitime (p. 21, petition).
 e. That the remaining 25% of the Hodges properties was inherited by the
deceased, Charles Newton Hodges, under the will of his deceased spouse
(pp. 22-23, petition). Upon the death of Charles Newton Hodges, the
substitution 'provision of the will of the deceased, Linnie Jane Hodges, did
not operate because the same is void (pp. 23-25, petition).

f. That the deceased, Charles Newton Hodges, asserted his sole ownership of
the Hodges properties and the probate court sanctioned such assertion (pp.
25-29, petition). He in fact assumed such ownership and such was the
status of the properties as of the time of his death (pp. 29-34, petition).

Of similar tenor are the allegations of PCIB in some of its pleadings quoted in the earlier
part of this option.

On her part, it is respondent-appellee Magno's posture that under the laws of Texas,
there is no system of legitime, hence the estate of Mrs. Hodges should be one-half of all
the conjugal properties.

It is thus unquestionable that as far as PCIB is concerned, the application to these cases
of Article 16 of the Civil Code in relation to the corresponding laws of Texas would result
in that the Philippine laws on succession should control. On that basis, as We have
already explained above, the estate of Mrs. Hodges is the remainder of one-fourth of the
conjugal partnership properties, considering that We have found that there is no legal
impediment to the kind of disposition ordered by Mrs. Hodges in her will in favor of her
brothers and sisters and, further, that the contention of PCIB that the same constitutes
an inoperative testamentary substitution is untenable. As will be recalled, PCIB's position
that there is no such estate of Mrs. Hodges is predicated exclusively on two propositions,
namely: (1) that the provision in question in Mrs. Hodges' testament violates the rules
on substitution of heirs under the Civil Code and (2) that, in any event, by the orders of
the trial court of May 27, and December 14, 1957, the trial court had already finally and
irrevocably adjudicated to her husband the whole free portion of her estate to the
exclusion of her brothers and sisters, both of which poses, We have overruled. Nowhere
in its pleadings, briefs and memoranda does PCIB maintain that the application of the
laws of Texas would result in the other heirs of Mrs. Hodges not inheriting anything
under her will. And since PCIB's representations in regard to the laws of Texas virtually
constitute admissions of fact which the other parties and the Court are being made to
rely and act upon, PCIB is "not permitted to contradict them or subsequently take a
position contradictory to or inconsistent with them." (5 Moran, id, p. 65, citing Cunanan
vs. Amparo, 80 Phil. 227; Sta. Ana vs. Maliwat, L-23023, Aug. 31, 1968, 24 SCRA
1018).

Accordingly, the only question that remains to be settled in the further proceedings
hereby ordered to be held in the court below is how much more than as fixed above is
the estate of Mrs. Hodges, and this would depend on (1) whether or not the applicable
laws of Texas do provide in effect for more, such as, when there is no legitime provided
therein, and (2) whether or not Hodges has validly waived his whole inheritance from
Mrs. Hodges.

In the course of the deliberations, it was brought out by some members of the Court
that to avoid or, at least, minimize further protracted legal controversies between the
respective heirs of the Hodges spouses, it is imperative to elucidate on the possible
consequences of dispositions made by Hodges after the death of his wife from the mass
of the unpartitioned estates without any express indication in the pertinent documents
as to whether his intention is to dispose of part of his inheritance from his wife or part of
his own share of the conjugal estate as well as of those made by PCIB after the death of
Hodges. After a long discussion, the consensus arrived at was as follows: (1) any such
dispositions made gratuitously in favor of third parties, whether these be individuals,
corporations or foundations, shall be considered as intended to be of properties
constituting part of Hodges' inheritance from his wife, it appearing from the tenor of his
motions of May 27 and December 11, 1957 that in asking for general authority to make
sales or other disposals of properties under the jurisdiction of the court, which include
his own share of the conjugal estate, he was not invoking particularly his right over his
own share, but rather his right to dispose of any part of his inheritance pursuant to the
will of his wife; (2) as regards sales, exchanges or other remunerative transfers, the
proceeds of such sales or the properties taken in by virtue of such exchanges, shall be
considered as merely the products of "physical changes" of the properties of her estate
which the will expressly authorizes Hodges to make, provided that whatever of said
products should remain with the estate at the time of the death of Hodges should go to
her brothers and sisters; (3) the dispositions made by PCIB after the death of Hodges
must naturally be deemed as covering only the properties belonging to his estate
considering that being only the administrator of the estate of Hodges, PCIB could not
have disposed of properties belonging to the estate of his wife. Neither could such
dispositions be considered as involving conjugal properties, for the simple reason that
the conjugal partnership automatically ceased when Mrs. Hodges died, and by the
peculiar provision of her will, under discussion, the remainder of her share descended
also automatically upon the death of Hodges to her brothers and sisters, thus outside of
the scope of PCIB's administration. Accordingly, these construction of the will of Mrs.
Hodges should be adhered to by the trial court in its final order of adjudication and
distribution and/or partition of the two estates in question.

THE APPEALS

A cursory examination of the seventy-eight assignments of error in appellant PCIB's

brief would readily reveal that all of them are predicated mainly on the contention that
inasmuch as Hodges had already adjudicated unto himself all the properties constituting
his wife's share of the conjugal partnership, allegedly with the sanction of the trial court
per its order of December 14, 1957, there has been, since said date, no longer any
estate of Mrs. Hodges of which appellee Magno could be administratrix, hence the
various assailed orders sanctioning her actuations as such are not in accordance with
law. Such being the case, with the foregoing resolution holding such posture to be
untenable in fact and in law and that it is in the best interest of justice that for the time
being the two estates should be administered conjointly by the respective administrators
of the two estates, it should follow that said assignments of error have lost their
fundamental reasons for being. There are certain matters, however, relating peculiarly
to the respective orders in question, if commonly among some of them, which need
further clarification. For instance, some of them authorized respondent Magno to act
alone or without concurrence of PCIB. And with respect to many of said orders, PCIB
further claims that either the matters involved were not properly within the probate
jurisdiction of the trial court or that the procedure followed was not in accordance with
the rules. Hence, the necessity of dealing separately with the merits of each of the
appeals.

Indeed, inasmuch as the said two estates have until now remained commingled pro-
indiviso, due to the failure of Hodges and the lower court to liquidate the conjugal
partnership, to recognize appellee Magno as Administratrix of the Testate Estate of Mrs.
Hodges which is still unsegregated from that of Hodges is not to say, without any
qualification, that she was therefore authorized to do and perform all her acts
complained of in these appeals, sanctioned though they might have been by the trial
court. As a matter of fact, it is such commingling pro-indiviso of the two estates that
should deprive appellee of freedom to act independently from PCIB, as administrator of
the estate of Hodges, just as, for the same reason, the latter should not have authority
to act independently from her. And considering that the lower court failed to adhere
consistently to this basic point of view, by allowing the two administrators to act
independently of each other, in the various instances already noted in the narration of
facts above, the Court has to look into the attendant circumstances of each of the
appealed orders to be able to determine whether any of them has to be set aside or they
may all be legally maintained notwithstanding the failure of the court a quo to observe
the pertinent procedural technicalities, to the end only that graver injury to the
substantive rights of the parties concerned and unnecessary and undesirable
proliferation of incidents in the subject proceedings may be forestalled. In other words,
We have to determine, whether or not, in the light of the unusual circumstances extant
in the record, there is need to be more pragmatic and to adopt a rather unorthodox
approach, so as to cause the least disturbance in rights already being exercised by
numerous innocent third parties, even if to do so may not appear to be strictly in
accordance with the letter of the applicable purely adjective rules.

Incidentally, it may be mentioned, at this point, that it was principally on account of the
confusion that might result later from PCIB's continuing to administer all the community
properties, notwithstanding the certainty of the existence of the separate estate of Mrs.
Hodges, and to enable both estates to function in the meantime with a relative degree of
regularity, that the Court ordered in the resolution of September 8, 1972 the
modification of the injunction issued pursuant to the resolutions of August 8, October 4
and December 6, 1967, by virtue of which respondent Magno was completely barred
from any participation in the administration of the properties herein involved. In the
September 8 resolution, We ordered that, pending this decision, Special Proceedings
1307 and 1672 should proceed jointly and that the respective administrators therein "act
conjointly — none of them to act singly and independently of each other for any
purpose." Upon mature deliberation, We felt that to allow PCIB to continue managing or
administering all the said properties to the exclusion of the administratrix of Mrs.
Hodges' estate might place the heirs of Hodges at an unduly advantageous position
which could result in considerable, if not irreparable, damage or injury to the other
parties concerned. It is indeed to be regretted that apparently, up to this date, more
than a year after said resolution, the same has not been given due regard, as may be
gleaned from the fact that recently, respondent Magno has filed in these proceedings a
motion to declare PCIB in contempt for alleged failure to abide therewith,
notwithstanding that its repeated motions for reconsideration thereof have all been
denied soon after they were filed.9

Going back to the appeals, it is perhaps best to begin first with what appears to Our
mind to be the simplest, and then proceed to the more complicated ones in that order,
without regard to the numerical sequence of the assignments of error in appellant's brief
or to the order of the discussion thereof by counsel.

Assignments of error numbers

LXXII, LXXVII and LXXVIII.

These assignments of error relate to (1) the order of the trial court of August 6, 1965
providing that "the deeds of sale (therein referred to involving properties in the name of
Hodges) should be signed jointly by the PCIB, as Administrator of Testate Estate of C.N.
Hodges, and Avelina A. Magno, as Administratrix of the Testate Estate of Linnie Jane
Hodges, and to this effect, the PCIB should take the necessary steps so that
Administratrix Avelina A. Magno could sign the deeds of sale," (p. 248, Green Rec. on
Appeal) (2) the order of October 27, 1965 denying the motion for reconsideration of the
foregoing order, (pp. 276-277, id.) (3) the other order also dated October 27, 1965
enjoining inter alia, that "(a) all cash collections should be deposited in the joint account
of the estate of Linnie Jane Hodges and estate of C. N. Hodges, (b) that whatever cash
collections (that) had been deposited in the account of either of the estates should be
withdrawn and since then (sic) deposited in the joint account of the estate of Linnie Jane
Hodges and the estate of C. N. Hodges; ... (d) (that) Administratrix Magno — allow the
PCIB to inspect whatever records, documents and papers she may have in her
possession, in the same manner that Administrator PCIB is also directed to allow
Administratrix Magno to inspect whatever records, documents and papers it may have in
its possession" and "(e) that the accountant of the estate of Linnie Jane Hodges shall
have access to all records of the transactions of both estates for the protection of the
estate of Linnie Jane Hodges; and in like manner, the accountant or any authorized
representative of the estate of C. N. Hodges shall have access to the records of
transactions of the Linnie Jane Hodges estate for the protection of the estate of C. N.
Hodges", (pp. 292-295, id.) and (4) the order of February 15, 1966, denying, among
others, the motion for reconsideration of the order of October 27, 1965 last referred to.
(pp. 455-456, id.)

As may be readily seen, the thrust of all these four impugned orders is in line with the
Court's above-mentioned resolution of September 8, 1972 modifying the injunction
previously issued on August 8, 1967, and, more importantly, with what We have said
the trial court should have always done pending the liquidation of the conjugal
partnership of the Hodges spouses. In fact, as already stated, that is the arrangement
We are ordering, by this decision, to be followed. Stated differently, since the questioned
orders provide for joint action by the two administrators, and that is precisely what We
are holding out to have been done and should be done until the two estates are
separated from each other, the said orders must be affirmed. Accordingly the foregoing
assignments of error must be, as they are hereby overruled.

Assignments of error Numbers LXVIII

to LXXI and LXXIII to LXXVI.

The orders complained of under these assignments of error commonly deal with
expenditures made by appellee Magno, as Administratrix of the Estate of Mrs. Hodges, in
connection with her administration thereof, albeit additionally, assignments of error
Numbers LXIX to LXXI put into question the payment of attorneys fees provided for in
the contract for the purpose, as constituting, in effect, premature advances to the heirs
of Mrs. Hodges.

More specifically, assignment Number LXXIII refers to reimbursement of overtime pay

paid to six employees of the court and three other persons for services in copying the
court records to enable the lawyers of the administration to be fully informed of all the
incidents in the proceedings. The reimbursement was approved as proper legal expenses
of administration per the order of December 19, 1964, (pp. 221-222, id.) and repeated
motions for reconsideration thereof were denied by the orders of January 9, 1965, (pp.
231-232, id.) October 27, 1965, (p. 277, id.) and February 15, 1966. (pp. 455-456, id.)
On the other hand, Assignments Numbers LXVIII to LXXI, LXXIV and LXXV question the
trial court's order of November 3, 1965 approving the agreement of June 6, 1964
between Administratrix Magno and James L. Sullivan, attorney-in-fact of the heirs of
Mrs. Hodges, as Parties of the First Part, and Attorneys Raul Manglapus and Rizal R.
Quimpo, as Parties of the Second Part, regarding attorneys fees for said counsel who
had agreed "to prosecute and defend their interests (of the Parties of the First Part) in
certain cases now pending litigation in the Court of First Instance of Iloilo —, more
specifically in Special Proceedings 1307 and 1672 —" (pp. 126-129, id.) and directing
Administratrix Magno "to issue and sign whatever check or checks maybe needed to
implement the approval of the agreement annexed to the motion" as well as the
"administrator of the estate of C. N. Hodges — to countersign the said check or checks
as the case maybe." (pp. 313-320, id.), reconsideration of which order of approval was
denied in the order of February 16, 1966, (p. 456, id.) Assignment Number LXXVI
imputes error to the lower court's order of October 27, 1965, already referred to above,
insofar as it orders that "PCIB should counter sign the check in the amount of P250 in
favor of Administratrix Avelina A. Magno as her compensation as administratrix of Linnie
Jane Hodges estate chargeable to the Testate Estate of Linnie Jane Hodges only." (p.
294, id.)

Main contention again of appellant PCIB in regard to these eight assigned errors is that
there is no such estate as the estate of Mrs. Hodges for which the questioned
expenditures were made, hence what were authorized were in effect expenditures from
the estate of Hodges. As We have already demonstrated in Our resolution above of the
petition for certiorari and prohibition, this posture is incorrect. Indeed, in whichever way
the remaining issues between the parties in these cases are ultimately resolved, 10 the
final result will surely be that there are properties constituting the estate of Mrs. Hodges
of which Magno is the current administratrix. It follows, therefore, that said appellee had
the right, as such administratrix, to hire the persons whom she paid overtime pay and to
be paid for her own services as administratrix. That she has not yet collected and is not
collecting amounts as substantial as that paid to or due appellant PCIB is to her credit.

Of course, she is also entitled to the services of counsel and to that end had the
authority to enter into contracts for attorney's fees in the manner she had done in the
agreement of June 6, 1964. And as regards to the reasonableness of the amount therein
stipulated, We see no reason to disturb the discretion exercised by the probate court in
determining the same. We have gone over the agreement, and considering the obvious
size of the estate in question and the nature of the issues between the parties as well as
the professional standing of counsel, We cannot say that the fees agreed upon require
the exercise by the Court of its inherent power to reduce it.

PCIB insists, however, that said agreement of June 6, 1964 is not for legal services to
the estate but to the heirs of Mrs. Hodges, or, at most, to both of them, and such being
the case, any payment under it, insofar as counsels' services would redound to the
benefit of the heirs, would be in the nature of advances to such heirs and a premature
distribution of the estate. Again, We hold that such posture cannot prevail.

Upon the premise We have found plausible that there is an existing estate of Mrs.
Hodges, it results that juridically and factually the interests involved in her estate are
distinct and different from those involved in her estate of Hodges and vice versa. Insofar
as the matters related exclusively to the estate of Mrs. Hodges, PCIB, as administrator
of the estate of Hodges, is a complete stranger and it is without personality to question
the actuations of the administratrix thereof regarding matters not affecting the estate of
Hodges. Actually, considering the obviously considerable size of the estate of Mrs.
Hodges, We see no possible cause for apprehension that when the two estates are
segregated from each other, the amount of attorney's fees stipulated in the agreement
in question will prejudice any portion that would correspond to Hodges' estate.

And as regards the other heirs of Mrs. Hodges who ought to be the ones who should
have a say on the attorney's fees and other expenses of administration assailed by PCIB,
suffice it to say that they appear to have been duly represented in the agreement itself
by their attorney-in-fact, James L. Sullivan and have not otherwise interposed any
objection to any of the expenses incurred by Magno questioned by PCIB in these
appeals. As a matter of fact, as ordered by the trial court, all the expenses in question,
including the attorney's fees, may be paid without awaiting the determination and
segregation of the estate of Mrs. Hodges.

Withal, the weightiest consideration in connection with the point under discussion is that
at this stage of the controversy among the parties herein, the vital issue refers to the
existence or non-existence of the estate of Mrs. Hodges. In this respect, the interest of
respondent Magno, as the appointed administratrix of the said estate, is to maintain that
it exists, which is naturally common and identical with and inseparable from the interest
of the brothers and sisters of Mrs. Hodges. Thus, it should not be wondered why both
Magno and these heirs have seemingly agreed to retain but one counsel. In fact, such an
arrangement should be more convenient and economical to both. The possibility of
conflict of interest between Magno and the heirs of Mrs. Hodges would be, at this stage,
quite remote and, in any event, rather insubstantial. Besides, should any substantial
conflict of interest between them arise in the future, the same would be a matter that
the probate court can very well take care of in the course of the independent
proceedings in Case No. 1307 after the corresponding segregation of the two subject
estates. We cannot perceive any cogent reason why, at this stage, the estate and the
heirs of Mrs. Hodges cannot be represented by a common counsel.

Now, as to whether or not the portion of the fees in question that should correspond to
the heirs constitutes premature partial distribution of the estate of Mrs. Hodges is also a
matter in which neither PCIB nor the heirs of Hodges have any interest. In any event,
since, as far as the records show, the estate has no creditors and the corresponding
estate and inheritance taxes, except those of the brothers and sisters of Mrs. Hodges,
have already been paid, 11 no prejudice can caused to anyone by the comparatively
small amount of attorney's fees in question. And in this connection, it may be added
that, although strictly speaking, the attorney's fees of the counsel of an administrator is
in the first instance his personal responsibility, reimbursable later on by the estate, in
the final analysis, when, as in the situation on hand, the attorney-in-fact of the heirs has
given his conformity thereto, it would be idle effort to inquire whether or not the
sanction given to said fees by the probate court is proper.
For the foregoing reasons, Assignments of Error LXVIII to LXXI and LXXIII to LXXVI
should be as they are hereby overruled.

Assignments of error I to IV, XIII to XV, XXII to XXV, XXXV to XXX VI, XLI to XLIII and
L.

These assignments of error deal with the approval by the trial court of various deeds of
sale of real properties registered in the name of Hodges but executed by appellee
Magno, as Administratrix of the Estate of Mrs. Hodges, purportedly in implementation of
corresponding supposed written "Contracts to Sell" previously executed by Hodges
during the interim between May 23, 1957, when his wife died, and December 25, 1962,
the day he died. As stated on pp. 118-120 of appellant's main brief, "These are: the,
contract to sell between the deceased, Charles Newton Hodges, and the appellee, Pepito
G. Iyulores executed on February 5, 1961; the contract to sell between the deceased,
Charles Newton Hodges, and the appellant Esperidion Partisala, executed on April 20,
1960; the contract to sell between the deceased, Charles Newton Hodges, and the
appellee, Winifredo C. Espada, executed on April 18, 1960; the contract to sell between
the deceased, Charles Newton Hodges, and the appellee, Rosario Alingasa, executed on
August 25, 1958; the contract to sell between the deceased, Charles Newton Hodges,
and the appellee, Lorenzo Carles, executed on June 17, 1958; the contract to sell
between the deceased, Charles Newton Hodges, and the appellee, Salvador S. Guzman,
executed on September 13, 1960; the contract to sell between the deceased, Charles
Newton Hodges, and the appellee, Florenia Barrido, executed on February 21, 1958; the
contract to sell between the deceased, Charles Newton Hodges, and the appellee,
Purificacion Coronado, executed on August 14, 1961; the contract to sell between the
deceased, Charles Newton Hodges, and the appellee, Graciano Lucero, executed on
November 27, 1961; the contract to sell between the deceased, Charles Newton Hodges,
and the appellee, Ariteo Thomas Jamir, executed on May 26, 1961; the contract to sell
between the deceased, Charles Newton Hodges, and the appellee, Melquiades Batisanan,
executed on June 9, 1959; the contract to sell between the deceased, Charles Newton
Hodges, and the appellee, Belcezar Causing, executed on February 10, 1959 and the
contract to sell between the deceased, Charles Newton Hodges, and the appellee, Adelfa
Premaylon, executed on October 31, 1959, re Title No. 13815."

Relative to these sales, it is the position of appellant PCIB that, inasmuch as pursuant to
the will of Mrs. Hodges, her husband was to have dominion over all her estate during his
lifetime, it was as absolute owner of the properties respectively covered by said sales
that he executed the aforementioned contracts to sell, and consequently, upon his
death, the implementation of said contracts may be undertaken only by the
administrator of his estate and not by the administratrix of the estate of Mrs. Hodges.
Basically, the same theory is invoked with particular reference to five other sales, in
which the respective "contracts to sell" in favor of these appellees were executed by
Hodges before the death of his wife, namely, those in favor of appellee Santiago
Pacaonsis, Alfredo Catedral, Jose Pablico, Western Institute of Technology and Adelfa
Premaylon.

Anent those deeds of sale based on promises or contracts to sell executed by Hodges
after the death of his wife, those enumerated in the quotation in the immediately
preceding paragraph, it is quite obvious that PCIB's contention cannot be sustained. As
already explained earlier, 11* all proceeds of remunerative transfers or dispositions
made by Hodges after the death of his wife should be deemed as continuing to be parts
of her estate and, therefore, subject to the terms of her will in favor of her brothers and
sisters, in the sense that should there be no showing that such proceeds, whether in
cash or property have been subsequently conveyed or assigned subsequently by Hodges
to any third party by acts inter vivos with the result that they could not thereby belong
to him anymore at the time of his death, they automatically became part of the
inheritance of said brothers and sisters. The deeds here in question involve transactions
which are exactly of this nature. Consequently, the payments made by the appellees
should be considered as payments to the estate of Mrs. Hodges which is to be
distributed and partitioned among her heirs specified in the will.
The five deeds of sale predicated on contracts to sell executed Hodges during the
lifetime of his wife, present a different situation. At first blush, it would appear that as to
them, PCIB's position has some degree of plausibility. Considering, however, that the
adoption of PCIB's theory would necessarily have tremendous repercussions and would
bring about considerable disturbance of property rights that have somehow accrued
already in favor of innocent third parties, the five purchasers aforenamed, the Court is
inclined to take a pragmatic and practical view of the legal situation involving them by
overlooking the possible technicalities in the way, the non-observance of which would
not, after all, detract materially from what should substantially correspond to each and
all of the parties concerned.

To start with, these contracts can hardly be ignored. Bona fide third parties are
involved; as much as possible, they should not be made to suffer any prejudice on
account of judicial controversies not of their own making. What is more, the transactions
they rely on were submitted by them to the probate court for approval, and from already
known and recorded actuations of said court then, they had reason to believe that it had
authority to act on their motions, since appellee Magno had, from time to time prior to
their transactions with her, been allowed to act in her capacity as administratrix of one
of the subject estates either alone or conjointly with PCIB. All the sales in question were
executed by Magno in 1966 already, but before that, the court had previously authorized
or otherwise sanctioned expressly many of her act as administratrix involving
expenditures from the estate made by her either conjointly with or independently from
PCIB, as Administrator of the Estate of Hodges. Thus, it may be said that said buyers-
appellees merely followed precedents in previous orders of the court. Accordingly, unless
the impugned orders approving those sales indubitably suffer from some clearly fatal
infirmity the Court would rather affirm them.

It is quite apparent from the record that the properties covered by said sales are
equivalent only to a fraction of what should constitute the estate of Mrs. Hodges, even if
it is assumed that the same would finally be held to be only one-fourth of the conjugal
properties of the spouses as of the time of her death or, to be more exact, one-half of
her estate as per the inventory submitted by Hodges as executor, on May 12, 1958. In
none of its numerous, varied and voluminous pleadings, motions and manifestations has
PCIB claimed any possibility otherwise. Such being the case, to avoid any conflict with
the heirs of Hodges, the said properties covered by the questioned deeds of sale
executed by appellee Magno may be treated as among those corresponding to the estate
of Mrs. Hodges, which would have been actually under her control and administration
had Hodges complied with his duty to liquidate the conjugal partnership. Viewing the
situation in that manner, the only ones who could stand to be prejudiced by the
appealed orders referred to in the assignment of errors under discussion and who could,
therefore, have the requisite interest to question them would be only the heirs of Mrs.
Hodges, definitely not PCIB.

It is of no moment in what capacity Hodges made the "contracts to sell' after the death
of his wife. Even if he had acted as executor of the will of his wife, he did not have to
submit those contracts to the court nor follow the provisions of the rules, (Sections 2, 4,
5, 6, 8 and 9 of Rule 89 quoted by appellant on pp. 125 to 127 of its brief) for the
simple reason that by the very orders, much relied upon by appellant for other
purposes, of May 27, 1957 and December 14, 1957, Hodges was "allowed or authorized"
by the trial court "to continue the business in which he was engaged and to perform acts
which he had been doing while the deceased was living", (Order of May 27) which
according to the motion on which the court acted was "of buying and selling personal
and real properties", and "to execute subsequent sales, conveyances, leases and
mortgages of the properties left by the said deceased Linnie Jane Hodges in consonance
with the wishes conveyed in the last will and testament of the latter." (Order of
December 14) In other words, if Hodges acted then as executor, it can be said that he
had authority to do so by virtue of these blanket orders, and PCIB does not question the
legality of such grant of authority; on the contrary, it is relying on the terms of the order
itself for its main contention in these cases. On the other hand, if, as PCIB contends, he
acted as heir-adjudicatee, the authority given to him by the aforementioned orders
would still suffice.
As can be seen, therefore, it is of no moment whether the "contracts to sell" upon which
the deeds in question were based were executed by Hodges before or after the death of
his wife. In a word, We hold, for the reasons already stated, that the properties covered
by the deeds being assailed pertain or should be deemed as pertaining to the estate of
Mrs. Hodges; hence, any supposed irregularity attending the actuations of the trial court
may be invoked only by her heirs, not by PCIB, and since the said heirs are not
objecting, and the defects pointed out not being strictly jurisdictional in nature, all things
considered, particularly the unnecessary disturbance of rights already created in favor of
innocent third parties, it is best that the impugned orders are not disturbed.

In view of these considerations, We do not find sufficient merit in the assignments of

error under discussion.

Assignments of error V to VIII,

XVI to XVIII, XXVI to XXIX, XXXVII
to XXXVIII, XLIV to XLVI and LI.

All these assignments of error commonly deal with alleged non-fulfillment by the
respective vendees, appellees herein, of the terms and conditions embodied in the deeds
of sale referred to in the assignments of error just discussed. It is claimed that some of
them never made full payments in accordance with the respective contracts to sell, while
in the cases of the others, like Lorenzo Carles, Jose Pablico, Alfredo Catedral and
Salvador S. Guzman, the contracts with them had already been unilaterally cancelled by
PCIB pursuant to automatic rescission clauses contained in them, in view of the failure of
said buyers to pay arrearages long overdue. But PCIB's posture is again premised on its
assumption that the properties covered by the deeds in question could not pertain to the
estate of Mrs. Hodges. We have already held above that, it being evident that a
considerable portion of the conjugal properties, much more than the properties covered
by said deeds, would inevitably constitute the estate of Mrs. Hodges, to avoid
unnecessary legal complications, it can be assumed that said properties form part of
such estate. From this point of view, it is apparent again that the questions, whether or
not it was proper for appellee Magno to have disregarded the cancellations made by
PCIB, thereby reviving the rights of the respective buyers-appellees, and, whether or not
the rules governing new dispositions of properties of the estate were strictly followed,
may not be raised by PCIB but only by the heirs of Mrs. Hodges as the persons
designated to inherit the same, or perhaps the government because of the still unpaid
inheritance taxes. But, again, since there is no pretense that any objections were raised
by said parties or that they would necessarily be prejudiced, the contentions of PCIB
under the instant assignments of error hardly merit any consideration.

Assignments of error IX to XII, XIX

to XXI, XXX to XXIV, XXXIX to XL,
XLVII to XLIX, LII and LIII to LXI.

PCIB raises under these assignments of error two issues which according to it are
fundamental, namely: (1) that in approving the deeds executed by Magno pursuant to
contracts to sell already cancelled by it in the performance of its functions as
administrator of the estate of Hodges, the trial court deprived the said estate of the right
to invoke such cancellations it (PCIB) had made and (2) that in so acting, the court
"arrogated unto itself, while acting as a probate court, the power to determine the
contending claims of third parties against the estate of Hodges over real property," since
it has in effect determined whether or not all the terms and conditions of the respective
contracts to sell executed by Hodges in favor of the buyers-appellees concerned were
complied with by the latter. What is worse, in the view of PCIB, is that the court has
taken the word of the appellee Magno, "a total stranger to his estate as determinative of
the issue".

Actually, contrary to the stand of PCIB, it is this last point regarding appellee Magno's
having agreed to ignore the cancellations made by PCIB and allowed the buyers-
appellees to consummate the sales in their favor that is decisive. Since We have already
held that the properties covered by the contracts in question should be deemed to be
portions of the estate of Mrs. Hodges and not that of Hodges, it is PCIB that is a
complete stranger in these incidents. Considering, therefore, that the estate of Mrs.
Hodges and her heirs who are the real parties in interest having the right to oppose the
consummation of the impugned sales are not objecting, and that they are the ones who
are precisely urging that said sales be sanctioned, the assignments of error under
discussion have no basis and must accordingly be as they are hereby overruled.

With particular reference to assignments LIII to LXI, assailing the orders of the trial
court requiring PCIB to surrender the respective owner's duplicate certificates of title
over the properties covered by the sales in question and otherwise directing the Register
of Deeds of Iloilo to cancel said certificates and to issue new transfer certificates of title
in favor of the buyers-appellees, suffice it to say that in the light of the above
discussion, the trial court was within its rights to so require and direct, PCIB having
refused to give way, by withholding said owners' duplicate certificates, of the
corresponding registration of the transfers duly and legally approved by the court.

Assignments of error LXII to LXVII

All these assignments of error commonly deal with the appeal against orders favoring
appellee Western Institute of Technology. As will be recalled, said institute is one of the
buyers of real property covered by a contract to sell executed by Hodges prior to the
death of his wife. As of October, 1965, it was in arrears in the total amount of
P92,691.00 in the payment of its installments on account of its purchase, hence it
received under date of October 4, 1965 and October 20, 1965, letters of collection,
separately and respectively, from PCIB and appellee Magno, in their respective
capacities as administrators of the distinct estates of the Hodges spouses, albeit, while
in the case of PCIB it made known that "no other arrangement can be accepted except
by paying all your past due account", on the other hand, Magno merely said she would
"appreciate very much if you can make some remittance to bring this account up-to-
date and to reduce the amount of the obligation." (See pp. 295-311, Green R. on A.) On
November 3, 1965, the Institute filed a motion which, after alleging that it was ready
and willing to pay P20,000 on account of its overdue installments but uncertain whether
it should pay PCIB or Magno, it prayed that it be "allowed to deposit the aforesaid
amount with the court pending resolution of the conflicting claims of the administrators."
Acting on this motion, on November 23, 1965, the trial court issued an order, already
quoted in the narration of facts in this opinion, holding that payment to both or either of
the two administrators is "proper and legal", and so "movant — can pay to both estates
or either of them", considering that "in both cases (Special Proceedings 1307 and 1672)
there is as yet no judicial declaration of heirs nor distribution of properties to
whomsoever are entitled thereto."

The arguments under the instant assignments of error revolve around said order. From
the procedural standpoint, it is claimed that PCIB was not served with a copy of the
Institute's motion, that said motion was heard, considered and resolved on November
23, 1965, whereas the date set for its hearing was November 20, 1965, and that what
the order grants is different from what is prayed for in the motion. As to the substantive
aspect, it is contended that the matter treated in the motion is beyond the jurisdiction of
the probate court and that the order authorized payment to a person other than the
administrator of the estate of Hodges with whom the Institute had contracted.

The procedural points urged by appellant deserve scant consideration. We must assume,
absent any clear proof to the contrary, that the lower court had acted regularly by
seeing to it that appellant was duly notified. On the other hand, there is nothing
irregular in the court's having resolved the motion three days after the date set for
hearing the same. Moreover, the record reveals that appellants' motion for
reconsideration wherein it raised the same points was denied by the trial court on March
7, 1966 (p. 462, Green R. on A.) Withal, We are not convinced that the relief granted is
not within the general intent of the Institute's motion.

Insofar as the substantive issues are concerned, all that need be said at this point is that
they are mere reiterations of contentions We have already resolved above adversely to
appellants' position. Incidentally, We may add, perhaps, to erase all doubts as to the
propriety of not disturbing the lower court's orders sanctioning the sales questioned in
all these appeal s by PCIB, that it is only when one of the parties to a contract to convey
property executed by a deceased person raises substantial objections to its being
implemented by the executor or administrator of the decedent's estate that Section 8 of
Rule 89 may not apply and, consequently, the matter has, to be taken up in a separate
action outside of the probate court; but where, as in the cases of the sales herein
involved, the interested parties are in agreement that the conveyance be made, it is
properly within the jurisdiction of the probate court to give its sanction thereto pursuant
to the provisions of the rule just mentioned. And with respect to the supposed automatic
rescission clauses contained in the contracts to sell executed by Hodges in favor of
herein appellees, the effect of said clauses depend on the true nature of the said
contracts, despite the nomenclature appearing therein, which is not controlling, for if
they amount to actual contracts of sale instead of being mere unilateral accepted
"promises to sell", (Art. 1479, Civil Code of the Philippines, 2nd paragraph) thepactum
commissorium or the automatic rescission provision would not operate, as a matter of
public policy, unless there has been a previous notarial or judicial demand by the seller
(10 Manresa 263, 2nd ed.) neither of which have been shown to have been made in
connection with the transactions herein involved.

Consequently, We find no merit in the assignments of error

Number LXII to LXVII.

SUMMARY

Considering the fact that this decision is unusually extensive and that the issues herein
taken up and resolved are rather numerous and varied, what with appellant making
seventy-eight assignments of error affecting no less than thirty separate orders of the
court a quo, if only to facilitate proper understanding of the import and extent of our
rulings herein contained, it is perhaps desirable that a brief restatement of the whole
situation be made together with our conclusions in regard to its various factual and legal
aspects. .

The instant cases refer to the estate left by the late Charles Newton Hodges as well as
that of his wife, Linnie Jane Hodges, who predeceased him by about five years and a
half. In their respective wills which were executed on different occasions, each one of
them provided mutually as follows: "I give, devise and bequeath all of the rest, residue
and remainder (after funeral and administration expenses, taxes and debts) of my
estate, both real and personal, wherever situated or located, to my beloved (spouse) to
have and to hold unto (him/her) — during (his/her) natural lifetime", subject to the
condition that upon the death of whoever of them survived the other, the remainder of
what he or she would inherit from the other is "give(n), devise(d) and bequeath(ed)" to
the brothers and sisters of the latter.

Mrs. Hodges died first, on May 23, 1957. Four days later, on May 27, Hodges was
appointed special administrator of her estate, and in a separate order of the same date,
he was "allowed or authorized to continue the business in which he was engaged,
(buying and selling personal and real properties) and to perform acts which he had been
doing while the deceased was living." Subsequently, on December 14, 1957, after Mrs.
Hodges' will had been probated and Hodges had been appointed and had qualified as
Executor thereof, upon his motion in which he asserted that he was "not only part owner
of the properties left as conjugal, but also, the successor to all the properties left by the
deceased Linnie Jane Hodges", the trial court ordered that "for the reasons stated in his
motion dated December 11, 1957, which the Court considers well taken, ... all the sales,
conveyances, leases and mortgages of all properties left by the deceased Linnie Jane
Hodges executed by the Executor, Charles Newton Hodges are hereby APPROVED. The
said Executor is further authorized to execute subsequent sales, conveyances, leases
and mortgages of the properties left by the said deceased Linnie Jane Hodges in
consonance with the wishes contained in the last will and testament of the latter."
Annually thereafter, Hodges submitted to the court the corresponding statements of
account of his administration, with the particularity that in all his motions, he always
made it point to urge the that "no person interested in the Philippines of the time and
place of examining the herein accounts be given notice as herein executor is the only
devisee or legatee of the deceased in accordance with the last will and testament
already probated by the Honorable Court." All said accounts approved as prayed for.

Nothing else appears to have been done either by the court a quo or Hodges until
December 25, 1962. Importantly to be the provision in the will of Mrs. Hodges that her
share of the conjugal partnership was to be inherited by her husband "to have and to
hold unto him, my said husband, during his natural lifetime" and that "at the death of
my said husband, I give, devise and bequeath all the rest, residue and remainder of my
estate, both real and personal, wherever situated or located, to be equally divided
among my brothers and sisters, share and share alike", which provision naturally made
it imperative that the conjugal partnership be promptly liquidated, in order that the
"rest, residue and remainder" of his wife's share thereof, as of the time of Hodges' own
death, may be readily known and identified, no such liquidation was ever undertaken.
The record gives no indication of the reason for such omission, although relatedly, it
appears therein:

1. That in his annual statement submitted to the court of the net worth of C.
N. Hodges and the Estate of Linnie Jane Hodges, Hodges repeatedly and
consistently reported the combined income of the conjugal partnership and
then merely divided the same equally between himself and the estate of the
deceased wife, and, more importantly, he also, as consistently, filed
corresponding separate income tax returns for each calendar year for each
resulting half of such combined income, thus reporting that the estate of
Mrs. Hodges had its own income distinct from his own.

2. That when the court a quo happened to inadvertently omit in its order

probating the will of Mrs. Hodges, the name of one of her brothers, Roy
Higdon then already deceased, Hodges lost no time in asking for the proper
correction "in order that the heirs of deceased Roy Higdon may not think or
believe they were omitted, and that they were really interested in the estate
of the deceased Linnie Jane Hodges".

3. That in his aforementioned motion of December 11, 1957, he expressly

stated that "deceased Linnie Jane Hodges died leaving no descendants or
ascendants except brothers and sisters and herein petitioner as the surviving
spouse, to inherit the properties of the decedent", thereby indicating that he
was not excluding his wife's brothers and sisters from the inheritance.

4. That Hodges allegedly made statements and manifestations to the United

States inheritance tax authorities indicating that he had renounced his
inheritance from his wife in favor of her other heirs, which attitude he is
supposed to have reiterated or ratified in an alleged affidavit subscribed and
sworn to here in the Philippines and in which he even purportedly stated that
his reason for so disclaiming and renouncing his rights under his wife's will
was to "absolve (him) or (his) estate from any liability for the payment of
income taxes on income which has accrued to the estate of Linnie Jane
Hodges", his wife, since her death.

On said date, December 25, 1962, Hodges died. The very next day, upon motion of
herein respondent and appellee, Avelina A. Magno, she was appointed by the trial court
as Administratrix of the Testate Estate of Linnie Jane Hodges, in Special Proceedings No.
1307 and as Special Administratrix of the estate of Charles Newton Hodges, "in the
latter case, because the last will of said Charles Newton Hodges is still kept in his vault
or iron safe and that the real and personal properties of both spouses may be lost,
damaged or go to waste, unless Special Administratrix is appointed," (Order of
December 26, 1962, p. 27, Yellow R. on A.) although, soon enough, on December 29,
1962, a certain Harold K. Davies was appointed as her Co-Special Administrator, and
when Special Proceedings No. 1672, Testate Estate of Charles Newton Hodges, was
opened, Joe Hodges, as next of kin of the deceased, was in due time appointed as Co-
Administrator of said estate together with Atty. Fernando P. Mirasol, to replace Magno
and Davies, only to be in turn replaced eventually by petitioner PCIB alone.

At the outset, the two probate proceedings appear to have been proceeding jointly, with
each administrator acting together with the other, under a sort of modus operandi. PCIB
used to secure at the beginning the conformity to and signature of Magno in transactions
it wanted to enter into and submitted the same to the court for approval as their joint
acts. So did Magno do likewise. Somehow, however, differences seem to have arisen, for
which reason, each of them began acting later on separately and independently of each
other, with apparent sanction of the trial court. Thus, PCIB had its own lawyers whom it
contracted and paid handsomely, conducted the business of the estate independently of
Magno and otherwise acted as if all the properties appearing in the name of Charles
Newton Hodges belonged solely and only to his estate, to the exclusion of the brothers
and sisters of Mrs. Hodges, without considering whether or not in fact any of said
properties corresponded to the portion of the conjugal partnership pertaining to the
estate of Mrs. Hodges. On the other hand, Magno made her own expenditures, hired her
own lawyers, on the premise that there is such an estate of Mrs. Hodges, and dealth
with some of the properties, appearing in the name of Hodges, on the assumption that
they actually correspond to the estate of Mrs. Hodges. All of these independent and
separate actuations of the two administrators were invariably approved by the trial court
upon submission. Eventually, the differences reached a point wherein Magno, who was
more cognizant than anyone else about the ins and outs of the businesses and
properties of the deceased spouses because of her long and intimate association with
them, made it difficult for PCIB to perform normally its functions as administrator
separately from her. Thus, legal complications arose and the present judicial
controversies came about.

Predicating its position on the tenor of the orders of May 27 and December 14, 1957 as
well as the approval by the court a quo of the annual statements of account of Hodges,
PCIB holds to the view that the estate of Mrs. Hodges has already been in effect closed
with the virtual adjudication in the mentioned orders of her whole estate to Hodges, and
that, therefore, Magno had already ceased since then to have any estate to administer
and the brothers and sisters of Mrs. Hodges have no interests whatsoever in the estate
left by Hodges. Mainly upon such theory, PCIB has come to this Court with a petition
for certiorari and prohibition praying that the lower court's orders allowing respondent
Magno to continue acting as administratrix of the estate of Mrs. Hodges in Special
Proceedings 1307 in the manner she has been doing, as detailed earlier above, be set
aside. Additionally, PCIB maintains that the provision in Mrs. Hodges' will instituting her
brothers and sisters in the manner therein specified is in the nature of a testamentary
substitution, but inasmuch as the purported substitution is not, in its view, in accordance
with the pertinent provisions of the Civil Code, it is ineffective and may not be enforced.
It is further contended that, in any event, inasmuch as the Hodges spouses were both
residents of the Philippines, following the decision of this Court in Aznar vs. Garcia, or
the case of Christensen, 7 SCRA 95, the estate left by Mrs. Hodges could not be more
than one-half of her share of the conjugal partnership, notwithstanding the fact that she
was citizen of Texas, U.S.A., in accordance with Article 16 in relation to Articles 900 and
872 of the Civil Code. Initially, We issued a preliminary injunction against Magno and
allowed PCIB to act alone.

At the same time PCIB has appealed several separate orders of the trial court approving
individual acts of appellee Magno in her capacity as administratrix of the estate of Mrs.
Hodges, such as, hiring of lawyers for specified fees and incurring expenses of
administration for different purposes and executing deeds of sale in favor of her co-
appellees covering properties which are still registered in the name of Hodges,
purportedly pursuant to corresponding "contracts to sell" executed by Hodges. The said
orders are being questioned on jurisdictional and procedural grounds directly or
indirectly predicated on the principal theory of appellant that all the properties of the
two estates belong already to the estate of Hodges exclusively.
On the other hand, respondent-appellee Magno denies that the trial court's orders of
May 27 and December 14, 1957 were meant to be finally adjudicatory of the hereditary
rights of Hodges and contends that they were no more than the court's general sanction
of past and future acts of Hodges as executor of the will of his wife in due course of
administration. As to the point regarding substitution, her position is that what was
given by Mrs. Hodges to her husband under the provision in question was a lifetime
usufruct of her share of the conjugal partnership, with the naked ownership passing
directly to her brothers and sisters. Anent the application of Article 16 of the Civil Code,
she claims that the applicable law to the will of Mrs. Hodges is that of Texas under
which, she alleges, there is no system of legitime, hence, the estate of Mrs. Hodges
cannot be less than her share or one-half of the conjugal partnership properties. She
further maintains that, in any event, Hodges had as a matter of fact and of law
renounced his inheritance from his wife and, therefore, her whole estate passed directly
to her brothers and sisters effective at the latest upon the death of Hodges.

In this decision, for the reasons discussed above, and upon the issues just summarized,
We overrule PCIB's contention that the orders of May 27, 1957 and December 14, 1957
amount to an adjudication to Hodges of the estate of his wife, and We recognize the
present existence of the estate of Mrs. Hodges, as consisting of properties, which, while
registered in that name of Hodges, do actually correspond to the remainder of the share
of Mrs. Hodges in the conjugal partnership, it appearing that pursuant to the pertinent
provisions of her will, any portion of said share still existing and undisposed of by her
husband at the time of his death should go to her brothers and sisters share and share
alike. Factually, We find that the proven circumstances relevant to the said orders do not
warrant the conclusion that the court intended to make thereby such alleged final
adjudication. Legally, We hold that the tenor of said orders furnish no basis for such a
conclusion, and what is more, at the time said orders were issued, the proceedings had
not yet reached the point when a final distribution and adjudication could be made.
Moreover, the interested parties were not duly notified that such disposition of the
estate would be done. At best, therefore, said orders merely allowed Hodges to dispose
of portions of his inheritance in advance of final adjudication, which is implicitly
permitted under Section 2 of Rule 109, there being no possible prejudice to third parties,
inasmuch as Mrs. Hodges had no creditors and all pertinent taxes have been paid.

More specifically, We hold that, on the basis of circumstances presently extant in the
record, and on the assumption that Hodges' purported renunciation should not be
upheld, the estate of Mrs. Hodges inherited by her brothers and sisters consists of one-
fourth of the community estate of the spouses at the time of her death, minus whatever
Hodges had gratuitously disposed of therefrom during the period from, May 23, 1957,
when she died, to December 25, 1962, when he died provided, that with regard to
remunerative dispositions made by him during the same period, the proceeds thereof,
whether in cash or property, should be deemed as continuing to be part of his wife's
estate, unless it can be shown that he had subsequently disposed of them gratuitously.

At this juncture, it may be reiterated that the question of what are the pertinent laws of
Texas and what would be the estate of Mrs. Hodges under them is basically one of fact,
and considering the respective positions of the parties in regard to said factual issue, it
can already be deemed as settled for the purposes of these cases that, indeed, the free
portion of said estate that could possibly descend to her brothers and sisters by virtue of
her will may not be less than one-fourth of the conjugal estate, it appearing that the
difference in the stands of the parties has reference solely to the legitime of Hodges,
PCIB being of the view that under the laws of Texas, there is such a legitime of one-
fourth of said conjugal estate and Magno contending, on the other hand, that there is
none. In other words, hereafter, whatever might ultimately appear, at the subsequent
proceedings, to be actually the laws of Texas on the matter would no longer be of any
consequence, since PCIB would anyway be in estoppel already to claim that the estate of
Mrs. Hodges should be less than as contended by it now, for admissions by a party
related to the effects of foreign laws, which have to be proven in our courts like any
other controverted fact, create estoppel.
In the process, We overrule PCIB's contention that the provision in Mrs. Hodges' will in
favor of her brothers and sisters constitutes ineffective hereditary substitutions. But
neither are We sustaining, on the other hand, Magno's pose that it gave Hodges only a
lifetime usufruct. We hold that by said provision, Mrs. Hodges simultaneously instituted
her brothers and sisters as co-heirs with her husband, with the condition, however, that
the latter would have complete rights of dominion over the whole estate during his
lifetime and what would go to the former would be only the remainder thereof at the
time of Hodges' death. In other words, whereas they are not to inherit only in case of
default of Hodges, on the other hand, Hodges was not obliged to preserve anything for
them. Clearly then, the essential elements of testamentary substitution are absent; the
provision in question is a simple case of conditional simultaneous institution of heirs,
whereby the institution of Hodges is subject to a partial resolutory condition the
operative contingency of which is coincidental with that of the suspensive condition of
the institution of his brothers and sisters-in-law, which manner of institution is not
prohibited by law.

We also hold, however, that the estate of Mrs. Hodges inherited by her brothers and
sisters could be more than just stated, but this would depend on (1) whether upon the
proper application of the principle of renvoi in relation to Article 16 of the Civil Code and
the pertinent laws of Texas, it will appear that Hodges had no legitime as contended by
Magno, and (2) whether or not it can be held that Hodges had legally and effectively
renounced his inheritance from his wife. Under the circumstances presently obtaining
and in the state of the record of these cases, as of now, the Court is not in a position to
make a final ruling, whether of fact or of law, on any of these two issues, and We,
therefore, reserve said issues for further proceedings and resolution in the first instance
by the court a quo, as hereinabove indicated. We reiterate, however, that pending such
further proceedings, as matters stand at this stage, Our considered opinion is that it is
beyond cavil that since, under the terms of the will of Mrs. Hodges, her husband could
not have anyway legally adjudicated or caused to be adjudicated to himself her whole
share of their conjugal partnership, albeit he could have disposed any part thereof
during his lifetime, the resulting estate of Mrs. Hodges, of which Magno is the
uncontested administratrix, cannot be less than one-fourth of the conjugal partnership
properties, as of the time of her death, minus what, as explained earlier, have
been gratuitously disposed of therefrom, by Hodges in favor of third persons since then,
for even if it were assumed that, as contended by PCIB, under Article 16 of the Civil
Code and applying renvoi the laws of the Philippines are the ones ultimately applicable,
such one-fourth share would be her free disposable portion, taking into account already
the legitime of her husband under Article 900 of the Civil Code.

The foregoing considerations leave the Court with no alternative than to conclude that in
predicating its orders on the assumption, albeit unexpressed therein, that there is an
estate of Mrs. Hodges to be distributed among her brothers and sisters and that
respondent Magno is the legal administratrix thereof, the trial court acted correctly and
within its jurisdiction. Accordingly, the petition for certiorari and prohibition has to be
denied. The Court feels however, that pending the liquidation of the conjugal partnership
and the determination of the specific properties constituting her estate, the two
administrators should act conjointly as ordered in the Court's resolution of September 8,
1972 and as further clarified in the dispositive portion of its decision.

Anent the appeals from the orders of the lower court sanctioning payment by appellee
Magno, as administratrix, of expenses of administration and attorney's fees, it is obvious
that, with Our holding that there is such an estate of Mrs. Hodges, and for the reasons
stated in the body of this opinion, the said orders should be affirmed. This We do on the
assumption We find justified by the evidence of record, and seemingly agreed to by
appellant PCIB, that the size and value of the properties that should correspond to the
estate of Mrs. Hodges far exceed the total of the attorney's fees and administration
expenses in question.

With respect to the appeals from the orders approving transactions made by appellee
Magno, as administratrix, covering properties registered in the name of Hodges, the
details of which are related earlier above, a distinction must be made between those
predicated on contracts to sell executed by Hodges before the death of his wife, on the
one hand, and those premised on contracts to sell entered into by him after her death.
As regards the latter, We hold that inasmuch as the payments made by appellees
constitute proceeds of sales of properties belonging to the estate of Mrs. Hodges, as
may be implied from the tenor of the motions of May 27 and December 14, 1957, said
payments continue to pertain to said estate, pursuant to her intent obviously reflected in
the relevant provisions of her will, on the assumption that the size and value of the
properties to correspond to the estate of Mrs. Hodges would exceed the total value of all
the properties covered by the impugned deeds of sale, for which reason, said properties
may be deemed as pertaining to the estate of Mrs. Hodges. And there being no showing
that thus viewing the situation, there would be prejudice to anyone, including the
government, the Court also holds that, disregarding procedural technicalities in favor of
a pragmatic and practical approach as discussed above, the assailed orders should be
affirmed. Being a stranger to the estate of Mrs. Hodges, PCIB has no personality to raise
the procedural and jurisdictional issues raised by it. And inasmuch as it does not appear
that any of the other heirs of Mrs. Hodges or the government has objected to any of the
orders under appeal, even as to these parties, there exists no reason for said orders to
be set aside.

DISPOSITIVE PART

IN VIEW OF ALL THE FOREGOING PREMISES, judgment is hereby rendered DISMISSING

the petition in G. R. Nos. L-27860 and L-27896, and AFFIRMING, in G. R. Nos. L-27936-
37 and the other thirty-one numbers hereunder ordered to be added after payment of
the corresponding docket fees, all the orders of the trial court under appeal enumerated
in detail on pages 35 to 37 and 80 to 82 of this decision; the existence of the Testate
Estate of Linnie Jane Hodges, with respondent-appellee Avelina A. Magno, as
administratrix thereof is recognized, and it is declared that, until final judgment is
ultimately rendered regarding (1) the manner of applying Article 16 of the Civil Code of
the Philippines to the situation obtaining in these cases and (2) the factual and legal
issue of whether or not Charles Newton Hodges had effectively and legally renounced his
inheritance under the will of Linnie Jane Hodges, the said estate consists of one-fourth of
the community properties of the said spouses, as of the time of the death of the wife on
May 23, 1957, minus whatever the husband had already gratuitously disposed of in
favor of third persons from said date until his death, provided, first, that with respect to
remunerative dispositions, the proceeds thereof shall continue to be part of the wife's
estate, unless subsequently disposed of gratuitously to third parties by the husband, and
second, that should the purported renunciation be declared legally effective, no
deductions whatsoever are to be made from said estate; in consequence, the
preliminary injunction of August 8, 1967, as amended on October 4 and December 6,
1967, is lifted, and the resolution of September 8, 1972, directing that petitioner-
appellant PCIB, as Administrator of the Testate Estate of Charles Newton Hodges, in
Special Proceedings 1672, and respondent-appellee Avelina A. Magno, as Administratrix
of the Testate Estate of Linnie Jane Hodges, in Special Proceedings 1307, should act
thenceforth always conjointly, never independently from each other, as such
administrators, is reiterated, and the same is made part of this judgment and shall
continue in force, pending the liquidation of the conjugal partnership of the deceased
spouses and the determination and segregation from each other of their respective
estates, provided, that upon the finality of this judgment, the trial court should
immediately proceed to the partition of the presently combined estates of the spouses,
to the end that the one-half share thereof of Mrs. Hodges may be properly and clearly
identified; thereafter, the trial court should forthwith segregate the remainder of the
one-fourth herein adjudged to be her estate and cause the same to be turned over or
delivered to respondent for her exclusive administration in Special Proceedings 1307,
while the other one-fourth shall remain under the joint administration of said respondent
and petitioner under a joint proceedings in Special Proceedings 1307 and 1672, whereas
the half unquestionably pertaining to Hodges shall be administered by petitioner
exclusively in Special Proceedings 1672, without prejudice to the resolution by the trial
court of the pending motions for its removal as administrator 12; and this arrangement
shall be maintained until the final resolution of the two issues of renvoi and renunciation
hereby reserved for further hearing and determination, and the corresponding complete
segregation and partition of the two estates in the proportions that may result from the
said resolution.

Generally and in all other respects, the parties and the court a quo are directed to
adhere henceforth, in all their actuations in Special Proceedings 1307 and 1672, to the
views passed and ruled upon by the Court in the foregoing opinion.

Appellant PCIB is ordered to pay, within five (5) days from notice hereof, thirty-one
additional appeal docket fees, but this decision shall nevertheless become final as to
each of the parties herein after fifteen (15) days from the respective notices to them
hereof in accordance with the rules. Costs against petitioner-appellant PCIB.
G.R. No. L-31703             February 13, 1930

CARMEN G. DE PEREZ, trustee of the estate of Ana Maria Alcantara, plaintiff-

appellee, 
vs.
MARIANO GARCHITORENA, and JOSE CASIMIRO, Sheriff of the Court of First
Instance of Manila,defendants-appellants.

L. D. Lockwood and Jose M. Casal for appellants.

Eduardo Gutierrez Repide and Leoncio B. Monzon for appellee.

ROMUALDEZ, J.:

The amount of P21,428.58 is on deposit in the plaintiff's name with the association
known as La Urbana in Manila, as the final payment of the liquidated credit of Ana Maria
Alcantara, deceased, whose heiress is said plaintiff, against Andres Garchitorena, also
deceased, represented by his son, the defendant Mariano Garchitorena.

And as said Mariano Garchitorena held a judgment for P7,872.23 against Joaquin Perez
Alcantara, husband of the plaintiff, Carmen G. de Perez, the sheriff pursuant to the writ
of execution issued in said judgment, levied an attachment on said amount deposited
with La Urbana.

The plaintiff, alleging that said deposit belongs to the fideicommissary heirs of the
decedent Ana Maria Alcantara, secured a preliminary injunction restraining the execution
of said judgment on the sum so attached. The defendants contend that the plaintiff is
the decedent's universal heiress, and pray for the dissolution of the injunction.

The court below held that said La Urbana deposit belongs to the plaintiff's children as
fideicommissary heirs of Ana Maria Alcantara, and granted a final writ of injunction.

The defendants insist in their contentions, and, in their appeal from the decision of the
trial court, assign the following errors:

1. The lower court erred in holding that a trust was created by the will of Doña
Ana Maria Alcantara.

2. The lower court erred in concluding and declaring that the amount of
P21,428.58 deposited with La Urbana is the property of the children of the plaintiff
as "herederos fidei-comisarios."

3. The lower court erred in making the injunction permanent and condemning
defendant to pay the costs.

The question here raised is confined to the scope and meaning of the institution of heirs
made in the will of the late Ana Maria Alcantara already admitted to probate, and whose
legal force and effect is not in dispute.

The clauses of said will relevant to the points in dispute, between the parties are the
ninth, tenth, and eleventh, quoted below:

Ninth. Being single and without any forced heir, to show my gratitude to my niece-
in-law, Carmen Garchitorena, of age, married to my nephew, Joaquin Perez
Alcantara, and living in this same house with me, I institute her as my sole and
universal heiress to the remainder of my estate after the payment of my debts and
legacies, so that upon my death and after probate of this will, and after the report
of the committee on claims and appraisal has been rendered and approved, she
will receive from my executrix and properties composing my hereditary estate,
that she may enjoy them with God's blessing and my own.
 Tenth. Should my heiress Carmen Garchitorena die, I order that my whole estate
shall pass unimpaired to her surviving children; and should any of these die, his
share shall serve to increase the portions of his surviving brothers (and sisters) by
accretion, in such wise that my estate shall never pass out of the hands of my
heiress or her children in so far as it is legally possible.

Eleventh. Should my aforesaid heiress, Carmen Garchitorena, die after me while

her children are still in their minority, I order that my estate be administered by
my executrix, Mrs. Josefa Laplana, and in her default, by Attorney Ramon Salinas
and in his default, by his son Ramon Salinas; but the direction herein given must
not be considered as an indication of lack of confidence in my nephew Joaquin
Perez Alcantara, whom I relieve from the duties of administering my estate,
because I recognize that his character is not adapted to management and
administration.

The appellants contend that in these clauses the testatrix has ordered a simple
substitution, while the appellee contends that it is a fideicommissary substitution.

This will certainly provides for a substitution of heirs, and of the three cases that might
give rise to a simple substitution (art. 774, Civil Code), only the death of the instituted
heiress before the testatrix would in the instant case give place to such substitution,
inasmuch as nothing is said of the waiver of inheritance, or incapacity to accept it. As a
matter of fact, however, clause XI provides for the administration of the estate in case
the heiress instituted should die after the testatrix and while the substitute heirs are still
under age. And it is evident that, considering the nature of simple substitution by the
heir's death before the testator, and the fact that by clause XI in connection with clause
X, the substitution is ordered where the heiress instituted dies after the testatrix, this
cannot be a case of simple substitution.

The existence of a substitution in the will is not and cannot be denied, and since it
cannot be a simple substitution in the light of the considerations above stated, let us
now see whether the instants case is a fideicommissary substitution.

In clause IX, the testatrix institutes the plaintiff herein her sole and universal heiress,
and provides that upon her death (the testatrix's) and after probate of the will and
approval of the report of the committee on claims and appraisal, said heiress shall
receive and enjoy the whole hereditary estate. Although this clause provides nothing
explicit about substitution, it does not contain anything in conflict with the idea of
fideicommissary substitution. The fact that the plaintiff was instituted the sole and
universal heiress does not prevent her children from receiving, upon her death and in
conformity with the express desire of the testatrix, the latter's hereditary estate, as
provided in the following (above quoted) clauses which cannot be disregarded if we are
to give a correct interpretation of the will. The word sole does not necessarily exclude
the idea of substitute heirs; and taking these three clauses together, such word means
that the plaintiff is the sole heiress instituted in the first instance.

The disposition contained in clause IX, that said heiress shall receive and enjoy the
estate, is not incompatible with a fideicommissary substitution (it certainly is
incompatible with the idea of simple substitution, where the heiress instituted does not
receive the inheritance). In fact the enjoyment of the inheritance is in conformity with
the idea of fideicommissary substitution, by virtue of which the heir instituted receives
the inheritance and enjoys it, although at the same time he preserves it in order to pass
it on the second heir. On this point the illustrious Manresa, in his Civil Code (Vol. 6, pp.
142 and 143, 5th ed.), says:

Or, what amounts to the same thing, the fideicommissary substitution, as held in
the Resolution of June 25, 1895, February 10, 1899, and July 19, 1909, requires
three things:

1. A first heir called primarily to the enjoyment of the estate.

 2. An obligation clearly imposed upon him to preserve and transmit to a third
person the whole or a part of the estate.

3. A second heir.

To these requisites, the decision of November 18, 1918 adds another, namely that
the fideicommissarius be entitled to the estate from the time the testator dies,
since he is to inherit from the latter and not from the fiduciary. (Emphasis ours.)

It appears from this quotation that the heir instituted or the fiduciary, as referred to in
articles 783 of the Civil Code, is entitled to enjoy the inheritance. And it might here be
observed, as a timely remark, that the fideicommissum arising from a fideicommissary
substitution, which is of Roman origin, is not exactly equivalent to, nor may it be
confused with, the English "trust."

It should also be noted that said clause IX vests in the heiress only the right to enjoy
but not the right to dispose of the estate. It says, she may enjoy it, but does not say she
may dispose of it. This is an indication of the usufruct inherent in fideicommissary
substitution.

Clause X expressly provides for the substitution. It is true that it does not say whether
the death of the heiress herein referred to is before or after that of the testatrix; but
from the whole context it appears that in making the provisions contained in this clause
X, the testatrix had in mind a fideicommissary substitution, since she limits the
transmission of her estate to the children of the heiress by this provision, "in such wise
that my estate shall never pass out of the hands of my heiress or her children in so far
as it is legally possible." Here it clearly appears that the testatrix tried to avoid the
possibility that the substitution might later be legally declared null for transcending the
limits fixed by article 781 of the Civil Code which prescribed that fideicommissary
substitutions shall be valid "provided they do not go beyond the second degree."

Another clear and outstanding indication of fideicommissary substitution in clause X is

the provision that the whole estate shall pass unimpaired to the heiress's children, that
is to say the heiress is required to preserve the whole estate, without diminution, in
order to pass it on in due time to the fideicommissary heirs. This provision complies with
another of the requisites of fideicommissary substitution according to our quotation from
Manresa inserted above.

Lastly, clause XI more clearly indicates the idea of fideicommissary substitution, when a
provision is therein made in the event the heiress should die after the testatrix. That is,
said clause anticipates the case where the instituted heiress should die after the testatrix
and after receiving and enjoying the inheritance.

The foregoing leads us to the conclusion that all the requisites of a fideicommissary
substitution, according to the quotation from Manresa above inserted, are present in the
case of substitution now under consideration, to wit:

1. At first heir primarily called to the enjoyment of the estate. In this case the
plaintiff was instituted an heiress, called to the enjoyment of the estate, according
to clause IX of the will.

2. An obligation clearly imposed upon the heir to preserve and transmit to a third
person the whole or a part of the estate. Such an obligation is imposed in clause X
which provides that the "whole estate shall pass unimpaired to her (heiress's)
surviving children;" thus, instead of leaving the heiress at liberty to dispose of the
estate by will, or of leaving the law to take its course in case she dies intestate,
said clause not only disposes of the estate in favor of the heiress instituted, but
also provides for the disposition thereof in case she should die after the testatrix.

3. A second heir. Such are the children of the heiress instituted, who are referred
to as such second heirs both in clause X and in clause XI.
Finally, the requisite added by the decision of November 18, 1918, to wit, that the
fideicommissarius or second heir should be entitled to the estate from the time of the
testator's death, which in the instant case, is, rather than a requisite, a necessary
consequence derived from the nature of the fideicommissary substitution, in which the
second heir does not inherit from the heir first instituted, but from the testator.

By virtue of this consequence, the inheritance in question does not belong to the heiress
instituted, the plaintiff herein, as her absolute property, but to her children, from the
moment of the death of the testatrix, Ana Maria Alcantara.

Therefore, said inheritance, of which the amount referred to at the beginning, which is
on deposit with the association known as La Urbana in the plaintiff's name, is a part,
does not belong to her nor can it be subject to the execution of the judgment against
Joaquin Perez, who is not one of the fideicommissary heirs.

The judgment appealed from is affirmed, with costs against the appellant, Mariano
Garchitorena. So ordered.
G.R. No. L-56249 May 29, 1987

IN THE MATTER OF THE TESTATE ESTATE OF THE DECEASED REV. FATHER

TEODORO ARANAS, RAMONA B. VDA. DE ARANAS, ADELIA B. ARANAS-
FERNANDEZ, HEIRS OF THE LATE RODULFO B. ARANAS, ETC., ET AL., petitioners, 
vs.
VICENTE B. ARANAS AND HON. LUIS B. MANTA, respondents.

PARAS, J.:

This is a petition for certiorari which seeks to declare the orders of respondent Judge
dated July 16, 1980 and September 23, 1980 as an exercise of a gross abuse of
discretion amounting to lack of jurisdiction, by ruling that the properties under Group C
of the testate estate of the late Fr.Teodoro Aranas are subject to remunerative legacies.

The antecedent facts of the case are as follows:

Fr. Teodoro Aranas, a priest of the Roman Catholic Church, died on January 19, 1953.
He had executed on June 6, 1946 his Last Will and Testament which was admitted to
probate on August 31, 1956. In said Last Will and Testament, Fr. Teodoro Aranas
stipulated the following:

A. The return to Aniceto Aranas or his heirs of all properties acquired by Fr. Aranas from
his brother Aniceto Aranas and ten (10) parcels of land described in the Will inherited by
the testator from his parents.

B. The return to Carmelo Aranas or his heirs of all properties acquired by Fr. Aranas
from his brother Carmelo Aranas and ten (10) parcels of land described in the Will
inherited by the testator from his parents.

C. The special administration of the remainder of the estate of the testator by Vicente
Aranas, a faithful and serviceable nephew and designating him also as recipient of 1/2 of
the produce of said properties after deducting the expenses for the administration and
the other 1/2 of the produce to be given to the Catholic Church for the eternal repose of
the testator's soul. Said pertinent provision 1 reads as follows:

Fourth. It is my will that the lands I had bought from other persons should
be converged and placed under a "special administrator." The special
administrator of these lands, for his office, should receive one half of all the
produce from which shall be deducted the expenses for the administration,
and the other half of the produce should be received by the Roman Catholic
Church and should be spent for my soul, Vicente B. Aranas (Tingting),
because he is a faithful and serviceable nephew, should be the first special
administrator of said properties, without bond, until his death or until he
should not want to hold the said office anymore. Anyone of the sons of my
brother Carmelo Aranas can hold the said office of special administrator, and
none other than they. Their father, my brother Carmelo Aranas shall be the
one to decide who among them shall hold the said office, but upon the death
of my said brother Carmelo Aranas, his said sons will have power to select
the one among them ourselves. The special administration is perpetual.

The lower court in its Order 2 dated November 17, 1977 ruled, upon petitioners' (in Sp.
Proc. No. 303) "Motion for the Declaration of Heirs and Partition; and for Removal of the
Administrator (Vicente Aranas) and/or for his Permission to Resign, and appointment of
His Successor" that the "perpetual inalienability and administration of the portion of the
estate of the late Rev. Fr. Teodoro Aranas, administered by Vicente Aranas, is nun and
void after twenty years from January 19, 1954 ... " and declared in the same order the
heirs of the late Fr. Teodoro Aranas. It also declared that "the removal of Vicente Aranas
will, therefore, not serve the ends of justice and for the best interest of all the heirs,
particularly with respect to the portion of the estate taken by the heirs of Aniceto
Aranas, represented by the petitioners herein and the rest of the heirs of Carmelo,
represented by the intervenors, coheirs of Administrator Vicente Aranas." 3

However, the abovesaid Order was subsequently set aside upon the "Urgent Motion for
Reconsideration and to Declare Testate and Intestate Heirs of the late Fr. Teodoro
Aranas," filed by the administrator Vicente Aranas on the allegation that said order was
violative of due process and without legal and factual basis because only the issue for
the removal of the administrator was heard and not the matter of the declaration of
heirs. Thus, the lower court declared in its Order, 4 dated July 16, 1980 that the Order
dated November 17, 1977 is "set aside and in the interest of justice, reopened in order
that other heirs, successors-in-interest of Felino Aranas, 5 could likewise assert their
claims, as in the case of the heirs of Aniceto Aranas and Carmelo Aranas." 6

Their Motion for Reconsideration having been denied by the lower court in its order
dated September 23, 1980, petitioners now come before Us by certiorari raising the
issue that the lower court erred in setting aside its order dated November 17, 1977 and
in not applying the provisions on Usufruct of the New Civil Code with respect to the
properties referred to as Group "C" in the Last Will and Testament.

The court ruled in its questioned order that this particular group of properties (Group
"C") is subject to the following:

1. Remunerative legacy by way of usufruct of the net proceeds of 1/2 of the

estate after deducting expenses for administration in favor of Vicente
Aranas, during his lifetime and shall continue an administrator of the estate,
and, who, upon his death or refusal to continue such usufruct, may be
succeeded by any of the brothers of the administrator as selected by their
father, Carmelo Aranas, if still alive or one selected by his sons if, he,
Carmelo, is dead; Pursuant to the Will. (Article 562, 563, 564 and 603 of the
New Civil Code).

2. Legacy in favor of the Roman Catholic Church, particularly the Archbishop

diocese of Cagayan de Oro City Represented by the Reverend Archbishop
Patrick H. Cronin over one-half of the proceeds of the properties under
Group "C." (Article 603, New Civil Code) and to last for a period of Fifty
years from the effective date of the legacy, Article 605, New Civil Code).
(Annex "L-14," p. 87, Rollo)

Assailing the aforementioned ruling, petitioners rely heavily on the doctrine laid down in
Art. 870 of the New Civil Code to wit:

Art. 870. The dispositions of the testator declaring all or part of the estate
inalienable for more than twenty years are void.

A cursory reading of the English translation of the Last Will and Testament shows that it
was the sincere intention and desire of the testator to reward his nephew Vicente Aranas
for his faithful and unselfish services by allowing him to enjoy one-half of the fruits of
the testator's third group of properties until Vicente's death and/or refusal to act as
administrator in which case, the administration shall pass to anyone chosen by Carmelo
Aranas among his sons and upon Carmelo's death, his sons will have the power to select
one among themselves. Vicente Aranas therefore as a usufructuary has the right to
enjoy the property of his uncle with all the benefits which result from the normal
enjoyment (or exploitation) of another's property, with the obligation to return, at the
designated time, either the same thing, or in special cases its equivalent. This right of
Vicente to enjoy the fruits of the properties is temporary and therefore not perpetual as
there is a limitation namely his death or his refusal. Likewise his designation as
administrator of these properties is limited by his refusal and/or death and therefore it
does not run counter to Art. 870 of the Civil Code relied upon by the petitioners. Be it
noted that Vicente Aranas is not prohibited to dispose of the fruits and other benefits
arising from the usufruct. Neither are the naked owners (the other heirs) of the
properties, the usufruct of which has been given to Vicente Aranas prohibited from
disposing of said naked ownership without prejudice of course to Vicente's continuing
usufruct. To void the designation of Vicente Aranas as usufructuary and/or administrator
is to defeat the desire and the dying wish of the testator to reward him for his faithful
and unselfish services rendered during the time when said testator was seriously ill or
bed-ridden. The proviso must be respected and be given effect until the death or until
the refusal to act as such of the instituted usufructuary/administrator, after which
period, the property can be properly disposed of, subject to the limitations provided in
Art. 863 of the Civil Code concerning a fideicommissary substitution, said Article says:

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 the 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 the time of the death of the testator.

It is contended by petitioners that the ruling made by respondent court dated November
17, 1977 was already final and not subject to correction as what was set aside and to be
reheard was only regarding the determination of additional heirs. Such contention is not
worthy of credence. Respondents in their Memorandum allege and it is not disputed by
petitioners that the order of November 17, 1977 has not yet become final because it was
received only on January 12, 1978 by the counsel for respondent Vicente Aranas and the
Motion for Reconsideration and to declare testamentary and intestate heirs dated
January 17, 1978 was filed by the said respondent within the reglementary period.
Besides the validity or invalidity of the usufructuary dispositions would affect the
determination of heirs.

As to petitioners' allegation that the order of July 16, 1980 is without basis, the record
shows that during the hearing of the urgent motion for reconsideration and to declare
testamentary and intestate heirs, it was proven conclusively by the said respondent
Vicente B. Aranas that he was instituted as a remunerative legatee per mandate of the
Last Will and Testament by way of usufructuary. Likewise the right of the Roman
Catholic Church as the other usufructuary legatee for the duration of the statutory
lifetime of a corporation, that is, 50 years from the date of the effectivity of said legacy,
was also established. 7 WHEREFORE, the instant petition is hereby dismissed.
G.R. No. 168660               June 30, 2009

HILARION, JR. and ENRICO ORENDAIN, represented by FE D.

ORENDAIN, Petitioners,1 
vs.
TRUSTEESHIP OF THE ESTATE OF DOÑA MARGARITA RODRIGUEZ, Respondent.

DECISION

NACHURA, J.:

This petition for certiorari, filed under Rule 65 of the Rules of Court, assails the Order2 of
the Regional Trial Court (RTC) of Manila, Branch 4 in SP. PROC. No. 51872 which denied
petitioners’ (Hilarion, Jr. and Enrico Orendain, heirs of Hilarion Orendain, Sr.) Motion to
Dissolve the Trusteeship of the Estate of Doña Margarita Rodriguez.

First, we revisit the long settled facts.

On July 19, 1960, the decedent, Doña Margarita Rodriguez, died in Manila, leaving a last
will and testament. On September 23, 1960, the will was admitted to probate by virtue
of the order of the Court of First Instance of Manila City (CFI Manila) in Special
Proceeding No. 3845. On August 27, 1962, the CFI Manila approved the project of
partition presented by the executor of Doña Margarita Rodriguez’s will.

At the time of her death, the decedent left no compulsory or forced heirs and,
consequently, was completely free to dispose of her properties, without regard to
legitimes,3 as provided in her will. Some of Doña Margarita Rodriguez’s testamentary
dispositions contemplated the creation of a trust to manage the income from her
properties for distribution to beneficiaries specified in the will, to wit:

xxxx

CLAUSULA SEGUNDA O PANG-DALAWA: - x x x Ipinaguutos ko na matapos magawa ang

pagaayos ng aking Testamentaria at masara na ang Expediente ng aking Testamentaria,
ang lahat ng pagaare ko sa aking ipinaguutos na pangasiwaan sa habang panahon ay
ipagbukas sa Juzgado ng tinatawag na "FIDEICOMISO" at ang ilalagay na
"fideicomisario" ang manga taong nasabi ko na sa itaas nito, at ang kanilang gaganahin
ay ang nasasabi sa testamentong ito na gaganahen ng tagapangasiwa at albacea. x x x
x

CLAUSULA TERCERA O PANG-TATLO: - Ipinaguutos ko na ang kikitain ng lahat ng aking

pagaare, na ang hindi lamang kasama ay ang aking lupain na nasasabi sa Certificado de
Transferencia de Titulo No. 7156 (Lote No. 1088-C), Certificado Original de Titulo No.
4588 (LOTE No. 2492), Certificado Original de Titulo No. 4585 (Lote No. 1087) ng
lalawigan ng Quezon, at ang bahaging maytanim na palay ng lupang nasasaysay sa
Certificado Original de Titulo No. 4587 (Lote No. 1180) ng Quezon, ay IIPUNIN SA
BANCO upang maibayad sa anillaramiento, ang tinatawag na "estate Tax", ang
"impuesto de herencia" na dapat pagbayaran ng aking pinagbibigyan na kasama na din
ang pagbabayaran ng "Fideicomiso", gastos sa abogado na magmamakaalam ng
testamentaria at gastos sa Husgado. Ngunit bago ipasok sa Banco ang kikitaen ng
nabangit na manga gagaare, ay aalisin muna ang manga sumusunod na gastos:

xxxx

CLAUSULA DECIMA O PANG-SAMPU: - Ipinaguutos ko na ang manga pagaareng

nasasabi sa Clausulang ito ay pangangasiwaan sa habang panahon, at ito nga ang
ipagbubukas ng "Fideicomiso" sa Jusgado pagkatapos na maayos ang naiwanan kong
pagaare. Ang pangangasiwaang pagaare ay ang manga sumusunod:

xxxx
Ang lahat ng pagaaring nasasabe sa Clusulang ito (hindi kasama ang "generator" at
automovil) hindi maisasanla o maipagbibili kailan man, maliban sa pagaaring nasa
Quezon Boulevard, Maynila, na maaring isanla kung walang fondo na gagamitin sa
ipagpapaigui o ipagpapagawa ng panibago alinsunod sa kaayusang hinihingi ng
panahon.

xxxx

CLAUSULA DECIMA SEGUNDA O PANG-LABING DALAWA: - Ang kuartang matitipon sa

Banco ayon sa tagubilin na nasasaysay sa Clausulang sinusundan nito ay gagamitin sa
manga sumusunod na pagkakagastusan; at ganito din ang gagawin sa lahat ng aking
pagaare na nasasakop ng fideicomiso at walang ibang pinaguukulan. Ang
pagkakagastusan na ito ay ang sumusunod:

xxxx

CLAUSULA VIGESIMA CUARTA O PANG-DALAWANGPU AT APAT: - Ipinaguutos ko sa

aking manga Tagapangasiwa na sa fondong ipinapasok sa Banco para sa gastos ng Niña
Maria, Misa at iba pa, kukuha sila na kakailanganin para maitulong sa manga
sumusunod: Florentina Luna, Roberta Ponce, Marciada Ponce, Benita Ponce, Constancia
Pineda, Regino Pineda, Tomas Payumo, Rosito Payumo, Loreto Payumo, Brigido Santos
at Quintin Laino, Hilarion Orendain at manga anak. Ang manga dalaga kung sakali at
inabutan ng pagkamatay ko na ako ay pinagtiisan at hindi humiwalay sa akin, kung
magkasakit ay ipagagamot at ibabayad sa medico, at ibibili ng gamot, at kung kailangan
ang operacion ay ipaooperacion at ipapasok sa Hospital na kinababagayan ng kaniyang
sakit, at kahit maypagkakautang pa sa "impuesto de herencia at estate tax" ay ikukuha
sa nasabing fondo at talagang ibabawas doon, at ang paggagamot ay huag pagtutuusan,
at ang magaalaga sa kanya ay bibigyan ng gastos sa pagkain at sa viaje at iba pa na
manga kailangan ng nagaalaga. Kung nasa provincia at dadalhin ditto sa Maynila ay
bibigyan ng gastos sa viaje ang maysakit at ang kasama sa viaje, at ang magaalaga ay
dito tutuloy sa bahay sa Tuberias at Tanduay na natatalaga sa manga may servicio sa
akin, at kung mamatay at gusting iuwi sa provincia ang bangkay ay iupa at doon ilibing
at dapit ng Pare at hated sa nicho na natotoka sa kanya. Ganito din ang gagawain kung
mayasawa man ay nasa poder ko ng ako ay mamatay. Ang wala sa poder ko datapua at
nagservicio sa akin, kaparis ng encargado, ang gagawaing tulong ay ipagagamot, ibibili
ng gamot at kung kailangan ang operacion o matira sa Hospital, ipaooperacion at
ipagbabayad sa Hospital.4 (emphasis supplied)

xxxx

As regards Clause 10 of the will which explicitly prohibits the alienation or mortgage of
the properties specified therein, we had occasion to hold, in Rodriguez, etc., et al. v.
Court of Appeals, et al.,5 that the clause, insofar as the first twenty-year period is
concerned, does not violate Article 8706 of the Civil Code. We declared, thus:

The codal provision does not need any interpretation. It speaks categorically. What is
declared void is the testamentary disposition prohibiting alienation after the twenty-year
period. In the interim, such a provision does not suffer from the vice of invalidity. It
cannot be stricken down. Time and time again, We have said, and We now repeat, that
when a legal provision is clear and to the point, there is no room for interpretation. It
must be applied according to its literal terms.

Even with the purpose that the testatrix had in mind were not as unequivocal, still the
same conclusion emerges. There is no room for intestacy as would be the effect if the
challenged resolution of January 8, 1968 were not set aside. The wishes of the testatrix
constitute the law. Her will must be given effect. This is so even if there could be an
element of uncertainty insofar as the ascertainment thereof is concerned. In the
language of a Civil Code provision: "If a testamentary disposition admits of different
interpretations, in case of doubt, that interpretation by which the disposition is to be
operative shall be preferred." Nor is this all. A later article of the Civil Code equally calls
for observance. Thus: "The words of a will are to receive an interpretation which will
give to every expression some effect, rather than one which will render any of the
expressions inoperative; and of two modes of interpreting a will, that is to be preferred
which will prevent intestacy."

xxxx

Nothing can be clearer, therefore, than that [Petra, Antonia and Rosa, all surnamed
Rodriguez] could not challenge the provision in question. [They] had no right to
vindicate. Such a right may never arise. The twenty-year period is still with us. What
would transpire thereafter is still locked up in the inscrutable future, beyond the power
of mere mortals to foretell. At any rate, We cannot anticipate. Nor should We. We do not
possess the power either of conferring a cause of action to a party when, under the
circumstances disclosed, it had none.7

Almost four decades later, herein petitioners Hilarion, Jr. and Enrico Orendain, heirs of
Hilarion Orendain, Sr. who was mentioned in Clause 24 of the decedent’s will, moved to
dissolve the trust on the decedent’s estate, which they argued had been in existence for
more than twenty years, in violation of Articles 8678 and 870 of the Civil Code, and
inconsistent with our ruling in Rodriguez v. Court of Appeals.9

On April 18, 2005, the RTC issued the herein assailed Order:10

The above-cited provisions of the civil code find no application in the present motion to
dissolve the trust created by the testatrix. There is no question that the testamentary
disposition of Doña Margarita Rodriguez prohibiting the mortgage or sale of properties
mentioned in clause X of her Last Will and Testament forevermore is void after the lapse
of the twenty year period. However, it does not mean that the trust created by [the]
testatrix in order to carry out her wishes under clauses 12, 13 and 24 will also become
void upon expiration of the twenty year period. As ruled by the Supreme Court in
Emetrio Barcelon v. CA, "the codal provision cited in Art. 870 is clear and unequivocal
and does not need any interpretation. What is declared void is the testamentary
disposition prohibiting alienation after the twenty year period." Hence, the trustees may
dispose of the properties left by the testatrix in order to carry out the latter’s
testamentary disposition.

The question as to whether a trust can be perpetual, the same finds support in Article
1013[,] paragraph 4 of the Civil Code, which provides that "the Court, at the instance of
an interested party or its motion, may order the establishment of a permanent trust so
that only the income from the property shall be used." In the present case, the testatrix
directed that all the twenty five (25) pieces of property listed in the tenth clause should
be placed under the trusteeship and should be perpetually administered by the trustees
and a certain percentage of the income from the trust estate should be deposited in a
bank and should be devoted for the purposes specifically indicated in the clauses 12, 13
and 24.1awphi1

The wishes of the testatrix constitute the law. Her will must be given effect. This is even
if there could be an element of uncertainty insofar as the ascertainment thereof is
concerned. This Court so emphatically expressed it in a decision rendered more than
sixty years ago. Thus, respect for the will of a testator as [an] expression of his last
testamentary disposition, constitutes the principal basis of the rules which the law
prescribes for the correct interpretation of all of the clauses of the will; the words and
provision therein written must be plainly construed in order to avoid a violation of his
intentions and real purpose. The will of the testator clearly and explicitly stated must be
respected and complied with as an inviolable law among the parties in interest. Such is
the doctrine established by the Supreme Court of Spain, constantly maintained in a
great number of decisions.

Hence, this petition, positing the following issues:

 1. WHETHER THE TRUSTEESHIP OVER THE PROPERTIES LEFT BY DOÑA
MARGARITA RODRIGUEZ CAN BE DISSOLVED APPLYING ARTICLES 867 AND 870
OF THE CIVIL CODE.

2. WHETHER THE LOWER COURT IS CORRECT IN STATING THAT THE ABOVE-

CITED PROVISIONS OF THE CIVIL CODE FINDS NO APPLICATION IN THE PRESENT
MOTION TO DISSOLVE THE TRUST CREATED BY THE TESTATRIX.

3. CONCOMITANT THERETO, [WHETHER] THE LOWER COURT [IS] CORRECT IN

APPLYING ARTICLE 1013 PARAGRAPH 4 OF THE CIVIL CODE.11

Before we delve into the foregoing issues, it is noteworthy that the present petition,
albeit captioned as a petition for certiorari, is actually a petition for review on certiorari,
raising only pure questions of law. On more than one occasion, we have allowed
erroneously labeled actions based on the averments contained in the petition or
complaint.12 Thus, we now disregard the incorrect designation and treat this as a petition
for review on certiorari under Rule 45 of the Rules of Court.

The petition is impressed with merit.

The issues being intertwined, we shall discuss them jointly.

Quite categorical from the last will and testament of the decedent is the creation of a
perpetual trust for the administration of her properties and the income accruing
therefrom, for specified beneficiaries. The decedent, in Clause 10 of her will, listed a
number of properties to be placed under perpetual administration of the trust. In fact,
the decedent unequivocally forbade the alienation or mortgage of these properties. In
all, the decedent did not contemplate the disposition of these properties, but only sought
to bequeath the income derived therefrom to various sets of beneficiaries.

On this score, we held in Rodriguez v. Court of Appeals13 that the perpetual prohibition

was valid only for twenty (20) years. We affirmed the CA’s holding that the trust
stipulated in the decedent’s will prohibiting perpetual alienation or mortgage of the
properties violated Articles 867 and 870 of the Civil Code. However, we reversed and set
aside the CA’s decision which declared that that portion of the decedent’s estate, the
properties listed in Clause 10 of the will, ought to be distributed based on intestate
succession, there being no institution of heirs to the properties covered by the perpetual
trust.

As previously quoted, we reached a different conclusion and upheld the trust, only
insofar as the first twenty-year period is concerned. We refrained from forthwith
declaring the decedent’s testamentary disposition as void and the properties
enumerated in Clause 10 of the will as subject to intestate succession. We held that, in
the interim, since the twenty-year period was then still upon us, the wishes of the
testatrix ought to be respected.

Thus, at present, there appears to be no more argument that the trust created over the
properties of the decedent should be dissolved as the twenty-year period has, quite
palpably, lapsed.

Notwithstanding the foregoing, the RTC ruled otherwise and held that: (a) only the
perpetual prohibition to alienate or mortgage is declared void; (b) the trust over her
properties stipulated by the testatrix in Clauses 12, 13 and 24 of the will remains valid;
and (c) the trustees may dispose of these properties in order to carry out the latter’s
testamentary disposition.

We disagree.

Apparent from the decedent’s last will and testament is the creation of a trust on a
specific set of properties and the income accruing therefrom. Nowhere in the will can it
be ascertained that the decedent intended any of the trust’s designated beneficiaries to
inherit these properties. The decedent’s will did not institute any heir thereto, as clearly
shown by the following:

1. Clause 2 instructed the creation of trust;

2. Clause 3 instructed that the remaining income from specified properties, after
the necessary deductions for expenses, including the estate tax, be deposited in a
fund with a bank;

3. Clause 10 enumerated the properties to be placed in trust for perpetual

administration (pangasiwaan sa habang panahon);

4. Clauses 11 and 12 directed how the income from the properties ought to be
divided among, and distributed to the different beneficiaries; and

5. Clause 24 instructed the administrators to provide medical support to certain

beneficiaries, to be deducted from the fund deposits in the bank mentioned in
Clauses 2 and 3.

Plainly, the RTC was mistaken in denying petitioners’ motion to dissolve and ordering
the disposition of the properties in Clause 10 according to the testatrix’s wishes. As
regards these properties, intestacy should apply as the decedent did not institute an heir
therefor. Article 782, in relation to paragraph 2, Article 960 of the Civil Code, provides:

Art. 782. An heir is a person called to the succession either by the provision of a will or
by operation of law.

xxxx

Art. 960. Legal or intestate succession takes place:

xxxx

(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 of which the testator has not disposed;

xxx

We find as erroneous the RTC’s holding that paragraph 4,14 Article 1013 of the same
code specifically allows a perpetual trust, because this provision of law is inapplicable.
Suffice it to state that the article is among the Civil Code provisions on intestate
succession, specifically on the State inheriting from a decedent, in default of persons
entitled to succeed. Under this article, the allowance for a permanent trust, approved by
a court of law, covers property inherited by the State by virtue of intestate succession.
The article does not cure a void testamentary provision which did not institute an heir.
Accordingly, the article cannot be applied to dispose of herein decedent’s properties.

We are not unmindful of our ruling in Palad, et al. v. Governor of Quezon Province, et
al.15 where we declared, thus:

Article 870 of the New Civil Code, which regards as void any disposition of the testator
declaring all or part of the estate inalienable for more than 20 years, is not violated by
the trust constituted by the late Luis Palad; because the will of the testator does not
interdict the alienation of the parcels devised. The will merely directs that the income of
said two parcels be utilized for the establishment, maintenance and operation of the high
school.

Said Article 870 was designed "to give more impetus to the socialization of the
ownership of property and to prevent the perpetuation of large holdings which give rise
to agrarian troubles." The trust herein involved covers only two lots, which have not
been shown to be a large landholding. And the income derived therefrom is being
devoted to a public and social purpose – the education of the youth of the land. The use
of said parcels therefore is in a sense socialized. There is no hint in the record that the
trust has spawned agrarian conflicts.16

In this case, however, we reach a different conclusion as the testatrix specifically

prohibited the alienation or mortgage of her properties which were definitely more than
the two (2) properties in the aforecited case. The herein testatrix’s large landholdings
cannot be subjected indefinitely to a trust because the ownership thereof would then
effectively remain with her even in the afterlife.

In light of the foregoing, therefore, the trust on the testatrix’s properties must be
dissolved and this case remanded to the lower court to determine the following:

1. The properties listed in Clause 10 of the will, constituting the perpetual trust,
which are still within reach and have not been disposed of as yet; and

2. The intestate heirs of the decedent, with the nearest relative of the deceased
entitled to inherit the remaining properties.

One final note. To obviate confusion, we clarify that the petitioners, although correct in
moving for the dissolution of the trust after the twenty-year period, are not necessarily
declared as intestate heirs of the decedent. Our remand of the case to the RTC means
that the probate court should now make a determination of the heirship of the intestate
heirs of the decedent where petitioners, and all others claiming to be heirs of the
decedent, should establish their status as such consistent with our ruling in Heirs of
Yaptinchay v. Hon. del Rosario.17

WHEREFORE, premises considered, the petition is GRANTED. The Order of the Regional
Trial Court of Manila, Branch 4 in SP. PROC. No. 51872 is REVERSED and SET ASIDE.
The trust approved by the Regional Trial Court of Manila, Branch 4 in SP. PROC. No.
51872 is DISSOLVED. We ORDER the Regional Trial Court of Manila, Branch 4 in SP.
PROC. No. 51872 to determine the following:

1. the properties listed in Clause 10 of Doña Margarita Rodriguez’s will,

constituting the perpetual trust, which are still within reach and have not been
disposed of as yet; and

2. the intestate heirs of Doña Margarita Rodriguez, with the nearest relative of the
decedent entitled to inherit the remaining properties.
G.R. No. 113725               June 29, 2000

JOHNNY S. RABADILLA,1 petitioner, 
vs.
COURT OF APPEALS AND MARIA MARLENA2 COSCOLUELLA Y BELLEZA
VILLACARLOS, respondents.

DECISION

PURISIMA, J.:

This is a petition for review of the decision of the Court of Appeals,3 dated December 23,
1993, in CA-G.R. No. CV-35555, which set aside the decision of Branch 52 of the
Regional Trial Court in Bacolod City, and ordered the defendants-appellees (including
herein petitioner), as heirs of Dr. Jorge Rabadilla, to reconvey title over Lot No. 1392,
together with its fruits and interests, to the estate of Aleja Belleza.

The antecedent facts are as follows:

In a Codicil appended to the Last Will and Testament of testatrix Aleja Belleza, Dr. Jorge
Rabadilla, predecessor-in-interest of the herein petitioner, Johnny S. Rabadilla, was
instituted as a devisee of 511, 855 square meters of that parcel of land surveyed as Lot
No. 1392 of the Bacolod Cadastre. The said Codicil, which was duly probated and
admitted in Special Proceedings No. 4046 before the then Court of First Instance of
Negros Occidental, contained the following provisions:

"FIRST

I give, leave and bequeath the following property owned by me to Dr. Jorge Rabadilla
resident of 141 P. Villanueva, Pasay City:

(a) Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title
No. RT-4002 (10942), which is registered in my name according to the records of
the Register of Deeds of Negros Occidental.

(b) That should Jorge Rabadilla die ahead of me, the aforementioned property and
the rights which I shall set forth hereinbelow, shall be inherited and acknowledged
by the children and spouse of Jorge Rabadilla.

xxx

FOURTH

(a)....It is also my command, in this my addition (Codicil), that should I die and Jorge
Rabadilla shall have already received the ownership of the said Lot No. 1392 of the
Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002 (10942), and also
at the time that the lease of Balbinito G. Guanzon of the said lot shall expire, Jorge
Rabadilla shall have the obligation until he dies, every year to give to Maria Marlina
Coscolluela y Belleza, Seventy (75) (sic) piculs of Export sugar and Twenty Five (25)
piculs of Domestic sugar, until the said Maria Marlina Coscolluela y Belleza dies.

FIFTH

(a) Should Jorge Rabadilla die, his heir to whom he shall give Lot No. 1392 of the
Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002 (10492), shall
have the obligation to still give yearly, the sugar as specified in the Fourth paragraph of
his testament, to Maria Marlina Coscolluela y Belleza on the month of December of each
year.
 SIXTH

I command, in this my addition (Codicil) that the Lot No. 1392, in the event that the one
to whom I have left and bequeathed, and his heir shall later sell, lease, mortgage this
said Lot, the buyer, lessee, mortgagee, shall have also the obligation to respect and
deliver yearly ONE HUNDRED (100) piculs of sugar to Maria Marlina Coscolluela y
Belleza, on each month of December, SEVENTY FIVE (75) piculs of Export and TWENTY
FIVE (25) piculs of Domestic, until Maria Marlina shall die, lastly should the buyer, lessee
or the mortgagee of this lot, not have respected my command in this my addition
(Codicil), Maria Marlina Coscolluela y Belleza, shall immediately seize this Lot No. 1392
from my heir and the latter's heirs, and shall turn it over to my near desendants, (sic)
and the latter shall then have the obligation to give the ONE HUNDRED (100) piculs of
sugar until Maria Marlina shall die. I further command in this my addition (Codicil) that
my heir and his heirs of this Lot No. 1392, that they will obey and follow that should
they decide to sell, lease, mortgage, they cannot negotiate with others than my near
descendants and my sister."4

Pursuant to the same Codicil, Lot No. 1392 was transferred to the deceased, Dr. Jorge
Rabadilla, and Transfer Certificate of Title No. 44498 thereto issued in his name.

Dr. Jorge Rabadilla died in 1983 and was survived by his wife Rufina and children Johnny
(petitioner), Aurora, Ofelia and Zenaida, all surnamed Rabadilla.

On August 21, 1989, Maria Marlena Coscolluela y Belleza Villacarlos brought a complaint,
docketed as Civil Case No. 5588, before Branch 52 of the Regional Trial Court in Bacolod
City, against the above-mentioned heirs of Dr. Jorge Rabadilla, to enforce the provisions
of subject Codicil. The Complaint alleged that the defendant-heirs violated the conditions
of the Codicil, in that:

1. Lot No. 1392 was mortgaged to the Philippine National Bank and the Republic
Planters Bank in disregard of the testatrix's specific instruction to sell, lease, or
mortgage only to the near descendants and sister of the testatrix.

2. Defendant-heirs failed to comply with their obligation to deliver one hundred

(100) piculs of sugar (75 piculs export sugar and 25 piculs domestic sugar) to
plaintiff Maria Marlena Coscolluela y Belleza from sugar crop years 1985 up to the
filing of the complaint as mandated by the Codicil, despite repeated demands for
compliance.

3. The banks failed to comply with the 6th paragraph of the Codicil which provided
that in case of the sale, lease, or mortgage of the property, the buyer, lessee, or
mortgagee shall likewise have the obligation to deliver 100 piculs of sugar per crop
year to herein private respondent.

The plaintiff then prayed that judgment be rendered ordering defendant-heirs to

reconvey/return-Lot No. 1392 to the surviving heirs of the late Aleja Belleza, the
cancellation of TCT No. 44498 in the name of the deceased, Dr. Jorge Rabadilla, and the
issuance of a new certificate of title in the names of the surviving heirs of the late Aleja
Belleza.

On February 26, 1990, the defendant-heirs were declared in default but on March 28,
1990 the Order of Default was lifted, with respect to defendant Johnny S. Rabadilla, who
filed his Answer, accordingly.

During the pre-trial, the parties admitted that:

On November 15, 1998, the plaintiff (private respondent) and a certain Alan Azurin,

son-in-law of the herein petitioner who was lessee of the property and acting as
attorney-in-fact of defendant-heirs, arrived at an amicable settlement and entered into a
Memorandum of Agreement on the obligation to deliver one hundred piculs of sugar, to
the following effect:
"That for crop year 1988-89, the annuity mentioned in Entry No. 49074 of TCT No.
44489 will be delivered not later than January of 1989, more specifically, to wit:

75 piculs of 'A' sugar, and 25 piculs of 'B' sugar, or then existing in any of our names,
Mary Rose Rabadilla y Azurin or Alan Azurin, during December of each sugar crop year,
in Azucar Sugar Central; and, this is considered compliance of the annuity as mentioned,
and in the same manner will compliance of the annuity be in the next succeeding crop
years.

That the annuity above stated for crop year 1985-86, 1986-87, and 1987-88, will be
complied in cash equivalent of the number of piculs as mentioned therein and which is
as herein agreed upon, taking into consideration the composite price of sugar during
each sugar crop year, which is in the total amount of ONE HUNDRED FIVE THOUSAND
PESOS (P105,000.00).

That the above-mentioned amount will be paid or delivered on a staggered cash

installment, payable on or before the end of December of every sugar crop year, to wit:

For 1985-86, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos,
payable on or before December of crop year 1988-89;

For 1986-87, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos,
payable on or before December of crop year 1989-90;

For 1987-88, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos,
payable on or before December of crop year 1990-91; and

For 1988-89, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos,
payable on or before December of crop year 1991-92."5

However, there was no compliance with the aforesaid Memorandum of Agreement

except for a partial delivery of 50.80 piculs of sugar corresponding to sugar crop year
1988 -1989.

On July 22, 1991, the Regional Trial Court came out with a decision, dismissing the
complaint and disposing as follows:

"WHEREFORE, in the light of the aforegoing findings, the Court finds that the action is
prematurely filed as no cause of action against the defendants has as yet arose in favor
of plaintiff. While there maybe the non-performance of the command as mandated
exaction from them simply because they are the children of Jorge Rabadilla, the title
holder/owner of the lot in question, does not warrant the filing of the present complaint.
The remedy at bar must fall. Incidentally, being in the category as creditor of the left
estate, it is opined that plaintiff may initiate the intestate proceedings, if only to
establish the heirs of Jorge Rabadilla and in order to give full meaning and semblance to
her claim under the Codicil.

In the light of the aforegoing findings, the Complaint being prematurely filed is
DISMISSED without prejudice.

SO ORDERED."6

On appeal by plaintiff, the First Division of the Court of Appeals reversed the decision of
the trial court; ratiocinating and ordering thus:

"Therefore, the evidence on record having established plaintiff-appellant's right to

receive 100 piculs of sugar annually out of the produce of Lot No. 1392; defendants-
appellee's obligation under Aleja Belleza's codicil, as heirs of the modal heir, Jorge
Rabadilla, to deliver such amount of sugar to plaintiff-appellant; defendants-appellee's
admitted non-compliance with said obligation since 1985; and, the punitive
consequences enjoined by both the codicil and the Civil Code, of seizure of Lot No. 1392
and its reversion to the estate of Aleja Belleza in case of such non-compliance, this
Court deems it proper to order the reconveyance of title over Lot No. 1392 from the
estates of Jorge Rabadilla to the estate of Aleja Belleza. However, plaintiff-appellant
must institute separate proceedings to re-open Aleja Belleza's estate, secure the
appointment of an administrator, and distribute Lot No. 1392 to Aleja Belleza's legal
heirs in order to enforce her right, reserved to her by the codicil, to receive her legacy of
100 piculs of sugar per year out of the produce of Lot No. 1392 until she dies.

Accordingly, the decision appealed from is SET ASIDE and another one entered ordering
defendants-appellees, as heirs of Jorge Rabadilla, to reconvey title over Lot No. 1392,
together with its fruits and interests, to the estate of Aleja Belleza.

SO ORDERED."7

Dissatisfied with the aforesaid disposition by the Court of Appeals, petitioner found his
way to this Court via the present petition, contending that the Court of Appeals erred in
ordering the reversion of Lot 1392 to the estate of the testatrix Aleja Belleza on the
basis of paragraph 6 of the Codicil, and in ruling that the testamentary institution of Dr.
Jorge Rabadilla is a modal institution within the purview of Article 882 of the New Civil
Code.

The petition is not impressed with merit.

Petitioner contends that the Court of Appeals erred in resolving the appeal in accordance
with Article 882 of the New Civil Code on modal institutions and in deviating from the
sole issue raised which is the absence or prematurity of the cause of action. Petitioner
maintains that Article 882 does not find application as there was no modal institution
and the testatrix intended a mere simple substitution - i.e. the instituted heir, Dr. Jorge
Rabadilla, was to be substituted by the testatrix's "near descendants" should the
obligation to deliver the fruits to herein private respondent be not complied with. And
since the testatrix died single and without issue, there can be no valid substitution and
such testamentary provision cannot be given any effect.

The petitioner theorizes further that there can be no valid substitution for the reason
that the substituted heirs are not definite, as the substituted heirs are merely referred to
as "near descendants" without a definite identity or reference as to who are the "near
descendants" and therefore, under Articles 8438 and 8459 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 decedent10 and compulsory heirs are called to succeed
by operation of law. The legitimate children and descendants, in relation to their
legitimate parents, and the widow or widower, are compulsory heirs.11 Thus, the
petitioner, his mother and sisters, as compulsory heirs of the instituted heir, Dr. Jorge
Rabadilla, succeeded the latter by operation of law, without need of further proceedings,
and the successional rights were transmitted to them from the moment of death of the
decedent, Dr. Jorge Rabadilla.

Under Article 776 of the New Civil Code, inheritance includes all the property, rights and
obligations of a person, not extinguished by his death. Conformably, whatever rights Dr.
Jorge Rabadilla had by virtue of subject Codicil were transmitted to his forced heirs, at
the time of his death. And since obligations not extinguished by death also form part of
the estate of the decedent; corollarily, the obligations imposed by the Codicil on the
deceased Dr. Jorge Rabadilla, were likewise transmitted to his compulsory heirs upon his
death.

In the said Codicil, testatrix Aleja Belleza devised Lot No. 1392 to Dr. Jorge Rabadilla,
subject to the condition that the usufruct thereof would be delivered to the herein
private respondent every year. Upon the death of Dr. Jorge Rabadilla, his compulsory
heirs succeeded to his rights and title over the said property, and they also assumed his
(decedent's) obligation to deliver the fruits of the lot involved to herein private
respondent. Such obligation of the instituted heir reciprocally corresponds to the right of
private respondent over the usufruct, the fulfillment or performance of which is now
being demanded by the latter through the institution of the case at bar. Therefore,
private respondent has a cause of action against petitioner and the trial court erred in
dismissing the complaint below.

Petitioner also theorizes that Article 882 of the New Civil Code on modal institutions is
not applicable because what the testatrix intended was a substitution - Dr. Jorge
Rabadilla was to be substituted by the testatrix's near descendants should there be
noncompliance with the obligation to deliver the piculs of sugar to private respondent.

Again, the contention is without merit.

Substitution is the designation by the testator of a person or persons to take the place of
the heir or heirs first instituted. Under substitutions in general, the testator may either
(1) provide for the designation of another heir to whom the property shall pass in case
the original heir should die before him/her, renounce the inheritance or be incapacitated
to inherit, as in a simple substitution,12 or (2) leave his/her property to one person with
the express charge that it be transmitted subsequently to another or others, as in a
fideicommissary substitution.13 The Codicil sued upon contemplates neither of the two.

In simple substitutions, the second heir takes the inheritance in default of the first heir
by reason of incapacity, predecease or renunciation.14 In the case under consideration,
the provisions of subject Codicil do not provide that should Dr. Jorge Rabadilla default
due to predecease, incapacity or renunciation, the testatrix's near descendants would
substitute him. What the Codicil provides is that, should Dr. Jorge Rabadilla or his heirs
not fulfill the conditions imposed in the Codicil, the property referred to shall be seized
and turned over to the testatrix's near descendants.

Neither is there a fideicommissary substitution here and on this point, petitioner is

correct. In a fideicommissary substitution, the first heir is strictly mandated to preserve
the property and to transmit the same later to the second heir.15 In the case under
consideration, the instituted heir is in fact allowed under the Codicil to alienate the
property provided the negotiation is with the near descendants or the sister of the
testatrix. Thus, a very important element of a fideicommissary substitution is lacking;
the obligation clearly imposing upon the first heir the preservation of the property and
its transmission to the second heir. "Without this obligation to preserve clearly imposed
by the testator in his will, there is no fideicommissary substitution."16 Also, the near
descendants' right to inherit from the testatrix is not definite. The property will only pass
to them should Dr. Jorge Rabadilla or his heirs not fulfill the obligation to deliver part of
the usufruct to private respondent.

Another important element of a fideicommissary substitution is also missing here. Under

Article 863, the second heir or the fideicommissary to whom the property is transmitted
must not be beyond one degree from the first heir or the fiduciary. A fideicommissary
substitution is therefore, void if the first heir is not related by first degree to the second
heir.17 In the case under scrutiny, the near descendants are not at all related to the
instituted heir, Dr. Jorge Rabadilla.

The Court of Appeals erred not in ruling that the institution of Dr. Jorge Rabadilla under
subject Codicil is in the nature of a modal institution and therefore, Article 882 of the
New Civil Code is the provision of law in point. Articles 882 and 883 of the New Civil
Code provide:

Art. 882. The statement of the object of the institution or the application of the property
left by the testator, or the charge imposed on him, shall not be considered as a condition
unless it appears that such was his intention.

That which has been left in this manner may be claimed at once provided that the
instituted heir or his heirs give security for compliance with the wishes of the testator
and for the return of anything he or they may receive, together with its fruits and
interests, if he or they should disregard this obligation.

Art. 883. When without the fault of the heir, an institution referred to in the preceding
article cannot take effect in the exact manner stated by the testator, it shall be complied
with in a manner most analogous to and in conformity with his wishes.

The institution of an heir in the manner prescribed in Article 882 is what is known in the
law of succession as an institucion sub modo or a modal institution. In a modal
institution, the testator states (1) the object of the institution, (2) the purpose or
application of the property left by the testator, or (3) the charge imposed by the testator
upon the heir.18 A "mode" imposes an obligation upon the heir or legatee but it does not
affect the efficacy of his rights to the succession.19 On the other hand, in a conditional
testamentary disposition, the condition must happen or be fulfilled in order for the heir
to be entitled to succeed the testator. The condition suspends but does not obligate; and
the mode obligates but does not suspend.20 To some extent, it is similar to a resolutory
condition.21

From the provisions of the Codicil litigated upon, it can be gleaned unerringly that the
testatrix intended that subject property be inherited by Dr. Jorge Rabadilla. It is likewise
clearly worded that the testatrix imposed an obligation on the said instituted heir and his
successors-in-interest to deliver one hundred piculs of sugar to the herein private
respondent, Marlena Coscolluela Belleza, during the lifetime of the latter. However, the
testatrix did not make Dr. Jorge Rabadilla's inheritance and the effectivity of his
institution as a devisee, dependent on the performance of the said obligation. It is clear,
though, that should the obligation be not complied with, the property shall be turned
over to the testatrix's near descendants. The manner of institution of Dr. Jorge Rabadilla
under subject Codicil is evidently modal in nature because it imposes a charge upon the
instituted heir without, however, affecting the efficacy of such institution.

Then too, since testamentary dispositions are generally acts of liberality, an obligation
imposed upon the heir should not be considered a condition unless it clearly appears
from the Will itself that such was the intention of the testator. In case of doubt, the
institution should be considered as modal and not conditional.22

Neither is there tenability in the other contention of petitioner that the private
respondent has only a right of usufruct but not the right to seize the property itself from
the instituted heir because the right to seize was expressly limited to violations by the
buyer, lessee or mortgagee.

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

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

Similarly unsustainable is petitioner's submission that by virtue of the amicable

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

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

WHEREFORE, the petition is hereby DISMISSED and the decision of the Court of

Appeals, dated December 23, 1993, in CA-G.R. No. CV-35555 AFFIRMED. No
pronouncement as to costs.
G.R. No. L-11386            March 31, 1917

EMILIO NATIVIDAD, administrator of the estate of the deceased Tiburcio

Salvador y Reyes, petitioner-appellant, 
vs.
BASILIA GABINO, respondent-appellee.

Herrero and Marasigan and I. Santiago for appellant. 

Perfecto Gabriel for appellee.

TORRES, J.:

This is an appeal, filed by the administrator of the estate of the decedent Tiburcio
Salvador y Reyes, from the order of August 21, 1915, by which the judge of the Court of
First Instance of Manila, interpreting the true wishes of the testator, expressed the
opinion that the ownership and dominion of the property mentioned in clause 6 of the
will should be awarded to Basilia Gabino, subject to the reservation made in behalf of
Lorenzo Salvador and Emilio Natividad. Therefore the trial court ordered an amendment
made to the fourth basis for the proposed partition of the decedent's estate, presented
by the testamentary executor, and, as soon as such be made, a day set for the hearing
and approval of the proposed amended partition.

The testator Salvador y Reyes contracted a valid and legal marriage with Anselma
Nicasio, who died in 1868, leaving a daughter named Higinia who married Clemente
Natividad. Higinia Salvador died in 1913, survived by two children Emilio and
Purificacion, both surnamed Natividad y Salvador. Tiburcio Salvador disposed of all his
property in the manner recorded in the will executed in legal form on November 9,
1914, instituting as sole heirs his grandchildren Emilio and Purificacion, both surnamed
Natividad y Salvador. In the sixth clause of this will the testator left to Basilia Gabino the
legacy mentioned therein. Literally, this clause is as follows:

I bequeath to Doña Basilia Gabino the ownership and dominion of the urban
property, consisting of a house and lot situated on Calle Lavezares of the said
district of San Nicolas and designated by No. 520, and in addition eleven meters
by two meters of the lot designated by No. 419, situated on Calle Madrid. This
portion shall be taken from that part of the lot which is adjacent to the rear of said
property No. 520. If the said legatee should die, Lorenzo Salvador shall be obliged
to deliver this house, together with the lot on which it stands, to my grandson
Emilio Natividad, upon payment by the latter to the former of the sum of four
thousand pesos (P4,000), Philippine currency.

The executor of the estate of the decedent is the decedent's own heir, Emilio Natividad,
who in due season and by counsel presented to the court for its approval a proposed
partition of the property pertaining to the estate, setting forth in the fourth basis the
following relative to the legacy made to Basilia Gabino:

Summarizing the statements made in respect to this matter, we are of the opinion
that the sixth clause expresses in itself a right of usufruct, in favor of Doña Basilia
Gabino, of the house at No. 520 Calle Lavezares, and a general legacy in favor of
Lorenzo Salvador of the sum of P4,000 whenever Basilia should die; but that the
ownership of the property upon which this right and legacy are established belongs
to the heir Emilio Natividad who, by the express will of the testator, had been
made liable for these encumbrances.

By a writing of August 5, 1915, counsel for the legatee Basilia Gabino opposed the
approval of the proposed partition with regard to the adjudication to the legatee of the
usufruct only of the property at No. 520 Calle Lavezares, claiming that said legatee
ought to be recognized as entitled to the dominion and ownership of the same. For this
and the other reasons set forth, her counsel requested that the testamentary executor
be ordered to amend the fourth basis of the proposed partition in order that ownership
and dominion, instead of usufruct only, of said property be adjudicated to the objector-
legatee, Basilia Gabino.

After proper legal steps had been taken and the written briefs of the parties and the
schedule of the proposed partition filed by the testamentary executor had been
examined, the trial judge issued the order aforementioned. Appeal was taken by counsel
for the executor to this court, and a transcript of the record of the proceedings below
was forwarded to the clerk of this court.

The only question raised by this appeal and submitted to us for decision is: What
construction must be given to the above-quoted sixth clause of the will executed by
Tiburcio Salvador?

A person is entirely free to make his will in such manner as may best please him,
provided the testamentary provisions conform to law and meet its requirements. He may
impose conditions, either with respect to the institution of heirs or to the designation of
legatees, and, when the conditions imposed upon the former or the latter do not fall
within the provisions of those articles of the Civil Code touching heirs and legatees, they
shall be governed by the rules therein prescribed for conditional obligations, (Civ. Code,
arts. 790 and 791.)

In the sixth clause of the will executed by the decedent Tiburcio Salvador y Reyes, he
bequeathed to Basilia Gabino the ownership and dominion of the property therein
specified as to its location and other circumstances, on condition that if the legatee
should die Lorenzo Salvador would be obliged, upon the payment of P4,000 by the
testator's grandson and heir Emilio Natividad, to hand over this property to the latter.

The condition imposed by the testator in the double legacy mentioned depends upon the
happening of the event constituting the condition, to wit, the death of the legatee Basilia
Gabino, a perfectly legal condition according to article 1114 of the Civil code, as it is not
impossible of performance and is not contrary to law or public morals, as provided in
article 1116 of said code.

The moment the legatee Gabino dies the other legatee, Lorenzo Salvador, is obliged to
deliver the property to the heir Emilio Natividad who, in his turn and in exchange, must
pay the legatee Salvador the sum of P4,000, thereby fulfilling the double legacy
contained in the said sixth clause of the will, the first of these legacies being the
voluntary reservation to Basilia Gabino of the ownership of the said house, and the
second, the conditional legacy of P4,000 to Lorenzo Salvador.

Making use of his right, the testator provided in his will that the dominion, that is, the
ownership and possession of his house situated on Calle Lavezares, No. 520 together
with a part of the lot at No. 419, should be delivered as a legacy, provided that if the
legatee should die, this property instead of passing to the successor, would revert to the
testator's grandson and heir, provided that he in turn would pay to Lorenzo Salvador the
sum of P4,000. It cannot be understood that the legacy conveyed only the usufruct of
the property because the plain and literal meaning of the words employed by the
testator in the said clause sixth clearly shows beyond all doubt the express wished of the
testator who, establishing a voluntary reservation of the ulterior and final disposition of
the bequeathed property, ordered that the legatee's right of dominion should end at her
death, and that on this occurrence his wish was that the ownership of the property
should pass to Emilio Natividad, provided the latter in turn delivered said P4,000 to
Lorenzo Salvador who appears to be the son of the legatee Gabino.

If the provisions of article 675 of the Civil Code are to be complied with, it cannot be
understood that the testator meant to bequeath to Basilia Gabino the mere usufruct of
the property, inasmuch as, by unmistakable language employed in the said sixth clause,
he bequeathed her the ownership or dominion of the said property — language which
expresses without the slightest doubt his wishes which should be complied with literally,
because it is constant rule or jurisprudence that in matters of last wills and testaments
the testator's will is the law.
It is true that the legatee could not make any disposal of the bequeathed real property
to be effective after her death, nor could the property be acquired from her by her heir
through testate or intestate succession; but if we take into account that the institution of
donations and legacies depends on the full free will of the testator, and that if the
testator intended no more than that Basilia Gabino should enjoy the ownership of the
property during her lifetime, this testamentary provisions is not contrary to law or to
public morals, inasmuch as the testator thereby intended that the property should revert
to its lawful heir, the latter being obliged to make a monetary compensation to Lorenzo
Salvador who appears to be the successor of the legatee Gabino.

For the foregoing reasons, considering that the order appealed from is in accordance
with law and that the several features of the sole assignment of error made thereto are
without merit, the said order of August 21, 1915, must be affirmed, with the costs
against the appellant. So ordered.
G.R. No. L-22595             November 1, 1927

Testate Estate of Joseph G. Brimo, JUAN MICIANO, administrator, petitioner-

appellee, 
vs.
ANDRE BRIMO, opponent-appellant.

Ross, Lawrence and Selph for appellant.

Camus and Delgado for appellee.

ROMUALDEZ, J.:

The partition of the estate left by the deceased Joseph G. Brimo is in question in this
case.

The judicial administrator of this estate filed a scheme of partition. Andre Brimo, one of
the brothers of the deceased, opposed it. The court, however, approved it.

The errors which the oppositor-appellant assigns are:

(1) The approval of said scheme of partition; (2) denial of his participation in the
inheritance; (3) the denial of the motion for reconsideration of the order approving the
partition; (4) the approval of the purchase made by the Pietro Lana of the deceased's
business and the deed of transfer of said business; and (5) the declaration that the
Turkish laws are impertinent to this cause, and the failure not to postpone the approval
of the scheme of partition and the delivery of the deceased's business to Pietro Lanza
until the receipt of the depositions requested in reference to the Turkish laws.

The appellant's opposition is based on the fact that the partition in question puts into
effect the provisions of Joseph G. Brimo's will which are not in accordance with the laws
of his Turkish nationality, for which reason they are void as being in violation or article
10 of the Civil Code which, among other things, provides the following:

Nevertheless, legal and testamentary successions, in respect to the order of

succession as well as to the amount of the successional rights and the intrinsic
validity of their provisions, shall be regulated by the national law of the person
whose succession is in question, whatever may be the nature of the property or
the country in which it may be situated.

But the fact is that the oppositor did not prove that said testimentary dispositions are
not in accordance with the Turkish laws, inasmuch as he did not present any evidence
showing what the Turkish laws are on the matter, and in the absence of evidence on
such laws, they are presumed to be the same as those of the Philippines. (Lim and
Lim vs. Collector of Customs, 36 Phil., 472.)

It has not been proved in these proceedings what the Turkish laws are. He, himself,
acknowledges it when he desires to be given an opportunity to present evidence on this
point; so much so that he assigns as an error of the court in not having deferred the
approval of the scheme of partition until the receipt of certain testimony requested
regarding the Turkish laws on the matter.

The refusal to give the oppositor another opportunity to prove such laws does not
constitute an error. It is discretionary with the trial court, and, taking into consideration
that the oppositor was granted ample opportunity to introduce competent evidence, we
find no abuse of discretion on the part of the court in this particular. There is, therefore,
no evidence in the record that the national law of the testator Joseph G. Brimo was
violated in the testamentary dispositions in question which, not being contrary to our
laws in force, must be complied with and executed. lawphil.net
Therefore, the approval of the scheme of partition in this respect was not erroneous.

In regard to the first assignment of error which deals with the exclusion of the herein
appellant as a legatee, inasmuch as he is one of the persons designated as such in will,
it must be taken into consideration that such exclusion is based on the last part of the
second clause of the will, which says:

Second. I like desire to state that although by law, I am a Turkish citizen, this
citizenship having been conferred upon me by conquest and not by free choice,
nor by nationality and, on the other hand, having resided for a considerable length
of time in the Philippine Islands where I succeeded in acquiring all of the property
that I now possess, it is my wish that the distribution of my property and
everything in connection with this, my will, be made and disposed of in accordance
with the laws in force in the Philippine islands, requesting all of my relatives to
respect this wish, otherwise, I annul and cancel beforehand whatever disposition
found in this will favorable to the person or persons who fail to comply with this
request.

The institution of legatees in this will is conditional, and the condition is that the
instituted legatees must respect the testator's will to distribute his property, not in
accordance with the laws of his nationality, but in accordance with the laws of the
Philippines.

If this condition as it is expressed were legal and valid, any legatee who fails to comply
with it, as the herein oppositor who, by his attitude in these proceedings has not
respected the will of the testator, as expressed, is prevented from receiving his legacy.

The fact is, however, that the said condition is void, being contrary to law, for article 792
of the civil Code provides the following:

Impossible conditions and those contrary to law or good morals shall be

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

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

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

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

All of the remaining clauses of said will with all their dispositions and requests are
perfectly valid and effective it not appearing that said clauses are contrary to the
testator's national law.

Therefore, the orders appealed from are modified and it is directed that the distribution
of this estate be made in such a manner as to include the herein appellant Andre Brimo
as one of the legatees, and the scheme of partition submitted by the judicial
administrator is approved in all other respects, without any pronouncement as to costs.
G.R. No. L-3891 December 19, 1907

ELENA MORENTE, petitioner-appellant, 
vs.
GUMERSINDO DE LA SANTA, respondent-appellee.

Agoncillo and Ilustre, for appellant.

Agustin Alvares, for appellee.

WILLARD, J.:

The will of Consuelo Morente contains the following clauses:lawphil.net

1. I hereby order that all real estate which may belong to me shall pass to my
husband, Gumersindo de la Santa.

2. That my said husband shall not leave my brothers after my death, and that he
shall not marry anyone; should my said husband have children by anyone, he shall
not convey any portion of the property left by me, except the one-third part
thereof and the two remaining thirds shall be and remain for my brother Vicente or
his children should he have any.

3. After my death I direct my husband to dwell in the camarin in which the bakery

is located, which is one of the properties belonging to me.

Her husband, Gumersindo de la Santa, married again within four months of the death of
the testatrix. Elena Morente, a sister of the deceased, filed a petition in the proceeding
relating to the probate of the will of Consuelo Morente pending in the Court of First
Instance of the Province of Tayabas in which she alleged the second marriage of
Gumersindo de la Santa and asked that the legacy to him above-mentioned be annulled.
Objection was made in the court below by the husband to the procedure followed by the
petitioner. The court below, however, held that the proceeding was proper and from that
holding the husband did not appeal. From the judgment of the court below, the
petitioner, Elena Morente, appealed.

In its judgment the court denied the petition. It was said, however, in the decision, as
we understand it, that the husband having married, he had the right to the use of all the
property during his life and that at his death two-thirds thereof would pass to Vicente, a
brother of the testatrix, and one-third thereof could be disposed of by the husband. The
construction given to the will by the court below is not accepted by the appellant. She
claims that by the mere act of marriage the husband at once lost all rights acquired by
the will. It is neither alleged nor proven that any children have been born to the
husband since the death of the testatrix. lawphil.net

Article 790 of the Civil Code provides that testamentary provisions may be made
conditional and article 793 provides that a prohibition against another marriage may in
certain cases be validly imposed upon the widow or widower. But the question in this
case is, Did the testatrix intend to impose a condition upon the absolute gift which is
contained in the first clauses of the will? It is to be observed that by the second clause
she directs that her husband shall not leave her sisters. It is provided in the third clause
that he must continue to live in a certain building. It is provided in the second clause
that he shall not marry again. To no one of these orders is attached the condition that if
he fails to comply with them he shall lose the legacy given to him by the first clause of
the will. It is nowhere expressly said that if he does leave the testatrix's sisters, or does
not continue to dwell in the building mentioned in the will he shall forfeit the property
given him in the first clause; nor is it anywhere expressly said that if he marries again
he shall incur such a loss. But it is expressly provided that if one event does happen the
disposition of the property contained in the first clause of the will shall be changed. It is
said that if he has children by anyone, two-thirds of that property shall pass to Vicente,
the brother of the testatrix.

We are bound to construe the will with reference to all the clauses contained therein,
and with reference to such surrounding circumstances as duly appear in the case, and
after such consideration we can not say that it was the intention of the testatrix that if
her husband married again he should forfeit the legacy above mentioned. In other
words, there being no express condition attached to that legacy in reference to the
second marriage, we can not say that any condition can be implied from the context of
the will. In the case of Chiong Joc-Soy vs. Jaime Vano (8 Phil. Rep., 119), we held that
the legacy contained in the will therein mentioned was not conditional. It is true that
case arose under article 797 of the Civil Code, which perhaps is not strictly applicable to
this case, but we think that it may be argued from what is said in article 797 that, in
order to make a testamentary provision conditional, such condition must fairly appear
from the language used in the will.

Whether the children mentioned in the second clause of the will are natural children or
legitimate children we do not decide, for no such question is before us, the contingency
mentioned in that part of the clause not having arisen, and we limit ourselves to saying
merely that by the subsequent marriage of the husband he did not forfeit the legacy
given to him by the first part of the will. That was the only question before the court
below. the judgment of that court, denying the petition, is accordingly affirmed, with the
costs of this instance against the appellant. So ordered.
G.R. No. L-27531 December 24, 1927

In re estate of the deceased Victoriana Saavedra. MACARIO MACROHON ONG

HAM, administrator-appellant, 
vs.
JUAN SAAVEDRA, ET AL., opponents-appellees.

Frank H. Young and Pablo Lorenzo for appellant.

No appearance for appellees.

VILLAMOR, J.:

Macario Macrohon Ong Ham, widower and executor of the joint last will and testament of
Victoriana Saavedra and himself, presented said will for probate, which was ordered by
the Court of First Instance of Zamboanga in its decree of February 21, 1924.

This executor submitted a scheme of partition and distribution of the property in

accordance with the terms of the joint will, to which Juan Saavedra and others filed an
opposition. The executor rejoined insisting upon the approval of the scheme and asking
that the opposition of Juan Saavedra and others be overruled.

On March 25, 1926, the parties submitted a statement of facts, which reads as follows:

1. That Victoriana Saavedra died in the municipality and Province of Zamboanga,

P. I., without descendants or ascendants, being at that time married to Macario
Macrohon Ong Ham, both of them having executed a joint will, which joint will has
been duly admitted to probate in this court.

2. That the only near relations of the said Victoriana Saavedra, with the right to
inherit her estate are her brothers Juan and Segundo Saavedra; her nephews and
nieces, Teofilo Saavedra, Manuel Saavedra, Victoriana Saavedra, Mariano
Saavedra, Froilan Saavedra, Josefa Saavedra, Encarnacion Carpio and Macra
Carpio, in case that the said Victoriana Saavedra died intestate, or did not dispose
of her property in said will.

3. That aside from the estate mentioned in the said last will and testament, duly
probated by this Honorable Court, there exist another parcel of land, acquired by
Ong Ham the year 1920, by purchase from Ong Tah, and adjudicated to the said
Ong Ham in Expediente No. 6 (Cadastral).

Lot No. 3057, with the improvements thereon in favor of the persons named below
in the following proportions: Ong Ham, aged 65 years, married to Victoriana
Saavedra, 19/20 parts; Crispulo Macoto Cruz, of legal age, 1/40 part; and Juan
Mocoto, 1/40 part.

4. That the interest parties in this proceeding herewith submit to this Honorable
Court the rights of the respective parties in this estate, in accordance with the
terms of this joint last will and testament of the spouses, Macario Macrohon Ong
Ham, and of Victoriana Saavedra, deceased.

5. That the parties representing Macario Macrohon Ong Ham admit that he sold
lots Nos. 34 and 35, of Expediente No. 8196, for the sum of P1,900, believing in
good faith that he could sell the same for his personal uses.

6. That the party representing Juan Saavedra, and the other relations heretofore
named hereby withdraw their opposition which they have presented to the final
account of the surviving spouse, Macario Macrohon Ong Ham, and conform to the
same, and ask that the Court approve the said final account.
The will referred to in the statement of facts above quoted reads as follows:

That we, Macario Macrohon Ong Ham Victoriana Saavedra, both residing at San
Roque, municipality and Province of Zamboanga, Philippine Islands, and both of
about 70 years of age, realizing that we have but a few more years to live, and
each of us being in the full enjoyment of his intellectual faculties and not acting by
virtue of threats, force or undue influence, individually and conjointly do hereby
make public, declare, and execute this, our last will and testament, in the
following terms:

We hereby declare that we are husband and wife; that we have had no issue, nor
have we adopted children.

We hereby likewise declare that Macario Macrohon Ong Ham is a native of China,
having resided in Zamboanga, Philippine Islands for over 40 years, and that
Victoriana Saavedra is a native of the Philippine Islands.

We furthermore declare that Macario Macrohon Ong Ham has two nephews at
present residing in Zamboanga, Philippine Islands, whom he has always treated as
his own sons, following the custom of Amoy, China, whose names and ages
respectively as follows:

Ong Ka Chiew, residing at San Roque, Zambaoanga, P. I., about 20 years of age,
single, and Ong Ka Jian, also residing at San Roque, Zamboanga, P.I., about 18
years of age, single.

We also declare that there are actually registered in our names, as conjugal
property, the following parcels of land located in Zamboanga, P. I., to wit:

Lot No. 838 — A, proceeding 7880, certificate No. 1257

Lot No. 825, proceeding 7880, certificate No. 1783
Lot No. 832, proceeding 7880, same certificate
Lot No. 330, proceeding 7880, certificate No. 4027
Lot No. 1, proceeding 7880, same certificate
Lot No. 199, proceeding 7880, certificate No. 736
Lot No. 329, proceeding 7880, certificate No. 858
Lot No. 838 — C, proceeding 7880, certificate No. 1259
Lot No. 831 — B, proceeding 7880, certificate No. 1256
Lot No. 817, proceeding 7880, certificate No. 1247
Lot No. 768, proceeding 7880, certificate No. 1105
Lot No. 35, proceeding 8196, certificate No. 1257
Lot No. 65 — A, proceeding 8196, certificate No. 3688
Lot No. 834, proceeding 7880, certificate No. 4025
Lot No. 96, proceeding 8196, certificate No. 4025
Lot No. 57 — A, proceeding 8196, certificate No. 4871
Lot No. 222, proceeding 7880, certificate No. 861
Lot No. 34, proceeding 8196, certificate No. 4858
Lot No. 137 — C, proceeding 8196, certificate No. 2223

We do hereby agree jointly and individually, that our properties above described
by disposed of in the following manner:

In case of the death of Macario Macrohon Ong Ham before Victoriana Saavedra,
we hereby order that the properties hereinafter described be jointly given to Ong
Ka Chiew and Ong Ka Jian , and should either of the two die before Macario
Macrohon Ong Ham, we order that all the said properties be given to the survivor,
which properties are described as follows:

Lot No. 838 — C, proceeding 7880, certificate No. 1259

Lot No. 831 — B, proceeding 7880, certificate No. 1256
Lot No. 825, proceeding 7880, certificate No. 1783
 Lot No. 832, proceeding 7880, same certificate
Lot No. 330, proceeding 7880, certificate No. 4027
Lot No. 1, proceeding 7880, same certificate
Lot No. 199, proceeding 7880, certificate No. 736
Lot No. 329, proceeding 7880, certificate No. 858
Lot No. 35, proceeding 8196, certificate No. 1257
Lot No. 65 — A, proceeding 8196, certificate No. 3688
Lot No. 834, proceeding 7880, certificate No. 4025
Lot No. 96, proceeding 8196, same certificate
Lot No. 57 — A, proceeding 8196, certificate No. 4871
Lot No. 222, proceeding 7880, certificate No. 861
Lot No. 34, proceeding 8196, certificate 4858
Lot No. 137 — C, proceeding 8196, certificate No. 2223

In case that Victoriana Saavedra should survive Macario Macrohon Ong Ham, the
lands and properties described below shall belong exclusively to Victoriana
Saavedra, to wit:

Lot No. 838 — A, proceeding 7880, certificate No. 1257

Lot No. 817, proceeding 7880, certificate No. 1247
Lot No. 768, proceeding 7880, certificate No. 1105

Should Victoriana Saavedra die before Macario Macrohon Ong Ham, we order that
lot No. 817-A, proceeding No. 7880, certificate No. 1247, be adjudicated to
Segunda Saavedra, widow, sister of Victoriana Saavedra, free of all liens and
encumbrances.

We further order that all our debts and just obligations, including the expenses of
our last illness and funerals, be paid by Ong Ka Chiew and Ong Ka Jian.

If any of the legatees named herein should question or in any way attempt to alter
the disposition of any of our several properties, such legatee is to lose and shall no
longer receive the benefits and rights herein specified.

We individually and cojointly declare that the contents of this document have been
read aloud to us in our dialect and that we understand said contents, this
document having been read in the presence of each of us and in the presence of
the witnesses whose names are mentioned further on and who have signed the
present instrument together with ourselves.

In witness whereof, we sign this our last will and testament at Zamboanga,
Zamboanga, Philippine Islands, on this second (2) day of January, 1923.

We, Ong Peh, Ong Chua, and T. Arquiza, do hereby certify that the foregoing
document consisting of five (5) sheets including the present, was on the date
above-mentioned, signed by the testators Macario Macrohon Ong Ham and
Victoriana Saavedra on all its sheets, in our presence at their request, in their
presence, and in the presence of each other we have signed our names as
witnesses on all the sheets of said will.

The lower court solving the question raised by the parties in their agreement of facts,
held that the one-half of the property described in the will, all of lot No. 3057, cadastral
case No. 6; one-half of the cash balance of the final account to be rendered by the
executor, and half of the proceeds of the sale of lots No. 34 and 35 of Proceeding No.
8196, belong to Macario Macrohon Ong Ham; and as it appears from the will quoted, as
well as from the agreement dated March 25, 1926, that Victoriana Saavedra left no
legitimate ascendants or descendants at the time of her death Macario Macrohon Ong
Ham, her widower, is, according to the provisions of articles 837 of the Civil Code,
entitled to the usufruct of one-half of the estate of the said Victoriana Saavedra,
consisting of one-half of the property described in the will, excluding lots No. 817 and
768 of proceeding No. 7880, given to Segunda Saavedra with the consent of Macario
Macrohon Ong Ham; of one-half of the cash balance of the executor's final account, and
of half of the proceeds of the sale of lots Nos. 34 and 35 in proceeding No. 8196, and
said estate is adjudicated as follows: one-half of the same belongs in usufruct to the
widower Macario Macrohon Ong Ham, and the naked ownership of this half as well as
the full ownership of the other half is adjudicated to Victoriana Saavedra's heirs, named
in the said agreement dated March 25, 1926, in the following manner: sixteenths of the
naked ownership of the one-half in usufruct and sixteenths of the other half in full
ownership, to Juan Saavedra; sixteenths of the naked ownership of the one-half in
usufruct ands sixteenths of the other half in full ownership, to Segunda Saavedra; and,
sixteenths of the naked ownership of the one-half in usufruct and sixteenths of the other
half in full ownership to Teofilo Saavedra, Manuel Saavedra, Victoriana Saavedra,
Mariano Saavedra, Froilan Saavedra and Josefa Saavedra, children of Mateo Saavedra,
deceased brother of Victoriana Saavedra, in equal parts; and to Encarnacion Carpio and
Macra Carpio, daughters of Petrona Saavedra, deceased sister of Victoriana Saavedra,
sixteenths of the naked ownership of the one-half in usufruct and sixteenths of the other
half in full ownership, in equal parts.

As regards lots Nos. 817 and 768 of proceeding No. 7880, given to Segunda
Saavedra, the court adjudicates the same to the said Segunda Saavedra, in
accordance with the clauses on lines 99-111 of the will.

Finally, the court orders that the executor, after paying the inheritance tax,
distribute among Victoriana Saavedra's heirs named in the agreement of March
25, 1926, the part belonging to each of them as hereinabove stated, and after this
delivery is made and the inheritance tax, if any, is paid, this proceeding is to be
considered closed ipso facto.

Counsel for the executor appealed from this decision and assigns in his brief the
following alleged errors as committed by the lower court:

I. In holding in its auto, of November 26, 1926, that the deceased, Victoriana

Saavedra, died partially intestate, and did not dispose of all her property by the
joint last will and testament executed by herself and her husband, Macario
Macrohon Ong Ham, and in not finding that under the terms of the aforesaid joint
will the legatees, Ong Ka Chiew and Ong Ka Jian, named therein, were entitled to
receive her estate and participation in the sixteen parcels of land devised under
the said joint will, by the said spouses.

II. In holding that the brother and the sister of Victoriana Saavedra, by name,
Juan Saavedra and Segundo Saavedra; her nephews and nieces, by name, Teofilo
Saavedra, Manuel Saavedra, Victoriana Saavedra, Mariano Saavedra, Froilan
Saavedra, Josefa Saavedra, Encarnacion Carpio and Macra Carpio, her next of kin
were entitled to receive any part of her estate and participation in the said sixteen
parcels of land, devised to the above named legatees, Ong Ka Chiew and Ong Ka
Jian, under the terms of the said joint last will and testament.

The parts of the will pertinent to the questions raised by the appellant are:

We do agree jointly and individually that our properties above described be

disposed of in the following manner:

In case of the death of Macario Macrohon Ong Ham before Victoriana Saavedra,
we hereby order that the properties hereinafter described given to Ong Ka Chiew
and Ong Ka Jian jointly, and should either of the two die before Macario Macrohon
Ong Ham, we order that all the said properties be given to the survivor, which
properties are described as follows:

(Here follows a description of 16 of the 19 lots that are also described in the will as
conjugal property of the testator and testatrix.)
 In case that Victoriana Saavedra should survive Macario Macrohon Ong Ham, the
lands and properties described below shall belong exclusively to Victoriana
Saavedra, to wit:

Lot No. 838 — A, proceeding 7880, certificate No. 1257

Lot No. 817, proceeding 7880, certificate No. 1247
Lot No. 768, proceeding 7880, certificate No. 1105

Should Victoriana Saavedra die before Macario Macrohon Ong Ham, we order that
lot No. 817 — A, proceeding No. 7880, certificate No. 1247, be adjudicated to
Segunda Saavedra, widow, sister of Victoriana Saavedra, free of all liens and
encumbrances.

We also order that lot No. 768, proceeding No. 7880, certificate No. 1105, be
adjudicated to Segunda Saavedra and her heirs, on condition that she devote the
products of the same to having masses said for the repose of the soul of Victoriana
Saavedra.

In case of the death of either of us, we order that the surviving spouse be
appointed executor of this our last will and testament.

Appellant alleges that the trial court erred in holding that Victoriana Saavedra died partly
intestate. Article 658 of the Civil Code provides:

ART. 658. Succession is effected either by the will of man expressed by the
testament or, in the absence of a testament, by operation of law.

The first is called testamentary, the second legal succession.

It may also be effected partly by the will of man and partly by operation of law.

According to this, there are three ways in which succession may be effected: by the will
of man, by the law, or by both at the same time. In the first case the succession is
called testamentary, because it is based on the last will and testament, which is the
orderly manifestation of the testator's will; in the second, it is called legal, because it
takes effect by operation of the law; and the third is called mixed, because it partakes of
the character of both testamentary and legal succession.

Commenting on the third mode of effecting succession, Mr. Manresa says: "The rule of
indivisibility and incompatibility was transferred to our laws from pure Romanism, and it
remained in them until the XV Century, when the law of the Ordenamiento previously
cited repealed the maxim nemo pro parte testatus pro parte intestatus decedere protest.
This same repeal is confirmed in paragraph 3 of the article under consideration (658),
which prescribes that it may also be effected partly by the will of man and partly by
operation of law, and in articles 764 and 912 above cited which call the legal heirs to the
enjoyment of the part of the inheritance not disposed of by the testator in his will." (Vol.
5, 1921 ed., pp. 326, 327.)

This is a refutation of the appellant's argument that no one who has executed a will can
die partly intestate. That the rule of indivisibility of the testator's will invoked by the
appellant does not hold good in this jurisdiction, is shown, moreover, by articles 764 and
912 of the Civil Code. According to the first of these articles, a will is valid even though it
does not contain any institution of an heir, or if such institution does not include the
entire estate, and even though the person instituted does not accept the inheritance or
is disqualified to inherit; according to the second, one of the ways in which legal
succession may take place is when the will does not institute an heir to all or part of the
property, or does not dispose of all that belongs to the testator, in which case legal
succession shall take place only with respect to the property which the testator has not
disposed of.
Assuming that the joint will in question is valid, it follows that the deceased Victoriana
Saavedra specified therein that parcels 187 and 768 in proceeding No. 7880 be delivered
as a legacy to her sister Segunda Saavedra, the first parcel free of all liens and
encumbrances, and the second on the condition that the legatee devote the products of
the same to having masses said for the repose to the testatrix's soul. As to the
remaining sixteen parcels, the testatrix disposed of her part in them conditionally, that is
to say, in case her husband Macario Macrohon Ong Ham died before she died, said
parcels were to be awarded to her husband's nephews, or to either of them in case one
should have died before the said Macario Macrohon Ong Ham. The condition imposed in
the will as precedent to the vesting in the alleged legatees Ong Ka Chiew and Ong Ka
Jian of the right to the legacy, not having been complied with, the trial court found that
the part of said property belonging to the testatriz should be partitioned among the
persons called on to succeed her under the law. We are of the opinion that this finding is
in accordance with the law, since, under article 791 of the Civil Code, conditions imposed
upon heirs and legatees shall be governed by the rules established for conditional
obligations in all matters not provided for by this section (articles 790 to 805). And, in
accordance with article 1114 of the Code, in conditional obligations the acquisition of
rights, as well as the extinction or loss of those already acquired, shall depend upon the
occurrence of the event constituting the condition.

Another error assigned by the appellant consist in the trial court not having found that,
under the terms of the joint will, the legatees Ong Ka Chiew and Ong Ka Jian were
entitled to receive the testatrix's share in the sixteen parcels of land mentioned in said
will.

The part of the will invoked by the appellant, states:

In case of the death of Macario Macrohon Ong Ham before Victoriana Saavedra,
we hereby order that the properties hereinafter described given to Ong Ka Chiew
and Ong Ka Jian jointly, and should either of the two die before Macario Macrohon
Ong Ham, we order that all the said properties be given to the survivor.

The trial court, in interpreting this paragraph of the will in regard to legatees Ong Ka
Chiew and Ong Ka Jian, reached the right conclusion, and rightly, in our opinion, that it
provides for the substitution of legatees in case either of them should die before Macario
Macrohon Ong Ham; and that the acquisition by these legatees of any right to the
property described in the will depended on the condition that Macario Macrohon Ong
Ham died before Victoriana Saavedra.

The appellant also assigns as error the holding of the trial court that the opponents, the
brother, sister, nephews, and nieces of the testatrix, were entitled to receive her share
in the said sixteen parcels of land, given to the legatees, Ong Ka Chiew and Ong Ka Jian,
under the terms of the said joint will. Such a contention is untenable. As we have said,
the acquisition of right by the alleged legatees depends on the occurrence of the event
constituting the condition, that is, the death of Macario Macrohon Ong Ham prior to that
of his wife; and this condition not having been complied with, the said Ong Ka Chiew
and Ong Ka Jian have not acquired any right, and therefore the testatrix's estate is to be
divided among her heirs in accordance with the law.

To the sixteen parcels of land to which reference is her made, that is, those given to the
nephews of the testator, should be added lot No. 838--A, proceeding No. 7880,
certificate 1257, which the testatrix had reserved to herself (together with lots 817 and
768), in case she survived her husband Macario Macrohon Ong Ham.

One-half of these seventeen parcels of land belong to the widower, Macario Macrohon
Ong Ham, and the trial court shall order the division of the other half, that is, the estate
of the deceased Victoriana Saavedra, being one-half of the conjugal property, between
the widower and the opponents, as provided for in articles 945, 948 and 953 of the Civil
Code. With this modification, the order appealed from is affirmed in all other respects.
So ordered.
G.R. No. 83484 February 12, 1990

CELEDONIA SOLIVIO, petitioner, 
vs.
THE HONORABLE COURT OF APPEALS and CONCORDIA JAVELLANA
VILLANUEVA, respondents.

Rex Suiza Castillon for petitioner.

Salas & Villareal for private respondent.

MEDIALDEA,  J.:

This is a petition for review of the decision dated January 26, 1988 of the Court of
Appeals in CA GR CV No. 09010 (Concordia Villanueva v. Celedonia Solivio) affirming the
decision of the trial court in Civil Case No. 13207 for partition, reconveyance of
ownership and possession and damages, the dispositive portion of which reads as
follows:

WHEREFORE, judgment is hereby rendered for the plaintiff and against

defendant:

a) Ordering that the estate of the late Esteban Javellana, Jr. be divided into
two (2) shares: one-half for the plaintiff and one-half for defendant. From
both shares shall be equally deducted the expenses for the burial,
mausoleum and related expenditures. Against the share of defendants shall
be charged the expenses for scholarship, awards, donations and the
'Salustia Solivio Vda. de Javellana Memorial Foundation;'

b) Directing the defendant to submit an inventory of the entire estate

property, including but not limited to, specific items already mentioned in
this decision and to render an accounting of the property of the estate,
within thirty (30) days from receipt of this judgment; one-half (1/2) of this
produce shall belong to plaintiff;

c) Ordering defendant to pay plaintiff P5,000.00 as expenses of litigation;

P10,000.00 for and as attorney's fees plus costs.

SO ORDERED. (pp. 42-43, Rollo)

This case involves the estate of the late novelist, Esteban Javellana, Jr., author of the
first post-war Filipino novel "Without Seeing the Dawn," who died a bachelor, without
descendants, ascendants, brothers, sisters, nephews or nieces. His only surviving
relatives are: (1) his maternal aunt, petitioner Celedonia Solivio, the spinster half-sister
of his mother, Salustia Solivio; and (2) the private respondent, Concordia Javellana-
Villanueva, sister of his deceased father, Esteban Javellana, Sr.

He was a posthumous child. His father died barely ten (10) months after his marriage in
December, 1916 to Salustia Solivio and four months before Esteban, Jr. was born.

Salustia and her sister, Celedonia (daughter of Engracio Solivio and his second wife
Josefa Fernandez), a teacher in the Iloilo Provincial High School, brought up Esteban, Jr.

Salustia brought to her marriage paraphernal properties (various parcels of land in

Calinog, Iloilo covered by 24 titles) which she had inherited from her mother, Gregoria
Celo, Engracio Solivio's first wife (p. 325, Record), but no conjugal property was
acquired during her short-lived marriage to Esteban, Sr.

On October 11, 1959, Salustia died, leaving all her properties to her only child, Esteban,
Jr., including a house and lot in La Paz, Iloilo City, where she, her son, and her sister
lived. In due time, the titles of all these properties were transferred in the name of
Esteban, Jr.

During his lifetime, Esteban, Jr. had, more than once, expressed to his aunt Celedonia
and some close friends his plan to place his estate in a foundation to honor his mother
and to help poor but deserving students obtain a college education. Unfortunately, he
died of a heart attack on February 26,1977 without having set up the foundation.

Two weeks after his funeral, Concordia and Celedonia talked about what to do with
Esteban's properties. Celedonia told Concordia about Esteban's desire to place his estate
in a foundation to be named after his mother, from whom his properties came, for the
purpose of helping indigent students in their schooling. Concordia agreed to carry out
the plan of the deceased. This fact was admitted by her in her "Motion to Reopen and/or
Reconsider the Order dated April 3, 1978" which she filed on July 27, 1978 in Special
Proceeding No. 2540, where she stated:

4. That petitioner knew all along the narrated facts in the immediately
preceding paragraph [that herein movant is also the relative of the deceased
within the third degree, she being the younger sister of the late Esteban
Javellana, father of the decedent herein], because prior to the filing of the
petition they (petitioner Celedonia Solivio and movant Concordia Javellana)
have agreed to make the estate of the decedent a foundation, besides they
have closely known each other due to their filiation to the decedent and they
have been visiting each other's house which are not far away for (sic) each
other. (p. 234, Record; Emphasis supplied.)

Pursuant to their agreement that Celedonia would take care of the proceedings leading
to the formation of the foundation, Celedonia in good faith and upon the advice of her
counsel, filed on March 8, 1977 Spl. Proceeding No. 2540 for her appointment as special
administratrix of the estate of Esteban Javellana, Jr. (Exh. 2). Later, she filed an
amended petition (Exh. 5) praying that letters of administration be issued to her; that
she be declared sole heir of the deceased; and that after payment of all claims and
rendition of inventory and accounting, the estate be adjudicated to her (p. 115, Rollo).

After due publication and hearing of her petition, as well as her amended petition, she
was declared sole heir of the estate of Esteban Javellana, Jr. She explained that this was
done for three reasons: (1) because the properties of the estate had come from her
sister, Salustia Solivio; (2) that she is the decedent's nearest relative on his mother's
side; and (3) with her as sole heir, the disposition of the properties of the estate to fund
the foundation would be facilitated.

On April 3, 1978, the court (Branch II, CFI, now Branch 23, RTC) declared her the sole
heir of Esteban, Jr. Thereafter, she sold properties of the estate to pay the taxes and
other obligations of the deceased and proceeded to set up the "SALUSTIA SOLIVIO VDA.
DE JAVELLANA FOUNDATION" which she caused to be registered in the Securities and
Exchange Commission on July 17,1981 under Reg. No. 0100027 (p. 98, Rollo).

Four months later, or on August 7, 1978, Concordia Javellana Villanueva filed a motion
for reconsideration of the court's order declaring Celedonia as "sole heir" of Esteban, Jr.,
because she too was an heir of the deceased. On October 27, 1978, her motion was
denied by the court for tardiness (pp. 80-81, Record). Instead of appealing the denial,
Concordia filed on January 7, 1980 (or one year and two months later), Civil Case No.
13207 in the Regional Trial Court of Iloilo, Branch 26, entitled "Concordia Javellana-
Villanueva v. Celedonia Solivio" for partition, recovery of possession, ownership and
damages.

On September 3, 1984, the said trial court rendered judgment in Civil Case No. 13207,
in favor of Concordia Javellana-Villanueva.

On Concordia's motion, the trial court ordered the execution of its judgment pending
appeal and required Celedonia to submit an inventory and accounting of the estate. In
her motions for reconsideration of those orders, Celedonia averred that the properties of
the deceased had already been transferred to, and were in the possession of, the
'Salustia Solivio Vda. de Javellana Foundation." The trial court denied her motions for
reconsideration.

In the meantime, Celedonia perfected an appeal to the Court of Appeals (CA GR CV No.
09010). On January 26, 1988, the Court of Appeals, Eleventh Division, rendered
judgment affirming the decision of the trial court in toto.Hence, this petition for review
wherein she raised the following legal issues:

1. whether Branch 26 of the RTC of Iloilo had jurisdiction to entertain Civil

Case No. 13207 for partition and recovery of Concordia Villanueva's share of
the estate of Esteban Javellana, Jr. even while the probate proceedings (Spl.
Proc. No. 2540) were still pending in Branch 23 of the same court;

2. whether Concordia Villanueva was prevented from intervening in Spl.

Proc. No. 2540 through extrinsic fraud;

3. whether the decedent's properties were subject to reserva troncal in favor

of Celedonia, his relative within the third degree on his mother's side from
whom he had inherited them; and

4. whether Concordia may recover her share of the estate after she had
agreed to place the same in the Salustia Solivio Vda. de Javellana
Foundation, and notwithstanding the fact that conformably with said
agreement, the Foundation has been formed and properties of the estate
have already been transferred to it.

I. The question of jurisdiction—

After a careful review of the records, we find merit in the petitioner's contention that the
Regional Trial Court, Branch 26, lacked jurisdiction to entertain Concordia Villanueva's
action for partition and recovery of her share of the estate of Esteban Javellana, Jr. while
the probate proceedings (Spl, Proc. No. 2540) for the settlement of said estate are still
pending in Branch 23 of the same court, there being as yet no orders for the submission
and approval of the administratix's inventory and accounting, distributing the residue of
the estate to the heir, and terminating the proceedings (p. 31, Record).

It is the order of distribution directing the delivery of the residue of the estate to the
persons entitled thereto that brings to a close the intestate proceedings, puts an end to
the administration and thus far relieves the administrator from his duties (Santiesteban
v. Santiesteban, 68 Phil. 367, Philippine Commercial and Industrial Bank v. Escolin, et
al., L-27860, March 29, 1974, 56 SCRA 266).

The assailed order of Judge Adil in Spl. Proc. No. 2540 declaring Celedonia as the sole
heir of the estate of Esteban Javellana, Jr. did not toll the end of the proceedings. As a
matter of fact, the last paragraph of the order directed the administratrix to "hurry up
the settlement of the estate." The pertinent portions of the order are quoted below:

2. As regards the second incident [Motion for Declaration of Miss Celedonia

Solivio as Sole Heir, dated March 7, 1978], it appears from the record that
despite the notices posted and the publication of these proceedings as
required by law, no other heirs came out to interpose any opposition to the
instant proceeding. It further appears that herein Administratrix is the only
claimant-heir to the estate of the late Esteban Javellana who died on
February 26, 1977.

During the hearing of the motion for declaration as heir on March 17, 1978,
it was established that the late Esteban Javellana died single, without any
known issue, and without any surviving parents. His nearest relative is the
 herein Administratrix, an elder [sic] sister of his late mother who reared him
and with whom he had always been living with [sic] during his lifetime.

xxxxxxxxx

2. Miss Celedonia Solivio, Administratrix of this estate, is hereby declared as

the sole and legal heir of the late Esteban S. Javellana, who died intestate on
February 26, 1977 at La Paz, Iloilo City.

The Administratrix is hereby instructed to hurry up with the settlement of

this estate so that it can be terminated. (pp, 14-16, Record)

In view of the pendency of the probate proceedings in Branch 11 of the Court of First
Instance (now RTC, Branch 23), Concordia's motion to set aside the order declaring
Celedonia as sole heir of Esteban, and to have herself (Concordia) declared as co-heir
and recover her share of the properties of the deceased, was properly filed by her in Spl.
Proc. No. 2540. Her remedy when the court denied her motion, was to elevate the denial
to the Court of Appeals for review on certiorari. However, instead of availing of that
remedy, she filed more than one year later, a separate action for the same purpose in
Branch 26 of the court. We hold that the separate action was improperly filed for it is the
probate court that has exclusive jurisdiction to make a just and legal distribution of the
estate.

In the interest of orderly procedure and to avoid confusing and conflicting dispositions of
a decedent's estate, a court should not interfere with probate proceedings pending in a
co-equal court. Thus, did we rule in Guilas v. Judge of the Court of First Instance of
Pampanga, L-26695, January 31, 1972, 43 SCRA 111, 117, where a daughter filed a
separate action to annul a project of partition executed between her and her father in
the proceedings for the settlement of the estate of her mother:

The probate court loses jurisdiction of an estate under administration only

after the payment of all the debts and the remaining estate delivered to the
heirs entitled to receive the same. The finality of the approval of the project
of The probate court, in the exercise of its jurisdiction to make distribution,
has power to determine the proportion or parts to which each distributed is
entitled. ... The power to determine the legality or illegality of the
testamentary provision is inherent in the jurisdiction of the court making a
just and legal distribution of the inheritance. ... To hold that a separate and
independent action is necessary to that effect, would be contrary to the
general tendency of the jurisprudence of avoiding multiplicity of suits; and is
further, expensive, dilatory, and impractical. (Marcelino v. Antonio, 70 Phil.
388)

A judicial declaration that a certain person is the only heir of the decedent is
exclusively within the range of the administratrix proceedings and can not
properly be made an independent action. (Litam v. Espiritu, 100 Phil. 364)

A separate action for the declaration of heirs is not proper. (Pimentel v.

Palanca, 5 Phil. 436)

partition by itself alone does not terminate the probate proceeding (Timbol
v. Cano, 1 SCRA 1271, 1276, L-15445, April 29, 1961; Siguiong v. Tecson,
89 Phil. pp. 28, 30). As long as the order of the distribution of the estate has
not been complied with, the probate proceedings cannot be deemed closed
and terminated Siguiong v. Tecson, supra); because a judicial partition is not
final and conclusive and does not prevent the heirs from bringing an action
to obtain his share, provided the prescriptive period therefore has not
elapsed (Mari v. Bonilia, 83 Phil. 137). The better practice, however, for the
heir who has not received his share, is to demand his share through a
proper motion in the same probate or administration proceedings, or for
reopening of the probate or administrative proceedings if it had already been
 closed, and not through an independent action, which would be tried by
another court or Judge which may thus reverse a decision or order of the
probate or intestate court already final and executed and re-shuffle
properties long ago distributed and disposed of. (Ramos v. Ortuzar, 89 Phil.
730, 741-742; Timbol v. Cano, supra; Jingco v. Daluz, L-5107, April 24,
1953, 92 Phil. 1082; Roman Catholic v. Agustines, L-14710, March 29,
1960, 107 Phil. 455, 460-461; Emphasis supplied)

In Litam et al., v. Rivera, 100 Phil. 364, where despite the pendency of the special
proceedings for the settlement of the intestate estate of the deceased Rafael Litam the
plaintiffs-appellants filed a civil action in which they claimed that they were the children
by a previous marriage of the deceased to a Chinese woman, hence, entitled to inherit
his one-half share of the conjugal properties acquired during his marriage to Marcosa
Rivera, the trial court in the civil case declared that the plaintiffs-appellants were not
children of the deceased, that the properties in question were paraphernal properties of
his wife, Marcosa Rivera, and that the latter was his only heir. On appeal to this Court,
we ruled that "such declarations (that Marcosa Rivera was the only heir of the decedent)
is improper, in Civil Case No. 2071, it being within the exclusive competence of the
court in Special Proceedings No. 1537, in which it is not as yet, in issue, and, will not be,
ordinarily, in issue until the presentation of the project of partition. (p. 378).

However, in the Guilas case, supra, since the estate proceedings had been closed and
terminated for over three years, the action for annulment of the project of partition was
allowed to continue. Considering that in the instant case, the estate proceedings are still
pending, but nonetheless, Concordia had lost her right to have herself declared as co-
heir in said proceedings, We have opted likewise to proceed to discuss the merits of her
claim in the interest of justice.

The orders of the Regional Trial Court, Branch 26, in Civil Case No. 13207 setting aside
the probate proceedings in Branch 23 (formerly Branch 11) on the ground of extrinsic
fraud, and declaring Concordia Villanueva to be a co-heir of Celedonia to the estate of
Esteban, Jr., ordering the partition of the estate, and requiring the administratrix,
Celedonia, to submit an inventory and accounting of the estate, were improper
and officious, to say the least, for these matters he within the exclusive competence of
the probate court.

II. The question of extrinsic fraud—

Was Concordia prevented from intervening in the intestate proceedings by extrinsic

fraud employed by Celedonia? It is noteworthy that extrinsic fraud was not alleged in
Concordia's original complaint in Civil Case No. 13207. It was only in her amended
complaint of March 6, 1980, that extrinsic fraud was alleged for the first time.

Extrinsic fraud, as a ground for annulment of judgment, is any act or

conduct of the prevailing party which prevented a fair submission of the
controversy (Francisco v. David, 38 O.G. 714). A fraud 'which prevents a
party from having a trial or presenting all of his case to the court, or one
which operates upon matters pertaining, not to the judgment itself, but to
the manner by which such judgment was procured so much so that there
was no fair submission of the controversy. For instance, if through
fraudulent machination by one [his adversary], a litigant was induced to
withdraw his defense or was prevented from presenting an available defense
or cause of action in the case wherein the judgment was obtained, such that
the aggrieved party was deprived of his day in court through no fault of his
own, the equitable relief against such judgment may be availed of. (Yatco v.
Sumagui, 44623-R, July 31, 1971). (cited in Philippine Law Dictionary, 1972
Ed. by Moreno; Varela v. Villanueva, et al., 96 Phil. 248)

A judgment may be annulled on the ground of extrinsic or collateral fraud,

as distinguished from intrinsic fraud, which connotes any fraudulent scheme
executed by a prevailing litigant 'outside the trial of a case against the
 defeated party, or his agents, attorneys or witnesses, whereby said defeated
party is prevented from presenting fully and fairly his side of the case. ...
The overriding consideration is that the fraudulent scheme of the prevailing
litigant prevented a party from having his day in court or from presenting his
case. The fraud, therefore, is one that affects and goes into the jurisdiction
of the court. (Libudan v. Gil, L-21163, May 17, 1972, 45 SCRA 17, 27-29;
Sterling Investment Corp. v. Ruiz, L-30694, October 31, 1969, 30 SCRA
318, 323)

The charge of extrinsic fraud is, however, unwarranted for the following reasons:

1. Concordia was not unaware of the special proceeding intended to be filed

by Celedonia. She admitted in her complaint that she and Celedonia had
agreed that the latter would "initiate the necessary proceeding" and pay the
taxes and obligations of the estate. Thus paragraph 6 of her complaint
alleged:

6. ... for the purpose of facilitating the settlement of the estate of the late
Esteban Javellana, Jr. at the lowest possible cost and the least effort, the
plaintiff and the defendant agreed that the defendant shall initiate the
necessary proceeding, cause the payment of taxes and other obligations,
and to do everything else required by law, and thereafter, secure the
partition of the estate between her and the plaintiff, [although Celedonia
denied that they agreed to partition the estate, for their agreement was to
place the estate in a foundation.] (p. 2, Record; emphasis supplied)

Evidently, Concordia was not prevented from intervening in the proceedings. She stayed

away by choice. Besides, she knew that the estate came exclusively from Esteban's
mother, Salustia Solivio, and she had agreed with Celedonia to place it in a foundation
as the deceased had planned to do.

2. The probate proceedings are proceedings in rem. Notice of the time and

place of hearing of the petition is required to be published (Sec. 3, Rule 76
in relation to Sec. 3, Rule 79, Rules of Court). Notice of the hearing of
Celedonia's original petition was published in the "Visayan Tribune" on April
25, May 2 and 9, 1977 (Exh 4, p. 197, Record). Similarly, notice of the
hearing of her amended petition of May 26, 1977 for the settlement of the
estate was, by order of the court, published in "Bagong Kasanag" (New
Light) issues of May 27, June 3 and 10, 1977 (pp. 182-305, Record). The
publication of the notice of the proceedings was constructive notice to the
whole world. Concordia was not deprived of her right to intervene in the
proceedings for she had actual, as well as constructive notice of the same.
As pointed out by the probate court in its order of October 27, 1978:

... . The move of Concordia Javellana, however, was filed about five months
after Celedonia Solivio was declared as the sole heir. ... .

Considering that this proceeding is one in rem and had been duly published
as required by law, despite which the present movant only came to court
now, then she is guilty of laches for sleeping on her alleged right. (p. 22,
Record)

The court noted that Concordia's motion did not comply with the requisites of a petition
for relief from judgment nor a motion for new trial.

The rule is stated in 49 Corpus Juris Secundum 8030 as follows:

Where petition was sufficient to invoke statutory jurisdiction of probate court

and proceeding was in rem no subsequent errors or irregularities are
available on collateral attack. (Bedwell v. Dean 132 So. 20)
Celedonia's allegation in her petition that she was the sole heir of Esteban within the
third degree on his mother's side was not false. Moreover, it was made in good faith and
in the honest belief that because the properties of Esteban had come from his mother,
not his father, she, as Esteban's nearest surviving relative on his mother's side, is the
rightful heir to them. It would have been self-defeating and inconsistent with her claim
of sole heirship if she stated in her petition that Concordia was her co-heir. Her omission
to so state did not constitute extrinsic fraud.

Failure to disclose to the adversary, or to the court, matters which would

defeat one's own claim or defense is not such extrinsic fraud as will justify or
require vacation of the judgment. (49 C.J.S. 489, citing Young v. Young, 2
SE 2d 622; First National Bank & Trust Co. of King City v. Bowman, 15 SW
2d 842; Price v. Smith, 109 SW 2d 1144, 1149)

It should be remembered that a petition for administration of a decedent's estate may

be filed by any "interested person" (Sec. 2, Rule 79, Rules of Court). The filing of
Celedonia's petition did not preclude Concordia from filing her own.

III. On the question of reserva troncal—

We find no merit in the petitioner's argument that the estate of the deceased was
subject to reserva troncal and that it pertains to her as his only relative within the third
degree on his mother's side. The reserva troncal provision of the Civil Code is found in
Article 891 which reads as follows:

ART. 891. The ascendant who inherits from his descendant any property
which the latter may have acquired by gratuitous title from another
ascendant, or a brother or sister, is obliged to reserve such property as he
may have acquired by operation of law for the benefit of relatives who are
within the third degree and who belong to the line from which said property
came.

The persons involved in reserva troncal are:

1. The person obliged to reserve is the reservor (reservista)—the ascendant

who inherits by operation of law property from his descendants.

2. The persons for whom the property is reserved are the

reservees (reservatarios)—relatives within the third degree counted from the
descendant (propositus), and belonging to the line from which the property
came.

3. The propositus—the descendant who received by gratuitous title and died

without issue, making his other ascendant inherit by operation of law. (p.
692, Civil Law by Padilla, Vol. II, 1956 Ed.)

Clearly, the property of the deceased, Esteban Javellana, Jr., is not reservable property,
for Esteban, Jr. was not an ascendant, but the descendant of his mother, Salustia
Solivio, from whom he inherited the properties in question. Therefore, he did not hold
his inheritance subject to a reservation in favor of his aunt, Celedonia Solivio, who is his
relative within the third degree on his mother's side. The reserva troncal applies to
properties inherited by an ascendant from a descendant who inherited it from another
ascendant or 9 brother or sister. It does not apply to property inherited by a descendant
from his ascendant, the reverse of the situation covered by Article 891.

Since the deceased, Esteban Javellana, Jr., died without descendants, ascendants,
illegitimate children, surviving spouse, brothers, sisters, nephews or nieces, what should
apply in the distribution of his estate are Articles 1003 and 1009 of the Civil Code which
provide:
 ART. 1003. If there are no descendants, ascendants, illegitimate children, or
a surviving spouse, the collateral relatives shall succeed to the entire estate
of the deceased in accordance with the following articles.

ART. 1009. Should there be neither brothers nor sisters, nor children of
brothers or sisters, the other collateral relatives shall succeed to the estate.

The latter shall succeed without distinction of lines or preference among

them by reason of relationship by the whole blood.

Therefore, the Court of Appeals correctly held that:

Both plaintiff-appellee and defendant-appellant being relatives of the

decedent within the third degree in the collateral line, each, therefore, shall
succeed to the subject estate 'without distinction of line or preference among
them by reason of relationship by the whole blood,' and is entitled one-half
(1/2) share and share alike of the estate. (p. 57, Rollo)

IV. The question of Concordia's one-half share—

However, inasmuch as Concordia had agreed to deliver the estate of the deceased to the
foundation in honor of his mother, Salustia Solivio Vda. de Javellana (from whom the
estate came), an agreement which she ratified and confirmed in her "Motion to Reopen
and/or Reconsider Order dated April 3, 1978" which she filed in Spl. Proceeding No.
2540:

4. That ... prior to the filing of the petition they (petitioner Celedonia Solivio
and movant Concordia Javellana) have agreed to make the estate of the
decedent a foundation, besides they have closely known each other due to
their filiation to the decedent and they have been visiting each other's house
which are not far away for (sic) each other. (p. 234, Record; Emphasis
supplied)

she is bound by that agreement. It is true that by that agreement, she did not waive her
inheritance in favor of Celedonia, but she did agree to place all of Esteban's estate in the
"Salustia Solivio Vda. de Javellana Foundation" which Esteban, Jr., during his lifetime,
planned to set up to honor his mother and to finance the education of indigent but
deserving students as well.

Her admission may not be taken lightly as the lower court did. Being a judicial
admission, it is conclusive and no evidence need be presented to prove the agreement
(Cunanan v. Amparo, 80 Phil. 227; Granada v. Philippine National Bank, L-20745, Sept.
2, 1966, 18 SCRA 1; Sta. Ana v. Maliwat, L-23023, Aug. 31, 1968, 24 SCRA 1018;
People v. Encipido, G.R.70091, Dec. 29, 1986, 146 SCRA 478; and Rodillas v.
Sandiganbayan, G.R. 58652, May 20, 1988, 161 SCRA 347).

The admission was never withdrawn or impugned by Concordia who, significantly, did
not even testify in the case, although she could have done so by deposition if she were
supposedly indisposed to attend the trial. Only her husband, Narciso, and son-in-law,
Juanito Domin, actively participated in the trial. Her husband confirmed the agreement
between his wife and Celedonia, but he endeavored to dilute it by alleging that his wife
did not intend to give all, but only one-half, of her share to the foundation (p. 323,
Record).

The records show that the "Salustia Solivio Vda. de Javellana Foundation" was
established and duly registered in the Securities and Exchange Commission under Reg.
No. 0100027 for the following principal purposes:

1. To provide for the establishment and/or setting up of scholarships for

such deserving students as the Board of Trustees of the Foundation may
 decide of at least one scholar each to study at West Visayas State College,
and the University of the Philippines in the Visayas both located in Iloilo City.

2. To provide a scholarship for at least one scholar for St. Clements

Redemptorist Community for a deserving student who has the religious
vocation to become a priest.

3. To foster, develop, and encourage activities that will promote the

advancement and enrichment of the various fields of educational endeavors,
especially in literary arts. Scholarships provided for by this foundation may
be named after its benevolent benefactors as a token of gratitude for their
contributions.

4. To direct or undertake surveys and studies in the community to determine

community needs and be able to alleviate partially or totally said needs.

5. To maintain and provide the necessary activities for the proper care of the
Solivio-Javellana mausoleum at Christ the King Memorial Park, Jaro, Iloilo
City, and the Javellana Memorial at the West Visayas State College, as a
token of appreciation for the contribution of the estate of the late Esteban S.
Javellana which has made this foundation possible. Also, in perpetuation of
his Roman Catholic beliefs and those of his mother, Gregorian masses or
their equivalents will be offered every February and October, and Requiem
masses every February 25th and October llth, their death anniversaries, as
part of this provision.

6. To receive gifts, legacies, donations, contributions, endowments and

financial aids or loans from whatever source, to invest and reinvest the
funds, collect the income thereof and pay or apply only the income or such
part thereof as shall be determined by the Trustees for such endeavors as
may be necessary to carry out the objectives of the Foundation.

7. To acquire, purchase, own, hold, operate, develop, lease, mortgage,

pledge, exchange, sell, transfer, or otherwise, invest, trade, or deal, in any
manner permitted by law, in real and personal property of every kind and
description or any interest herein.

8. To do and perform all acts and things necessary, suitable or proper for the
accomplishments of any of the purposes herein enumerated or which shall at
any time appear conducive to the protection or benefit of the corporation,
including the exercise of the powers, authorities and attributes concerned
upon the corporation organized under the laws of the Philippines in general,
and upon domestic corporation of like nature in particular. (pp. 9-10, Rollo)

As alleged without contradiction in the petition' for review:

The Foundation began to function in June, 1982, and three (3) of its eight
Esteban Javellana scholars graduated in 1986, one (1) from UPV graduated
Cum Laude and two (2) from WVSU graduated with honors; one was a Cum
Laude and the other was a recipient of Lagos Lopez award for teaching for
being the most outstanding student teacher.

The Foundation has four (4) high school scholars in Guiso Barangay High
School, the site of which was donated by the Foundation. The School has
been selected as the Pilot Barangay High School for Region VI.

The Foundation has a special scholar, Fr. Elbert Vasquez, who would be
ordained this year. He studied at St. Francis Xavier Major Regional Seminary
at Davao City. The Foundation likewise is a member of the Redemptorist
Association that gives yearly donations to help poor students who want to
 become Redemptorist priests or brothers. It gives yearly awards for Creative
writing known as the Esteban Javellana Award.

Further, the Foundation had constructed the Esteban S. Javellana Multi-

purpose Center at the West Visayas State University for teachers' and
students' use, and has likewise contributed to religious civic and cultural
fund-raising drives, amongst other's. (p. 10, Rollo)

Having agreed to contribute her share of the decedent's estate to the Foundation,
Concordia is obligated to honor her commitment as Celedonia has honored hers.

WHEREFORE, the petition for review is granted. The decision of the trial court and the
Court of Appeals are hereby SET ASIDE. Concordia J. Villanueva is declared an heir of
the late Esteban Javellana, Jr. entitled to one-half of his estate. However, comformably
with the agreement between her and her co-heir, Celedonia Solivio, the entire estate of
the deceased should be conveyed to the "Salustia Solivio Vda. de Javallana Foundation,"
of which both the petitioner and the private respondent shall be trustees, and each shall
be entitled to nominate an equal number of trustees to constitute the Board of Trustees
of the Foundation which shall administer the same for the purposes set forth in its
charter. The petitioner, as administratrix of the estate, shall submit to the probate court
an inventory and accounting of the estate of the deceased preparatory to terminating
the proceedings therein.
 G . R . N o . L - 1 1 9 6 0 , D e c e m b e r 2 7 , 1 9 5 8

DIONISIA PADURA, ET AL. , PETITIONERS-APPELLEES, VERSUS MELANIA

BALDOVINO, ETAL., OPPOSITORS-APPELLANTS

DECISION

REYES, JBL, J .:

Appeal on a pure question of law from an order of the Court of First Instance of Laguna
in its Special Proceedings No. 4551. 

The facts are simple and undisputed. Agustin Padura contracted two marriages during
his lifetime. With his first wife, Gervacia Landig, he had one child whom they named
Manuel Padura, and with his second, Benita Garing; He had two children named
Fortunato Padura and Candelaria Padura.

Agustin Padura died on April 26, 1908, leaving a last will and testament, duly probated
in Special Proceedings No, 664 of the Court of First Instance of Laguna, wherein he had
bequeathed his properties among his children, Manuel, Candelaria and Fortunato, and
his surviving spouse, Benita Garing. Under the probate proceedings, Fortunate was
adjudicated four parcels of land covered under Decree No. 25960 issued In Land
Registration Case No. 86 GLRO No. 10818, object of this appeal.

Fortunato Padura died unmarried on May 28, 1908, without having executed a will; and
not having any issue, the said parcels of land were inherited exclusively by her mother,
Benita Garing. It was issued to Torrens. Certificate of Title in its name, but subject to
the condition that the properties were reservable in favor of relatives within the third
degree belonging to the line from which said property, in accordance with the applicable
provision of law, under a decree of the court dated August 25, 1916, in Land
Registration Case No. GLRO No. 10818.

On August 26, 1934, Candelaria Padura died leaving as her only heirs, her four
legitimate children, the appellants herein, Cristeta, Melania, Anicia and Pablo, all
surnamed Baldovino, Six years later, on October 6, 1940, Manuel Padura also
died . Surviving him are his legitimate children, Dionysia, Felisa, Flora, Gornelio,
Francisco, Juana, and Severino, all surnamed Padura, the appellees herein. 

Upon the death of Benita Garing ( the reservist)), on October 15, 1952, appellants and
appellees took possession of the reservable properties. In a resolution, dated August 1,
1953, of the Court of First Instance of Laguna in Special Proceedings No. 4551, the
legitimate children of the deceased Manuel Padura and Candelaria Baldovino were
declared to be the rightful books, and as such, entitled to the reservable properties (the
original reserveess Candelaria Padura and Manuel Padura, having predeceased
the reservist). The instant petition, dated October 22, 1956, filed by appellants
Baldovino seeks to have these properties partitioned, such that one-half of the same be
adjudicated to them, and the other half to the appellees, allegedly on the basis that they
inherit by right of representation from their respective parents, the original book. To this
petition, they should be admitted, they should all be considered as inheriting, under
which, they claim, each should have an equal share. 

Based on the foregoing finding of facts, the lower court rendered judgment declaring all
the reserves (without distinction) "co-owners, pro-undivided , equal shares of the
parcels of land" subject matter of the suit.

The issue in this appeal may be formulated as follows: In a case of a trunk reservation ,

where the only reservoir (reserves) surviving the reservist, and belonging to the line of
origin, are nephews of the descendant ( prepositus ), but some are nephews of the half
blood and the others are nephews of the whole blood, should the reserved properties be
apportioned among them equally, or should the nephews of the whole blood take a
share twice as large as that of the nephews of the half blood? 
The appellants contend that notwithstanding the reservable character of the property
under Art, 891 of the new Civil Code (Art. 811 of the Code of 1889)
the reserve nephews of the whole blood are entitled to share as many as that of the
others, in conformity with Arts, 1006, 1008 of the Civil Code of the Philippines (Arts 949
and 951 of the Code of 1889) on intestate succession.

"Art. 1006. Should brothers and sisters of the full blood survive together with brothers
and sisters of the half blood, the former shall be entitled to a share double that of the
latter. (949) n 

" Art. 1008. Children of brothers and sisters of the half blood shall succeed per
capita or per stripes , in accordance with the rules laid down for brothers and sisters of
the full blood, (951) "
The case is one of the first impression and you have divided the Spanish commentators
on the subject. After mature reflection, we have concluded that the position of the
appellants is correct. The reserve trunk is a special rule designed primarily to assure the
return of the reserveable property to the third degree relative to the line from which the
property originally came, and avoid its being dissipated into and by the relatives of the
inheriting ascendant ( reservist ) . To this end, the Code provides:

"Art. 891. The ascendant who inherits from his descendant any property which the latter
may have acquired by gratuitous title from another ascendant, or to brother or sister, is
obliged to reserve such property as may have acquired by operation of law for the
benefit of relatives who are within the third degree and who belong to the line from
which said property came. (811) "
It is well known that the trunk reservation had no direct precedent in the law of
Castile. The President of the Spanish Code Commission, Mr. Manuel Alonso Martinez,
explained the motives for the formulation of the trunk reservation in the Civil Code of
1889 in his book "The Civil Code in its relations with the Foral Legislations" (Madrid,
1884, Vol. 1, pp. 226-228, 233-235) in the following words:

"The fourth base, in addition to being in conflict with the Spanish legislation, is a
deviation from the old Roman law and modern European law, perfectly conforming both
to the traditional system of Castile." On which basis, the Commission was founded for
similar Novelty What reasons could move it to establish the succession line l, separating
from the secular bed?

while they enjoy their rich patrimony strangers to their family and that, by a natural
order, are deeply unpleasant. This hypothesis can be realized and realized, though
usually on a smaller scale, among owners, bankers and industrialists. farmers and
merchants, without the need for links or titles of nobility.

"Well, most of the Commission was very concerned about this, considering the principle
of family as superior to that of the presumed affection of the deceased." This impression
obeyed the proposal of Mr. Garcia Goyena, so that the ancestors would be given their
legitimized only in usufruct: on the same basis Mr. Franco supported to ask insistently to
declare that, if an ascendant had made a donation to his descendant, either to contract
marriage or for any other reason, and died the donee without succession, they returned
the goods donated to the donor, without prejudice to the legitimacy that could
correspond to him in his capacity of ascendant.The Commission did not dare to go as far
as these two Members, but,in order to avoid the consequences that the principle of
kinship proximity sometimes produces, and which I have emphasized very little, he
proclaimed, not without hesitation, the doctrine of lineal succession. "(pp.226-227)

"And this was the temperament that, at my suggestion, the Codification Commission
adopted, not making a Sub-commission that would draft the bases that had to be
subject to this kind of reversion of the real estate to the trunk from which they come,
the same in the succession testamentary than in the intestate, without prejudice to the
sacramental right of parents to the enjoyment of the inheritance of their children
prematurely 
spoiled . "Said Subcommittee, composed of Messrs. Durán and Bás and Franco as
defenders of the oral regime, and of the Messrs. Manresa and Garcia Goyena, in
representation of the Spanish legislation, submitted to the deliberation of the
Codification Commission the following proposal:

The ascendant who will inherit from his descendant goods which he has acquired for a
lucrative title from another ascendant or from a brother, is obliged to reserve those
which he had acquired by operation of law in favor of the relatives of the deceased that
were included within. of the third degree and that they are so by the part where the
goods come from. '
"I am not going to discuss now whether this formula is more or less happy, and whether
it should be approved as it is written or if it needs amendment or addition. I postpone
this examination for when it deals with the intestate succession, to which it has greater
application. For the time being, I confine myself to recognizing: first, that with this base
the danger disappears that secularly possessed property by a family will pass abruptly
and gratuitously to strange hands due to the chance of links and premature deaths; It is
a novelty this basis of the law of Castllla, it has in rigor in its payment the authority of
the most leveling Codes and the example of the most democratic nations of Europe, if
not in the extension in which it is presented by the Code Commission, as less in the
generating principle of the reform. " (pp.233-235)
The stated purpose or the reservation is completed once property has been returned to
the specified relatives of the line of origin. But from this time, there is no further
occasion for its application. In the relations between one reservation and another of the
same degree, there is no call for applying Art. 891 any longer; Wherefore, the respective
share of each in the reversionary property should be governed by the ordinary rules of
intestate succession. In this spirit the jurisprudence of this Court and that of Spain has
resolved that the death of the ascendant reservist , the reservable property should pass,
not to all the reservoirs as a class, but only to those nearest in degree to the descendant
( prepositus), excluding those reservoirs of more remote degree (Florentine vs.
Florentine, 40 Phil 489-490; TS 8 Nov. 1894; Dir. Gen. de los Registros, Resol. 20 March
1905). And within the third degree of relationship from the descendant ( prepositus ),
the right of representation operates in favor of nephews (Florentino vs. Florentino,
supra).

" Following the order prescribed by law in legitimate succession, when there are rents of
the descendant within the third degree, the right of the nearest relative, called the
reserve, over the property which the reservist (person holding it subject to
reservation) should return to him, you exclude that from the one more remote . The
right of representation can not be claimed when claiming the same as a reservationof
the reservable property is not among the relatives within the third degree belonging to
the line from which such property came, inasmuch as the right granted by the Civil Code
in Article 811 is in the highest degree personal and for the exclusive benefit of said
persons who are within the third degree of the person from whom the reservable
property came. Therefore, relatives of the fourth and the succeeding degrees can never
be considered as reserve , since the law does not recognize them as such. 

In spite of what has been said relative to the right of representation on the part of one
alleging his right as a reserve who is not within the third degree of
relationship,nevertheless there is right of representation on the part of the reserve who
are within the third degree mentioned by law , as in the case of nephews of the
deceased person from whom the reservable property came. xx x. "(Florentino vs.
Florentino, 40 Phil. 480, 489-490) (Emphasis supplied) (see also Nieva and Alacala vs.
Alcala and de Ocampo, 41 Phil 915)
Proximity of degree and right of representation are basic principles of ordinary intestate
succession; so is the rule that whole blood brothers and nephews are entitled to share
that of brothers and nephews of half-blood. If in determining the rights of the reserve
inter se , proximity of degree and the right of representation of nephews are made to
apply, the rule of double share for immediate collaterals of the whole blood should be
likewise operative. 
In other words, the trunk reservation merely determines the group of relatives
( reservoirs ) to whom the property should be returned; but within that group, the
individual right to the property should be decided by the applicable rules of ordinary
intestate succession, since Art. 891 does not specify otherwise. This conclusion is
strengthened by the circumstance that the reservation being an exceptional case, its
application should be limited to what is strictly needed to accomplish the purpose of the
law. As expressed by Manresa in his Commentaries (Vol.6, 6th Ed., P.250):

"creating a true exceptional state of law, should not be extended, but rather restricted,
the scope of the provision, maintaining the exception while it was necessary and was
really contained in the provision, and applying the general rules and fundamentals of the
Code in matters of succession , in those unresolved extremes of an express raod, and
that are outside the sphere of action of the reserve that is created. "
The restrictive interpretation is the more imperative in view of the new Civil Code's
hostility to successional reservations and reversions, as exemplified by the suppression
of the widow's reserve and the  legal reversion of the Code of 1889 (Articles 812 and
968-980). 

There is a third point that deserves consideration. Even during the reservist'slifetime,

the reserve, who are the ultimate acquirers of the property, can already assert the right
to prevent the reservistfrom doing anything that might frustrate their reversionary right:
and for this purpose they can compel the annotation of their right in the Registry of
Property even while the reservist is alive (Ultramarital Mortgage Law, Arts 168, 199;
Edroso vs. Sablan, 25 Phil 295). This right is incompatible with the mere expectancy that
corresponds to the natural heirs of the reservist . It is clear Likewise the reservable That
property is not part of the estate of the reservist , WHO May not dispose of them by will,
so long as there are reservatarios Existing (vs. Arroyo Gerona, 58 Phil. 237). The latter,
therefore, do not inherit from the reservist , but from the descendant prepositus, from
whom the reserveare the heirs mortis cause , subject to the condition that they must
survive the reservist. (Sanchez Roman, Vol. VI, Torao 2, p.286, Manresa,
Commentaries, Vol. 6, 6th Ed., Pp. 274, 310) Had the nephews of whole and half-blood
succeeded the prepositus directly, those of full -blood would undoubtedly receive a
double share compared to those of the half-blood (Arts 1008 and 1006, Jam cit .) Why
then should the latter receive equal shares simply because the transmission of the
property was delayed by the interregnum of the reserve ? The decedent (causative) the
heirs and their relationship being the same, there is no cogent reason why the
hereditary portions should vary.

It should be stated, in justice to the trial, that its opinion is supported by distinguished
commentators of the Civil Code of 1889, among them Sanchez Román (Studies, Vol. 65,
Volume 2, p.1008) and Mucius Scaevola (Civil Code , Vol 14, p.342). The reason given
by these authors is that the reservesare called by law to take the reservable property
because they belong to the line of origin; and not because of their relationship. But the
argument, if logically pursued, would lead to the conclusion that the property should
pass to any and all the reserve , as a class, and in equal shares, regardless of lines and
degrees. In truth, such is the thesis of Scaevola, that later became known as
the integral reserve theory(14 Scaevola, Cod. Civ., Pp. 332 et seq.). But, as we have
seen, the Supreme Courts of Spain and of the Philippines have rejected that view, and
consider that the reservable property should be succeeded by the reserve who is nearest
in degree, according to the basic rules of intestacy. The refutation of the trial court is
found in the following, passage of Manresa's Commentaries (Vol 6, 7th Ed., P 346):

"To this it is objected that the right consigned in Article 811 is a right of one's own that
arises from the mere quality of a relative, not a right acquired by succession, certainly,
the right is granted to lineal relatives within the third degree; but they are granted on
the occasion of the death of a descendant and in the succession of this.They happen
because of the special provenance of the assets after they are enjoyed by the
ascendant, but they happen for profit and for the cause of death and ministry of The
law, which is difficult to deny, could even be considered legitimate relatives or forced
heirs, as the same author recognizes elsewhere in his work, so this argument is not
convincing. "
All told, our opinion is that reason and policy please keep to a minimum of the
alterations introduced by the reservation in the basic rules of succession mortis causa . 

WHEREFORE, the appealed order of November 5, 1956 is reversed and Set Aside, and
the reservatarios Who are nephews of the whole blood are Entitled to a share Declared
twice as large as That of the nephews of the half-blood. Let the records be remanded to
the court below for further proceedings in accordance with this decision. 
G.R. No. L-12957             March 24, 1961

CONSTANCIO SIENES, ET AL., plaintiffs-appellants, 

vs.
FIDEL ESPARCIA, ET AL., defendants-appellees.

Proceso R. Remollo for plaintiffs-appellants.

Leonardo D. Mancao for defendants-appellees.

DIZON, J.:

Appellants commenced this action below to secure judgment (1) declaring null and void
the sale executed by Paulina and Cipriana Yaeso in favor of appellees, the spouses Fidel
Esparcia and Paulina Sienes; (2) ordering the Esparcia spouses to reconvey to appellants
Lot 3368 of the Cadastral Survey of Ayuquitan (now Amlan), Oriental Negros; and (3)
ordering all the appellees to pay, jointly and severally, to appellants the sum of P500.00
as damages, plus the costs of suit. In their answer appellees disclaimed any knowledge
or information regarding the sale allegedly made on April 20, 1951 by Andrea Gutang in
favor of appellants and alleged that, if such sale was made, the same was void on the
ground that Andrea Gutang had no right to dispose of the property subject matter
thereof. They further alleged that said property had never been in possession of
appellants, the truth being that appellees, as owners, had been in continuous possession
thereof since the death of Francisco Yaeso. By way of affirmative defense and
counterclaim, they further alleged that on July 30, 1951, Paulina and Cipriana Yaeso, as
the only surviving heirs of Francisco Yaeso, executed a public instrument of sale in favor
of the spouses Fidel Esparcia and Paulina Sienes, the said sale having been registered
together with an affidavit of adjudication executed by Paulina and Cipriana on July 18,
1951, as sole surviving heirs of the aforesaid deceased; that since then the Esparcias
had been in possession of the property as owners.

After trial upon the issues thus joined, the lower court rendered judgment as follows:

IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered declaring (1) that
the sale of Lot No. 3368 made by Andrea Gutang to the plaintiff spouses
Constancio Sienes and Genoveva Silay is void, and the reconveyance prayed for by
them is denied; (2) that the sale made by Paulina and Cipriana Yaeso in favor of
defendants Fidel Esparcia and Paulina Sienes involving the same lot is also void,
and they have no valid title thereto; and (3) that the reservable property in
question is part of and must be reverted to the estate of Cipriana Yaeso, the lone
surviving relative and heir of Francisco Yaeso at the death of Andrea Gutang as of
December 13, 1951. No pronouncement as to the costs.

From the above decision the Sienes spouse interposed the present appeal, their principal
contentions being, firstly, that the lower court erred in holding that Lot 3368 of the
Cadastral Survey of Ayuquitan was a reservable property; secondly, in annulling the sale
of said lot executed by Andrea Gutang in their favor; and lastly, in holding that Cipriana
Yaeso, as reservee, was entitled to inherit said land.

There is no dispute as to the following facts:

Lot 3368 originally belonged to Saturnino Yaeso. With his first wife, Teresa Ruales, he
had four children named Agaton, Fernando, Paulina and Cipriana, while with his second
wife, Andrea Gutang, he had an only son named Francisco. According to the cadastral
records of Ayuquitan, the properties left by Saturnino upon his death — the date of
which does not clearly appear of record — were left to his children as follows: Lot 3366
to Cipriana, Lot 3367 to Fernando, Lot 3375 to Agaton, Lot 3377 (southern portion) to
Paulina, and Lot 3368 (western portion) to Francisco. As a result of the cadastral
proceedings, Original Certificate of Title No. 10275 covering Lot 3368 was issued in the
name of Francisco. Because Francisco was a minor at the time, his mother administered
the property for him, declared it in her name for taxation purposes (Exhs A & A-1), and
paid the taxes due thereon (Exhs. B, C, C-1 & C-2). When Francisco died on May 29,
1932 at the age of 20, single and without any descendant, his mother, as his sole heir,
executed the public instrument Exhibit F entitled EXTRAJUDICIAL SETTLEMENT AND
SALE whereby, among other things, for and in consideration of the sum of P800.00 she
sold the property in question to appellants. When thereafter said vendees demanded
from Paulina Yaeso and her husband Jose Esparcia, the surrender of Original Certificate
of Title No. 10275 — which was in their possession — the latter refused, thus giving rise
to the filing of the corresponding motion in the cadastral record No. 507. The same,
however, was denied (Exhs. 8 & 9).

Thereafter, or more specifically, on July 30, 1951, Cipriana and Paulina Yaeso, the
surviving half-sisters of Francisco, and who as such had declared the property in their
name, on January 1, 1951 executed a deed of sale in favor of the spouses Fidel Esparcia
and Paulina Sienes (Exh. 2) who, in turn, declared it in their name for tax purposes and
thereafter secured the issuance in their name of Transfer Certificate of Title No. T-2141
(Exhs. 5 & 5-A).

As held by the trial court, it is clear upon the facts already stated, that the land in
question was reservable property. Francisco Yaeso inherited it by operation of law from
his father Saturnino, and upon Francisco's death, unmarried and without descendants, it
was inherited, in turn, by his mother, Andrea Gutang. The latter was, therefore, under
obligation to reserve it for the benefit of relatives within the third degree belonging to
the line from which said property came, if any survived her. The record discloses in this
connection that Andrea Gutang died on December 13, 1951, the lone reservee surviving
her being Cipriana Yaeso who died only on January 13, 1952 (Exh. 10).

In connection with reservable property, the weight of opinion is that the reserve creates
two resolutory conditions, namely, (1) the death of the ascendant obliged to reserve and
(2) the survival, at the time of his death, of relatives within the third degree belonging
to the line from which the property came (6 Manresa 268-269; 6 Sanchez Roman 1934).
This Court has held in connection with this matter that the reservista has the legal title
and dominion to the reservable property but subject to a resolutory condition; that he is
like a life usufructuary of the reservable property; that he may alienate the same but
subject to reservation, said alienation transmitting only the revocable and conditional
ownership of the reservists, the rights acquired by the transferee being revoked or
resolved by the survival of reservatarios at the time of the death of the reservista
(Edroso vs. Sablan, 25 Phil. 295; Lunsod vs. Ortega, 46 Phil. 664; Florentino vs.
Florentino, 40 Phil. 480; and Director of Lands vs. Aguas, 65 Phil. 279).

The sale made by Andrea Gutang in favor of appellees was, therefore, subject to the
condition that the vendees would definitely acquire ownership, by virtue of the
alienation, only if the vendor died without being survived by any person entitled to the
reservable property. Inasmuch much as when Andrea Gutang died, Cipriana Yaeso was
still alive, the conclusion becomes inescapable that the previous sale made by the
former in favor of appellants became of no legal effect and the reservable property
subject matter thereof passed in exclusive ownership to Cipriana.

On the other hand, it is also clear that the sale executed by the sisters Paulina and
Cipriana Yaeso in favor of the spouses Fidel Esparcia and Paulina Sienes was subject to a
similar resolutory condition. The reserve instituted by law in favor of the heirs within the
third degree belonging to the line from which the reservable property came, constitutes
a real right which the reservee may alienate and dispose of, albeit conditionally, the
condition being that the alienation shall transfer ownership to the vendee only if and
when the reservee survives the person obliged to reserve. In the present case, Cipriana
Yaeso, one of the reservees, was still alive when Andrea Gutang, the person obliged to
reserve, died. Thus the former became the absolute owner of the reservable property
upon Andrea's death. While it may be true that the sale made by her and her sister prior
to this event, became effective because of the occurrence of the resolutory condition, we
are not now in a position to reverse the appealed decision, in so far as it orders the
reversion of the property in question to the Estate of Cipriana Yaeso, because the
vendees — the Esparcia spouses did — not appeal therefrom.
WHEREFORE, the appealed decision — as above modified — is affirmed, with costs, and
without prejudice to whatever action in equity the Esparcia spouses may have against
the Estate of Cipriana Yaeso for the reconveyance of the property in question.
G.R. No. 6878           September 13, 1913

MARCELINA EDROSO, petitioner-appellant, 
vs.
PABLO and BASILIO SABLAN, opponents-appellees.

Francisco Dominguez for appellant.

Crispin Oben for appellees.

ARELLANO, C.J.:

The subject matter of this appeal is the registration of certain property classified as
required by law to be reserved. Marcelina Edroso applied for registration and issuance of
title to two parcels of land situated in the municipality of Pagsanjan, Province of Laguna,
one of 1 hectare 77 ares and 63 centares, and the other 1 hectare 6 ares and 26
centares. Two applications were filed, one for each parcel, but both were heard and
decided in a single judgment.

Marcelina Edroso was married to Victoriano Sablan until his death on September 22,
1882. In this marriage they had a son named Pedro, who was born on August 1, 1881,
and who at his father's death inherited the two said parcels. Pedro also died on July 15,
1902, unmarried and without issue and by this decease the two parcels of land passed
through inheritance to his mother, Marcelina Edroso. Hence the hereditary title
whereupon is based the application for registration of her ownership.

Two legitimate brothers of Victoriano Sablan — that is, two uncles german of Pedro
Sablan — appeared in the case to oppose the registration, claiming one of two things:
Either that the registration be denied, "or that if granted to her the right reserved by law
to the opponents be recorded in the registration of each parcel." (B. of E., 11, 12.)

The Court of Land Registration denied the registration and the application appealed
through a bill of exceptions.

Registration was denied because the trial court held that the parcels of land in question
partake of the nature of property required by law to be reserved and that in such a case
application could only be presented jointly in the names of the mother and the said two
uncles of Pedro Sablan.

The appellant impugns as erroneous the first idea advanced (second assignment of
error), and denies that the land which are the subject matter of the application are
required by law to be reserved — a contention we regard as indefensible.

Facts: (1) The applicant acquired said lands from her descendant Pedro Sablan by
inheritance; (2) Pedro Sablan had acquired them from his ascendant Victoriano Sablan,
likewise by inheritance; (3) Victoriano Sablan had likewise acquired them by inheritance
from his ascendants, Mariano Sablan and Maria Rita Fernandez, they having been
adjudicated to him in the partition of hereditary property had between him and his
brothers. These are admitted facts.

A very definite conclusions of law is that the hereditary title is one without a valuable
consideration [gratuitous title], and it is so characterized in article 968 of the Civil Code,
for he who acquires by inheritance gives nothing in return for what he receives; and a
very definite conclusion of law also is that the uncles german are within the third degree
of blood relationship.

The ascendant who inherits from his descendant property which the latter acquired
without a valuable consideration from another ascendant, or from a brother or
sister, is under obligation to reserve what he has acquired by operation of law for
the relatives who are within the third degree and belong to the line whence the
property proceeded. (Civil Code, art. 811.)
Marcelina Edroso, ascendant of Pedro Sablan, inherited from him these two parcels of
land which he had acquired without a valuable consideration — that is, by inheritance
from another ascendant, his father Victoriano. Having acquired them by operation of
law, she is obligated to relatives within the third degree and belong to the line of
Mariano Sablan and Maria Rita Fernandez, whence the lands proceeded. The trial court's
ruling that they partake of the nature property required by law to be reserved is
therefore in accordance with the law.

But the appellant contends that it is not proven that the two parcels of land in question
have been acquired by operation of law, and that only property acquired without a
valuable consideration, which is by operation of law, is required by law to reserved.

The appellees justly argue that this defense was not alleged or discussed in first
instance, but only herein. Certainly, the allegation in first instance was merely that
"Pedro Sablan acquired the property in question in 1882, before the enforcement of the
Civil Code, which establishes the alleged right required by law to be reserved, of which
the opponents speak; hence, prescription of the right of action; and finally, opponents'
renunciation of their right, admitting that it existed and that they had it" (p. 49).

However that be, it is not superflous to say, although it may be unnecessary, that the
applicant inherited the two parcels of land from her son Pedro, who died "unmarried and
without issue." The trial court so held as a conclusion of fact, without any objection on
the appellant's part. (B. of E., 17, 20.) When Pedro Sablan died without issue, his
mother became his heir by virtue of her right to her son's legal portion under article 935
of the Civil Code:

In the absence of legitimate children and descendants of the deceased, his

ascendants shall from him, to the exclusion of collaterals.

The contrary could only have occurred if the heiress had demonstrated that any of these
lands had passed into her possession by free disposal in her son's will; but the case
presents no testamentary provision that demonstrate any transfer of property from the
son to the mother, not by operation of law, but by her son's wish. The legal presumption
is that the transfer of the two parcels of land was abintestate or by operation of law, and
not by will or the wish of the predecessor in interest. (Act No. 190, sec. 334, No. 26.) All
the provision of article 811 of the Civil Code have therefore been fully complied with.

If Pedro Sablan had instituted his mother in a will as the universal heiress of his
property, all he left at death would not be required by law to be reserved, but only what
he would have perforce left her as the legal portion of a legitimate ascendant.

The legal portion of the parents or ascendants is constituted by one-half of the

hereditary estate of the children and descendants. The latter may unrestrictedly
dispose of the other half, with the exception of what is established in article 836.
(Civil Code, art. 809.)

In such case only the half constituting the legal portion would be required by law to be
reserved, because it is what by operation of law could full to the mother from her son's
inheritance; the other half at free disposal would not have to be reserved. This is all that
article 811 of the Civil Code says.

No error has been incurred in holding that the two parcels of land which are the subject
matter of the application are required by law to be reserved, because the interested
party has not proved that either of them became her inheritance through the free
disposal of her son.

Proof testate succession devolves upon the heir or heiress who alleges it. It must be
admitted that a half of Pedro Sablan's inheritance was acquired by his mother by
operation of law. The law provides that the other half is also presumed to be acquired by
operation of law — that is, by intestate succession. Otherwise, proof to offset this
presumption must be presented by the interested party, that is, that the other half was
acquired by the man's wish and not by operation of law.

Nor is the third assignments of error admissible — that the trial court failed to sustain
the renunciation of the right required by law to be reserved, which the applicant
attributes to the opponents. Such renunciation does not appear in the case. The
appellant deduces it from the fact that the appellees did not contradict the following
statement of hers at the trial:

The day after my brother-in-law Pablo Sablan dies and was buried, his brother came to
my house and said that those rice lands were mine, because we had already talked
about making delivery of them. (p. 91).

The other brother alluded to is Basilio Sablan, as stated on page 92. From the fact that
Basilio Sablan said that the lands belong to the appellant and must be delivered to her it
cannot be deduced that he renounced the right required by law to be reserved in such
lands by virtue of the provisions of article 811 of the Civil Code, for they really belong to
her and must be delivered to her.

The fourth assignments of error set up the defense of prescription of the right of action.
The appellant alleges prescription of the opponent's right of action for requiring
fulfillment of the obligation they attribute to her recording in the property registry the
right required by law to be reserved, in accordance with the provisions of the Mortgage
Law; and as such obligation is created by law, it prescribed in the time fixed in No. 2 of
section 43 of Act No. 190. She adds: "Prescription of the right alleged to the reserved by
force of law has not been invoked." (Eight allegation.)

The appellant does not state in her brief what those provisions of the Mortgage Law are.
Nor did she do so in first instance, where she says only the following, which is quoted
from the record: "I do not refer to the prescription of the right required by law to be
reserved in the property; I refer to the prescription of the right of action of those who
are entitled to the guaranty of that right for seeking that guaranty, for those who are
entitled to that right the Mortgage Law grants a period of time for recording it in the
property registry, if I remember correctly, ninety days, for seeking entry in the registry;
but as they have not exercised that right of action, such right of action for seeking here
that it be recorded has prescribed. The right of action for requiring that the property be
reserved has not prescribed, but the right of action for guaranteeing in the property
registry that this property is required by law to be reserved" (p. 69 of the record).

The appellees reply: It is true that their right of action has prescribed for requiring the
applicant to constitute the mortgage imposed by the Mortgage Law for guaranteeing the
effectiveness of the required by law to be reserved; but because that right of action has
prescribed, that property has not been divested of its character of property required by
law to be reserved; that it has such character by virtue of article 8112 of the Civil Code,
which went into effect in the Philippine in December, 1889, and not by virtue of the
Mortgage Law, which only went into effect in the country by law of July 14, 1893; that
from December, 1889, to July, 1893, property which under article 811 of the Civil Code
acquired the character of property reserved by operation of law was such independently
of the Mortgage Law, which did not yet form part of the positive legislation of the
country; that although the Mortgage Law has been in effect in the country since July,
1893, still it has in no way altered the force of article 811 of the Civil Code, but has
operated to reinforce the same merely by granting the right of action to the persons in
whose favor the right is reserved by operation of law to require of the person holding the
property a guaranty in the form of a mortgage to answer for the enforcement, in due
time, of the right; that to lose the right of action to the guaranty is not to lose the right
itself; that the right reserved is the principal obligation and the mortgage the accessory
obligation, and loss of the accessory does not mean loss of the principal. (Fifth and sixth
allegations.)

The existence of the right required by law to be reserved in the two parcels of land in
question being indisputable, even though it be admitted that the right of action which
the Mortgage Law grants as a guaranty of final enforcement of such right has
prescribed, the only thing to be determined by this appeal is the question raised in the
first assignment of error, that is, how said two parcels of land can and ought to be
registered, not in the property registry newly established by the Mortgage Law, but in
the registry newly organized by Act No. 496. But as the have slipped into the allegations
quoted some rather inexact ideas that further obscure such an intricate subject as this of
the rights required to be reserved in Spanish-Philippine law, a brief disgression on the
most essential points may not be out of place here.

The Mortgage Law of July 14, 1893, to which the appellees allude, is the amended one
of the colonies, not the first enforced in the colonies and consequently in the Philippines.
The preamble of said amended Mortgage Law states:

The Mortgage Law in force in Spain for thirty years went into effect, with the
modifications necessary for its adaptation, in the Antilles on May 1, 1880, and in
the Philippines on December 1, 1889, thus commencing in those regions the
renovation of the law on real property, and consequently of agrarian credit.

The Civil Code went into effect in the Philippines in the same year, 1889, but on the
eight day.

Two kinds of property required by law to be reserved are distinguished in the Civil Code,
as set forth in article 968 thereof, where it says:

Besides the reservation imposed by article 811, the widow or widower contracting a

seconds marriage shall be obliged to set apart for the children and descendants of the
first marriage the ownership of all the property he or she may have required from the
deceased spouse by will, by intestate succession, by gift, or other transfer without a
valuable consideration."

The Mortgage Law of Spain and the first law that went into effect in the Philippines on
December 1, 189, do not contain any provision that can be applied to the right reserved
by article 811 of the Civil Code, for such right is a creation of the Civil Code. In those
laws appear merely the provisions intended to guarantee the effectiveness of the right in
favor of the children of the first marriage when their father or mother contracts a second
marriage. Nevertheless, the holding of the supreme court of Spain, for the first time set
forth in the decision on appeal of November 8, 1894, has been reiterated:

That while the provisions of articles 977 and 978 of the Civil Code that tend to
secure the right required to be reserved in the property refer especially to the
spouses who contract second or later marriages, they do not thereby cease to be
applicable to the right establishes in article 811, because, aside from the legal
reason, which is the same in both cases, such must be the construction from the
important and conclusive circumstance that said provisions are set forth in the
chapter that deals with inheritances in common, either testate or intestate, and
because article 968, which heads the section that deals in general with property
required by law to be reserved, makes reference to the provisions in article 811;
and it would consequently be contradictory to the principle of the law and of the
common nature of said provisions not to hold them applicable to that right.

Thus it was again stated in a decision on appeal, December 30, 1897, that: "As the
supreme court has already declared, the guaranties that the Code fixes in article 977
and 978 for the rights required by law to the reserved to which said articles refer, are
applicable to the special right dealt with in article 811, because the same principle exists
and because of the general nature of the provisions of the chapter in which they are
found."

From this principle of jurisprudence it is inferred that if from December, 1889, to July,
1893, a case had occurred of a right required to be reserved by article 811, the persons
entitled to such right would have been able to institute, against the ascendant who must
make the reservation, proceedings for the assurance and guaranty that article 977 and
978 grant to the children of a first marriage against their father or mother who has
married again. The proceedings for assurance, under article 977; are: Inventory of the
property subject to the right reserved, annotation in the property registry of such right
reserved in the real property and appraisal of the personal property; and the guaranty,
under article 978, is the assurance by mortgage, in the case of realty, of the value of
what is validly alienated.

But since the amended Mortgage Law went into effect by law of July 14, 1893, in the
Philippines this is not only a principle of jurisprudence which may be invoked for the
applicability to the right reserved in article 811 of the remedies of assurance and
guaranty provided for the right reserved in article 968, but there is a positive provision
of said law, which is an advantage over the law of Spain, to wit, article 199, which read
thus:

The special mortgage for guaranteeing the right reserved by article 811 of the Civil
Code can only be required by the relatives in whose favor the property is to be
reserved, if they are of age; if minors, it will be require by the person who should
legally represent them. In either case the right of the persons in whose favor the
property must be reserved will be secured by the same requisites as set forth in
the preceding article (relative to the right reserved by article 968 of the Civil
Code), applying to the person obligated to reserve the right the provisions with
respect to the father.

In article 168 of the same law the new subsection 2 is added in connection with article
199 quoted, so that said article 168 reads as thus:

Legal mortgage is established:

1. . . .

2. In favor of the relatives to whom article 811 of the Civil Code refers, for the
property required to be reserved, upon the property of the person obliged to
reserve it.

This being admitted, and admitted also that both the litigating parties agree that the
period of ninety days fixed for the right of action to the guaranty, that is, to require the
mortgage that guarantees the effectiveness of the right required by law to be reserved,
has prescribed, it is necessary to lay down a principle in this matter. Now it should by
noted that such action has not prescribed, because the period of ninety days fixed by
the Mortgage Law is not for the exercise of the right of action of the persons entitled to
the right reserved, but for the fulfillment of the obligation of the person who must make
the reservation.

Article 191 of the reads thus: "If ninety days pass without the father's instituting in court
the proceeding to which the foregoing article refers, the relatives themselves may
demand fulfillment, etc., . . . applying, according to said article 199, to the person
obligated to reserve the right the provisions with respect to the father."

Article 203 of the regulation for the application of the Mortgage Law says: "In the case
of article 199 of the law the proceedings to which article 190 thereof refers will be
instituted within the ninety days succeeding the date of the date of the acceptation of
the inheritance by the person obligated to reserve the property; after this period has
elapsed, the interested parties may require the institution of such proceedings, if they
are of age; and in any other case, their legal representatives."

Thus it clearly appears that the lapse of the ninety days is not the expiration by
prescription of the period for the right must be reserved, but really the commencement
thereof, enables them to exercise it at any time, since no limits is set in the law. So, if
the annotation of the right required by law to be reserved in the two parcels of land in
question must be made in the property registry of the Mortgage Law, the persons
entitled to it may now institute proceedings to that end, and an allegation of prescription
against the exercise of such right of action cannot be sustained.

Since the applicant confesses that she does not allege prescription of the right of action
for requiring that the property be reserved, for she explicitly so stated at the trial, and
as the case presents no necessity for the proceedings that should be instituted in
accordance with the provisions of the Mortgage Law, this prescription of the right of
action cannot take place, because such right of action does not exist with reference to
instituting proceedings for annotation in the registry of Act No. 496 of the right to the
property required by law to be reserved. It is sufficient, as was done in the present case,
to intervene in the registration proceedings with the claim set up by the two opponents
for recording therein the right reserved in either parcel of land.

Now comes the main point in the appeal. The trial court denied the registration because
of this finding set forth in its decision:

Absolute title to the two parcels of land undoubtedly belongs to the applicant and
the two uncles of the deceased Pedro Sablan, and the application cannot be made
except in the name of all of them in common. (B. of E., p. 20.)

It must be remembered that absolute title consists of the rights to use, enjoy, dispose
of, and recover. The person who has in himself all these rights has the absolute or
complete ownership of the thing; otherwise, the person who has the right to use and
enjoy will have the usufruct, and the person who has the rights of disposal and recovery
the direct title. The person who by law, act, or contract is granted the right of usufruct
has the first two rights or using an enjoying, and then he is said not to have the fee
simple — that is, the rights of disposal and recovery, which pertain to another who, after
the usufruct expires, will come into full ownership.

The question set up in the first assignment of error of the appellant's brief is this:

What are the rights in the property of the person who holds it subject to the
reservation of article 811 of the Civil Code?

There are not lacking writers who say, only those of a usufructuary, the ultimate title
belonging to the person in whose favor the reservation is made. If that were so, the
person holding the property could not apply for registration of title, but the person in
whose favor it must be reserved, with the former's consent. This opinion does not seem
to be admissible, although it appears to be supported by decisions of the supreme court
of Spain of May 21, 1861, and June 18, 1880, prior to the Civil Code, and of June 22,
1895, somewhat subsequent to the enforcement thereof.

Another writer says: "This opinion only looks at two salient points — the usufruct and
the fee simple; the remaining features of the arrangement are not perceived, but
become obscure in the presence of that deceptive emphasis which only brings out two
things: that the person holding the property will enjoy it and that he must keep what he
enjoys for other persons." (Manresa, VII, 189.)

In another place he says: "We do not believe that the third opinion can now be
maintained — that is, that the surviving spouse (the person obliged by article 968 to
make the reservation) can be regarded as a mere usufructuary and the descendants
immediately as the owner; such theory has no serious foundation in the Code." (Ibid.,
238.)

The ascendants who inherits from a descendants, whether by the latter's wish or by
operation of law, requires the inheritance by virtue of a title perfectly transferring
absolute ownership. All the attributes of the right of ownership belong to him exclusively
— use, enjoyment, disposal and recovery. This absolute ownership, which is inherent in
the hereditary title, is not altered in the least, if there be no relatives within the third
degree in the line whence the property proceeds or they die before the ascendant heir
who is the possessor and absolute owner of the property. If there should be relatives
within the third degree who belong to the line whence the property proceeded, then a
limitation to that absolute ownership would arise. The nature and scope of this limitation
must be determined with exactness in order not to vitiate rights that the law wishes to
be effective. The opinion which makes this limitation consist in reducing the ascendant
heir to the condition in of a mere usufructuary, depriving him of the right of disposal and
recovery, does not seem to have any support in the law, as it does not have, according
to the opinion that he has been expressed in speaking of the rights of the father or
mother who has married again. There is a marked difference between the case where a
man's wish institutes two persons as his heirs, one as usufructuary and the other as
owner of his property, and the case of the ascendant in article 811 or of the father or
mother in article 968. In the first case, there is not the slightest doubt that the title to
the hereditary property resides in the hereditary owner and he can dispose of and
recover it, while the usufructuary can in no way perform any act of disposal of the
hereditary property (except that he may dispose of the right of usufruct in accordance
with the provisions of article 480 of the Civil Code), or any act of recovery thereof
except the limited one in the form prescribed in article 486 of the Code itself, because
he totally lacks the fee simple. But the ascendants who holds the property required by
article 811 to be reserved, and the father of mother required by article 986 to reserve
the right, can dispose of the property they might itself, the former from his descendant
and the latter from his of her child in first marriage, and recover it from anyone who
may unjustly detain it, while the persons in whose favor the right is required to be
reserved in either case cannot perform any act whatsoever of disposal or of recovery.

Article 975 states explicitly that the father or mother required by article 9687 to reserve
the right may dispose of the property itself:

Alienation of the property required by law to be reserved which may be made by

the surviving spouse after contracting a second marriage shall be valid only if at
his or her death no legitimate children or descendants of the first marriage
survive, without prejudice to the provisions of the Mortgage of Law.

It thus appears that the alienation is valid, although not altogether effective, but under a
condition subsequent, to wit: "If at his or her death no legitimate children or
descendants of the first marriage survive."

If the title did not reside in the person holding the property to be reserved, his alienation
thereof would necessarily be null and void, as executed without a right to do so and
without a right which he could transmit to the acquirer. The law says that the alienation
subsists (to subject is to continue to exist) "without prejudice to the provisions of the
Mortgage Law." Article 109 of this Law says:

The possessor of property subject to conditions subsequent that are still

pending may mortgage or alienate it, provided always that he preserve the right
of the parties interested in said conditions by expressly reserving that right in the
registration.

In such case, the child or legitimate descendants of the first marriage in whose favor the
right is reserved cannot impugn the validity of the alienation so long as the condition
subsequent is pending, that is, so long as the remarried spouse who must reserve the
right is alive, because it might easily happen that the person who must reserve the right
should outlive all the person in whose favor the right is reserved and then there would
be no reason for the condition subsequent that they survive him, and, the object of the
law having disappeared, the right required to be reserved would disappear, and the
alienation would not only be valid but also in very way absolutely effective.
Consequently, the alienation is valid when the right required by law to be reserved to
the children is respected; while the effects of the alienation depend upon a condition,
because it will or will not become definite, it will continue to exist or cease to exist,
according to circumstances. This is what the law establishes with reference to the
reservation of article 968, wherein the legislator expressly directs that the surviving
spouse who contracts a second marriage shall reserve to the children or descendants of
the first marriage ownership. Article 811 says nothing more than that the ascendants
must make the reservation.

Manresa, with his recognized ability, summarizes the subject under the heading,
"Rights and obligations during the existence of the right required by law to be reserved,"
in these words:

During the whole period between the constitution in legal form of the right required by
law to be reserved and the extinction thereof, the relatives within the third degree, after
the right that in their turn may pertain to them has been assured, have only an
expectation, and therefore they do not even have the capacity to transmit that
expectation to their heirs.

The ascendant is in the first place a usufructuary who should use and enjoy the things
according to their nature, in the manner and form already set forth in commenting upon
the article of the Code referring to use and usufruct.

But since in addition to being the usufructuary he is, even though conditionally, the
owner in fee simple of the property, he can dispose of it in the manner provided in
article 974 and 976 of the same Code. Doubt arose also on this point, but the Direccion
General of the registries, in an opinion of June 25, 1892, declared that articles 974 and
975, which are applicable by analogy, for they refer to property reserved by law, reveal
in the clearest manner the attitude of the legislator on this subject, and the relatives
with the third degree ought not to be more privileged in the right reserved in article 811
than the children in the right reserved by article 975, chiefly for the reason that the right
required to be reserved carries with it a condition subsequent, and the property subject
to those conditions can validly be alienated in accordance with article 109 of the
Mortgage Law, such alienation to continue, pending fulfillment of the condition." (Civil
Code, VI, 270.)

Another commentator corroborates the foregoing in every way. He says:

The ascendants acquires that property with a condition subsequent, to wit,

whether or not there exists at the time of his death relatives within the third
degree of the descendants from whom they inherit in the line whence the property
proceeds. If such relatives exist, they acquire ownership of the property at the
death of the ascendants. If they do not exist, the ascendants can freely dispose
thereof. If this is true, since the possessor of property subject to conditions
subsequent can alienate and encumber it, the ascendants may alienate the
property required by law to be reserved, but he will alienate what he has and
nothing more because no one can give what does not belong to him, and the
acquirer will therefore receive a limited and revocable title. The relatives within the
third degree will in their turn have an expectation to the property while the
ascendant lives, an expectation that cannot be transmitted to their heirs, unless
these are also within the third degree. After the person who is required by law to
reserve the right has died, the relatives may rescind the alienation of the realty
required by law to be reserved and they will complete ownership, in fee simple,
because the condition and the usufruct have been terminated by the death of the
usufructuary. (Morell, Estudios sobre bienes reservable, 304, 305.)

The conclusion is that the person required by article 811 to reserve the right has,
beyond any doubt at all, the rights of use and usufruct. He has, moreover, for the
reasons set forth, the legal title and dominion, although under a condition subsequent.
Clearly he has, under an express provision of the law, the right to dispose of the
property reserved, and to dispose of is to alienate, although under a condition. He has
the right to recover it, because he is the one who possesses or should possess it and
have title to it, although a limited and revocable one. In a word, the legal title and
dominion, even though under a condition, reside in him while he lives. After the right
required by law to be reserved has been assured, he can do anything that a genuine
owner can do.
On the other hand, the relatives within the third degree in whose favor of the right is
reserved cannot dispose of the property, first because it is no way, either actually,
constructively or formally, in their possession; and, moreover, because they have no
title of ownership or of the fee simple which they can transmit to another, on the
hypothesis that only when the person who must reserve the right should die before
them will they acquire it, thus creating a fee simple, and only then will they take their
place in the succession of the descendants of whom they are relatives within the third
degree, that it to say, a second contingent place in said legitimate succession in the
fashion of aspirants to a possible future legacy. If any of the persons in whose favor the
right is reserved should, after their rights has been assured in the registry, dare to
dispose of even nothing more than the fee simple of the property to be reserved his act
would be null and void, for, as was definitely decided in the decision on appeal of
December 30, 1897, it is impossible to determine the part "that might pertain therein to
the relative at the time he exercised the right, because in view of the nature and scope
of the right required by law to be reserved the extent of his right cannot be foreseen, for
it may disappear by his dying before the person required to reserve it, just as may even
become absolute should that person die."

Careful consideration of the matter forces the conclusion that no act of disposal inter
vivos of the person required by law to reserve the right can be impugned by him in
whose favor it is reserved, because such person has all, absolutely all, the rights
inherent in ownership, except that the legal title is burdened with a condition that the
third party acquirer may ascertain from the registry in order to know that he is acquiring
a title subject to a condition subsequent. In conclusion, it seems to us that only an act of
disposal mortis causa in favor of persons other than relatives within the third degree of
the descendants from whom he got the property to be reserved must be prohibited to
him, because this alone has been the object of the law: "To prevent persons outside a
family from securing, by some special accident of life, property that would otherwise
have remained therein." (Decision of December 30, 1897.)

Practically, even in the opinion of those who reduce the person reserving the right to the
condition of a mere usufructuary, the person in whose favor it must be reserved cannot
attack the alienation that may be absolutely made of the property the law requires to be
reserved, in the present case, that which the appellant has made of the two parcels of
land in question to a third party, because the conditional alienation that is permitted her
is equivalent to an alienation of the usufruct, which is authorized by article 480 of the
Civil Code, and, practically, use and enjoyment of the property required by law to be
reserved are all that the person who must reserve it has during his lifetime, and in
alienating the usufruct all the usefulness of the thing would be transmitted in an
incontrovertible manner. The question as to whether or not she transmits the fee simple
is purely academic, sine re, for it is not real, actual positive, as is the case of the
institution of two heirs, one a usufructuary and the other the owner, by the express wish
of the predecessor in interest.

If the person whom article 811 requires to reserve the right has all the rights inherent in
ownership, he can use, enjoy, dispose of and recover it; and if, in addition to
usufructuary, he is in fact and in law the real owner and can alienate it, although under
a condition, the whole question is reduced to the following terms:

Cannot the heir of the property required by law to reserved, merely because a condition
subsequent is annexed to his right of disposal, himself alone register the ownership of
the property he has inherited, when the persons in whose favor the reservation must be
made degree thereto, provided that the right reserved to them in the two parcels of land
be recorded, as the law provides?

It is well known that the vendee under pacto de retracto acquires all the rights of the
vendor:

The vendee substitutes the vendor in all his rights and actions. (Civil Code, art.
1511.)
If the vendor can register his title, the vendee can also register this same title after he
has once acquired it. This title, however, in its attribute of being disposable, has a
condition subsequent annexed — that the alienation the purchaser may make will be
terminated, if the vendor should exercise the right granted him by article 1507, which
says:

Conventional redemption shall take place when the vendor reserves to himself the right
to recover the thing sold, with the obligation to comply with article 1518, and whatever
more may have been agreed upon," that is, if he recovers the thing sold by repaying the
vendee the price of the sale and other expenses. Notwithstanding this condition
subsequent, it is a point not at all doubtful now that the vendee may register his title in
the same way as the owner of a thing mortgaged — that is to say, the latter with the
consent of his creditor and the former with the consent of the vendor. He may alienate
the thing bought when the acquirer knows by well from the title entered in the registry
that he acquires a title revocable after a fixed period, a thing much more certain and to
be expected than the purely contingent expectation of the person in whose favor is
reserved a right to inherit some day what another has inherited. The purpose of the law
would be defeated in not applying to the person who must make the reservation the
provision therein relative to the vendee under pacto de retracto, since the argument in
his favor is the more power and conclusive; ubi eadem ratio, eadem legis dispositivo.

Therefore, we reverse the judgment appealed from, and in lieu thereof decide and
declare that the applicant is entitled to register in her own name the two parcels of land
which are the subject matter of the applicants, recording in the registration the right
required by article 811 to be reserved to either or both of the opponents, Pablo Sablan
and Basilio Sablan, should they survive her; without special findings as to costs.
G.R. No. L-13386             October 27, 1920

SEGUNDA MARIA NIEVA with her husband ANGEL ALCALA, plaintiffs-appellants, 

vs.
MANUELA ALCALA and JOSE DEOCAMPO, defendants-appellees.

Eduardo Gutierrez Repide for appellants.

Felipe Agoncillo for appellees.

JOHNSON, J.:

This is an appeal from a judgment of the Court of First Instance of the Province of
Tayabas, absolving the defendants from all liability under the plaintiff's complaint,
without any finding as to costs.

Juliana Nieva, the alleged natural mother of the plaintiff Segunda Maria Nieva, married
Francisco Deocampo. Of said marriage Alfeo Deocampo was born.

Julian Nieva died intestate on April 19, 1889, and her said son, Alfeo Deocampo,
inherited from her, ab intestate, the parcels of land described in Paragraphs V and X of
the complaint.

Alfeo Deocampo died intestate and without issue on July 7, 1890. Thereupon the two
parcels of land above-mentioned passed to his father, Francisco Deocampo, by intestate
succession. Thereafter Francisco Deocampo married the herein defendant Manuela
Alcala, of which marriage was born Jose Deocampo, the other defendant herein.

Francisco Deocampo died on August 15, 1914, whereupon his widow and son, the
defendants herein, took possession of the parcels of land in question, under the claim
that the said son, the defendant Jose Deocampoo (a minor) had inherited the same, ab
intestate, from his deceased father.

On September 30, 1915, the plaintiff herein, claiming to be an acknowledged natural

daughter of the said Juliana Nieva, instituted the present action for the purposes of
recovering from the defendants the parcels of land in question, particularly described in
Paragraphs V and X of the complaint, invoking the provisions of article 811 of the Civil
Code.

The lower court held that, even granting, without deciding, that the plaintiff was an
acknowledged natural daughter of Juliana Nieva, she was not entitled to the property
here in question because, in its opinion, an illegitimate relative has no right to
the reserva troncal under the provisions of article 811 of the Civil Code.

The first question presented by this appeal is, whether or not the plaintiff is
an acknowledged natural daughter of the deceased Juliana Nieva. It appears from the
record that the said Juliana Nieva, while unmarried, gave birth to the plaintiff on March
29, 1882, and that the plaintiff was duly baptized as her natural daughter, of unknown
father (Exhibit C, baptismal certificate); that the said Juliana Nieva nourished and reared
her said child, the plaintiff herein; that the plaintiff lived with her said mother until the
latter was married to Francisco Deocampo; that the said mother treated the plaintiff,
and exhibited her publicly, as a legitimate daughter. (See testimony of Antero Gala, pp.
5-6; Prudencio de la Cuesta, pp. 16-17; and Mamerto Palabrica, pp. 26-27, sten. notes.)

The foregoing facts, which are not controverted, are analogous to the facts in the case of
Llorente vs. Rodriguez (3 Phil., 697, 699). Under the decision of this court in that case
we are of the opinion and so decide, without rediscussing here the law and legal
principles involved, that the plaintiff Segunda Maria Nieva is an acknowledged natural
daughter of Juliana Nieva. (See also In re estate of Enriquez and Reyes, 29 Phil., 167.)
The other and more important question presented by this appeal is, whether or not
an illegitimate relative within the third degree is entitled to the reserva troncal provided
for by article 811 of the Civil Code. That article reads as follows:

Any ascendant who inherits from his descendant any property acquired by the
latter gratuitously from some other ascendant, or from a brother or sister, is
obliged to reserve such of the property as he may have acquired by operation of
law for the benefit of relatives within the third degree belonging to the line from
which such property came.

The property here in question was inherited, by operation by law, by Francisco

Deocampo from his son Alfeo Deocampo, who, in turn, had inherited it, in the same
manner, from his mother Juliana Nieva, the natural mother of the plaintiff. The plaintiff
is the natural sister of Alfeo Deocampo, and she belongs to the same line from which the
property in question came. Was Francisco Deocampo obliged by law to reserve said
property for the benefit of the plaintiff, an illegitimate relative within the third degree of
Alfeo Deocampo? If he was, then, upon his death, the plaintiff, and not his son the
defendant Jose Deocampo, was entitled to the said property; if he was not, the plaintiff's
action must fail.1awph!l.net

There can be no question whatever but that, under said article 811 of the Civil Code, the
plaintiff would be entitled to the property in question if she were a legitimate daughter
of Julian Nieva. (Edroso vs. Sablan, 25 Phil., 295.) But in said article 811 the legislator
uses the generic terms "ascendant," "descendant," and "relatives," without specifying
whether or not they have to be legitimate. Does the legislator, then, refer to legitimate
as well as to illegitimate relatives? Counsel for the appellant, in a lengthy and carefully
prepared brief, attempts to maintain the affirmative.

This question, so far as our investigation shows, has not been decided before by any
court or tribunal. However, eminent commentators on the Spanish Civil Code, who have
devoted their lives to the study and solution of the intricate and difficult problems that
may arise under the provisions of that Code, have dealt with the very question now
before us, and are unanimous in the opinion that the provision of article 811 of the Civil
Code apply only to legitimate relative. One of such commentators, undoubtedly the best
known of them all, is Manresa. We believe we can do no better than to adopt his reasons
and conclusions, in deciding the question before us. In determining the persons who are
obliged to reserve under article 811, he says:

Is every ascendant, whether legitimate or not, obliged to reserve? Should the

natural father or grandfather reserve the properties proceeding from the mother or
other natural ascendant? Article 811 does not distinguish; it speaks of the
ascendant, without attaching the qualification of legitimate, and, on the other
hand, the same reason that exists for applying the provision to the natural family
exists for applying it to the legitimate family. Nevertheless, the article in referring
to the ascendant in an indeterminate manner shows that it imposes the obligation
to reserve only upon the legitimate ascendant.

Let us overlook for the moment the question whether the Code recognizes or does
not recognize the existence of the natural family, or whether it admits only the
bond established by acknowledgement between the father or mother who
acknowledges and the acknowledged children. However it may be, it may be
stated as an indisputable truth, that in said Code, the legitimate relationship forms
the general rule and the natural relationship the exception; which is the reason
why, as may be easily seen, the law in many articles speaks only of children or
parents, of ascendants or descendants, and in them reference is of course made of
those who are legitimate; and when it desires to make a provision applicable only
to natural relationship, it does not say father or mother, but natural father or
natural mother; it does not say child, but natural child; it does not speak of
ascendants, brothers or parents in the abstract, but of natural ascendants, natural
brothers or natural parents. (See, for example, articles 294, 302, 809, 810, 846,
935, to 938, 944 and 945 and 946 to 955.)
 Articles 809 and 810 themselves speak only of ascendants. Can it in any way be
maintained that they refer to legitimate as well as to natural ascendants? They
evidently establish the legitime of the legitimate ascendants included as forced
heirs in number 2 of article 807. And article 811, — and as we will see also article
812, — continues to treat of this same legitime. The right of the natural parents
and children in the testamentary succession in wholly included in the eighth
section and is limited to the parents, other ascendants of such class being
excluded in articles 807, No. 3, and 846. Therefore, the place which article 811
occupies in the Code of proof that it refers only to legitimate ascendants. And if
there were any doubt, it disappears upon considering the text of article 938, which
states that the provisions of article 811 applies to intestate succession, which is
just established in favor of the legitimate direct ascending line, the text of articles
939 to 945, which treat of intestate succession of natural parents, as well as that
of articles 840 to 847, treating of their testamentary succession, which do not
allude directly or indirectly to that provision.

Lastly, the principle which underlies the exception which article 811 creates in the
right to succeed neither admits of any other interpretation. Whether the provision
is due to the desire that the properties should not pass, by reason of new
marriage, out of the family to which they belonged, or is directly derived from the
system of the so-called "reserva troncal," and whether the idea of reservation or
that of lineal rights (troncalidad) predominate the patrimony which is intended to
be preserved is that of the legitimate family. Only to legitimate ascendants and
descendants do article 968 et seq. of the Code refer, arising as they do from the
danger of second or subsequent marriage; only to legitimate parents do the
special laws of Navarra, Aragon, Vizcaya and Cataluña concede the right to
succeed with respect to lineal properties (bienes troncales); only to the legitimate
ascendants does article 811 impose the duty to reserve.

The convenience of amplifying the precept to natural parents and ascendants may
be raised just as the question whether it would be preferable to suppress it
altogether may be raised; but in the realm of the statute law there is no remedy
but to admit that article 811, the interpretation of which should on the other hand
be strict was drafted by the legislator with respect only to legitimate ascendants.
(Manresa, Codigo Civil, vol. 6, 3d ed., pp. 249-250.)

The same jurist, in determining the persons in whose favor the reservation is
established, says:

Persons in whose favor the reservation is established. — This is one of the most
delicate points in the interpretation of article 811. According to this article, the
reservation is established in favor of the parents who are within the third degree
and belong to the line from which the properties came.

It treats of blood, relationship, which is applicable to questions on succession,

according to articles 915 to 920. It could not be otherwise, because relationship by
affinity is established between each spouse and the family of the other, by
marriage, and to admit it, would be to favor the transmission of the properties of
the family of one spouse to that of the other, which is just what this article intends
to prevent.

It also treats of legitimate relationship. The person obliged to reserve it a

legitimate ascendant who inherits from a descendant property which proceeds
from the same legitimate family, and this being true, there can be no question,
because the line from which the properties proceed must be the line of that family
and only in favor of that line is the reservation established. Furthermore, we have
already said, the object is to protect the patrimony of the legitimate family,
following the precedents of the foral law. And it could not be otherwise. Article 943
denies to legitimate parents the right to succeed the natural child and viceversa,
from which it must be deduced that natural parents neither have the right to
inhering from legitimate ones; the law in the article cited established a barrier
 between the two families; properties of the legitimate family shall never pass by
operation of law to the natural family. (Ibid. pp. 251-252.)

Scævola, after a very extended discussion of this same subject, arrives at the
same conclusion as Manresa. "La reserva del articulo 811 es privilegio de
la familia legitima. (The reservation in article 811 is a privilege of the legitimate
family.)" (See Scævola, Codigo Civil, Vol. 14, pp. 211-224, 3401-305.)

Article 943, above referred to by Manresa, provides as follows:

A natural or legitimated child has no right to succeed ab intestate the legitimate

children and relatives of the father or mother who has acknowledged it; nor shall
such children or relatives so inherit from the natural or legitimated child.

To hold that the appellant is entitled to the property left by her natural brother, Alfeo
Deocampo, by operation of law, would be a fragrant violate of the express provision of
the foregoing article (943).

For all of the foregoing reasons, the judgment of the lower court is hereby affirmed,
without any finding as to costs. So ordered.
G.R. No. L-34395 May 19, 1981

BEATRIZ L. GONZALES, petitioner, 
vs.
COURT OF FIRST INSTANCE OF MANILA (BRANCH V), BENITO F. LEGARDA,
ROSARIO L. VALDEZ, ALEJANDRO LEGARDA, TERESA LEGARDA, JOSE LEGARDA,
BENITO LEGARDA Y FERNANDEZ, CARMEN LEGARDA Y FERNANDEZ, FILOMENA
LEGARDA Y HERNANDEZ, CARMEN LEGARDA Y HERNANDEZ, ALEJANDRO
LEGARDA Y HERNANDEZ, RAMON LEGARDA Y HERNANDEZ, FILOMENA LEGARDA
Y LOBREGAT, JAIME LEGARDA Y LOBREGAT, CELSO LEGARDA Y LOBREGAT,
ALEJANDRO LEGARDA Y LOBREGAT, MA. TERESA LEGARDA Y LOBREGAT, MA.
ANTONIA LEGARDA Y LOBREGAT, JOSE LEGARDA Y LOBREGAT, ROSARIO
LEGARDA Y LOBREGAT, BENITO LEGARDA Y LOBREGAT, EDUARDO LEGARDA Y
LOBREGAT, TRINIDAD F. LEGARDA, and the ESTATE OF DONA FILOMENA ROCES
DE LEGARDA, respondents.

AQUINO, J.:

Beatriz Legarda Gonzales appealed from the decision of the Court of First Instance of
Manila, dismissing her complaint for partition, accounting, reconveyance and damages
and holding, as not subject to reserve troncal, the properties which her mother Filomena
Races inherited in 1943 from Filomena Legarda (Civil Case No. 73335). The facts are as
follows:

Benito Legarda y De la Paz, the son of Benito Legarda y Tuason, died [Manila] on June
17, 1933. He was survived by his widow, Filomena Races, and their seven children: four
daughters named Beatriz, Rosario, Teresa and Filomena and three sons named Benito,
Alejandro and Jose.

On July 12, 1939, the real properties left by Benito Legarda y Tuason were partitioned in
three equal portions by his daughters, Consuelo and Rita, and the heirs of his deceased
son Benito Legarda y De la Paz who were represented by Benito F. Legarda.

Filomena Legarda y Races died intestate and without issue on March 19, 1943. Her sole
heiress was her mother, Filomena Races Vda. de Legarda.

Mrs. Legarda executed on May 12, 1947 an affidavit adjudicating extrajudicially to

herself the properties which she inherited from her deceased daughter, Filomena
Legarda. The said properties consist of the following: 1äwphï1.ñët

(a) Savings deposit in the National City Bank of New York with a credit
balance of P3,699.63.

(b) 1,429 shares of the Benguet Consolidated Mining Company and a 1/7
interest in certain shares of the San Miguel Brewery, Tuason & Legarda, Ltd.,
Philippine Guaranty Company, Insular Life Assurance Company and
the Manila Times.

(c) 1/7 of the properties described in TCT Nos. 80226, 80237 to 80243 (7
titles), 80260, 80261 and 57512 of the Manila registry of deeds.

1/21st of the properties covered by TCT Nos. 48164, 84714, 48201, 48202,
48205, 48203, 48206, 48160 and 48192 of the Manila registry of deeds;

1/21st of the property described in TCT No. 4475 of the registry of deeds of
Rizal, now Quezon City; 1/14th of the property described in TCT No. 966 of
the registry of deeds of Baguio;

1/7th of the lot and improvements at 127 Aviles described in TCT No. 41862
of the Manila registry of deeds; 1/7th of the lots and improvements at 181
 San Rafael describe in TCT Nos. 50495 and 48161 of the Manila registry of
deeds;

1/7th of the property described in TCT No. 48163 of the Manila registry of
deeds (Streets);

l/21st of the properties described in TCT Nos. 48199 and 57551 of the
Manila registry of deeds (Streets and Estero):

2/21st of the property described in TCT No. 13458 of tile registry of deeds of
T0ayabas.

These are the properties in litigation in this case. As a result of the affidavit of
adjudication, Filomena Races succeeded her deceased daughter Filomena Legarda as co-
owner of the properties held proindiviso by her other six children.

Mrs. Legarda on March 6, 1953 executed two handwritten Identical documents wherein
she disposed of the properties, which she inherited from her daughter, in favor of the
children of her sons, Benito, Alejandro and Jose (sixteen grandchildren in all). The
document reads: 1äwphï1.ñët

A mis hijos :

Dispongo que se reparta a todos mis nietos hijos de Ben, Mandu y Pepito,
los bienes que he heredado de mi difunta hija Filomena y tambien los
acciones de la Destileria La Rosario' recientemente comprada a los hermanos
Values Legarda.

De los bienes de mi hija Filomena se deducira un tote de terreno que yo he

0donada a las Hijas de Jesus, en Guipit

La case No. 181 San Rafael, la cede a mi hijo Mandu solo la casa; proque
ella esta construida sobre terreno de los hermanos Legarda
Races. 1äwphï1.ñët

(Sgd.) FILOMENA ROCES LEGARDA

6 Marzo 1953

During the period from July, 1958 to February, 1959 Mrs. Legarda and her six surviving
children partitioned the properties consisting of the one-third share in the estate of
Benito Legarda y Tuason which the children inherited in representation of their father,
Benito Legarda y De la Paz.

Mrs. Legarda died on September 22, 1967. Her will was admitted to probate as a
holographic will in the order dated July 16, 1968 of the Court of First Instance of Manila
in Special Proceeding No. 70878, Testate Estate of Filomena Races Vda. de Legarda. The
decree of probate was affirmed by the Court of Appeals in Legarda vs. Gonzales, CA-
G.R. No. 43480-R, July 30,1976.

In the testate proceeding, Beatriz Legarda Gonzales, a daughter of the testatrix, filed on
May 20, 1968 a motion to exclude from the inventory of her mother's estate the
properties which she inherited from her deceased daughter, Filomena, on the ground
that said properties are reservable properties which should be inherited by Filomena
Legarda's three sisters and three brothers and not by the children of Benito, Alejandro
and Jose, all surnamed Legarda. That motion was opposed by the administrator, Benito
F. Legarda.

Without awaiting the resolution on that motion, Mrs. Gonzales filed on June 20, 1968 an
ordinary civil action against her brothers, sisters, nephews and nieces and her mother's
estate for the purpose of securing a declaration that the said properties are reservable
properties which Mrs. Legarda could not bequeath in her holographic will to her
grandchildren to the exclusion of her three daughters and her three sons (See Paz vs.
Madrigal, 100 Phil. 1085).

As already stated, the lower court dismissed the action of Mrs. Gonzales. ln this appeal
under Republic Act No. 5440 she contends in her six assignments of error that the lower
court erred in not regarding the properties in question as reservable properties under
article 891 of the Civil Code.

On the other hand, defendants-appellees in their six counter-assignments of error

contend that the lower court erred in not holding that Mrs. Legarda acquired the estate
of her daughter Filomena] Legarda in exchange for her conjugal and hereditary shares in
the estate of her husband Benito Legarda y De la Paz and in not holding that Mrs.
Gonzales waived her right to the reservable properties and that her claim is barred by
estoppel, laches and prescription.

The preliminary issue raised by the private respondents as to the timeliness of Mrs.
Gonzales' petition for review is a closed matter. This Court in its resolution of December
16, 1971 denied respondents' motion to dismiss and gave due course to the petition for
review.

In an appeal under Republic Act No. 5440 only legal issues can be raised under
undisputed facts. Since on the basis of the stipulated facts the lower court resolved only
the issue of whether the properties in question are subject to reserva troncal that is the
only legal issue to be resolved in this appeal.

The other issues raised by the defendants-appellees, particularly those involving factual
matters, cannot be resolved in this appeal. As the trial court did not pass upon those
issues, there is no ruling which can be reviewed by this Court.

The question is whether the disputed properties are reservable properties under article
891 of the Civil Code, formerly article 811, and whether Filomena Races Vda. de Legarda
could dispose of them in his will in favor of her grandchildren to the exclusion of her six
children.

Did Mrs. Legarda have the right to convey mortis causa what she inherited from her
daughter Filomena to the reservees within the third degree and to bypass the reservees
in the second degree or should that inheritance automatically go to the reservees in the
second degree, the six children of Mrs. Legarda?

As will hereinafter be shown that is not a novel issue or a question of first impression. lt
was resolved in Florentino vs. Florentino, 40 Phil. 480. Before discussing the applicability
to this case of the doctrine in the Florentino case and other pertinent rulings, it may be
useful to make a brief discourse on the nature of reserve troncal, also called lineal,
familiar, extraordinaria o semi-troncal.

Much time, effort and energy were spent by the parties in their five briefs in descanting
on the nature of reserve troncal which together with the reserva viudal and reversion
legal, was abolished by the Code Commission to prevent the decedent's estate from
being entailed, to eliminate the uncertainty in ownership caused by the reservation
(which uncertainty impedes the improvement of the reservable property) and to
discourage the confinement of property within a certain family for generations which
situation allegedly leads to economic oligarchy, and is incompatible with the socialization
of ownership.

The Code Commission regarded the reservas as remnants of feudalism which fomented

agrarian unrest. Moreover, the reserves, insofar as they penalize legitimate relationship,
is considered unjust and inequitable.
However, the lawmaking body, not agreeing entirely with the Code Commission,
restored the reserve troncal, a legal institution which, according to Manresa and Castan
Tobenas has provoked questions and doubts that are difficult to resolve.

Reserva troncal is provided for in article 811 of the Spanish Civil Code, now article 891,
which reads: 1äwphï1.ñët

ART. 811. El ascendiente que heredare de su descendiente bienes que este

hubiese adquirido por titulo lucrative de otro ascendiente, o de un hermano,
se halla obligado a reservas los que hubiere adquirido por ministerio de la
ley en favor de los parientes que eaten dentro del tercer grade y
pertenezcan a la linea de donde los bienes proceden

ART. 891. The ascendant who inherits from his descendant any property
which the latter may have acquired by gratuitous title from another
ascendant, or a brother or sister, is obliged to reserve such property as he
may have acquired by operation of law for the benefit of relatives who are
within the third degree and who belong to the line from which said property
came.

In reserve troncal (1) a descendant inherited or acquired by gratuitous title property

from an ascendant or from a brother or sister; (2) the same property is inherited by
another ascendant or is acquired by him by operation of law from the said descendant,
and (3) the said ascendant should reserve the said property for the benefit of relatives
who are within the third degree from the deceased descendant (prepositus) and who
belong to the line from which the said property came.

So, three transmissions are involved: (I) a first transmission by lucrative title
(inheritance or donation) from an ascendant or brother or sister to the deceased
descendant; (2) a posterior transmission, by operation of law (intestate succession or
legitime) from the deceased descendant (causante de la reserve) in favor of another
ascendant, the reservor or reservista, which two transmissions precede the reservation,
and (3) a third transmissions of the same property (in consequence of the reservation)
from the reservor to the reservees (reservatarios) or the relatives within the third
degree from the deceased descendant belonging to the line of the first ascendant,
brother or sister of the deceased descendant (6 Castan Tobenas Derecho Civil, Part l,
1960, 6th Ed., pp. 198-9).

If there are only two transmissions there is no reserve. Thus, where one Bonifacia
Lacerna died and her properties were inherited by her son, Juan Marbebe, upon the
death of Juan, those lands should be inherited by his half-sister, to the exclusion of his
maternal first cousins. The said lands are not reservable property within the meaning of
article 811 (Lacerna vs. Vda. de Corcino, l l l Phil. 872).

The persons involved in reserve troncal are (1) the ascendant or brother or sister from
whom the property was received by the descendant by lucrative or gratuitous title, (2)
the descendant or prepositus (prepositus) who received the property, (3) the reservor
(reservista) the other ascendant who obtained the property from the (prepositus) by
operation of law and (4) the reserves (reservatario) who is within the third degree from
the prepositus and who belongs to the (line o tronco) from which the property came and
for whom the property should be reserved by the reservor.

The reservees may be half-brothers and sisters (Rodriguez vs. Rodriguez, 101 Phil.
1098; Chua vs. Court of First Instance of Negros Occidental, L-29901, August 31, 1977,
78 SCRA 412). Fourth degree relatives are not included (Jardin vs. Villamayor, 72 Phil.
392).

The rationale of reserve troncal is to avoid "el peligro de que bienes poseidos
secularmente por una familia pasen bruscamente a titulo gratuito a manos extrañas por
el azar de los enlaces y muertes prematuras or impeder que, por un azar de la vide
personas extranas a una familia puedan adquirir bienes que sin aquel hubieran quedado
en ella (6 Castan Tobenas Derecho Civil, Part l, 6th Ed., 1980, p. 203; Padura vs.
Baldovino, 104 Phil. 1065).

An illustration of reserve troncal is found in Edroso vs. Sablan, 25 Phil. 295. ln that case,
Pedro Sablan inherited two parcels of land from his father Victorians. Pedro died in 1902,
single and without issue. His mother, Marcelina Edroso, inherited from him the two
parcels of land.

It was held that the land was reservable property in the hands of Marcelina. The
reservees were Pablo Sablan and Basilio Sablan, the paternal uncles of Pedro Sablan,
the prepositus. Marcelina could register the land under the Torrens system in her name
but the fact that the land was reservable property in favor of her two brothers-in-law,
should they survive her, should be noted in the title.

In another case, it appears that Maria Aglibot died intestate in 1906. Her one-half share
of a parcel of conjugal land was inherited by her daughter, Juliana Mañalac. When
Juliana died intestate in 1920, said one-half share was inherited by her father, Anacleto
Mañalac who owned the other one-half portion.

Anacleto died intestate in 1942, survived by his second wife and their six children. lt was
held that the said one-half portion was reservable property in the hands of Anacleto
Mañalac and, upon his death, should be inherited by Leona Aglibot and Evarista Aglibot,
sisters of Maria and materna aunts of Juliana Mañalac, who belonged to the line from
which said one-half portion came (Aglibot vs. Mañalac 114 Phil. 964).

Other illustrations of reserva troncal are found in Florentino vs Florentino, 40 Phil. 480;

Nieva and Alcala vs. Alcala and Deocampo, 41 Phil. 915; Maghirang and Gutierrez vs.
Balcita 46 Phil. 551; Lunsod vs. Ortega, 46 Phil. 664; Dizon vs. Galang, 48 Phil.
601; Riosa vs. Rocha, 48 Phil. 737; Centeno vs. Centeno 52 Phil. 322; Velayo Bernardo
vs. Siojo, 58 Phil. 89; Director of Lands vs. Aguas, 63 Phil. 279; Fallorfina vs. Abille, CA
39 O.G. 1784.

The person from whom the degree should be reckoned is the descendant, or the one at
the end of the line from which the property came and upon whom the property last
revolved by descent. He is called the prepositus(Cabardo vs. Villanueva. 44 Phil. 186,
190).

In the Cabardo case, one Cornelia Abordo inherited property from her mother, Basilia
Cabardo. When Cornelia died, her estate passed to her father, Lorenzo Abordo. ln his
hands, the property was reservable property. Upon the death of Lorenzo, the person
entitled to the property was Rosa Cabardo, a maternal aunt of Cornelia, who was her
nearest relative within the third degree.

First cousins of the prepositus are in the fourth degree and are not reservees. They
cannot even represent their parents because representation is confined to relatives
within the third degree (Florentino vs. Florentino, 40 Phil. 480).

Within the third degree, the nearest relatives exclude the more remote subject to the
rule of representation. But the representative should be within the third degree from
the prepositus (Padura vs. Baldovino, 104 Phil. 1065).

Reserva troncal contemplates legitimate relationship. illegitimate relationship and

relationship by affinity are excluded.

Gratuitous title or titulo lucrativo refers to a transmission wherein the recipient gives

nothing in return such as donacion and succession (Cabardo vs. Villanueva, 44 Phil. 186,
189-190, citing 6 Manresa, Codigo Civil, 7th Ed., 195 l, p. 360).

The reserva creates two resolutory conditions, namely, (1) the death of the ascendant
obliged to reserve and (2) the survival, at the time of his death, of relatives within the
third degree belonging to the line from which the property came 
(Sienes vs. E Esparcia l l l Phil. 349, 353).

The reservor has the legal title and dominion to the reservable property but subject to
the resolutory condition that such title is extinguished if the reservor predeceased the
reservee. The reservor is a usufructuary of the reservable property. He may alienate it
subject to the reservation. The transferee gets the revocable and conditional ownership
of the reservor. The transferee's rights are revoked upon the survival of the reservees at
the time of the death of the reservor but become indefeasible when the reservees
predecease the reservor. (Sienes vs. Esparcia, 111 Phil. 349, 353; Edroso vs. Sablan, 25
Phil. 295; Lunsod vs. Ortega, 46 Phil. 664; Florentino vs. Florentino, 40 Phil. 480:
Director of Lands vs. Aguas, 63 Phil. 279.)

The reservor's title has been compared with that of the vendee a retro in a pacta de
retro sale or to a fideicomiso conditional.

The reservor's alienation of the reservable property is subject to a resolutory condition,

meaning that if at the time of the reservor's death, there are reservees, the transferee
of the property should deliver it to the reservees. lf there are no reservees at the time of
the reservor's death, the transferee's title would become absolute. (Lunsod vs. Ortega,
46 Phil. 664; Gueco vs. Lacson, 118 Phil. 944; Mono vs. Nequia 93 Phil. 120).

On the other hand, the reserves has only an inchoate, expectant or contingent right. His
expectant right would disappear if he predeceased the reservor. lt would become
absolute should the reservor predecease the reserves.

The reserves cannot impugn any conveyance made by the reservor but he can require
that the reservable character of the property be recognized by the purchaser (Riosa vs.
Rocha 48 Phil. 737; Edroso vs. Sablan, 25 Phil. 295, 312-3; Gueco vs. Lacson, 118 Phil.
944).

There is a holding that the renunciation of the reservee's right to the reservable property
is illegal for being a contract regarding future inheritance (Velayo Bernardo vs. Siojo, 58
Phil. 89, 96).

And there is a dictum that the reservee's right is a real right which he may alienate and
dispose of conditionally. The condition is that the alienation shall transfer ownership to
the vendee only if and when the reserves survives the reservor (Sienes vs.
Esparcia, 111 Phil. 349, 353). 1äwphï1.ñët

The reservatario receives the property as a conditional heir of the

descendant (prepositus) said property merely reverting to the line of origin
from which it had temporarily and accidentally stayed during
the reservista's lifetime. The authorities are all agreed that there being
reservatarios that survive the reservists, the latter must be deemed to have
enjoyed no more than a than interest in the reservable property. (J. J. B. L.
Reyes in Cane vs. Director of Lands, 105 Phil. l5.)

Even during the reservista's lifetime, the reservatarios, who are the ultimate

acquirers of the property, can already assert the right to prevent
the reservista from doing anything that might frustrate their reversionary
right, and, for this purpose, they can compel the annotation of their right in
the registry of property even while the (reservista) is alive (Ley Hipotecaria
de Ultramar, Arts. 168, 199; Edroso vs. Sablan, 25 Phil. 295).

This right is incompatible with the mere expectancy that corresponds to the
natural heirs of the reservista lt is likewise clear that the reservable property
is no part of the estate of the reservista who may not dispose of them (it) by
will, so long as there are reservatarios existing (Arroyo vs. Gerona, 58 Phil.
226, 237).
 The latter, therefore, do not inherit from the reservista but from the
descendant (prepositus) of whom the reservatarios are the heirs mortis
causa, subject to the condition that they must survive the reservista.
(Sanchez Roman, Vol. VI Tomo 2, p. 286; Manresa, Commentaries, Vol. 6,
6th Ed., pp. 274, 310, cited by J. J.B.L. Reyes in Padura vs. Baldovino, L-
11960, December 27, 1958, 104 Phil. 1065).

Hence, upon the reservista's death, the reservatario nearest to the prepositus becomes,

"automatically and by operation of law, the owner of the reservable property." (Cane vs.
Director of Lands, 105 Phil. l5.)

In the instant case, the properties in question were indubitably reservable properties in
the hands of Mrs. Legarda. Undoubtedly, she was a reservor. The reservation became a
certainty when at the time of her death the reservees or relatives within the third degree
of the prepositus Filomena Legarda were living or they survived Mrs. Legarda.

So, the ultimate issue in this case is whether Mrs. Legarda, as reservor, could convey
the reservable properties by will or mortis causa to the reservees within the third
degree (her sixteen grandchildren) to the exclusion of the reservees in the second
degree, her three daughters and three sons. As indicated at the outset, that issue is
already res judicata or cosa juzgada.

We hold that Mrs. Legarda could not convey in her holographic will to her sixteen
grandchildren the reservable properties which she had inherited from her daughter
Filomena because the reservable properties did not form part of her estate (Cabardo vs.
Villanueva, 44 Phil. 186, 191). The reservor cannot make a disposition mortis causa of
the reservable properties as long as the reservees survived the reservor.

As repeatedly held in the Cano and Padura cases, the reservees inherit the reservable

properties from the prepositus, not from the reservor.

Article 891 clearly indicates that the reservable properties should be inherited by all the
nearest relatives within the third degree from the prepositus who in this case are the six
children of Mrs. Legarda. She could not select the reservees to whom the reservable
property should be given and deprive the other reservees of their share therein.

To allow the reservor in this case to make a testamentary disposition of the reservable
properties in favor of the reservees in the third degree and, consequently, to ignore the
reservees in the second degree would be a glaring violation of article 891. That
testamentary disposition cannot be allowed.

We have stated earlier that this case is governed by the doctrine of Florentino vs.
Florentino, 40 Phil. 480, a similar case, where it was ruled: 1äwphï1.ñët

Reservable property left, through a will or otherwise, by the death of

ascendant (reservista) together with his own property in favor of another of
his descendants as forced heir, forms no part of the latter's lawful
inheritance nor of the legitime, for the reason that, as said property
continued to be reservable, the heir receiving the same as an inheritance
from his ascendant has the strict obligation of its delivery to the relatives,
within the third degree, of the predecessor in interest (prepositus), without
prejudicing the right of the heir to an aliquot part of the property, if he has
at the same time the right of a reservatario (reserves).

ln the Florentino case, it appears that Apolonio Florentino II and his second wife
Severina Faz de Leon begot two children, Mercedes and Apolonio III. These two
inherited properties from their father. Upon Apolonio III death in 1891, his properties
were inherited by his mother, Severina, who died in 1908. ln her will, she instituted her
daughter Mercedes as heiress to all her properties, including those coming from her
deceased husband through their son, Apolonio III.
The surviving children, begotten by Apolonio II with his first wife Antonia Faz de Leon
and the descendants of the deceased children of his first marriage, sued Mercedes
Florentino for the recovery of their share in the reservable properties, which Severina de
Leon had inherited from Apolonio III which the latter had inherited from his father
Apolonio II and which Severina willed to her daughter Mercedes.

Plaintiff's theory was that the said properties, as reservable properties, could not be
disposed of in Severina's will in favor of Mercedes only. That theory was sustained by
this Court.

It was held that the said properties, being reservable properties, did not form part of
Severina's estate and could not be inherited from her by her daughter Mercedes alone.

As there were seven reservees, Mercedes was entitled, as a reserves, to one-seventh of

the properties. The other six sevenths portions were adjudicated to the other six
reservees.

Under the rule of stare decisis et non quieta movere, we are bound to follow in this case
the doctrine of the Florentino case. That doctrine means that as long as during the
reservor's lifetime and upon his death there are relatives within the third degree of
the prepositus regardless of whether those reservees are common descendants of the
reservor and the ascendant from whom the property came, the property retains its
reservable character. The property should go to the nearest reservees. The reservor
cannot, by means of his will, choose the reserves to whom the reservable property
should be awarded.

The alleged opinion of Sanchez Roman that there is no reserva troncal when the only
relatives within the third degree are the common descendants of the predeceased
ascendant and the ascendant who would be obliged to reserve is irrelevant and sans
binding force in the light of the ruling in the Florentino case.

It is contended by the appellees herein that the properties in question are not reservable
properties because only relatives within the third degree from the paternal line have
survived and that when Mrs. Legarda willed the said properties to her sixteen
grandchildren, who are third-degree relatives of Filomena Legarda and who belong to
the paternal line, the reason for the reserva troncal has been satisfied: "to prevent
persons outside a family from securing, by some special accident of life, property that
would otherwise have remained therein".

That same contention was advanced in the Florentino case where the reservor willed the
reservable properties to her daughter, a full-blood sister of the prepositus and ignored
the other six reservors, the relatives of the half-blood of the prepositus.

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

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

Applying that doctrine to this case, it results that Mrs. Legarda could not dispose of in
her will the properties in question even if the disposition is in favor of the relatives within
the third degree from Filomena Legarda. The said properties, by operation of Article 891,
should go to Mrs. Legarda's six children as reservees within the second degree from
Filomena Legarda.
It should be repeated that the reservees do not inherit from the reservor but from the
reservor but from the prepositus, of whom the reservees are the heirs mortis
causa subject to the condition that they must survive the reservor (Padura vs.
Baldovino, L-11960, December 27, 1958, 104 Phil. 1065).

The trial court said that the disputed properties lost their reservable character due to the
non-existence of third-degree relatives of Filomena Legarda at the time of the death of
the reservor, Mrs. Legarda, belonging to the Legarda family, "except third-degree
relatives who pertain to both" the Legarda and Races lines.

That holding is erroneous. The reservation could have been extinguished only by the
absence of reservees at the time of Mrs. Legarda's death. Since at the time of her death,
there were (and still are) reservees belonging to the second and third degrees, the
disputed properties did not lose their reservable character. The disposition of the said
properties should be made in accordance with article 891 or the rule on reserva troncal
and not in accordance with the reservor's holographic will. The said properties did not
form part of Mrs. Legarda's estate. (Cane vs. Director of Lands, 105 Phil. l, 4).

WHEREFORE, the lower court's decision is reversed and set aside. lt is hereby adjudged
that the properties inherited by Filomena Roces Vda. de Legarda from her daughter
Filomena Legarda, with all the fruits and accessions thereof, are reservable properties
which belong to Beatriz, Rosario, Teresa, Benito, Alejandro and Jose, all surnamed
Legarda y Roces, as reservees. The shares of Rosario L. Valdes and Benito F. Legarda,
who died in 1969 and 1973, respectively, should pertain to their respective heirs. Costs
against the private respondents.
G.R. No. L-14856            November 15, 1919

ENCARNACION FLORENTINO, ET AL., plaintiffs-appellants, 

vs.
MERCEDES FLORENTINO, ET AL., defendants-appellees.

Ramon Querubin, Simeon Ramos and Orense and Vera for appellants.
Vicente Foz, Jose Singsong Tongson and Angel Encarnacion for appellees.

TORRES, J.:

On January 17, 1918, counsel for Encarnacion (together with her husband Simeon
Serrano), Gabriel, Magdalena, Ramon, Miguel, Victorino, and Antonino of the surname
Florentino; for Miguel Florentino, guardian ad litem of the minor Rosario Florentino; for
Eugenio Singson, the father and guardian ad litem of Emilia, Jesus, Lourdes, Caridad,
and Dolores of the surname Singson y Florentino; and for Eugenio Singson, guardian of
the minors Jose and Asuncion Florentino, filed a complaint in the Court of First Instance
of Ilocos Sur, against Mercedes Florentino and her husband, alleging as follows:

That Apolonio Isabelo Florentino II married the first time Antonia Faz de Leon; that
during the marriage he begot nine children called, Jose, Juan, Maria, Encarnacion,
Isabel, Espirita, Gabriel, Pedro, and Magdalena of the surname Florentino y de Leon;
that on becoming a widower he married the second time Severina Faz de Leon with
whom he had two children, Mercedes and Apolonio III of the surname Florentino y de
Leon; that Apolonio Isabelo Florentino II died on February 13, 1890; that he was
survived by his second wife Severina Faz de Leon and the ten children first above
mentioned; that his eleventh son, Apolonio III, was born on the following 4th of March
1890.

That of the deceased Apolonio Isabelo's aforementioned eleven children, Juan,

Maria and Isabel died single, without leaving any ascendants or descendants; that
Ramon, Miguel, Victorino, Antonio, and Rosario are the legitimate children of the
deceased Jose Florentino who was one of the children of the deceased Apolonio Isabelo;
that Emilia, Jesus, Lourdes, Caridad, and Dolores are the legitimate children of Espirita
Florentino, now deceased, and her husband Eugenio Singson; that Jose and Asuncion
are the children of Pedro Florentino, another son of the deceased Apolonio Isabelo
Florentino.

That on January 17 and February 13, 1890, Apolonio Isabelo Florentino executed a will
before the notary public of Ilocos Sur, instituting as his universal heirs his
aforementioned ten children, the posthumos Apolonio III and his widow Severina Faz de
Leon; that he declared, in one of the paragraphs of said will, all his property should be
divided among all of his children of both marriages.

That, in the partition of the said testator's estate, there was given to Apolonio Florentino
III, his posthumos son, the property marked with the letters A, B, C, D, E, and F in the
complaint, a gold rosary, pieces of gold, of silver and of table service, livestock, palay,
some personal property and other objects mentioned in the complaint.

That Apolonio Florentino III, the posthumos son of the second marriage, died in 1891;
that his mother, Severina Faz de Leon, succeeded to all his property described in the
complaint; that the widow, Severina Faz de Leon died on November 18, 1908, leaving a
will instituting as her universal heiress her only living daughter, Mercedes Florentino;
that, as such heir, said daughter took possession of all the property left at the death of
her mother, Severina Faz de Leon; that among same is included the property, described
in the complaint, which the said Severina Faz de Leon inherited from her deceased son,
the posthumos Apolonio, as reservable property; that, as a reservist, the heir of the said
Mercedes Florentino deceased had been gathering for herself alone the fruits of lands
described in the complaint; that each and every one of the parties mentioned in said
complaint is entitled to one-seventh of the fruits of the reservable property described
therein, either by direct participation or by representation, in the manner mentioned in
paragraph 9 of the complaint.

That several times the plaintiffs have, in an amicable manner, asked the defendants to
deliver their corresponding part of the reservable property; that without any justifiable
motive the defendants have refused and do refuse to deliver said property or to pay for
its value; that for nine years Mercedes Florentino has been receiving, as rent for the
lands mentioned, 360 bundles of palay at fifty pesos per bundle and 90 bundles of corn
at four pesos per bundle; that thereby the plaintiffs have suffered damages in the sum
of fifteen thousand four hundred and twenty-eight pesos and fifty-eight centavos, in
addition to three hundred and eight pesos and fifty-eight centavos for the value of the
fruits not gathered, of one thousand pesos (P1,000) for the unjustifiable retention of the
aforementioned reservable property and for the expenses of this suit. Wherefore they
pray it be declared that all the foregoing property is reservable property; that the
plaintiffs had and do have a right to the same, in the quantity and proportion mentioned
in the aforementioned paragraph 9 of the complaint; that the defendants Mercedes
Florentino and her husband be ordered to deliver to the plaintiffs their share of the
property in question, of the palay and of the corn above mentioned, or their value; and
that they be condemned to pay the plaintiffs the sum of one thousand pesos (P1,000)
together with the costs of this instance.

To the preceding complaint counsel for the defendants demurred, alleging that the cause
of action is based on the obligation of the widow Severina Faz de Leon to reserve the
property she inherited from her deceased son Apolonio Florentino y de Leon who, in
turn, inherited same from his father Apolonio Isabelo Florentino; that, there being no
allegation to the contrary, it is to be presumed that the widow Severina Faz de Leon did
not remarry after the death of this husband nor have any natural child; that the right
claimed by the plaintiffs is not that mentioned in article 968 and the following articles,
but that established in article 811 of the Civil Code; that the object of the provisions of
the aforementioned articles is to avoid the transfer of said reservable property to those
extraneous to the family of the owner thereof; that if the property inherited by the
widow Severina Faz de Leon from her deceased son Apolonio Florentino y Faz de Leon
(property which originated from his father and her husband) has all passed into the
hands of the defendant, Mercedes Florentino y Encarnacion, a daughter of the common
ancestor's second marriage (said Apolonio Isabelo Florentino with the deceased Severina
Faz de Leon) it is evident that the property left at the death of the posthumos son
Apolonio Florentino y Faz de Leon did not pass after the death of his mother Severina,
his legitimate heirs as an ascendant, into the hands of strangers; that said property
having been inherited by Mercedes Florentino y Encarnacion from her mother
(Severina), article 811 of the Civil Code is absolutely inapplicable to the present case
because, when the defendant Mercedes, by operation law, entered into and succeeded
to, the possession, of the property lawfully inherited from her mother Severina Faz de
Leon, said property had, while in the possession of her mother, lost the character of
reservable property — there being a legitimate daughter of Severina Faz de Leon with
the right to succeed her in all her rights, property and actions; that the restraints of the
law whereby said property may not passed into the possession of strangers are void,
inasmuch as the said widow had no obligation to reserve same, as Mercedes Florentino
is a forced heiress of her mother Severina Faz de Leon; that, in the present case, there
is no property reserved for the plaintiffs since there is a forced heiress, entitled to the
property left by the death of the widow Severina Faz de Leon who never remarried; that
the obligation to reserve is secondary to the duty of respecting the legitime; that in the
instant case, the widow Severina Faz de Leon was in duty bound to respect the legitime
of her daughter Mercedes the defendant; that her obligation to reserve the property
could not be fulfilled to the prejudice of the legitime which belongs to her forced heiress,
citing in support of these statements the decision of the supreme court of Spain of
January 4, 1911; that, finally, the application of article 811 of the Civil Code in favor of
the plaintiffs would presuppose the exclusion of the defendant from here right to
succeed exclusively to all the property, rights and actions left by her legitimate mother,
although the said defendant has a better right than the plaintiffs; and that there would
be injustice if the property claimed be adjudicated to the plaintiffs, as well as violation of
section 5 of the Jones Law which invalidates any law depriving any person of an equal
protection. Wherefore they prayed that the demurrer be sustained, with costs against
the plaintiffs.

After the hearing of the demurrer, on August 22, 1918, the judge absolved the
defendants from the complaint and condemned the plaintiffs to pay the costs.

Counsel for the plaintiffs excepted to this order, moved to vacate it and to grant them a
new trial; said motion was overruled; the plaintiffs expected thereto and filed the
corresponding bill of exceptions which was allowed, certified and forwarded to the clerk
of this court.

On appeal the trial judge sustained the demurrer of the defendants to the complaint of
the plaintiffs, but, instead of ordering the latter to amend their complaint within the
period prescribed by the rules — undoubtedly believing that the plaintiffs could not alter
nor change the facts constituting the cause of action, and that, as both parties were
agreed as to the facts alleged in the complaint as well as in the demurrer, every
question reduced itself to one of the law, already submitted to the decision of the court
— the said judge, disregarding the ordinary procedure established by law, decided the
case by absolving the defendants from the complaint and by condemning the plaintiffs to
pay the costs of the instance.

There certainly was no real trial, inasmuch as the defendants, instead of answering the
complaint of the plaintiffs, confined themselves to filing a demurrer based on the ground
that the facts alleged in the complaint do not constitute a cause of action. However, the
judge preferred to absolve the defendants, thereby making an end to the cause, instead
of dismissing the same, because undoubtedly he believed, in view of the controversy
between the parties, that the arguments adduced to support the demurrer would be the
same which the defendants would allege in their answer — those dealing with a mere
question of law which the courts would have to decide — and that, the demurrer having
been sustained, if the plaintiffs should insist — they could do no less — upon alleging the
same facts as those set out in their complaint and if another demurrer were afterwards
set up, he would be obliged to dismiss said complaint with costs against the plaintiffs —
in spite of being undoubtedly convinced in the instant case that the plaintiffs absolutely
lack the right to bring the action stated in their complaint.

Being of the opinion that the emendation of the indicated defects is not necessary — as
in this case what has been done does not prejudice the parties — the appellate court will
now proceed to decide the suit according to its merits, as found in the record and to the
legal provisions applicable to the question of law in controversy so that unnecessary
delay and greater expense may be avoided, inasmuch as, even if all the ordinary
proceedings be followed, the suit would be subsequently decided in the manner and
terms that it is now decided in the opinion thoughtfully and conscientiously formed for
its determination.

In order to decide whether the plaintiffs are or are not entitled to invoke, in their favor,
the provisions of article 811 of the Civil Code, and whether the same article is applicable
to the question of law presented in this suit, it is necessary to determine whether the
property enumerated in paragraph 5 of the complaint is of the nature of reservable
property; and if so, whether in accordance with the provision of the Civil Code in article
811, Severina Faz de Leon (the widow of the deceased Apolonio Isabelo Florentino) who
inherited said property from her son Apolonio Florentino III (born after the death of his
father Apolonio Isabelo) had the obligation to preserve and reserve same for the
relatives, within the third degree, of her aforementioned deceased son Apolonio III.

The above mentioned article reads:

Any ascendant who inherits from his descendant any property acquired by the
latter gratuitously from some other ascendant, or from a brother or sister, is
obliged to reserve such of the property as he may have acquired by operation of
 law for the benefit of relatives within the third degree belonging to the line from
which such property came.

During the marriage of Apolonio Isabelo Florentino II and Severina Faz de Leon two
children were born, namely the defendant Mercedes Florentino and Apolonio Florentino
III (born after the death of his father). At the death of Apolonio Isabelo Florentino under
a will, his eleven children succeeded to the inheritance he left, one of whom, the
posthumos son Apolonio III, was given, as his share, the aforementioned property
enumerated in the complaint. In 1891 the said posthumos son Apolonio Florentino III
died and was succeeded by his legitimate mother Severina Faz de Leon, who inherited
the property he left and who on dying, November 18, 1908, instituted by will as her sole
heiress her surviving daughter, Mercedes Florentino, the defendant herein, who took
possession of all property left by her father, same constituting the inheritance. Included
in said inheritance is the property, specified in by the posthumos son Apolonio Florentino
III from his father Apolonio Isabelo Florentino, and which, at the death of the said
posthumos son, had in turn been inherited by his mother, Severina Faz de Leon. Even if
Severina left in her will said property, together with her own, to her only daughter and
forced heiress, Mercedes Florentino, nevertheless this property had not lost its
reservable nature inasmuch as it originated from the common ancestor of the litigants,
Apolonio Isabelo; was inherited by his son Apolonio III; was transmitted by same (by
operation of law) to his legitimate mother and ascendant, Severina Faz de Leon.

The posthumos son, Apolonio Florentino III, acquired the property, now claimed by his
brothers, by a lucrative title or by inheritance from his aforementioned legitimate father,
Apolonio Isabelo Florentino II. Although said property was inherited by his mother,
Severina Faz de Leon, nevertheless, she was in duty bound, according to article 811 of
the Civil Code, to reserve the property thus acquired for the benefit of the relatives,
within the third degree, of the line from which such property came.

According to the provisions of law, ascendants do not inherit the reservable property,
but its enjoyment, use or trust, merely for the reason that said law imposes the
obligation to reserve and preserve same for certain designated persons who, on the
death of the said ascendants reservists, (taking into consideration the nature of the line
from which such property came) acquire the ownership of said property in fact and by
operation of law in the same manner as forced heirs (because they are also such) — said
property reverts to said line as long as the aforementioned persons who, from the death
of the ascendant-reservists, acquire in fact the right of reservatarios (person for whom
property is reserved), and are relatives, within the third degree, of the descendant from
whom the reservable property came.

Any ascendant who inherits from his descendant any property, while there are living,
within the third degree, relatives of the latter, is nothing but a life usufructuary or a
fiduciary of the reservable property received. He is, however, the legitimate owner of his
own property which is not reservable property and which constitutes his legitime,
according to article 809 of the Civil Code. But if, afterwards, all of the relatives, within
the third degree, of the descendant (from whom came the reservable property) die or
disappear, the said property becomes free property, by operation of law, and is thereby
converted into the legitime of the ascendant heir who can transmit it at his death to his
legitimate successors or testamentary heirs. This property has now lost its nature of
reservable property, pertaining thereto at the death of the relatives,
called reservatarios, who belonged within the third degree to the line from which such
property came.lawphil.net

Following the order prescribed by law in legitimate succession, when there are relatives
of the descendant within the third degree, the right of the nearest relative,
called reservatario, over the property which the reservista (person holding it subject to
reservation) should return to him, excludes that of the one more remote. The right of
representation cannot be alleged when the one claiming same as a reservatario of the
reservable property is not among the relatives within the third degree belonging to the
line from which such property came, inasmuch as the right granted by the Civil Code in
article 811 is in the highest degree personal and for the exclusive benefit of designated
persons who are the relatives, within the third degree, of the person from whom the
reservable property came. Therefore, relatives of the fourth and the succeeding degrees
can never be considered as reservatarios, since the law does not recognize them as
such.

In spite of what has been said relative to the right of representation on the part of one
alleging his right as reservatario who is not within the third degree of relationship,
nevertheless there is right of representation on the part of reservatarios who are within
the third degree mentioned by law, as in the case of nephews of the deceased person
from whom the reservable property came. These reservatarios have the right to
represent their ascendants (fathers and mothers) who are the brothers of the said
deceased person and relatives within the third degree in accordance with article 811 of
the Civil Code.

In this case it is conceded without denial by defendants, that the plaintiffs Encarnacion,
Gabriel and Magdalena are the legitimate children of the first marriage of the deceased
Apolonio Isabelo Florentino II; that Ramon, Miguel, Ceferino, Antonio, and Rosario are
both grandchildren of Apolonio Isabelo Florentino II, and children of his deceased son,
Jose Florentino; that the same have the right to represent their aforementioned father,
Jose Florentino; that Emilia, Jesus, Lourdes, Caridad, and Dolores are the legitimate
children of the deceased Espirita Florentino, one of the daughters of the deceased
Apolonio Isabelo Florentino II, and represent the right of their aforementioned mother;
and that the other plaintiffs, Jose and Asuncion, have also the right to represent their
legitimate father Pedro Florentino one of the sons of the aforementioned Apolonio
Isabelo Florentino II. It is a fact, admitted by both parties, that the other children of the
first marriage of the deceased Apolonio Isabelo Florentino II died without issue so that
this decision does not deal with them.

There are then seven "reservatarios" who are entitled to the reservable property left at
the death of Apolonio III; the posthumos son of the aforementioned Apolonio Isabelo II,
to wit, his three children of his first marriage — Encarnacion, Gabriel, Magdalena; his
three children, Jose, Espirita and Pedro who are represented by their own twelve
children respectively; and Mercedes Florentino, his daughter by a second marriage. All of
the plaintiffs are the relatives of the deceased posthumos son, Apolonio Florentino III,
within the third degree (four of whom being his half-brothers and the remaining twelve
being his nephews as they are the children of his three half-brothers). As the first four
are his relatives within the third degree in their own right and the other twelve are such
by representation, all of them are indisputably entitled as reservatarios to the property
which came from the common ancestor, Apolonio Isabelo, to Apolonio Florentino III by
inheritance during his life-time, and in turn by inheritance to his legitimate mother,
Severina Faz de Leon, widow of the aforementioned Apolonio Isabelo Florentino II.

In spite of the provisions of article 811 of the Civil Code already cited, the trial judge
refused to accept the theory of the plaintiffs and, accepting that of the defendants,
absolved the latter from the complaint on the ground that said article is absolutely
inapplicable to the instant case, inasmuch as the defendant Mercedes Florentino
survived her brother, Apolonio III, from whom the reservable property came and her
mother, Severina Faz de Leon, the widow of her father, Apolonio Isabelo Florentino II;
that the defendant Mercedes, being the only daughter of Severina Faz de Leon, is
likewise her forced heiress; that when she inherited the property left at the death of her
mother, together with that which came from her deceased brother Apolonio III, the
fundamental object of article 811 of the Code was thereby complied with, inasmuch as
the danger that the property coming from the same line might fall into the hands of
strangers had been avoided; and that the hope or expectation on the part of the
plaintiffs of the right to acquire the property of the deceased Apolonio III never did come
into existence because there is a forced heiress who is entitled to such property.

The judgment appealed from is also founded on the theory that article 811 of the Civil
Code does not destroy the system of legitimate succession and that the pretension of
the plaintiffs to apply said article in the instant case would be permitting the reservable
right to reduce and impair the forced legitimate which exclusively belongs to the
defendant Mercedes Florentino, in violation of the precept of article 813 of the same
Code which provides that the testator cannot deprive his heirs of their legitime, except
in the cases expressly determined by law. Neither can he impose upon it any burden,
condition, or substitution of any kind whatsoever, saving the provisions concerning the
usufruct of the surviving spouse, citing the decision of the Supreme Court of Spain of
January 4, 1911.

The principal question submitted to the court for decision consists mainly in determining
whether they property left at the death of Apolonio III, the posthumos son of Apolonio
Isabelo II, was or was not invested with the character of reservable property when it
was received by his mother, Severina Faz de Leon.

The property enumerated by the plaintiffs in paragraph 5 of their complaint came,

without any doubt whatsoever, from the common ancestor Apolonio Isabelo II, and
when, on the death of Apolonio III without issue the same passed by operation of law
into the hands of his legitimate mother, Severina Faz de Leon, it became reservable
property, in accordance with the provision of article 811 of the Code, with the object
that the same should not fall into the possession of persons other than those
comprehended within the order of person other than those comprehended within the
order of succession traced by the law from Apolonio Isabelo II, the source of said
property. If this property was in fact clothed with the character and condition of
reservable property when Severina Faz de Leon inherited same from her son Apolonio
III, she did not thereby acquire the dominion or right of ownership but only the right of
usufruct or of fiduciary with the necessary obligation to preserve and to deliver or return
it as such reservable property to her deceased son's relatives within the third degree,
among whom is her daughter, Mercedes Florentino.

Reservable property neither comes, nor falls under, the absolute dominion of the
ascendant who inherits and receives same from his descendant, therefore it does not
form part of his own property nor become the legitimate of his forced heirs. It becomes
his own property only in case that all the relatives of his descendant shall have died
(reservista) in which case said reservable property losses such character.

With full right Severina Faz de Leon could have disposed in her will of all her own
property in favor of her only living daughter, Mercedes Florentino, as forced heiress. But
whatever provision there is in her will concerning the reservable property received from
her son Apolonio III, or rather, whatever provision will reduce the rights of the
other reservatarios, the half brothers and nephews of her daughter Mercedes, is
unlawful, null and void, inasmuch as said property is not her own and she has only the
right of usufruct or of fiduciary, with the obligation to preserve and to deliver same to
the reservatarios, one of whom is her own daughter, Mercedes Florentino.

It cannot reasonably be affirmed, founded upon an express provision of law, that by

operation of law all of the reservable property, received during lifetime by Severina Faz
de Leon from her son, Apolonio III, constitutes or forms parts of the legitime pertaining
to Mercedes Florentino. If said property did not come to be the legitimate and exclusive
property of Severina Faz de Leon, her only legitimate and forced heiress, the defendant
Mercedes, could not inherit all by operation of law and in accordance with the order of
legitimate succession, because the other relatives of the deceased Apolonio III, within
the third degree, as well as herself are entitled to such reservable property.

For this reason, in no manner can it be claimed that the legitime of Mercedes Florentino,
coming from the inheritance of her mother Severina Faz de Leon, has been reduced and
impaired; and the application of article 811 of the Code to the instant case in no way
prejudices the rights of the defendant Mercedes Florentino, inasmuch as she is entitled
to a part only of the reservable property, there being no lawful or just reason which
serves as real foundation to disregard the right to Apolonio III's other relatives, within
the third degree, to participate in the reservable property in question. As these relatives
are at present living, claiming for it with an indisputable right, we cannot find any
reasonable and lawful motive why their rights should not be upheld and why they should
not be granted equal participation with the defendant in the litigated property.
The claim that because of Severina Faz de Leon's forced heiress, her daughter Mercedes,
the property received from the deceased son Apolonio III lost the character, previously
held, of reservable property; and that the mother, the said Severina, therefore, had no
further obligation to reserve same for the relatives within the third degree of the
deceased Apolonio III, is evidently erroneous for the reason that, as has been already
stated, the reservable property, left in a will by the aforementioned Severina to her only
daughter Mercedes, does not form part of the inheritance left by her death nor of the
legitimate of the heiress Mercedes. Just because she has a forced heiress, with a right to
her inheritance, does not relieve Severina of her obligation to reserve the property which
she received from her deceased son, nor did same lose the character of reservable
property, held before the reservatariosreceived same.

It is true that when Mercedes Florentino, the heiress of the reservista Severina, took
possession of the property in question, same did not pass into the hands of strangers.
But it is likewise true that the said Mercedes is not the only reservataria. And there is no
reason founded upon law and upon the principle of justice why the other reservatarios,
the other brothers and nephews, relatives within the third degree in accordance with the
precept of article 811 of the Civil Code, should be deprived of portions of the property
which, as reservable property, pertain to them.

From the foregoing it has been shown that the doctrine announced by the Supreme
Court of Spain on January 4, 1911, for the violation of articles 811, 968 and
consequently of the Civil Code is not applicable in the instant case.

Following the provisions of article 813, the Supreme Court of Spain held that the
legitime of the forced heirs cannot be reduced or impaired and said article is expressly
respected in this decision.

However, in spite of the efforts of the appellee to defend their supposed rights, it has
not been shown, upon any legal foundation, that the reservable property belonged to,
and was under the absolute dominion of, the reservista, there being relatives within the
third degree of the person from whom same came; that said property, upon passing into
the hands of the forced heiress of the deceased reservista, formed part of the legitime of
the former; and that the said forced heiress, in addition to being a reservataria, had an
exclusive right to receive all of said property and to deprive the other reservatarios, her
relatives within the third degree of certain portions thereof.

Concerning the prayer in the complaint relative to the indemnity for damages and the
delivery of the fruits collected, it is not proper to grant the first for there is no evidence
of any damage which can give rise to the obligation of refunding same. As to the second,
the delivery of the fruits produced by the land forming the principal part of the
reservable property, the defendants are undoubtedly in duty bound to deliver to the
plaintiffs six-sevenths of the fruits or rents of the portions of land claimed in the
complaint, in the quantity expressed in paragraph 11 of the same, from January 17,
1918, the date the complaint was filed; and the remaining seventh part should go to the
defendant Mercedes.

For the foregoing reasons it follows that with the reversal of the order of decision
appealed from we should declare, as we hereby do, that the aforementioned property,
inherited by the deceased Severina Faz de Leon from her son Apolonio Florentino III, is
reservable property; that the plaintiffs, being relatives of the deceased Apolonio III
within the third degree, are entitled to six-sevenths of said reservable property; that the
defendant Mercedes is entitled to the remaining seventh part thereof; that the latter,
together with her husband Angel Encarnacion, shall deliver to the plaintiffs, jointly, six-
sevenths of the fruits or rents, claimed from said portion of the land and of the quantity
claimed, from January 17, 1918, until fully delivered; and that the indemnity for one
thousand pesos (P1,000) prayed for in the complaint is denied, without special findings
as to the costs of both instances. So ordered.
G.R. No. L-23770             February 18, 1926

MAGIN RIOSA, plaintiff-appellant, 
vs.
PABLO ROCHA, MARCELINA CASAS, MARIA CORRAL and CONSOLACION R. DE
CALLEJA, defendants-appellees.

Domingo Imperial for appellant

Mariano Locsin for appellees.

AVANCEÑA, C.J.:

Maria Corral was united in marriage with the deceased Mariano Riosa, it being her first
and only marriage and during which time she bore him three children named Santiago,
Jose and Severina. The latter died during infancy and the other two survived their
father, Mariano Riosa. Santiago Riosa, no deceased, married Francisca Villanueva, who
bore him two children named Magin and Consolacion Riosa. Jose Riosa, also deceased,
married Marcelina Casas and they had one child who died before the father, the latter
therefore leaving no issue. Mariano Riosa left a will dividing his property between his two
children, Santiago and Jose Riosa, giving the latter the eleven parcels of land described
in the complaint. Upon the death of Jose Riosa he left a will in which he named his wife,
Marcelina Casas, as his only heir.

On May 16, 1917, the will of Jose Riosa was filed for probate. Notwithstanding the fact
that Marcelina Casas was the only heir named in the will, on account of the preterition of
Maria Corral who, being the mother of Jose Riosa, was his legitimate heir, I Marcelina
Casas and Maria Corral, on the same date of the filing of the will for probate, entered
into a contract by which they divided between themselves the property left by Jose
Riosa, the eleven parcels of land described in the complaint being assigned to Maria
Corral.

On October 26, 1920, Maria Corral sold parcels Nos. 1, 2, 3, 4, 5, 6, 10 and 11 to

Marcelina Casas for the sum of P20,000 in a public instrument which was recorded in the
registry of deeds on November 6, 1920. On November 3, 1920, Marcelina Casas sold
these eight parcels of land to Pablo Rocha for the sum of P60,000 in a public document
which was recorded in the registry of deeds on November 6, 1920. On September 24,
1921, Pablo Rocha returned parcels No. 1, 2, 3, 4, and 6 to Maria Corral stating in the
deed executed for the purpose that these parcels of land had been erroneously included
in the sale made by Maria Corral to Marcelina Casas.

The Court of first Instance denied the probate of the will of Jose Riosa, but on appeal
this court reversed the decision of the lower court and allowed the will to probate. 1 The
legal proceedings for the probate of the will and the settlement of the testate estate of
Jose Riosa were followed; and, at the time of the partition, Maria Corral and Marcelina
Casas submitted to the court the contract of extrajudicial partition which they had
entered into on May 16, 1917, and which was approved by the court, by order of
November 12, 1920, as though it had been made within the said testamentary
proceedings.

From the foregoing is appears that the eleven parcels of land described in the complaint
were acquired by Jose Riosa, by lucrative title, from his father Mariano Riosa and that
after the death of Jose Riosa, by operation of law, they passed to his mother Maria
Corral. By virtue of article 811 of the Civil Code these eleven parcels of land are
reservable property. It results, furthermore, that parcels 1, 2, 3, 4, 5, 6, 7, 8 and 9 still
belong in fee simple to Maria Corral, and that parcels 10 and 11 were successively sold
by Maria Corral to Marcelina Casas and by the latter to Pablo Rocha. Lastly, it appears
that Magin and Consolacion Riosa are the nearest relatives within the third degree of the
line from which this property came.
This action was brought by Magin Riosa, for whom the property should have been
reserved, against Maria Corral, whose duty it was to reserve it, and against Marcelina
Casas and Pablo Rocha as purchasers of parcels 10 and 11. Consolacion Riosa de Calleja
who was also bound to make the reservation was included as a defendant as she refused
to join as plaintiff.

The complaint prays that the property therein described be declared reservable property
and that the plaintiffs Jose and Consolacion Riosa be declared reservees; that this
reservation be noted in the registry of deeds; that the sale of parcels 10 and 11 to
Marcelina Casas and Pablo Rocha be declared valid only in so far as it saves the right of
reservation in favor of the plaintiff Magin Riosa and of the defendant Consolacion Riosa,
and that this right of reservation be also noted on the deeds of sale executed in favor of
Marcelina Casas and Pablo Rocha; that Maria Corral, Marcelina Casas and Pablo Rocha
give a bond of P50,000, with good and sufficient sureties, in favor of the reservees as
surety for the conservation and maintenance of the improvements existing on the said
reservable property. The dispositive part of the court's decision reads as follows:

For the foregoing reasons it is held:

1. That the eleven parcels of land described in paragraph 6 of the complaint have
the character of reservable property; 2. That the defendant Maria Corral, being
compelled to make the reservation, must reserve them in favor of the plaintiff
Magin Riosa and the defendant Consolacion Riosa de Calleja in case that either of
these should survive her; 3. That Magin Riosa and Consolacion Riosa de Calleja
have the right, in case that Maria Corral should die before them, to receive the
said parcels or their equivalent.

In virtue whereof, the defendant Maria Corral is ordered: 1. To acknowledge the

right of Magin Riosa and Consolacion Riosa de Calleja to the reservation of the said
parcels of lands described in the complaint, which she shall expressly record in the
registration of said lands in the office of the register of deeds of this province; 2.
To insure the delivery of said parcels of lands, or their equivalent, to Magin Riosa
and Consolacion Riosa de Calleja, should either of them survive her, either by a
mortgage thereon or by a bond in the amount of P30,000, without express
pronouncement as to costs.

The other defendants are absolved from the complaint.

Inasmuch as the reservation from its inception imposes obligations upon the reservor
(reservista) and creates rights in favor of the reservation (reservatarios) it is of the
utmost importance to determine the time when the land acquired the character of
reservable property.

It will be remembered that on May 16, 1917, Maria Corral and Marcelina Casas entered
into a contract of extrajudicial partition of the property left by Jose Riosa, in which they
assigned to Maria Corral, as her legitime, the parcels of land here in question, and at the
same time petitioned for the probate of the will of Jose Riosa and instituted the
testamentary proceeding. In support of the legality of the extrajudicial partition between
Maria Corral and Marcelina Casas the provision of section 596 of the Code of Civil
Procedure is invoked, which authorizes the heirs of a person dying without a will to
make a partition without the intervention of the courts whenever the heirs are all of age
and the deceased has left no debts. But this legal provisions refers expressly to intestate
estates and, of course, excludes testate estates like the one now before us.

When the deceased has left a will the partition of his property must be made in
accordance therewith. According to section 625 of the same Code no will can pass
property until it is probated. And even after being probated it cannot pass any property
if its provisions impair the legitime fixed by law in favor of certain heirs. Therefore, the
probate of the will and the validity of the testamentary provisions must be passed upon
by the court.
For the reasons stated, and without making any express finding as to the efficacy of the
extrajudicial partition made by Maria Corral and Marcelina Casas, we hold that for the
purposes of the reservation and the rights and obligations arising thereunder in
connection with the favored relatives, the property cannot be considered as having
passed to Maria Corral but from the date when the said partition was approved by the
court, that is, on November 12, 1920. In the case of Pavia vs. De la Rosa (8 Phil., 70),
this court laid down the same doctrine in the following language:

The provisions of Act No. 190 (Code of Civil Procedure) have annulled the
provisions of article 1003 and others of the Civil Code with regard to the pure or
simple acceptance of the inheritance of a deceased person or that made with
benefit of inventory and the consequences thereof.

xxx     xxx     xxx

The heir legally succeeds the deceased from whom he derives his right and title,
but only after the liquidation of the estate, the payment of the debts of same, and
the adjudication of the residue of the estate of the deceased, and in the meantime
the only person in charge by law to attend to all claims against the estate of the
deceased debtor is the executor or administrator appointed by a competent court.

As has been indicated, parcels 10 and 11 described in the complaint were first sold by
Maria Corral to Marcelina Casas who later sold them to Pablo Rocha. In this appeal it is
urged that Marcelina Casas and Pablo Rocha, who were absolved by the court below, be
ordered to acknowledge the reservation as to parcels 10 and 11, acquired by them, and
to have the said reservation noted on their titles. This argument, of course, is useless as
to Marcelina Casas for the reason that she transferred all her rights to Pablo Rocha.

It has been held by jurisprudence that the provisions of the law referred to in article 868
tending to assure the efficacy of the reservation by the surviving spouse are applicable
to the reservation known as "reserva troncal," referred to in article 811, which is the
reservation now under consideration.

In accordance with article 977, Maria Corral, reservor, is obliged to have the reservation
noted in the registry of deeds in accordance with the provisions of the Mortgage Law
which fixes the period of ninety days for accomplishing it (article 199, in relation with
article 191, of the Mortgage Law). According to article 203 of the General Regulation for
the application of the Mortgage Law, this time must be computed from the acceptance of
the inheritance. But as this portion of the Civil Code, regarding the acceptance of the
inheritance, has been repealed, the time, as has been indicated, must be computed from
the adjudication of the property by the court to the heirs, in line with the decision of this
court hereinabove quoted. After the expiration of this period the reservees may demand
compliance with this obligation.

If Maria Corral had not transferred parcels 10 and 11 to another there would be no
doubt that she could be compelled to cause the reservable character of this property to
be noted in the registry of deeds. This land having been sold to Marcelina Casas who, in
turn, sold it to Pablo Rocha the question arises whether the latter can be compelled to
have this reservation noted on his title. This acquisition by Pablo Rocha took place when
it was the duty of Maria Corral to make the notation of the reservation in the registry
and at the time when the reservees had no right to compel Maria Corral to make such
notation, because this acquisition was made before the expiration of the period of ninety
days from November 12, 1920, the date of the adjudication by the court, after which the
right of the reservees to commence an action for the fulfillment of the obligation arose.
But the land first passed to Marcelina Casas and later to Pablo Rocha together with the
obligation that the law imposes upon Maria Corral. They could not have acquired a better
title than that held by Maria Corral and if the latter's title was limited by the reservation
and the obligation to note it in the registry of deeds, this same limitation is attached to
the right acquired by Marcelina Casas and Pablo Rocha.
In the transmission of reservable property the law imposes the reservation as a
resolutory condition for the benefit of the reservees (article 975, Civil Code). The fact
that the resolvable character of the property was not recorded in the registry of deed at
the time that it was acquired by Marcelina Casas and Pablo Rocha cannot affect the right
of the reservees, for the reason that the transfers were made at the time when it was
the obligation of the reservor to note only such reservation and the reservees did not
them have any right to compel her to fulfill such an obligation.

Marcelina Casas, as well as Pablo Rocha, Knew of the reservable character of the
property when they bought it. They had knowledge of the provisions of the last will and
testament of Mariano Riosa by virtue of which these parcels were transferred to Jose
Riosa. Pablo Rocha was one of the legatees in the will. Marcelina Casas was the one who
entered into the contract of partition with Maria Corral, whereby these parcels were
adjudicated to the latter, as a legitimate heir of Jose Riosa. Pablo Rocha was the very
person who drafted the contracts of sale of these parcels of land by Maria Corral to
Marcelina Casas and by the latter to himself. These facts, together with the relationship
existing between Maria Corral and Marcelina Casas and Pablo Rocha, the former a
daughter-in-law and the latter a nephew of Maria Corral, amply support the conclusion
that both of them knew that these parcels of land had been inherited by Maria Corral, as
her legitime from her son Jose Riosa who had inherited them, by will, from his father
Mariano Riosa, and were reservable property. Wherefore, the duty of Maria Corral of
recording the reservable character of lots 10 and 11 has been transferred to Pablo Rocha
and the reservees have an action against him to compel him to comply with this
obligation.

The appellant also claims that the obligation imposed upon Maria Corral of insuring the
return of these parcels of land, or their value, to the reservees by means of a mortgage
or a bond in the amount of P30,000, also applies to Pablo Rocha. The law does not
require that the reservor give this security, the recording of the reservation in the
registry of deeds being sufficient (art. 977 of the Civil Code). There is no ground for this
requirement inasmuch as, the notation once is made, the property will answer for the
efficacy of the reservation. This security for the value of the property is required by law
(art. 978, paragraph 4, of the Civil Code) in the case of a reservation by the surviving
spouse when the property has been sold before acquiring the reservable character (art
968 of the Civil Code), but is not applicable to reservation known as reserva troncal (art
811 of the Civil Code). In the case of Dizon and Dizon vs. Galang (page 601, ante), this
court held that:

* * * As already intimated, the provisions of the law tending to give efficacy to a

reservation by the widowed spouse mentioned in article 968 are applicable to
the reserva troncal provided for in article 811. But as these two reservations vary
in some respects, these rules may be applied to the reserva troncal only in so far
as the latter is similar to a reservation by the widowed spouse. In the reserva
troncal the property goes to the reservor as reservable property and it remains so
until the reservation takes place or is extinguished. In a reservation by the
widowed spouse there are two distinct stages, one when the property goes to the
widower without being reservable, and the other when the widower contracts a
second marriage, whereupon the property, which theretofore has been in his
possession free of any encumbrance, becomes reservable. These two stages also
affect differently the transfer that may be made of the property. If the property is
sold during the first stage, before becoming reservable, it is absolutely free and is
transferred to the purchaser unencumbered. But if the sale is made during the
second stage, that is, when the duty to reserve has arisen, the property goes to
the purchaser subject to the reservation, without prejudice to the provisions of the
Mortgage Law. This is the reason why the law provides that should the property be
sold before it becomes reservable, or before the widower contracts another
marriage, he will be compelled to secure the value of the property by a mortgage
upon contracting a new marriage, so that the reservation may not lose its efficacy
and that the rights of those for whom the reservation is made may be assured.
This mortgage is not required by law when the sale is made after the reservation
will follow the property, without prejudice to the contrary provisions of the
 Mortgage Law and the rights of innocent purchasers, there being no need to
secure the value of the property since it is liable for the efficacy of the reservation
by a widowed spouse to secure the value of the property sold by the widower,
before becoming reservable are not applicable to the reserva troncal where the
property goes to the ascendant already reservable in character. A sale in the case
of reserva troncal might be analogous to a sale made by the widower after
contacting a second marriage in the case of a reservation by the widowed spouse.

Since Maria Corral did not appeal, we cannot modify the appealed judgment in so far as
it is unfavorable to her. As she has been ordered to record in the registry the reservable
character of the other parcels of land, the subject of this action, the questions raised by
the appellant as to her are decided.

The judgment appealed from is modified and Pablo Rocha is ordered to record in the
registry of deeds the reservable character of parcels 10 11, the subject of this
complaint, without special pronouncement as to costs. So ordered.
G.R. No. L-22066        December 2, 1924

FRANCISCA MAGHIRANG and SERGIA GUTIERREZ, plaintiffs-appellants, 

vs.
ATILANO BALCITA, ET AL., defendants-appellees.

---------------------------------

G.R. No. L-22067        December 2, 1924

GREGORIO EMPALMADO, petitioner-appellee, 
vs.
SERGIA GUTIERREZ, opponent-appellant.

Francisco & Lualhati for appellants.

Ramon Diokno for appellees.

STREET, J.:

By the appeal in civil cause No. 2643 of the Court of First Instance of Laguna, Sergia
Gutierrez seeks to reverse a decision of said court, whereby two parcels of land were
declared to be the exclusive property of Gregorio Empalmado and of Esteban Reyes,
respectively, free from the claim of Sergia Gutierrez that said lots are held by said
defendants subject to a contingent reservable interest in her favor. Connected with the
action above mentioned is the proceeding in the second appeal, wherein the trial court
declared that the first of the two lots in controversy should be registered in the name of
Gregorio Empalmado, free from the same claim. Because of the intimate relation
between the action instituted in behalf of the appellant, Sergia Gutierrez, as reservee,
and the registration proceeding in which she is opponent, the two causes were heard
together in the trial court and will be here disposed of in a single opinion.

The basis of the claim put forth by the plaintiff Gutierrez is the same as to both parcels,
but the facts constituting the respective defenses of the two defendants are different. It
will therefore be convenient to state first the points pertaining to the two parcels in
common and then such as pertain especially to the controversy over each.

It appears that the original owner of both parcels was one Bonifacio Gutierrez, who died
about the year 1902, after having been thrice married. The first wife left no children, but
the second wife left a daughter, Zoila Gutierrez, who intermarried with Atilano Balcita,
one of the defendants herein. To this pair was born a daughter, Gertrudis Balcita. Zoila
Gutierrez predeceased her father; and upon the death of the latter, the two parcels of
land with which we are concerned passed by inheritance directly from Bonifacio to his
granddaughter Gertrudis, then a mere child. Gertrudis Balcita herself died on December
9, 1912, at the age of 16, leaving no heir except her father, Atilano Balcita. The plaintiff,
Sergia Gutierrez, is a daughter of Bonifacio Gutierrez by his third wife, one Francisca
Maghirang. Sergia was therefore the aunt of Gertrudis Balcita, on her mother's side, and
as reservee under article 811 of the Civil Code she should succeed to the title of the two
parcels which Atilano Balcita inherited, or should have inherited, from Gertrudis,
provided all the conditions necessary to the assertion of the reservation right are
fulfilled.

GUTIERREZ VS. EMPALMADO

Parcel A. — In the year 1905 Atilano Balcita sold the parcel A to one Vicente Almario. As
the land belonged to Gertrudis, a lawsuit was instituted in her behalf in 1912 with a view
to recovering it. The litigation was compromised by the reconveyance of the land by
Almario to Gertrudis and the payment to him of P1,200, which was the amount that he
had paid for the property. The money necessary to effect this compromise had to be
borrowed by Gertrudis, or those representing her; and although the point is subject to
discussion, the preponderance of the testimony is to the effect that the money was
obtained from Gregorio Empalmado under an agreement by which Gertrudis Balcita
undertook to convey the land to him for the sum of P2,100. The document, Exhibit B,
constituting the evidence of this agreement is dated November 28, 1912. In addition to
the signature of Gertrudis Balcita, which is questioned, it bears the signature of Atilano
Balcita and two subscribing witnesses. Gertrudis Balcita died of dysentery on December
9, 1912, and on December 12 thereafter her father, Atilano Balcita, executed the
document Exhibit C, whereby he conveyed, or purported to convey, the same parcel to
Gregorio Empalmado, it being recited that he had inherited the land from his daughter
Gertrudis. Gregorio Empalmado immediately entered into possession, and he has
subsequently maintained possession under claim of ownership.

For the plaintiff, Gutierrez, it is insisted that the document, Exhibit b, is not authentic
and that the name of Gertrudis Balcita subscribed thereto is a forgery. The trial judge
was of the opinion that the due execution of this instrument had been proved by a
preponderance of the evidence; and although the question is debatable, and the point
not altogether free from doubt, we are of the opinion that the trial court's conclusion on
this point should be affirmed. The two subscribing witnesses both say that they saw the
girl sign the document upon the date stated therein, and this is corroborated not only by
the testimony of Gregorio Empalmado, who was present at the execution of the
instrument, but also by Atilano Balcita himself. The only testimony to the contrary is
that of Sergia Gutierrez, who says that the girl was too sick for some time prior to her
death to admit the possibility of her having signed the instrument. It is true that the
questioned signature appears somewhat suspicious, but we have not sufficient data
upon which to pronounce it a forgery, considered as a mere question of penmanship.
Certainly, the instrument expresses the agreement that would naturally have been
drawn upon under the proven circumstances which gave rise to the transaction.

Upon the foregoing state of facts the trial judge found as a matter of law that the title to
parcel A passed out of Gertrudis Balcita and became vested in Gregorio Empalmado
before her death; and although Gertrudis was then a minor, the conveyance was only
voidable and not void. Moreover, as his Honor pointed out, the contract was evidently
advantageous to the minor because she thereby obtained the money necessary to get
the property back from Vicente Almario, with the consequent saving of P900.

These conclusions of the trial court seem to us well founded, and the result is that, as to
this parcel, the inchoate reservable right asserted by Sergia Gutierrez never came into
existence. In this view the conveyance executed by Atilano Balcita a few days after the
death of his daughter Gertrudis operated as a mere quit-claim from him, as title had
already vested in Empalmado under the prior agreement with her.

No error was therefore committed by the trial judge in dismissing the complaint in case
No. 2643 in so far as it affects parcel A and the right of the defendant Empalmado
thereto; nor did his Honor err in ordering the registration of the same parcel in the name
of Empalmado and his wife Felipa Brion, regardless of the opposition of the plaintiff
Gutierrez.

GUTIERREZ VS. REYES

Parcel B. — As already stated, this parcel comes from the same source as the parcel A,
that is, from the estate of Bonifacio Gutierrez. With respect to this parcel it appears that
on May 28, 1906, Atilano Balcita, being then in possession and asserting a claim of
ownership, sold the same by a contract of sale with pacto de retro for the sum of P200
to the defendant Esteban Reyes. In the document constituting the evidence of this sale
Atilano Balcita falsely declared that he was owner by virtud of having inherited the
property from his parents and that he had been in quiet and pacific possession for fifteen
years. Esteban Reyes was a purchaser for value and bought in belief that the land really
belonged to his vendor. The period for repurchase under this contract was ten years,
which passed in 1916 without redemption having been effected. It is not clear whether
the purchaser under this contract entered into possession during the time stipulated for
redemption or not; but it is agreed that, with this exception, the defendant Reyes had,
until the institution of this action on May 10, 1918, exercised actual and adverse
possession, to the exclusion of all other persons.lawphi1.net

Upon the facts above stated the trial judge gave Reyes the benefit of prescription under
the ten years statute (sec. 41, Code of Civ. Proc.) and held that the right of Sergia
Gutierrez, as reservee, had been thereby destroyed.

We are of the opinion that the conclusion thus reached is erroneous. We may accept the
legal proposition that occupancy by Esteban Reyes, pursuant to the contract of sale
with pacto de retro by which he acquired the property, and prior to the expiration of the
period for redemption, may be considered an adverse possession as against everybody
having a prescriptible interest, notwithstanding the existence of the stipulation for
repurchase. As was said by this court in Santos vs. Heirs of Crisostomo and
Tiongson (41 Phil., 342, 352), the insertion of a stipulation for repurchase by the vendor
in a contract of sale does not necessarily create a right inconsistent with the right of
ownership in the purchaser. Such a stipulation is in the nature of an option, and the
possible exercise of its rests upon contingency. It creates no subsisting right whatever in
the property, and so far from being inconsistent with the idea of full ownership in the
purchaser, it really rests upon the assumption of ownership in him.

But it must be borne in mind that the true owner of this property was Gertrudis Balcita,
a minor, and the period of limitation did not begin to run against her or any person
claiming in her right until the date of her death, which was December 9, 1912. It must
furthermore be remembered that the plaintiff does not claim in the character of an
ordinary successor to the rights of Gertrudis Balcita; her claim is based upon a positive
provision of law, which could no operate in any wise until the death of Gertrudis Balcita,
when the reservable character first attached to the property in question. From this it is
obvious that the right of the plaintiff — which even yet is of a purely contingent nature
— could not be affected by anything that had occurred prior to the death of Gertrudis
Balcita; and as this action was begun in May, 1918, the ten-year period necessary to
confer a complete prescriptive title had not then elapsed.

What has been said makes it unnecessary to express any opinion upon he more
recondite question whether Sergia Gutierrez really has a prescriptive interest in the
parcel B, but we may observe that the position of the reservee under the Spanish law is
very much like that of the ordinary remainderman at common law, who is entitled to
take after the termination of a particular life estate; and it is generally accepted doctrine
in common law jurisdictions that if the life tenant loses his life estate by adverse
possession the interest of the remainderman is not thereby destroyed. (17 R. C. L., 982;
21 C. J., 972, 975, 1013.) The reason for the rule is said to be that, during the existence
of the life estate, the remainderman has no right to possession and consequently cannot
bring an action to recover it. (21 C. J., 974.) As was said by the Supreme Court of Ohio
in Webster vs. Pittsburg, etc., Railroad Co. (15 L. R. A. [N. S.], 1154), "No possession
can be deemed adverse to a party who has not at the time the right of entry and
possession."

From what has been said it is apparent that the judgment must be affirmed in so far as
concerns the registration of parcel A in expediente No. 409, G. L. R. O., record No.
14769, and in so far as relates to the dismissal of the complaint against Gregorio
Empalmado in case No. 2643; but the judgment in the same case must be reversed in
so far as relates to parcel B, now in the possession of Esteban Reyes, and it is hereby
declared that said parcel is reservable property and upon the death of Atilano Balcita will
pass to Sergia Gutierrez, if she be then living. Let a certified copy of this pronouncement
be filed with the register of deeds of the Province of Laguna for record pursuant to the
provisions of Act No. 2837 of the Philippine Legislature. So ordered, without special
pronouncement as to costs.
G.R. No. L-10580            March 27, 1916

TEODORO DE LOS REYES, plaintiff-appellee, 

vs.
MAXIMINO PATERNO, administrator of the estate of Tomas G. del Rosario
deceased, defendant-appellant.

A. Cruz Herrera and Ramon Muyot for appellant.

Ramon Salinas for appellee.

JOHNSON, J.:

This action was commenced in the Court of First Instance of the city of Manila on the 7th
of February, 1914. The purpose of the action on the part of the plaintiff was to be
declared the owner of one-half of two lots or parcels of land located in the district of
Santa Cruz in the city of Manila, to require the defendant to render an account of the
administration of said lots or parcels of land, and to obtain a judgment in favor of the
plaintiff and against the defendant for whatever amount said rendition of accounts
shows the plaintiff was entitled to.

To the petition the defendant filed a general and special answer. In his general answer
he denied each and all of the material allegations alleged in the complaint. In his special
defense he alleged that the said Tomas G. Del Rosario, at the time of his death, was the
sole and only owner of said lots or parcels of land.

Upon the issue thus presented and after hearing the evidence adduced during the trial of
the cause, the court a quorendered a judgment in which he ordered the defendant to
deliver to the plaintiff one-half of one of said parcels of land, together with the one-half
of the rent which it produced or might produce until the delivery of the same, and to pay
to the plaintiff the sum of P8,000 and the half of the rent which the other piece of
property may have produced or may produce up to the time of the death of the
deceased, Tomas G. del Rosario.

From that conclusion the defendant appealed to this court and made several
assignments of error the most important of which, and the one which is our judgment
shows that the lower court committed an error in its conclusions, is assignment No. 5.
Said assignment is that the lower court "erred in not holding that the decree of the Court
of Land Registration, copied in plaintiff's Exhibit C, is res judicata against the plaintiff;
and that the two certificates of title of the properties that are the subject matter of the
complaint, issued in behalf of Tomas G. de Rosario by virtue of said decree, are
conclusive and decisive proof against the plaintiff."

If it is true that during the lifetime of Tomas G. del Rosario he obtained a Torrens title
for the lots or parcels of land in question, and if that judgment or decree of the Court of
Land Registration became final, or if more than one year had elapsed after the decree
then his title is unimpeachable and can not be annulled or set aside, even for fraud.

As was noted above, the present action was commenced on the 7th of February, 1914.
During the trial of the cause the defendant presented as proof Exhibit C. An examination
of Exhibit C shows the following facts:

First. That the said Tomas G. del Rosario presented a petition in the Court of Land
Registration on the 24th of April, 1909, for the registration under the Torrens system of
two parcels of land. There is no dispute that the two parcels of land described in said
petition for registration are exactly the same parcels of land in litigation in the present
action.

Second. Said Exhibit C further shows that on the 21st of September, 1909, the judge of
the Court of Land Registration, after considering the petition, rendered the following
decree, ordering said parcels of land to be registered in the name of Tomas G. del
Rosario, in accordance with the provisions of Act No. 496:

Two properties are described in the application, both urban; the first is a parcel of
land situated on Calle Curtidor, district of Santa Cruz, city of Manila, and includes
the building thereon constructed of strong materials; and the other is a piece of
land on Calle Asuncion, district of San Nicolas, city of Manila, which includes the
building, also of strong materials, thereon.

The applicant has presented documentary and parol evidence, the former
consisting of the documents, all of which are public, on file in this case, and the
latter, of the testimony of witnesses. From the said documents and from the
certified copy issued by the register of deeds of Manila on July 17, 1907, of the
entry made in the old property registry, it is deduced that these properties have
been the subject of successive and legal conveyances since the year 1879, until
they were acquired by the applicant in August and September, 1891, by purchase,
during his conjugal partnership, now dissolved, with his wife, Juana Reyes y
Reyes, and that the ownership of both properties was recorded in the said
property registry in the name of the aforementioned Tomas G. del Rosario, as the
representative of the said partnership.

Upon the death of Juana Reyes y Reyes, who died intestate, Concepcion Crispina
Dorotea Severina del Rosario y Reyes, a daughter of the marriage of the deceased
with the applicant, Tomas G. del Rosario, was declared to be the sold heir of
decedent by the Court of First Instance of the district of Quiapo in a decree of
February 20, 1892.

On June 3, 1900, the said Concepcion del Rosario y Reyes also died, at the age of
nine years, according to the death certificate Exhibit F, and was succeeded in all
her rights and actions, and in respect to one-half of the property, by the said
applicant, Tomas G. del Rosario, who was already the owner of the other half of
the property.

After general notice of default, the adjudication and registration of the property in
question is decreed (10 a. m.) in the name of the applicant, Tomas G. del Rosario.

Let a translation be made of the stenographic notes taken of the testimony of the
witnesses, and attached to the record of the proceedings.

In the margin of the entries of registration, which, on folio 34 of volume 4 of the

section of Quiapo, and 9 of the register, property No. 131, registration No. 3, and
folio 115 of volume 7 of the section of Binondo, property No. 314, appears in the
names of Tomas G. del Rosario y Tongco and his daughter, Concepcion Crispina
Dorotea Severina del Rosario y Reyes, let record be made by the register of deeds
of the city of Manila, that the properties to which said entries refer have been
adjudicated to Tomas G. del Rosario, in accordance with Act No. 496.

MANILA, September 21, 1909.

From the 21st of September, 1909, until the 7th of February, 1914, much more than
one year elapsed. The title, therefore, of Tomas G. del Rosario was absolute and
complete. The failure of the plaintiff, if he ever had any interest or title in said land, to
appear and oppose the registration of the same in the name of Tomas G. del Rosario or
to question the registration in his name during a period of one year after the certificate
of title had been issued, operates to exclude him forever from questioning the title
granted under the Torrens system. (Sec. 38, Act No. 496; Cuyugan and Lim Tuico vs. Sy
Quia, 24 Phil. Rep., 567; Maloles vs. Director of Lands, 25 Phil. Rep., 548.)

The plaintiff having lost his right to claim any interest in the lots or parcels of land in
question, by virtue of his (a) failure to present any opposition to the registration of the
same under the Torrens system in favor of Tomas G. del Rosario, or (b) to question the
validity of such registration within a period of one year thereafter he has forever lost his
right therein, if he ever had any.

Therefore the judgment of the lower court is hereby reversed and the defendant is
absolved from all liability under the complaint, and without any finding as to costs, it is
so ordered.

Torres, Moreland, and Trent, JJ., concur.

Araullo, J., dissents.

July 22, 1916.

JOHNSON, J.:

On the 27th of March, 1916, a decision was rendered in the above entitled cause, in
which the decision of the lower court was revoked. The purpose of the action was to
recover a portion of certain parcels of land "como un derecho reservable" (as a
reservable right). In the decision the court held that by virtue of the provisions of
section 38 of Act No. 496, the plaintiff had lost his right to the property by reason of his
failure to present any opposition to the registration thereof under the Torrens system,
and had presented no objection to the registration of the same within a period of one
year after the decree of registration had been entered.

On the 1st of April, 1916, the attorney for the appellee presented a motion for a
rehearing. In his motion for a rehearing he calls our attention to the provisions of article
811 of the Civil Code, the commentaries thereon by Manresa, as well as to the decision
of this court in the case of Edroso vs. Sablan (25 Phil. Rep., 295).

It is true that in said cause (Edroso vs. Sablan) we held that the owners of "el derecho
reservable" were entitled to have said right noted in the certificate of registration as a
valid lien against the property. In that case (Edroso vs. Sablan) the persons holding the
reservable right presented their opposition to the registration of the land in question
during the pendency of the action in the Court of Land Registration. In the present case
the land in question was registered in the month of September, 1909. No objection was
presented to the registration of the property. The property in question was registered
without objection. No question is now raised that the proceedings for the registration of
the land in question were not regular and in accordance with the provisions of the Land
Registration Act. Moreover, the plaintiff presented no claim whatever for a period of six
years and not then until after the death of the person in whose name the same had been
registered under the Torrens system. The provisions of section 38 of Act No. 496 seem
to prohibit absolutely the raising of any question concerning the validity of a title of land
registered under the Torrens system, after the expiration of one year. We are of the
opinion that the prohibitions contained in said section apply to every claim, of whatever
nature, which persons may have had against registered land.

In the case of Edroso vs. Sablan (supra) the parties interested went to the Court of Land
Registration during the pendency of the action there and fully protected their rights. In
the present case the plaintiff did not, thereby losing his right given him under the law to
the land in question. Whether he has any other remedy for the purpose of recovering
damages to cover his loss is a question which we do not now discuss or decide. The
appellee apparently has the idea that the decision in the present case destroys "el
derecho reservable." That was not the purpose of the decision. The effect of the decision
simply is that unless such right is protected during the pendency of the action for the
registration of the land, or within a period of one year thereafter, such right is lost
forever. We are of the opinion that there is no conflict between the decision in the
present case and that in the case of Edroso vs. Sablan (supra). For the foregoing
reasons the motion for a rehearing is hereby denied. So ordered.
G.R. No. L-9234             August 30, 1957

INTESTATE ESTATE OF THE LATE ELI RODRIGUEZ. SAMSON RODRIGUEZ, ET

AL., movants-appellants, 
vs.
RUPERTA A. VDA. DE RODRIGUEZ, administratix-appellee,

RUPERTA A VDA. DE RODRIGUEZ, administratix-appellant, 

vs.
SAMSON RODRIGUEZ, ET AL., movants-appellees.

Gabriel Benedicto for appellant.

Carlos Hilado, Jose V. Coruna and Jose Y. Hilado for appellees.

PADILLA, J.:

In his lifetime the late Fortunate Rodriguez executed a will instituting as heirs entitled to
his estate, the following: Josefina and Nicanora, natural children; Samson, Juanita,
Inicerio and Gregorio, legitimate children by his first wife Julia Quillos; and Eli Rodriguez,
legitimate son by his second wife Ruperta A. Vda. de Rodriguez. After his death
sometime in 1924, proceedings for the administration and settlement of his estate was
instituted in the Court of First Instance of Occidental Negros (Special Proceedings No.
2758). On 24 March 1924 the heirs executed an agreement of partition and submitted it
to the probate court for approval. After approval, the heirs took possession of their
respective shares.

The real estate awarded to Eli Rodriguez are the following: (1) 1/15 share in Lots Nos.
846, 848 and 965; (2) Lot No. 847; and (3) Lot No. 951, all of the Cadastral Survey of
La Carlota. These parcels of land are planted to sugar cane and the produce milled at
the Central Azucarera de La Carlota. Upon the enactment of Act No. 4166, known as the
Sugar Limitation Law, on 4 December 1934, a quota of 596.26 piculs of sugar, divided
into export, consumer, and emergency reserve, manufactured from the sugar cane
grown therein, was allocated to the said parcels of land.

On 19 May 1942 Eli Rodriguez died intestate, single and without issue in O'Donnel
concentration camp, Capas, Tarlac. On 28 December 1945 his mother Ruperta A. Vda.
de Rodriguez commenced proceedings in the Court of First Instance of Occidental Negros
for the administration and settlement of the deceased and prayed that after hearing she
be appointed administratrix of the estate of the deceased; that she be exempted from
filing a bond; and that she be declared the sole heir of the deceased (Special
Proceedings No. 220). On 23 September 1954 Samson Rodriguez, Juanita Rodriguez,
Inicerio Rodriguez, Gregorio Rodriguez and Josefina Rodriguez, half-brothers and half-
sisters of the deceased, and Jesus Segura, son of Nicanora Rodriguez, another half-
sister of the deceased, filed a motion in the probate court praying that the parcels of
land inherited by the administratrix from her late son Eli Rodriguez be held subject to
a reserva troncal in their favor under and pursuant to the provisions of article 891 of the
new Civil Code (811 of the old), and that the administratrix be directed to register or
cause to be recorded on the back of the transfer certificates of title to be issued in her
name by the Registrar of Deeds in and for the province of Occidental Negros for the said
parcels of land, their right to such reserva troncal. After hearing, on 27 November 1954
the probate court held that Josefina Rodriguez, a natural sister of the deceased, and
Jesus Segura, the son of the late Nicanora Rodriguez, another natural sister, are not
entitled to a reserva troncal, but that the rest of the movants are entitled to have their
right to a reserva troncal recorded on the transfer certificates of title to be issued to the
administratrix for the parcels of land inherited by her from her late son Eli Rodriguez;
and that the sugar quota of 596.26 piculs allocated to the parcels of land is not subject
to such reserva troncal and ordered the administratix —

. . . to record in the Registry of Deeds of Negros Occidental, the reservable

character of lots Nos. 847, 951, 11, 965 and 7 of the la Carlota Cadastre (the last
 three lots correspond previously to 1/15 pro indiviso of Lots 846, 965 and 848 of
the La Carlota Cadastre) in favor of Samson, Juanita, Inicerio and Gregorio, all
surnamed Rodriguez.

Motions for reconsideration filed on 22 December 1954 and 22 February 1955 were
denied on 14 February 1955 and 10 March 1955, respectively.

The movants appeal from that part of the order denying their petition to include in the
reservation the sugar quota allotment of 596.26 piculs that may be manufactured from
the sugar cane grown in the parcels of land inherited by the administratrix from her late
son. The movants Josefina Rodriguez and Jesus Segura did not appeal. The
administratrix appeals from that part of the order directing her to register or cause to be
recorded the right of Samson, Juanita, Inicerio and Gregorio, all surnamed Rodriguez, to
a reserva troncal on the transfer certificates of title to be issued to the administratrix by
the Rigistrar of Deeds of the province of Occidental Negros for the parcels of land
inherited by her from her late son Eli Rodriguez.

Article 891 of the new Civil Code (811 of the old), provides:

The ascendant who inherits from his descendant any property which the latter may
have acquired by gratuitous title from another ascendant, or a brother or sister, is
obliged to reserve such property is he may have acquired by operation of law for
the benefit of relatives who are within the third degree and who belong to the line
from which said property came.

Commenting on this article Manresa says:

Los bienes pasan en primer termino al ascendiente legitimario: este los reserva,
los guarda disfruta durante su vida, y a su muerte van a parar a la linea a que
pertenecieron si hay parientes dentro del tercer grado en esa linea, y caso de no
haberlos en ese moimento, la reserve desaprece, los bienesquedan libres y se
sigue el orden natural de la sucesion. En cambgio los parientes han de respetar
ese usufructo, y tienen una esperanza a esos bienes,que solo ven realizada los que
vivan en la epoca del fallecimiento del ascendiente.

De aqui se deduce que el ascendiente es algo mas que un simple usufructuario; su

derecho es analogo al del poseedor de bienes sujetos a una condicion resolutoria.
Hay, en efecto, un hecho futuro e incierto del que depende laadquisicion definitiva
o la extincion del derecho por el ascendiente o porsus herederos, asi como la
adquisicion o la extencion del derecho de losparientes. Quedaran o no parientes
lineales, dentro del tercer grado, a lamuerte del ascendiente obligado a reserva?
Tal es la cuestion. Quedan? Adquieren los bienes, que son perdidos para los
herederos del ascendiente,porque la condicion se ha cumplido. No quedan? El
hecho incierto no se harealizado, y se hace definitivo y firme el derecho del
ascendiente o de susherederos. Y no se crea que siempre habra que esperar a la
muerte del ascendiente: habra casos en los cuales despues de nacida la reserva,
eseascendiente presenciara la muerte de la misma, por desparecer los
parientesque a ella pudieran tener derecho, y no ser posible que lleguen a
existirotros. (Comentrios al Codigo Civil Español, Vol. 6 pp. 252-253, 6th Ed.)

Properties reservable under the aforequoted article are those that the propositus
acquired by gratuitos title from another ascenda, or brother or sister. Although in 1924,
at the time the late Eli Rodriguez inherited by will the parcels of land from his late father
Fortunato, the sugar quota allotment was not yet in existence, still such sugar quota
allotment, in the language of the law,1 is "an improvement attaching to the land. . . ." If
there be no land planted to sugar cane there would be no sugar quota allotment. The
fact that "Mill companies and plantation owners may sale, transfer, or assign their
allotments received under the terms of this Act,"2 is another compelling reason which
leads us to regard the sugar quota allotment as part of the land to be reserved for the
reservees, because if the sugar quota allotment be sold by the reservor, the land subject
to reserva troncal would greatly depreciate in value to the prejudice and detriment of
the right of the reservees.

In support of her appeal, counsel for the administratrix quotes in his brief a passage
from Manresa thus —

Que en cuanto al hermano, desde luego es aplicable el precepto a los hermanosde

doble vinculo. Pero si los bienes proceden de un medio hermano, no tendria, luego
(lugar) la reserva. (Manresa Vol. 6 page 256) Pp. 6-7, brief for the administratrix
appellant.

This is not correct. The correct passage is —

En cuanto al hermano, desde luego es aplicable el precepto a los hermanos de

doble vinculo. Pero si los bienes proceden de un medio hermano, no tendralugar la
reserva? No hay duda alguna: hermanos son unos y otros, y con esa sola
denominacion se comprenden los medio hermanos en los articulos 143, 144,294,
770, 952, 953 y 954. Legitimos son tambien todos, y sin una disposicion expresa
de la ley no pueden ser excluidos. El doble vinculo determina cierta preferencia en
materia de tutelas y sucesiones; mas al efecto de buscar la procedencia de log
bienes en el art. 811, basta que se trate de hermanos, seande doble vinculo,
uterinos o consanguineos. Hay sobre todo una razon decisiva,como veremos
despues; en ultimo termino, la reserva se establece en favor delos parientes que
pertenezcan a la linea del hermano de quien los bienesproceden, y puesto que se
trata de lineas, el doble vinculo es indiferente.(Comentarios al Codigo Civil
Español, Vol. 6, p. 257, 6th Ed.)

Debe ser el parentesco de doble vinculo? Scaevola afirma que, por ser la reserva
del articulo 811 puramente lineal, no es licito distinguir entre pariente de vinculo
entero o de medio vinculo, y cita en apoto de su opinion la sentencia de 29 de
diciember de 1897, en la que se declaro la reserva a favor de uno medio hermano.
(Manresa, Comentarios al Codigo Civil Español, Vol. 6, pp. 328-329, 7th Ed.)

The provisions of article 891 of the new Civil Code (811 of the old) do not exclude the
half brothers and sisters from the benefit provided for therein, as long as they are of the
line from which the property to be reserved came.

The order appealed from is modified by including the sugar quota allotment of the
parcels of land in the reservation to be recorded on the transfer certificates of the title to
be issued to and in the name of Ruperta A. Vda. de Rodriguez, without pronouncement
as to costs.
G.R. No. L-29901 August 31, 1977

IGNACIO FRIAS CHUA, DOMINADOR CHUA and REMEDIOS CHUA, petitioners, 

vs.
THE COURT OF FIRST INSTANCE OF NEGROS OCCIDENTAL, BRANCH V and
SUSANA DE LA TORRE, in her capacity as Administratrix of the Intestate Estate
of Consolacion de la Torre, respondents.

Dominador G. Abaria and Primitivo Blanca for private respondent.

Rodrigo O. Delfinado for petitioners.

MARTIN, J.:

Petition for review of the decision of the respondent Court which dismissed the complaint
of petitioners in Civil Case No. 7839-A, entitled "Ignacio Frias Chua, et al. vs. Susana de
la Torre, Administratrix of the Intestate Estate of Consolacion de la Torre"

It appears that in the first marriage of Jose Frias Chua with Patricia S. Militar alias Sy
Quio he sired three children, namely: Ignacio, Lorenzo and Manuel, all surnamed Frias
Chua. When Patricia S. Militar died, Jose Frias Chua contracted a second marriage with
Consolacion de la Torre with whom he had a child by the name of Juanita Frias Chua.
Manuel Frias Chua died without leaving any issue. Then in 1929, Jose Frias Chua died
intestate leaving his widow Consolacion de la Torre and his son Juanito Frias Chua of the
second marriage and sons Ignacio Frias Chua and Lorenzo Frias Chua of his first
marriage. In Intestate Proceeding No. 4816, the lower court issued an order dated
January 15, 1931 1 adjudicating, among others, the one-half (1/2,) portion of Lot No.
399 and the sum of P8,000.00 in favor of Jose Frias Chua's widow, Consolacion de la
Torre, the other half of Lot No. 399 in favor of Juanito Frias Chua, his son in the second
marriage; P3,000.00 in favor of Lorenze Frias chua; and P1,550.00 in favor of Ignacio
Frias, Chua, his sons of the first marriage. By virtue of said adjudication, Transfer
Certificate of Title No. TR-980 (14483) 2 dated April 28, 1932 was issued by the Register
of Deeds in the names of Consolacion de la Torre and Juanito Frias Chua as owners pro-
indiviso of Lot No. 399.

On February 27, 1952, Juanito Frias Chua of the second marriage died intestate without
any issue. After his death, his mother Consolacion de la Torre succeeded to his pro-
indivisio share of Lot No. 399. In a week's time or on March 6, 1952, Consolacion de la
Torre executed a declaration of heirship adjudicating in her favor the pro-indiviso share
of her son Juanito as a result of which Transfer Certificate of Title No. 31796 covering
the whole Lot No. 399 was issued in her name. Then on March 5, 1966, Consolacion de
la Torre died intestate leaving no direct heir either in the descending or ascending line
except her brother and sisters.

In the "Intestate Estate of Consolacion de la Torre", docketed as Sp. Proc. No. 7839-A,
the petitioners herein, Ignacio Frias Chua, of the first marriage and dominador and
Remedios Chua, the supposed legitimate children of the deceased Lorenzo Frias Chua,
also of the first marriage filed the complaint a quo  3 (subseqently segregated as a
distinct suit and docketed as Civil Case No. 7839-A) on May 11, 1966 before the
respondent Court of First Instance of Negros Occidental, Branch V, praying that the one-
half (1/2) portion of Lot No. 399 which formerly belonged to Juanito Frias but which
passed to Consolacion de la Torre upon the latter's death, be declaredas a reservable
property for the reason that the lot in questionn was subject to reserval troncal pursuant
to Article 981 of the New Civil Code, Private respondent as administratrix of the estate of
individually the complaint of petitioners 4

On July 29, 1986, the respondent Court rendered a decision dismissing the complaint of
petitioner. Hence this instant.
The pertinent provision of reserva troncal under the New Civil Code provides:

ART. 891. The ascendant who inheritts from his descendant any property
which the latter may have acquired by gratuitous title from another
ascendat, or a brother or sister, is obliged to reserve such property as he
may have acquired by operation of law for the benefit of relatives who are
within the third degree and belong to the line from which said property
came.

Persuant to the foregoing provision, in order that a property may be impressed with a
reservable character the following requisites must exist, to wit: (1) that the property
was acquired by a descendant from an asscendant or from a brother or sister by
gratuitous title; (2) that said descendant died without an issue; (3) that the property is
inherited by another ascendant by operation of law; and (4) that there are relatives
within the third degree belonging to the line from which said property came. 5 In the
case before Us, all of the foregoing requisites are present. Thus, as borne out by the
records, Juanoito Frias Chua of the second marriage died intestate in 1952; he died
withour leaving any issue; his pro-indiviso of 1/2 share of Lot No. 399 was acquired by
his mother, Consolacion de la Torre died, Juannnito Frias Chua who died intestate had
relatives within the third degree. These relatives are Ignacio Frias Chua and Dominador
Chua and Remidios Chua, the suppose legitimate children of the deceased Lorenzo Frias
Chua, who are the petitioners herein.

The crux of the problem in instant petition is focused on the first requisit of reserva
troncal — whether the property in question was acquired by Juanito Frias Chua from his
father Jose Frias Chua, gratuitously or not. In resolving this point, the respondent Court
said:

It appears from Exh. "3", which is part of Exh. "D", that the property in
question was not acquired by Consolacion de la Torre and Juanito Frias
Chua gratuitously but for a consideration, namely, that the legatees were to
pay the interest and cost and other fees resulting from Civil Case No. 5300
of this Court. As such it is undeniable that the lot in question is not subject
tot a reserva troncal, under Art. 891 of the New Civil Code, and as such the
plaintiff's complaint must fail.

We are not prepared to sustain the respondent Court's conclusion that the lot in
question is not subject to a reserva troncal under Art. 891 of the New Civil Code. It is,
As explained by Manresa which this Court quoted with approval in Cabardo v. Villanueva,
44 Phil. 186, "The transmission is gratuitous or by gratuitous title when the recipient
does not give anything in return." It matters not whether the property transmitted be or
be not subject to any prior charges; what is essential is that the transmission be made
gratuitously, or by an act of mere liberality of the person making it, without imposing
any obligation on the part of the recipient; and that the person receiving the property
gives or does nothing in return; or, as ably put by an eminent Filipino
commentator, 6 "the essential thing is that the person who transmits it does so
gratuitously, from pure generosity, without requiring from the transferee any
prestation." It is evident from the record that the transmission of the property in
question to Juanito Frias Chua of the second marriage upon the death of his father Jose
Frias Chua was by means of a hereditary succession and therefore gratuitous. It is true
that there is the order (Exh. "D") of the probate Court in Intestate Proceeding No. 4816
which estates in express terms;

2. — Se adjudicada pro el presente a favor de Consolacion de la Torre,

viuda, mayor de edad, y de su hiju, Juanito Frias Chua, menor de edad,
todos residente de San Enrique, Negros Occidental, I.F.,como herederos del
finado Jose Frias Chua Choo, estas propiadades:

14483
 La parcela de terrenno concida por Lote No. 399 del Catsatro de la Carlota,
Negros Occidental, de 191.954 metros cuadddrados y cubierto por el
Certificado de Titulo No. 11759, en partes equales pro-indiviso; por con la
obligscion de pagar a las Standard Oil Co. of New York la deuda de
P3971.20, sus intereses, costas y demas gastos resultantes del asunto civil
No. 5300de este jusgado

But the obligation of paying the Standard Oil Co. of New York the amount of P3,971.20
is imposed upon Consolacion de la Torre and Juanito Frias Chua not personally by the
deceased Jose Frias Chua in his last will and testament but by an order of the court in
the Testate Proceeding No.4816 dated January 15, 1931. As long as the transmission of
the property to the heirs is free from any condition imposed by the deceased himself and
the property is given out of pure generosity, itg is gratuitous. it does not matter if later
the court orders one of the heirs, in this case Juanito Frias Chua, to pay the Standare oil
co. of New York the amount of P3,971.20. This does not change the gratuitous nature of
the transmission of the property to him. This being the case the lot in question is subject
to reserva troncal under Art, 891 of the New Civil Code.

It is contented that the distribution of the shares of the estate of Jose Frias Chua to the
respondent heirs or legatees was agreed upon by the heirs in their project of partition
based on the last will and testament of Jose Frias Chua. But petitioners claim that the
supposed Last Will and Testament of Jose Frias Chua was never probated. The fact that
the will was not probated was admitted in paragraph 6 of the respondents'
answer. 7 There is nothing mentioned in the decision of the trial court in Civil Case No.
7839 A which is the subject of the present appeal nor in the order of January 15, 1931
of the trial court in the Testate Estate Proceeding No. 4816 nor in the private
respondent's brief, that the Last Will and Testament of Jose Frias Chua
has ever been probated. With the foregoing, it is easy to deduce that if the Last Will and
Testament has in fact been probated there would have been no need for the
testamentary heirs to prepare a project of partition among themselves. The very will
itself could be made the basis for the adjudication of the estate as in fact they did in
their project of partition with Juanito Frias Chua getting one-half of Lot 399 by
inheritance as a sone of the deceased Jose Frias Chua by the latter's second marriage.

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

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

IN VIEW OF THE FOREGOING, the decision appealed from is hereby set aside. The
petitioners Ignacio Frias Chua, Dominador Chua and Remedios Chua are declared
owners of 1/2 undivided portion of Lot 399; and the Register of Deeds of Negros
Occidental is hereby ordered to cancel. Transfer Certificate of Title No. 31796 covering
Lot No. 399 issued in the name of Consolacion de la Torre and to issue a new Certificate
of Title in the names of Consolacion de la Torre, 1/2 undivided portion; Ignacio Frias
Chua, 1/4 undivided portion; and Dominador Chua and Remedios Chua, 1/4 undivided
portion, of said lot. Without pronouncement as to costs.
G.R. No. L-14530             April 25, 1962

LEONA AGLIBOT, ET AL., plaintiffs-appellees, 

vs.
ANDREA ACAY MAÑALAC, ET AL., defendants-appellants.

Nemesio Balonso for plaintiff-appellees.

Ruperto G. Martin and Associates for dependants-appellants.

DIZON, J.:

Leona and Evarista Aglibot commenced the present action (Civil Case No. 1482) in the
Court of First Instance of Zambales on July 31, 1952 to recover from Andrea Acay
Mañalac and her children — Ramona, Gregorio, Felix, Angela, Juanita and Purisima, all
surnamed Mañalac — the ownership and possession of a parcel of land situated in barrio
Namanaan, Municipality of San Antonio, Zambales, more particularly described in
paragraph 2 of their complaint, and damages.

Briefly stated, the allegations of the complaint are that the Aglibots inherited the
property subject matter thereof from their deceased niece Juliana Mañalac; that upon
the death of Anacleto Mañalac, father of Juliana, the defendants took possession of said
property, claimed it as their own and had since then appropriated for themselves all the
palay annually harvested therefrom amounting to 30 cavanes; that nothwithstanding
demands made upon said defendants by the Aglibots, they had refused to surrender the
property to the latter.1äwphï1.ñët

In their answer, after denying some material averments of the complaint, appellants
alleged substantially the following as affirmative defense: that the land in question was
purchased from Esteban Garcia by the spouses Anacleto Mañalac and Maria Aglibot for
P1,000.00; that when Maria Aglibot died, only P300.00 of this amount had been paid;
that the remaining P700.00 was paid to the vendor during the marriage of Anacleto
Mañalac and appellant Andrea Acay; that Juliana Mañalac, the only daughter of Anacleto
and his first wife, died in 1920, while Anacleto died in 1942; that upon his death, his
widow, Andrea Acay, and their children acquired the property in question as his sole
legal heirs. Their answer likewise claimed the sum of P1,000.00 as attorney's fees by
way of counterclaim. After due trial, upon the issue thus joined, the lower court
rendered judgement as follows: .

IN VIEW OF THE FOREGOING CONSIDERATIONS, the Court hereby renders

judgment declaring the plaintiffs owners pro-indiviso of one half (1/2) of the land
covered by Original Certificate No. 10 described in paragraph 2 of the amended
complaint, ordering the defendants to deliver to the plaintiffs the possession of the
said one-half (1/2) of the property covered by said title; ordering the defendants
jointly and severally to deliver to the plaintiffs 15 cavanes of palay yearly as the
share of the plaintiffs from the produce of the land or its equivalent value at
P10.00 a cavan from the date of the filing of the complaint until the said one-half
(1/2) portion of the property described in Original Certificate No. 10 is delivered to
the plaintiffs and ordering the defendants to pay the costs.

From the above judgment Andrea Acay and her children took the present appeal.

The evidence shows that, originally, the land in question belonged to the conjugal
partnership of the spouses Anacleto Mañalac and Maria Aglibot, and was covered by
Original Certificate of Title No. 10 of the Register of Deeds of Zambales in the name of
Anacleto Mañalac, married to Maria Aglibot; that said spouses had an only child named
Juliana Mañalac; that Maria Aglibot died on October 2, 1906; that on April 25, 1910,
Anacleto Mañalac married appellant Andrea Acay with whom he had six children (the
other appellants herein); that Juliana Mañalac died intestate on October 22, 1920,
leaving no other relatives except her father, Anacleto Mañalac, and her half brothers and
sisters already mentioned; that upon the death of Anacleto on June 2, 1942, his widow,
Andrea Acay, and her six children took possession of the parcel of land in controversy
and since then have refused to surrender the ownership and possession thereof to the
appellees; that the land produces thirty cavanes of palay yearly.

On May 18, 1951, appellees Leona and Evarista Aglibot filed a verified petition in the
Court of First Instance of Zambales for the summary partition or distribution of the
properties left by the deceased Juliana Mañalac among her rightful heirs (Special
Proceeding No. 594). The court, after proper proceedings, issued an order dated October
30, 1951, the dispositive part of which reads as follows: .

Wherefore, the Court declares that the applicant Leona Aglibot and Evarista
Aglibot are the only heirs within the third degree of Juliana Mañalac, and belonging
to the same line from which these properties originally belonged, that is, from
Maria Aglibot, being the sisters of the latter; that the value of these properties
does not exceed six thousand pesos (P6,000); and that each of the applicants is
entitled to receive and enter into possession of one-half of the first five parcels
and one-fourth of the last two, after paying such debts of the estate if there be
any — and the proportionate expenses of this special proceedings, subject to the
provisions of Rule 74 of the Rules of Court. (Page 10, Rec. on App.).

After securing the decision abovequoted appellees made the unsuccessful demands upon
appellants for the surrender of the property in question to them, and subsequently filed
the present action.

The main question to be resolved now is: Who is entitled to the land which Anacleto
Mañalac inherited from his daughter, Juliana, as between appellees(sisters of Maria
Aglibot, first wife of Anacleto Mañalac), on the one hand, and appellants (Anacleto's
second wife and their children), on the other?.

It is clear from the facts of the case that the land in question is reservable property in
accordance with the provisions of Article 811 of the Spanish Civil Code (Art. 891 of the
New Civil Code). Both parties now admit that the entire parcel covered by Original
Certificate of Title No. 10 belonged to the conjugal partnership of the spouses Anacleto
Mañalac and Maria Aglibot; that upon the death of the latter on October 2, 1906, their
only daughter, Juliana Mañalac, inherited one-half of the property, the other pertaining
to her father as his share in the conjugal partnership; that upon the death of Juliana
Mañalac on October 2, 1920 without leaving any descendant, her father inherited her
one-half portion of said property. In accordance with law, therefore, Anacleto Mañalac
was obliged to reserve the portion he had thus inherited from his daughter, for the
benefit of appellees, Leona and Evarista Aglibot, aunts of Juliana on the maternal side
and who are, therefore, her relative within the third degree belonging to the line from
which said property came.

Appellants' contention that the major portion of the purchase price of the land in
question was paid to the original owner, Esteban Garcia, after the death of Maria Aglibot
is rendered clearly untenable not only by the lack of sufficient evidence to this effect but
also by the very significant circumstance that the property was titled in the name of
Anacleto Mañalac "married to Maria Aglibot" — circumstance that strongly indicates that
said spouses had acquired full ownership thereof during the lifetime of Maria Aglibot.

A Secondary question raised by appellants is to the effect that the lower court erred in
ordering them, jointly and severally, to deliver to appellees fifteen cavanes of palay
yearly or pay their equivalent value of P10.00 a cavan, from the date of the filing of the
complaint. Considering the belief of appellants that the property in controversy formed
part of the estate of Anacleto Mañalac and that upon the latter's death ownership
thereof was transmitted to all his heirs, subject to the usufructuary rights of the
surviving spouse, Maria Acay, their contention — not sufficiently rebutted — that only
the latter enjoyed possession of the property since her husband's death and received the
annual share pertaining to the landlord seems to be reasonable and logical. She should
be the only one, therefore, sentenced to pay the fifteen cavanes of palay yearly from the
date of the filing of the complaint.
The remaining contention of appellants that the lower court should have ordered
appellees to refund to them 50% of the annual realty tax paid on the property cannot be
sustained, this matter having been raised by them for the first time on appeal.
G.R. No. L-10701             January 16, 1959

MARIA CANO, applicant-appellee, 
vs.
DIRECTOR OF LANDS, EUSTAQUIA GUERRERO, ET AL., oppositors-appellants.
JOSE FERNANDEZ, ET AL., oppositors-appellants.

Ramon C. Fernandez for appellants.

Jose B. Dealca for appellee.

REYES, J.B.L., J.:

In an amended decision dated October 9, 1951, issued in Land Registration Case No. 12,
G.L.R.O. Rec. No. 2835, the Court of First Instance of Sorsogon decreed the registration
of Lots Nos. 1798 and 1799 of the Juban (Sorsogon) Cadastre, under the following
terms and conditions:

In view of the foregoing, and it appearing that the notices have been duly
published and posted as required by law, and that the title of the applicant to the
above-mentioned two parcels of land is registrable in law, it is hereby adjudged
and decreed, and with reaffirmation of the order of general default, that the two
parcels of land described in plan SWO-24152, known as Lots Nos. 1798 and 1799
of the Cadastral Survey of Juban, with their improvements, be registered in the
name of Maria Cano, Filipina, 71 years of age, widow and resident of Juban,
province of Sorsogon, with the understanding that Lot No. 1799 shall be subject to
the right of reservation in favor of Eustaquia Guerrero pursuant to Article 891 of
the Civil code. After this decision shall have become final for lack of appeal
therefrom within the 30-day period from its promulgation, let the corresponding
decree issue.

So ordered. (Rec. App. pp. 18-19)

The decision having become final, the decree and the Certificate of Title (No. 0-20) were
issued in the name of Maria Cano, subject to reserva troncal in favor of Eustaquia
Guerrero. In October 1955, counsel for the reserve (reservatorio) Guerrero filed a
motion with the Cadastral Court, alleging the death of the original registered owner
and reservista, Maria Cano, on September 8, 1955, and praying that the original
Certificate of Title be ordered cancelled and a new one issued in favor of movant
Eustaquia Guerrero; and that the Sheriff be ordered to place her in possession of the
property. The motion was opposed by Jose and Teotimo Fernandez, sons of
the reservistaMaria Cano, who contended that the application and operation of
the reserva troncal should be ventilated in an ordinary contentious proceeding, and that
the Registration Court did not have jurisdiction to grant the motion.

In view of the recorded reserva in favor of the appellee, as expressly noted in the final
decree of registration, the lower court granted the petition for the issuance of a new
certificate, for the reason that the death of the reservistavested the ownership of the
property in the petitioner as the sole reservatorio troncal.

The oppositors, heirs of the reservista Maria Cano, duly appealed from the order,
insisting that the ownership of the reservatorio can not be decreed in a mere proceeding
under sec. 112 of Act 496, but requires a judicial administration proceedings, wherein
the rights of appellee, as the reservatorio entitled to the reservable property, are to be
declared. In this connection, appellants argue that the reversion in favor of
the reservatorio requires the declaration of the existence of the following facts:

(1) The property was received by a descendant by gratuitous title from an

ascendant or from a brother or sister;

(2) Said descendant dies without issue;

 (3) The property is inherited by another ascendant by operation of law; and

(4) The existence of relatives within the third degree belonging the line from which
said property came. (Appellants' Brief, p. 8)

We find the appeal untenable. The requisites enumerated by appellants have already
been declared to exist by the decree of registration wherein the rights of the appellee
as reservatario troncal were expressly recognized:

From the above-quoted agreed stipulation of facts, it is evident that Lot No. 1799
was acquired by the Appellant Maria Cano by inheritance from her deceased
daughter, Lourdes Guerrero who, in turn, inherited the same from her father
Evaristo Guerrero and, hence, falls squarely under the provisions of Article 891 of
the Civil Code; and that each and everyone of the private oppositors are within the
third degree of consaguinity of the decedent Evaristo Guerrero, and who belonging
to the same line from which the property came.

It appears however, from the agreed stipulation of facts that with the exception of
Eustaquia Guerrero, who is the only living daughter of the decedent Evaristo
Guerrero, by his former marriage, all the other oppositors are grandchildren of the
said Evaristo Guerrero by his former marriages. Eustaquia Guerrero, being the
nearest of kin, excludes all the other private oppositors, whose decree of
relationship to the decedent is remoter (Article 962, Civil Code; Director of
Lands vs. Aguas, 62 Phil., 279). (Rec. App. pp. 16-17)

This decree having become final, all persons (appellees included) are bared thereby from
contesting the existence of the constituent elements of the reserva. The only requisites
for the passing of the title from the reservista to the appellee are: (1) the death of
the reservista; and (2) the fact that the reservatario has survived the reservista. Both
facts are admitted, and their existence is nowhere questioned.

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

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

the reservatario nearest to theprepositus (the appellee in this case) becomes,
automatically and by operation of law, the owner of the reservable property. As already
stated, that property is no part of the estate of the reservista, and does not even answer
for the debts of the latter. Hence, its acquisition by the reservatario may be entered in
the property records without necessity of estate proceedings, since the basic requisites
therefor appear of record. It is equally well settled that the reservable property can not
be transmitted by a reservista to her or his own successors mortis causa,(like appellants
herein) so long as a reservatario within the third degree from the prepositus and
belonging to the line whence the property came, is in existence when
the reservista dies.

Of course, where the registration decree merely specifies the reservable character of the
property, without determining the identity of the reservatario (as in the case of Director
of Lands vs. Aguas, 63 Phil., 279) or where several reservatarios dispute the property
among themselves, further proceedings would be unavoidable. But this is not the case.
The rights of the reservataria Eustaquia Guerrero have been expressly recognized, and it
is nowhere claimed that there are other reservatarios of equal or nearer degree. It is
thus apparent that the heirs of the reservista are merely endeavoring to prolong their
enjoyment of the reservable property to the detriment of the party lawfully entitled
thereto. We find no error in the order appealed from and therefore, the same is affirmed
with costs against appellants in both instances. So ordered.
G.R. No. L-28032 September 24, 1986

FRANCISCA TIOCO DE PAPA, MANUEL TIOCO, NICOLAS TIOCO and JANUARIO

PAPA, plaintiffs-appellees, 
vs.
DALISAY TONGKO CAMACHO, PRIMO TONGKO and GODOFREDO
CAMACHO, defendants-appellants.

NARVASA, J.:

This case, which involves the application of Article 891 of the Civil Code on reserva
troncal, was submitted for judgment in the lower court by all the parties on the following
"Stipulation of Facts and Partial Compromise":

1. They stipulate that the defendant Dalisay D. Tongko-Camacho and the

plaintiffs, Francisco Tioco de Papa, Manuel Tioco and Nicolas Tioco, are
legitimate relatives, plaintiffs being said defendant's grandaunt and
granduncles.

2. They stipulate that plaintiffs and defendant Dalisay D. Tongo-Camacho

have as a common ancestor the late Balbino Tioco (who had a sister by the
name of Romana Tioco), father of plaintiffs and great grandfather of
defendant. The family relationship of the parties is as shown in the chart
attached hereto as Annex 'A' and made an integral part of this stipulation.

3. They stipulate that Romana Tioco during her lifetime gratuitously donated
four (4) parcels of land to her niece Toribia Tioco (legitimate sister of
plaintiffs), which parcels of land are presently covered by Transfer
Certificates of Title Nos. A-64165, 64166 and 64167 of the Registry of Deeds
of Manila, copies of which are attached to this stipulation as Annexes 'B', 'B-
l', and 'B-2'.

4. They stipulate that Toribia Tioco died intestate in l9l5, survived by her
husband, Eustacio Dizon, and their two legitimate children, Faustino Dizon
and Trinidad Dizon (mother of defendant Dalisay D, Tongko-Camacho) and
leaving the afore-mentioned four (4) parcels of land as the inheritance of her
said two children in equal pro-indiviso shares.

5. They stipulate that in 1928, Balbino Tioco died intestate, survived by his
legitimate children by his wife Marciana Felix (among them plaintiffs) and
legitimate grandchildren Faustino Dizon and Trinidad Dizon. In the partition
of his estate, three (3) parcels of land now covered by Transfer Certificates
of Title Nos. 16545 and 16554 of the Registry of Deeds of Manila, copies of
which are attached hereto as Annexes 'C' and 'C-l', were adjudicated as the
inheritance of the late Toribia Tioco, but as she had predeceased her father,
Balbino Tioco, the said three (3) parcels of land devolved upon her two
legitimate children Faustino Dizon and Trinidad Dizon in equal pro-indiviso
shares.

6. They stipulate that in 1937, Faustino Dizon died intestate, single and
without issue, leaving his one-half (1/2) pro-indiviso share in the seven (7)
parcels of land above-mentioned to his father, Eustacio Dizon, as his sole
intestate heir, who received the said property subject to a reserva troncal
which was subsequently annotated on the Transfer Certificates of Title
Annexes 'B', 'B-l', 'B-2', 'C' and 'C-l'.

7. They stipulate that in 1939 Trinidad Dizon-Tongko died intestate, and her
rights and interests in the parcels of land abovementioned were inherited by
 her only legitimate child, defendant Dalisay D. Tongko-Camacho, subject to
the usufructuary right of her surviving husband, defendant Primo Tongko.

8. They stipulate that on June 14, 1965, Eustacio Dizon died intestate,
survived his only legitimate descendant, defendant Dalisay D. Tongko-
Camacho.

9. The parties agree that defendant Dalisay D. Tongko-Camacho now owns

one-half (1/2) of all the seven (7) parcels of land abovementioned as her
inheritance from her mother, Trinidad Dizon-Tongko.

10. Defendant Dalisay D. Tongko-Camacho also claims, upon legal advice,

the other half of the said seven (7) parcels of land abovementioned by virtue
of the reserva troncal imposed thereon upon the death of Faustino Dizon and
under the laws on intestate succession; but the plaintiffs, also upon legal
advice, oppose her said claim because they claim three-fourths (3/4) of the
one-half pro-indiviso interest in said parcel of land, which interest was
inherited by Eustacio Dizon from Faustino Dizon, or three-eights (3/8) of the
said parcels of land, by virtue of their being also third degree relatives of
Faustino Dizon.

11. The parties hereby agree to submit for judicial determination in this case
the legal issue of whether defendant Dalisay D. Tongko-Camacho is entitled
to the whole of the seven (7) parcels of land in question, or whether the
plaintiffs, as third degree relatives of Faustino Dizon are reservatarios
(together with said defendant) of the one-half pro-indiviso share therein
which was inherited by Eustacio Dizon from his son Faustino Dizon, and
entitled to three-fourths (3/4) of said one-half pro-indiviso share, or three
eights (3/8) of said seven (7) parcels of land, and, therefore, to three-eights
(3/8) of the rentals collected and to be collected by defendant Dalisay P.
Tongko Camacho from the tenants of said parcels of land, minus the
expenses and/or real estate taxes corresponding to plaintiffs' share in the
rentals.

12. In view of the fact that the parties are close blood relatives and have
acted upon legal advice in pursuing their respective claims, and in order to
restore and preserve harmony in their family relations, they hereby waive all
their claims against each other for damages (other than legal interest on
plaintiffs' sore in the rentals which this Honorable Court may deem proper to
award), attorney's fees and expenses of litigation which shall be borne by
the respective parties. 1

On the basis thereof, the lower Court declared the plaintiffs Francisco Tioco, Manuel
Tioco and Nicolas Tioco, as well as the defendant Dalisay Tongko-Camacho, entitled,
as reservatarios, to one-half of the seven parcels of land in dispute, in equal proportions,
rendering judgment as follows:

... . Resolving, therefore, the legal question submitted by the parties, the
court holds that plaintiffs Francisca Tioco, Manuel Tioco and Nicolas Tioco are
entitled to three-fourths (3/4) of one-half (1/2) pro-indiviso shares or three-
eights (3/8) of the seven (7) parcels of land involved in this action.
Consequently, they are, likewise, entitled to three-eights (3/8) of the rentals
collected and to be collected by the defendant Dalisay D. Tioco-Camacho
from the tenants of the said parcels of land, minus the expenses and/or real
estate taxes corresponding to plaintiffs' share in the rentals.

IN VIEW OF THE FOREGOING, and inasmuch as the parties expressly waived

all their claims against each other for damages including attorney's fees and
expenses of litigation other than the legal interests on plaintiffs' share in the
rentals, the court renders judgment adjudging the plaintiffs entitled to three-
eights (3/8) of the seven (7) parcels of land described in Transfer Certificate
 of Title Nos. T-64165, T-64166, T-64167, T-16546 and T-16554 of the
Registry of Deeds of Manila. The defendant Dalisay D. Tioco-Camacho is
hereby ordered to make an accounting of all rents received by her on the
properties involved in this action for the purpose of determining the legal
interests which should be paid to the plaintiffs on their shares in the rentals
of the property in question.

SO ORDERED. 2

Not satisfied, the defendant appealed to this Court.

The issue raised is whether, as contended by the plaintiffs-appellees and ruled by the
lower Court, all relatives of thepraepositus within the third degree in the appropriate line
succeed without distinction to the reservable property upon the death of
the reservista, as seems to be implicit in Art. 891 of the Civil Code, which reads:

Art. 891. The ascendant who inherits from his descendant any property
which the latter may have acquired by gratuitous title from another
ascendant, or a brother or sister, is obliged to reserve such property as he
may have acquired by operation of law for the benefit of relatives who are
within the third degree and who belong to the line from which said property
came. (811),

or, as asserted by the defendant-appellant, the rights of said relatives are subject to,
and should be determined by, the rules on intestate succession.

That question has already been answered in Padura vs. Baldovino,  3 where
the reservatario was survived by eleven nephews and nieces of the praepositus in the
line of origin, four of whole blood and seven of half blood, and the claim was also made
that all eleven were entitled to the reversionary property in equal shares. This Court,
speaking through Mr. Justice J.B.L. Reyes, declared the principles of intestacy to be
controlling, and ruled that the nephews and nieces of whole blood were each entitled to
a share double that of each of the nephews and nieces of half blood in accordance with
Article 1006 of the Civil Code. Said the Court:

The issue in this appeal may be formulated as follows: In a case of reserva

troncal, where the only reservatarios (reservees) surviving the reservista,
and belonging to the fine of origin, are nephews of the descendant
(prepositus), but some are nephews of the half blood and the others are
nephews of the whole blood, should the reserved properties be apportioned
among them equally, or should the nephews of the whole blood take a share
twice as large as that of the nephews of the half blood?

xxx xxx xxx

The case is one of first impression and has divided the Spanish
commentators on the subject. After mature reflection, we have concluded
that the position of the appellants is correct. The reserva troncal is a special
rule designed primarily to assure the return of the reservable property to the
third degree relatives belonging to the line from which the property originally
came, and avoid its being dissipated into and by the relatives of the
inheriting ascendant (reservista).

xxx xxx xxx

The stated purpose of the reserva is accomplished once the property has
devolved to the specified relatives of the line of origin. But from this time on,
there is no further occasion for its application. In the relations between
one reservatario and another of the same degree there is no call for
applying Art. 891 any longer; wherefore, the respective share of each in the
reversionary property should be governed by the ordinary rules of intestate
succession. In this spirit the jurisprudence of this Court and that of Spain
has resolved that upon the death of the ascendant reservista, the reservable
property should pass, not to all the reservatarios as a class but only to those
nearest in degree to the descendant (prepositus), excluding
those reservatarios of more remote degree (Florentino vs. Florentino, 40
Phil. 489-490; T.S. 8 Nov. 1894; Dir. Gen. de los Registros, Resol. 20 March
1905). And within the third degree of relationship from the descendant
(prepositus), the right of representation operates in favor of nephews
(Florentino vs. Florentino, supra).

Following the order prescribed by law in legitimate succession when there

are relatives of the descendant within the third degree, the right of the
nearest relative, called reservatarios over the property which the reservista
(person holding it subject to reservation) should return to him, excludes that
of the one more remote. The right of representation cannot be alleged when
the one claiming same as a reservatario of the reservable property is not
among the relatives within the third degree belonging to the line from which
such property came, inasmuch as the right granted by the Civil Code in
Article 811 is in the highest degree personal and for the exclusive benefit of
designated persons who are within the third degree of the person from
whom the reservable property came. Therefore, relatives of the fourth and
the succeeding degrees can never be considered as reservatarios, since the
law does not recognize them as such.

In spite of what has been said relative to the right of representation on the
part of one alleging his right as reservatario who is not within the third
degree of relationship, nevertheless there is right of representation on the
part of reservatarios who are within the third degree mentioned by law, as
in the case of nephews of the deceased person from whom the reservable
property came. ... . (Florentino vs. Florentino, 40 Phil. 480, 489-490)
(Emphasis supplied) See also Nieva and Alcala vs. Alcala and de Ocampo, 41
Phil. 915)

Proximity of degree and right of representation are basic principles of

ordinary intestate succession; so is the rule that whole blood brothers and
nephews are entitled to a share double that of brothers and nephews of half
blood. If in determining the rights of the reservatarios inter se, proximity of
degree and the right of representation of nephews are made to apply, the
rule of double share for immediate collaterals of the whole blood should be
likewise operative.

In other words, the reserva troncal merely determines the group of

relatives reservatarios to whom the property should be returned; but within
that group, the individual right to the property should be decided by the
applicable rules of ordinary intestate succession, since Art. 891 does not
specify otherwise. This conclusion is strengthened by the circumstance that
the reserva being an exceptional case, its application should be limited to
what is strictly needed to accomplish the purpose of the law. As expressed
by Manresa in his Commentaries (Vol. 6, 6th Ed., p. 250):

... creandose un verdadero estado excepcional del derecho, no debe

ampliarse, sino mas bien restringirse, el alcance del precepto, manteniendo
la excepcion mientras fuere necesaria y estuviese realmente contenida en la
disposicion, y aplicando las reglas generales y fundamentales del Codigo en
materia de sucesi6n, en aquehos extremes no resueltos de un modo
expreso, y que quedan fuera de la propia esfera de accion de la reserva que
se crea.

The restrictive interpretation is the more imperative in view of the new Civil
Code's hostility to successional reservas and reversions, as exemplified by
 the suppression of the reserva viudal and the reversion legal of the Code of
1889 (Art. 812 and 968-980).

Reversion of the reservable property being governed by the rules on intestate

succession, the plaintiffs-appellees must be held without any right thereto because, as
aunt and uncles, respectively, of Faustino Dizon (the praepositus), they are excluded
from the succession by his niece, the defendant-appellant, although they are related to
him within the same degree as the latter. To this effect is Abellana vs. Ferraris4 where
Arts. 1001, 1004, 1005 and 1009 of the Civil Code were cited and applied:

Nevertheless, the trial court was correct when it held that, in case of
intestacy nephews and nieces of the de cujus exclude all other collaterals
(aunts and uncles, first cousins, etc.) from the succession. This is readily
apparent from Articles 1001, 1004, 1005 and 1009 of the Civil Code of the
Philippines, that provide as follows:

Art. 1001. Should brothers and sisters or their children survive with the
widow or widower, the latter shall be entitle to one-half of the inheritance
and the brothers and sisters or their children to the other half.

Art. 1004. Should the only survivors be brothers and sisters of the full blood,
they shall inherit in equal shares.

Art. 1005. Should brothers and sisters survive together with nephews and
nieces who are the children of the decedent's brothers and sisters of the full
blood, the former shall inherit per capita, and the latter per stirpes.

Art. 1009. Should there be neither brothers nor sisters, nor children of
brothers and sisters, the other collateral relatives shall succeed to the
estate.

Under the last article (1009), the absence of brothers, sisters, nephews and
nieces of the decedent is a precondition to the other collaterals (uncles,
cousins, etc.) being called to the succession. This was also and more clearly
the case under the Spanish Civil Code of 1889, that immediately preceded
the Civil Code now in force (R.A. 386). Thus, Articles 952 and 954 of the
Code of 1889 prescribed as follows:

Art. 952. In the absence of brothers or sisters and of nephews or nieces,

children of the former, whether of the whole blood or not, the surviving
spouse, if not separated by a final decree of divorce shall succeed to the
entire estate of the deceased.

Art. 954. Should there be neither brothers nor sisters, nor children of
brothers or sisters, nor a surviving spouse, the other collateral relatives shall
succeed to the estate of deceased.

The latter shall succeed without distinction of lines or preference among

them by reason of the whole blood.

It will be seen that under the preceding articles, brothers and sisters and
nephews and nieces inheritedab intestato ahead of the surviving spouse,
while other collaterals succeeded only after the widower or widow. The
present Civil Code of the Philippines merely placed the spouse on a par with
the nephews and nieces and brothers and sisters of the deceased, but
without altering the preferred position of the latter vis a vis the other
collaterals.

xxx xxx xxx

 We, therefore, hold, and so rule, that under our laws of succession, a
decedent's uncles and aunts may not succeed ab intestato so long as
nephews and nieces of the decedent survive and are willing and qualified to
succeed. ...

This conclusion is fortified by the observation, also made in Padura, supra, that as to the
reservable property, thereservatarios do not inherit from the reservista, but from the
descendant praepositus:

... . It is likewise clear that the reservable property is no part of the estate of
the reservista, who may not dispose of it by will, as long as there
are reservatarios existing (Arroyo vs. Gerona, 58 Phil. 237). The latter,
therefore, do not inherit from the reservista, but from the
descendant prepositus, of whom the reservatarios are the heirs mortis
causa, subject to the condition that they must survive the reservista.
(Sanchez Roman, Vol. VI, Tomo 2, p. 286; Manresa, Commentaries, Vol. 6,
6th Ed., pp. 274, 310) ... .

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

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

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

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

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

Upon the stipulated facts, and by virtue of the rulings already cited, the defendant-
appellant Dalisay Tongko-Camacho is entitled to the entirety of the reversionary
property to the exclusion of the plaintiffs-appellees.

WHEREFORE, the appealed judgment of the lower Court is reversed and set aside and
the complaint is dismissed, with costs against the plaintiffs-appellants.
G.R. No. 68843-44 September 2, 1991

MARIQUITA O. SUMAYA and LAGUNA AGRO-INDUSTRIAL COCONUT

COOPERATIVE, INC., petitioners, 
vs.
THE HON. INTERMEDIATE APPELLATE COURT, and AMADEO, SANCHO, DONATO,
LUIS, ERASTO, LUISA, JOSE and DOLORES, all surnamed
BALANTAKBO, respondents.

Ceriaco A. Sumaya for petitioners.

Tomas P. Añonuevo for private respondents.

MEDIALDEA, J.:

This is a petition for review on certiorari of the decision of the Intermediate Appellate
Court (now Court of Appeals) in C.A. G.R. No. CV-01292-93, which affirmed the decision
of the Court of First Instance (now Regional Trial Court) of Laguna in the consolidated
cases in Civil Case No. SC-9561 and Civil Case No. SC-957.2

The parties entered into a stipulation of facts in the court a quo, which is summarized as
follows:

Raul Balantakbo inherited from two (2) different ascendants the two (2) sets of
properties subject of this case: 1) A one-third (1/3) interest, pro-indiviso in a parcel of
land situated in Dita, Lilio (Liliw) Laguna and described in paragraph 7 of the complaint
in Civil Case No. SC-956 from his father Jose, Sr., who died on January 28, 1945; and 2)
A one-seventh (1/7) interest pro-indiviso in ten (10) parcels of registered lands
described in paragraph 6 of the complaint in Civil Case No. SC-957 from his maternal
grandmother, Luisa Bautista, who died on November 3, 1950.

On June 13, 1952, Raul died intestate, single, without any issue, and leaving only his
mother, Consuelo Joaquin Vda. de Balantakbo, as his sole surviving heir to the real
properties above-mentioned.

On November 3, 1952, Consuelo adjudicated unto herself the above described properties
in an Affidavit entitled "Caudal Herederario del finado Raul Balantakbo" which provided,
among others:

I. Que de mi legitimo matrimonio con mi difunto esposo, Jose Balantakbo, he

tenido varios hijos, entre ellos si difunto hijo, llamado Raul Balantakbo.

II. Que mi referido hijo Raul Balantakbo, fallencio el 13 de Junio de 1952, en la

Ciudad de Pasay, durante su minolia de edad sin dejar testamento alguno.

III. Que el finado Raul Balantakbo al morir no ha dejado descendiente alguno.

IV. Que soy la unica ascendiente superviviento de mi referido hijo Raul Balantakbo
y por lo tanto su unica heredera formosa, legitima y universal.

V. Que el finado Raul Balantakbo murio sin dejar deuda alguna.

VI. Que el finado al morir dejo propiedades consistentes en bienes inmuebles

situados en la Provincia de Laguna.

VII. Que dichas propriedades fueron a su vez adquiridas por el finado Raul
Balantakbo per herencia de su difunto padre, Jose Balantakbo, y de su tia abuela
Luisa Bautista.
 x x x           x x x          x x x

(Rollo, p. 29)

On December 21, 1959, Consuelo Joaquin vda. de Balantakbo sold the property
described in Civil Case No. SC-956 to Mariquita H. Sumaya. The sale was evidenced by a
deed attached as Annex "C" to the complaint. The same property was subsequently sold
by Mariquita Sumaya to Villa Honorio Development Corporation, Inc., on December 30,
1963. On January 23, 1967, Villa Honorio Development Corporation transferred and
assigned its rights over the property in favor of Agro-Industrial Coconut Cooperative,
Inc. The documents evidencing these transfers were registered in the Registry of Deeds
of Laguna and the corresponding certificates of titles were issued. The properties are
presently in the name of Agro-Industrial Coconut Cooperative, Inc., 2/3 share and the
remaining 1/3 share is in the name of Sancho Balantakbo.

Also on December 30, 1963, Consuelo Joaquin vda. de Balantakbo sold the properties
described in the complaint in Civil Case No. SC-957 to Villa Honorio Development
Corporation, Inc. The latter in turn transferred and assigned all its rights to the
properties in favor of Laguna Agro-Industrial Coconut Cooperative, Inc. which properties
are presently in its possession.

The parties admit that the certificates of titles covering the above described properties
do not contain any annotation of its reservable character.

On June 3, 1968, Consuelo Joaquin vda. de Balantakbo died.

On March 4, 1970, Amadeo, Sancho, Donato, Luis, and Erasto, all surnamed Balantakbo,
brothers in full blood of Raul Balantakbo and Luisa, Jose and Dolores, also all surnamed
Balantakbo, surviving children of deceased Jose Balantakbo, Jr., another brother of the
first named Balantakbos, filed the above mentioned civil cases to recover the properties
described in the respective complaints which they claimed were subject to a reserva
troncal in their favor.

The court a quo found that the two (2) cases varied only in the identity of the subject
matter of res involved, the transferees, the dates of the conveyances but involve the
same legal question of reserva troncal. Hence, the consolidation of the two (2) cases.

After trial, the court a quo rendered a joint decision in favor of the Balantakbos, the
dispositive portion of which reads:

WHEREFORE, in both Civil Cases Nos. SC-956 and SC-957, judgment is hereby
rendered in favor of the plaintiffs and against the defendants, as follows:

1. Ordering the defendant Laguna Agro-Industrial Coconut Cooperative, Inc. to

convey to the plaintiffs —

a) In Civil Case No. SC-956 — the one-third (1/3) interest and

ownership, pro-indiviso, in and over the parcel of land described in
paragraph three (3) sub-paragraph 1, of pages one (1) and two (2) of this
decision;

b) In Civil Case No. SC-957 — the one-seventh (1/7) interest and

ownership, pro-indiviso, in and over the ten (10) parcels of land described in
paragraph three (3), sub-paragraph 2, of pages two (2) and three (3) of this
decision;

c) The plaintiffs are to share equally in the real properties herein ordered to
be conveyed to them by the defendants with plaintiffs Luisa, Jose and
Dolores, all surnamed Balantakbo, receiving one-third (1/3) of the one share
pertaining to the other plaintiffs who are their uncles:
 2. Ordering the Laguna Agro-Industrial Coconut Cooperative, Inc. to account for
and pay to the plaintiffs the value of the produce from the properties herein
ordered to be returned to the plaintiffs, said accounting and payment of income
being for the period from January 3, 1968 until date of reconveyance of the
properties herein ordered:

3. In each of Civil Cases Nos. SC-956 and SC-957, defendants are to pay plaintiffs
—

a. One Thousand (P1,000.00) Pesos in litigation expenses.

b. Two Thousand (P2,000.00) Pesos in attorney's fees.

4. Defendants are to pay the costs in each of Civil Cases Nos. SC-956 and 957.

x x x           x x x          x x x

(p. 46, Rollo)

This decision was appealed to the appellate court which affirmed the decision of the
court a quo in toto. The motion for reconsideration was denied (p. 65, Rollo) by the
appellate court which found no cogent reason to reverse the decision.

This petition before Us was filed on November 12, 1984 with the petitioners assigning
the following errors allegedly committed by the appellate court:

I. The trial court erred in not finding defendants an (sic) innocent purchaser for
value and in good faith of the properties covered by certificates of title subject of
litigation.

II. The trial court erred in finding it unnecessary to annotate the reservable
interest of the reservee in the properties covered by certificates of title subject of
litigation.

III. The trial court erred in finding that the cause of action of the plaintiffs (private
respondents) has not yet prescribed.

IV. The trial court erred in awarding moral and actual damages in favor of the
plaintiffs by virtue of the institution of Civil Cases Nos. 956 and 957.

Petitioners would want this Court to reverse the findings of the court a quo, which the
appellate court affirmed, that they were not innocent purchasers for value. According to
petitioners, before they agreed to buy the properties from the reservor (also
called reservista), Consuelo Joaquin vda. de Balantakbo, they first sought the legal
advice of their family consultant who found that there was no encumbrance nor any lien
annotated on the certificate of title coveting the properties.

The court a quo found otherwise. Upon the death of the propositus, Raul Balantakbo,
the reservista, Consuelo vda. de Balantakbo caused the registration of an affidavit of
self-adjudication of the estate of Raul, wherein it was clearly stated that the properties
were inherited by Raul from his father Jose, Sr., as regards the subject matter of Civil
Case No. SC-956 and from his maternal grandmother, Luisa Bautista, as regards the
subject matter of Civil Case No. SC-957. The court a quo further ruled that said affidavit
was, in its form, declaration and substance, a recording with the Registry of Deeds of
the reservable character of the properties. In Spanish language, the affidavit clearly
stated that the affiant, Consuelo, was a lone-ascendant and heir to Raul Balantakbo, her
son, who died leaving properties previously inherited from other ascendants and which
properties were inventoried in the said affidavit.

It was admitted that the certificates of titles covering the properties in question show
that they were free from any liens and encumbrances at the time of the sale. The fact
remains however, that the affidavit of self-adjudication executed by Consuelo stating the
source of the properties thereby showing the reservable nature thereof was registered
with the Register of Deeds of Laguna, and this is sufficient notice to the whole world in
accordance with Section 52 of the Property Registration Decree (formerly Sec. 51 of R.A.
496) which provides:

Sec. 52. CONSTRUCTIVE NOTICE UPON REGISTRATION. — Every conveyance,

mortgage, lease, lien attachment, order, judgment, instrument or entry affecting
registered land shall, if registered, filed or entered in the Office of the Register of
Deeds for the province or city where the land to which it relates lies, be
constructive notice to all persons from the time of such registering, filing or
entering.

Thus, in Gatioan v. Gaffud, G.R. No. L-21953, March 28, 1969, 27 SCRA 706, 712-713,
cited in People v. Reyes, G.R. Nos. 74226-27, July 27, 1989, 175 SCRA 597; Garcia v.
CA and PNB v. CA, et al., G.R. Nos. L-48971 and L-40911, both dated January 22, 1980,
95 SCRA 380 and Legarda and Prieto v. Saleeby, 31 Phil. 590, 600, We held:

When a conveyance has been properly recorded such record is constructive notice
of its contents and all interests, legal and equitable, included therein . . .

Under the rule of notice, it is presumed that the purchaser has examined every
instrument of record affecting the title. Such presumption is irrebuttable. He is
charged with notice of every fact shown by the record and is presumed to know
every fact which an examination of the record would have disclosed. This
presumption cannot be overcome by proof of innocence or good faith. Otherwise,
the very purpose and object of the law requiring a record would be destroyed.
Such presumption cannot be defeated by proof of want of knowledge of what the
record contains any more than one may be permitted to show that he was
ignorant of the provisions of the law. The rule that all persons must take notice of
the facts which the public record contains is a rule of law. The rule must be
absolute, any variation would lead to endless confusion and useless litigation. . . .

In the case of Bass v. De la Rama, 73 Phil. 682, 685, the rule was laid down that the
mere entry of a document in the day book without noting it on the certificate of title is
not sufficient registration. However, that ruling was superseded by the holding in the
later six cases of Levin v. Bass, 91 Phil. 420. As explained in Garcia v. CA, et al., G.R.
Nos. L-48971 and 49011, January 20, 1980, 95 SCRA 380, 388, which is the prevailing
doctrine in this jurisdiction.

That ruling was superseded by the holding in the later six cases of Levin v. Bass,
91 Phil. 420, where a distinction was made between voluntary and involuntary
registration, such as the registration of an attachment, levy upon execution, notice
of lis pendens, and the like. In cases of involuntary registration, an entry thereof
in the day book is a sufficient notice to all persons even if the owner's duplicate
certificate of title is not presented to the register of deeds.

On the other hand, according to the said cases of Levin v. Bass, in case of
voluntary registration of documents an innocent purchaser for value of registered
land becomes the registered owner, and, in contemplation of law the holder of a
certificate of title, the moment he presents and files a duly notarized and valid
deed of sale and the same is entered in the day book and at the same time he
surrenders or presents the owner's duplicate certificate of title covering the land
sold and pays the registration fees, because what remains to be done lies not
within his power to perform. The register of deeds is duty bound to perform it.
(See Potenciano v. Dineros, 97 Phil. 196).

In this case, the affidavit of self adjudication executed by Consuelo vda. de Balantakbo
which contained a statement that the property was inherited from a descendant, Raul,
which has likewise inherited by the latter from another ascendant, was registered with
the Registry of Property. The failure of the Register of Deeds to annotate the reservable
character of the property in the certificate of title cannot be attributed to Consuelo.

Moreover, there is sufficient proof that the petitioners had actual knowledge of the
reservable character of the properties before they bought the same from Consuelo. This
matter appeared in the deed of sale (Exhibit "C") executed by Consuelo in favor of
Mariquita Sumaya, the first vendee of the property litigated in Civil Case No. SC-956, as
follows:

x x x           x x x          x x x

That, I (Consuelo, vendor) am the absolute and exclusive owner of the one-third
(1/3) portion of the above described parcel of land by virtue of the Deed of Extra-
judicial Partition executed by the Heirs of the deceased Jose Balantakbo dated
December 10, 1945 and said portion in accordance with the partition above-
mentioned was adjudicated to Raul Balantakbo, single, to (sic) whom I inherited
after his death and this property is entirely free from any encumbrance of any
nature or kind whatsoever, . . . (p. 42, Rollo)

It was admitted though that as regards the properties litigated in Civil Case SC-957, no
such admission was made by Consuelo to put Villa Honorio Development on notice of the
reservable character of the properties. The affidavit of self-adjudication executed by
Consuelo and registered with the Registry would still be sufficient notice to bind them.

Moreover, the Court a quo found that the petitioners and private respondents were long
time acquaintances; that the Villa Honorio Development Corporation and its successors,
the Laguna Agro-Industrial Coconut Cooperative Inc., are family corporations of the
Sumayas and that the petitioners knew all along that the properties litigated in this case
were inherited by Raul Balantakbo from his father and from his maternal grandmother,
and that Consuelo Vda. de Balantakbo inherited these properties from his son Raul.

The obligation to reserve rests upon the reservor, Consuelo Joaquin vda. de Balantakbo.
Article 891 of the New Civil Code on reserva troncal provides:

Art. 891. The ascendant who inherits from his descendant any property which the
latter may have acquired by gratuitous title from another ascendant or a brother
or sister, is obliged to reserve such property as he may have acquired by
operation of law for the benefit of relatives who are within the third degree and
who belong to the line from which said property came. (Emphasis supplied)

We do not agree, however, with the disposition of the appellate court that there is no
need to register the reservable character of the property, if only for the protection of the
reservees, against innocent third persons. This was suggested as early as the case
of Director of Lands v. Aguas, G.R. No. 42737, August 11, 1936, 63 Phil. 279. The main
issue submitted for resolution therein was whether the reservation established by Article
811 (now Art. 891 of the New Civil Code) of the Civil Code, for the benefit of the
relatives within the third degree belonging to the line of the descendant from whom the
ascendant reservor received the property, should be understood as made in favor of all
the relatives within said degree and belonging to the line above-mentioned, without
distinction legitimate, natural and illegitimate ones not having the legal status of natural
children. However, in an obiter dictum this Court stated therein:

The reservable character of a property is but a resolutory condition of the

ascendant reservor's right of ownership. If the condition is fulfilled, that is, if upon
the ascendant reservor's death there are relatives having the status provided in
Article 811 (Art. 891, New Civil Code), the property passes, in accordance with
this special order of succession, to said relatives, or to the nearest of kin among
them, which question not being pertinent to this case, need not now be
determined. But if this condition is not fulfilled, the property is released and will be
adjudicated in accordance with the regular order of succession. The fulfillment or
non-fulfillment of the resolutory condition, the efficacy or cessation of the
 reservation, the acquisition of rights or loss of the vested ones, are phenomena
which have nothing to do with whether the reservation has been noted or not in
the certificate of title to the property. The purpose of the notation is nothing more
than to afford to the persons entitled to the reservation, if any,
due protection against any act of the reservor, which may make it ineffective . . .
(p. 292, Ibid)

Likewise, in Dizon and Dizon v. Galang, G.R. No. 21344, January 14, 1926, 48 Phil. 601,
603, this Court ruled that the reservable character of a property may be lost to innocent
purchasers for value. Additionally, it was ruled therein that the obligation imposed on a
widowed spouse to annotate the reservable character of a property subject of reserva
viudal is applicable to reserva troncal. (See also Edrozo v. Sablan, G.R. No. 6878,
September 13, 1913, 25 Phil. 295).

Since these parcels of land have been legally transferred to third persons, Vicente
Galang has lost ownership thereof and cannot now register nor record in the
Registry of Deeds their reservable character; neither can he effect the fee simple,
which does not belong to him, to the damage of Juan Medina and Teodoro Jurado,
who acquired the said land in good faith, free of all incumbrances. An attempt was
made to prove that when Juan Medina was advised not to buy the land he
remarked, "Why did he (Vicente Galang) not inherit it from his son?" Aside from
the fact that it is not clear whether this conservation took place in 1913 or 1914,
that is, before or after the sale, it does not arise that he had any knowledge of the
reservation. This did not arise from the fact alone that Vicente Galang had
inherited the land from his son, but also from the fact that, by operation of law,
the son had inherited it from his mother Rufina Dizon, which circumstance, so far
as the record shows, Juan Medina had not been aware of. We do not decide,
however, whether or not Juan Medina and Teodoro Jurado are obliged to
acknowledge the reservation and to note the same in their deeds, for the reason
that there was no prayer to this effect in the complaint and no question raised in
regard thereto.

Consistent with the rule in reserva viudal where the person obliged to reserve (the
widowed spouse) had the obligation to annotate in the Registry of Property the
reservable character of the property, in reserva troncal, the reservor (the ascendant who
inherited from a descendant property which the latter inherited from another
descendant) has the duty to reserve and therefore, the duty to annotate also.

The jurisprudential rule requiring annotation in the Registry of Property of the right
reserved in real property subject of reserva viudal insofar as it is applied to reserva
troncal stays despite the abolition of reserva viudal in the New Civil Code. This rule is
consistent with the rule provided in the second paragraph of Section 51 of P.D. 1529,
which provides that: "The act of registration shall be the operative act to convey
or affect the land insofar as third persons are concerned . . ." (emphasis supplied)

The properties involved in this case are already covered by a Torrens title and unless the
registration of the limitation is effected (either actual or constructive), no third persons
shall be prejudiced thereby.

The respondent appellate court did not err in finding that the cause of action of the
private respondents did not prescribe yet. The cause of action of the reservees did not
commence upon the death of the propositus Raul Balantakbo on June 13, 1952 but upon
the death of the reservor Consuelo Vda. de Balantakbo on June 3, 1968. Relatives within
the third degree in whose favor the right (or property) is reserved have no title of
ownership or of fee simple over the reserved property during the lifetime of the
reservor. Only when the reservor should die before the reservees will the latter acquire
the reserved property, thus creating a fee simple, and only then will they take their
place in the succession of the descendant of whom they are relatives within the third
degree (See Velayo Bernardo v. Siojo, G.R. No. 36078, March 11, 1933, 58 Phil. 89).
The reserva is extinguished upon the death of the reservor, as it then becomes a right of
full ownership on the part of the reservatarios, who can bring a reivindicatory suit
therefor. Nonetheless, this right if not exercised within the time for recovery may
prescribe in ten (10) years under the old Code of Civil Procedure (see Carillo v. De Paz,
G.R. No. L-22601, October 28, 1966, 18 SCRA 467, 473) or in thirty years under Article
1141 of the New Civil Code. The actions for recovery of the reserved property was
brought by herein private respondents on March 4, 1970 or less than two (2) years from
the death of the reservor. Therefore, private respondents' cause of action has not
prescribed yet.

Finally, the award of one thousand pesos (P1,000.00) for actual litigation expenses and
two thousand pesos (P2,000.00) for attorney's fees is proper under Article 2208(2) of
the New Civil Code. Private respondents were compelled to go to court to recover what
rightfully belongs to them.

ACCORDINGLY, the petition is DENIED. The questioned decision of the Intermediate

Appellate Court is AFFIRMED, except for the modification on the necessity to annotate
the reversable character of a property subject of reserva troncal.
G.R. No. L-4963             January 29, 1953

MARIA USON, plaintiff-appellee, 
vs.
MARIA DEL ROSARIO, CONCEPCION NEBREDA, CONRADO NEBREDA,
DOMINADOR NEBREDA, AND FAUSTINO NEBREDA, Jr., defendants-appellants.

Priscilo Evangelista for appellee.

Brigido G. Estrada for appellant.

BAUTISTA ANGELO, J.:

This is an action for recovery of the ownership and possession of five (5) parcels of land
situated in the Municipality of Labrador, Province of Pangasinan, filed by Maria Uson
against Maria del Rosario and her four children named Concepcion, Conrado, Dominador,
and Faustino, surnamed Nebreda, who are all of minor age, before the Court of First
Instance of Pangasinan.

Maria Uson was the lawful wife of Faustino Nebreda who upon his death in 1945 left the
lands involved in this litigation. Faustino Nebreda left no other heir except his widow
Maria Uson. However, plaintiff claims that when Faustino Nebreda died in 1945, his
common-law wife Maria del Rosario took possession illegally of said lands thus depriving
her of their possession and enjoyment.

Defendants in their answer set up as special defense that on February 21, 1931, Maria
Uson and her husband, the late Faustino Nebreda, executed a public document whereby
they agreed to separate as husband and wife and, in consideration of their separation,
Maria Uson was given a parcel of land by way of alimony and in return she renounced
her right to inherit any other property that may be left by her husband upon his death
(Exhibit 1).

After trial, at which both parties presented their respective evidence, the court rendered
decision ordering the defendants to restore to the plaintiff the ownership and possession
of the lands in dispute without special pronouncement as to costs. Defendants
interposed the present appeal.

There is no dispute that Maria Uson, plaintiff-appellee, is the lawful wife of Faustino
Nebreda, former owner of the five parcels of lands litigated in the present case. There is
likewise no dispute that Maria del Rosario, one of the defendants-appellants, was merely
a common-law wife of the late Faustino Nebreda with whom she had four illegitimate
children, her now co-defendants. It likewise appears that Faustino Nebreda died in 1945
much prior to the effectivity of the new Civil Code. With this background, it is evident
that when Faustino Nebreda died in 1945 the five parcels of land he was seized of at the
time passed from the moment of his death to his only heir, his widow Maria Uson (Article
657, old Civil Code).As this Court aptly said, "The property belongs to the heirs at the
moment of the death of the ancestor as completely as if the ancestor had executed and
delivered to them a deed for the same before his death" (Ilustre vs. Alaras Frondosa, 17
Phil., 321). From that moment, therefore, the rights of inheritance of Maria Uson over
the lands in question became vested.

The claim of the defendants that Maria Uson had relinquished her right over the lands in
question because she expressly renounced to inherit any future property that her
husband may acquire and leave upon his death in the deed of separation they had
entered into on February 21, 1931, cannot be entertained for the simple reason that
future inheritance cannot be the subject of a contract nor can it be renounced (1
Manresa, 123, sixth edition; Tolentino on Civil Code, p. 12; Osorio vs. Osorio and
Ynchausti Steamship Co., 41 Phil., 531).

But defendants contend that, while it is true that the four minor defendants are
illegitimate children of the late Faustino Nebreda and under the old Civil Code are not
entitled to any successional rights, however, under the new Civil Code which became in
force in June, 1950, they are given the status and rights of natural children and are
entitled to the successional rights which the law accords to the latter (article 2264 and
article 287, new Civil Code), and because these successional rights were declared for the
first time in the new code, they shall be given retroactive effect even though the event
which gave rise to them may have occurred under the prior legislation (Article 2253,
new Civil Code).

There is no merit in this claim. Article 2253 above referred to provides indeed that rights
which are declared for the first time shall have retroactive effect even though the event
which gave rise to them may have occurred under the former legislation, but this is so
only when the new rights do not prejudice any vested or acquired right of the same
origin. Thus, said article provides that "if a right should be declared for the first time in
this Code, it shall be effective at once, even though the act or event which gives rise
thereto may have been done or may have occurred under the prior legislation, provided
said new right does not prejudice or impair any vested or acquired right, of the same
origin." As already stated in the early part of this decision, the right of ownership of
Maria Uson over the lands in question became vested in 1945 upon the death of her late
husband and this is so because of the imperative provision of the law which commands
that the rights to succession are transmitted from the moment of death (Article 657, old
Civil Code). The new right recognized by the new Civil Code in favor of the illegitimate
children of the deceased cannot, therefore, be asserted to the impairment of the vested
right of Maria Uson over the lands in dispute.

As regards the claim that Maria Uson, while her deceased husband was lying in state, in
a gesture of pity or compassion, agreed to assign the lands in question to the minor
children for the reason that they were acquired while the deceased was living with their
mother and Maria Uson wanted to assuage somewhat the wrong she has done to them,
this much can be said; apart from the fact that this claim is disputed, we are of the
opinion that said assignment, if any, partakes of the nature of a donation of real
property, inasmuch as it involves no material consideration, and in order that it may be
valid it shall be made in a public document and must be accepted either in the same
document or in a separate one (Article 633, old Civil Code). Inasmuch as this essential
formality has not been followed, it results that the alleged assignment or donation has
no valid effect. WHEREFORE, the decision appealed from is affirmed, without costs.
G.R. No. L-9374             February 16, 1915

FRANCISCO DEL VAL, ET AL., plaintiffs-appellants, 

vs.
ANDRES DEL VAL, defendant-appellee.

Ledesma, Lim and Irureta Goyena for appellants. 

O'Brien and DeWitt for appellee.

MORELAND, J.:

This is an appeal from a judgment of the Court of First Instance of the city of Manila
dismissing the complaint with costs.

The pleadings set forth that the plaintiffs and defendant are brother and sisters; that
they are the only heirs at law and next of kin of Gregorio Nacianceno del Val, who died
in Manila on August 4, 1910, intestate; that an administrator was appointed for the
estate of the deceased, and, after a partial administration, it was closed and the
administrator discharged by order of the Court of First Instance dated December 9,
1911; that during the lifetime of the deceased he took out insurance on his life for the
sum of P40,000 and made it payable to the defendant as sole beneficiary; that after his
death the defendant collected the face of the policy; that of said policy he paid the sum
of P18,365.20 to redeem certain real estate which the decedent had sold to third
persons with a right to repurchase; that the redemption of said premises was made by
the attorney of the defendant in the name of the plaintiff and the defendant as heirs of
the deceased vendor; that the redemption of said premises they have had the use and
benefit thereof; that during that time the plaintiffs paid no taxes and made no repairs.

It further appears from the pleadings that the defendant, on the death of the deceased,
took possession of most of his personal property, which he still has in his possession,
and that he has also the balance on said insurance policy amounting to P21,634.80.

Plaintiffs contend that the amount of the insurance policy belonged to the estate of the
deceased and not to the defendant personally; that, therefore, they are entitled to a
partition not only of the real and personal property, but also of the P40,000 life
insurance. The complaint prays a partition of all the property, both real and personal,
left by the deceased; that the defendant account for P21,634.80, and that that sum be
divided equally among the plaintiffs and defendant along with the other property of
deceased.

The defendant denies the material allegations of the complaint and sets up as special
defense and counterclaim that the redemption of the real estate sold by his father was
made in the name of the plaintiffs and himself instead of in his name alone without his
knowledge or consent; and that it was not his intention to use the proceeds of the
insurance policy for the benefit of any person but himself, he alleging that he was and is
the sole owner thereof and that it is his individual property. He, therefore, asks that he
be declared the owner of the real estate redeemed by the payment of the P18,365.20,
the owner of the remaining P21,634.80, the balance of the insurance policy, and that
the plaintiff's account for the use and occupation of the premises so redeemed since the
date of the redemption.

The learned trial court refused to give relief to either party and dismissed the action.

It says in its opinion: "This purports to be an action for partition, brought against an heir
by his coheirs. The complaint, however, fails to comply with Code Civ., Pro. sec. 183, in
that it does not 'contain an adequate description of the real property of which partition is
demanded.' Because of this defect (which has not been called to our attention and was
discovered only after the cause was submitted) it is more than doubtful whether any
relief can be awarded under the complaint, except by agreement of all the parties."
This alleged defect of the complaint was made one of the two bases for the dismissal of
the action.

We do not regard this as sufficient reason for dismissing the action. It is the doctrine of
this court, set down in several decisions, Lizarraga Hermanos vs. Yap Tico, 24 Phil. Rep.,
504, that, even though the complaint is defective to the extent of failing in allegations
necessary to constitute a cause of action, if, on the trial of the cause, evidence is offered
which establishes the cause of action which the complaint intended to allege, and such
evidence is received without objection, the defect is thereby cured and cannot be made
the ground of a subsequent objection. If, therefore, evidence was introduced on the trial
in this case definitely and clearly describing the real estate sought to be partitioned, the
defect in the complaint was cured in that regard and should not have been used to
dismiss the action. We do not stop to inquire whether such evidence was or was not
introduced on the trial, inasmuch as this case must be turned for a new trial with
opportunity to both parties to present such evidence as is necessary to establish their
respective claims.

The court in its decision further says: "It will be noticed that the provision above quoted
refers exclusively to real estate. . . . It is, in other words, an exclusive real property
action, and the institution thereof gives the court no jurisdiction over chattels. . . . But
no relief could possibly be granted in this action as to any property except the last (real
estate), for the law contemplated that all the personal property of an estate be
distributed before the administration is closed. Indeed, it is only in exceptional cases
that the partition of the real estate is provided for, and this too is evidently intended to
be effected as a part of the administration, but here the complaint alleges that the
estate was finally closed on December 9, 1911, and we find upon referring to the record
in that case that subsequent motion to reopen the same were denied; so that the matter
of the personal property at least must be considered res judicata (for the final judgment
in the administration proceedings must be treated as concluding not merely what was
adjudicated, but what might have been). So far, therefore, as the personal property at
least is concerned, plaintiffs' only remedy was an appeal from said order."

We do not believe that the law is correctly laid down in this quotation. The courts of the
Islands have jurisdiction to divide personal property between the common owners
thereof and that power is as full and complete as is the power to partition real property.
If an actual partition of personal property cannot be made it will be sold under the
direction of the court and the proceeds divided among the owners after the necessary
expenses have been deducted.

The administration of the estate of the decedent consisted simply, so far as the record
shows, in the payment of the debts. No division of the property, either real or personal,
seems to have been made. On the contrary, the property appears, from the record, to
have been turned over to the heirs in bulk. The failure to partition the real property may
have been due either to the lack of request to the court by one or more of the heirs to
do so, as the court has no authority to make a partition of the real estate without such
request; or it may have been due to the fact that all the real property of decedent had
been sold under pacto de retro and that, therefore, he was not the owner of any real
estate at the time of his death. As to the personal property, it does not appear that it
was disposed of in the manner provided by law. (Sec. 753, Code of Civil Procedure.) So
far as this action is concerned, however, it is sufficient for us to know that none of the
property was actually divided among the heirs in the administration proceeding and that
they remain coowners and tenants-in- common thereof at the present time. To maintain
an action to partition real or personal property it is necessary to show only that it is
owned in common.

The order finally closing the administration and discharging the administrator, referred
to in the opinion of the trial court, has nothing to do with the division of either the real
or the personal property. The heirs have the right to ask the probate court to turn over
to them both the real and personal property without division; and where that request is
unanimous it is the duty of the court to comply with it, and there is nothing in section
753 of the Code of Civil Procedure which prohibits it. In such case an order finally
settling the estate and discharging the administrator would not bar a subsequent action
to require a division of either the real or personal property. If, on the other hand, an
order had been made in the administration proceedings dividing the personal or the real
property, or both, among the heirs, then it is quite possible that, to a subsequent action
brought by one of the heirs for a partition of the real or personal property, or both, there
could have been interposed a plea of res judicata based on such order. As the matter
now stands, however, there is no ground on which to base such a plea. Moreover, no
such plea has been made and no evidence offered to support it.

With the finding of the trial court that the proceeds of the life-insurance policy belong
exclusively to the defendant as his individual and separate property, we agree. That the
proceeds of an insurance policy belong exclusively to the beneficiary and not to the
estate of the person whose life was insured, and that such proceeds are the separate
and individual property of the beneficiary, and not of the heirs of the person whose life
was insured, is the doctrine in America. We believe that the same doctrine obtains in
these Islands by virtue of section 428 of the Code of Commerce, which reads:

The amount which the underwriter must deliver to the person insured, in
fulfillment of the contract, shall be the property of the latter, even against the
claims of the legitimate heirs or creditors of any kind whatsoever of the person
who effected the insurance in favor of the former.

It is claimed by the attorney for the plaintiffs that the section just quoted is subordinate
to the provisions of the Civil Code as found in article 1035. This article reads:

An heir by force of law surviving with others of the same character to a succession
must bring into the hereditary estate the property or securities he may have
received from the deceased during the life of the same, by way of dowry, gift, or
for any good consideration, in order to compute it in fixing the legal portions and
in the account of the division.

Counsel also claim that the proceeds of the insurance policy were a donation or gift
made by the father during his lifetime to the defendant and that, as such, its ultimate
destination is determined by those provisions of the Civil Code which relate to donations,
especially article 819. This article provides that "gifts made to children which are not
betterments shall be considered as part of their legal portion."

We cannot agree with these contentions. The contract of life insurance is a special
contract and the destination of the proceeds thereof is determined by special laws which
deal exclusively with that subject. The Civil Code has no provisions which relate directly
and specifically to life- insurance contracts or to the destination of life insurance
proceeds. That subject is regulated exclusively by the Code of Commerce which provides
for the terms of the contract, the relations of the parties and the destination of the
proceeds of the policy.

The proceeds of the life-insurance policy being the exclusive property of the defendant
and he having used a portion thereof in the repurchase of the real estate sold by the
decedent prior to his death with right to repurchase, and such repurchase having been
made and the conveyance taken in the names of all of the heirs instead of the defendant
alone, plaintiffs claim that the property belongs to the heirs in common and not to the
defendant alone.

We are not inclined to agree with this contention unless the fact appear or be shown that
the defendant acted as he did with the intention that the other heirs should enjoy with
him the ownership of the estate — in other words, that he proposed, in effect, to make a
gift of the real estate to the other heirs. If it is established by the evidence that that was
his intention and that the real estate was delivered to the plaintiffs with that
understanding, then it is probable that their contention is correct and that they are
entitled to share equally with the defendant therein. If, however, it appears from the
evidence in the case that the conveyances were taken in the name of the plaintiffs
without his knowledge or consent, or that it was not his intention to make a gift to them
of the real estate, then it belongs to him. If that facts are as stated, he has two
remedies. The one is to compel the plaintiffs to reconvey to him and the other is to let
the title stand with them and to recover from them the sum he paid on their behalf.

For the complete and proper determination of the questions at issue in this case, we are
of the opinion that the cause should be returned to the trial court with instructions to
permit the parties to frame such issues as will permit the settlement of all the questions
involved and to introduce such evidence as may be necessary for the full determination
of the issues framed. Upon such issues and evidence taken thereunder the court will
decide the questions involved according to the evidence, subordinating his conclusions of
law to the rules laid down in this opinion.

We do not wish to be understood as having decided in this opinion any question of fact
which will arise on the trial and be there in controversy. The trial court is left free to find
the facts as the evidence requires. To the facts as so found he will apply the law as
herein laid down.

The judgment appealed from is set aside and the cause returned to the Court of First
Instance whence it came for the purpose hereinabove stated. So ordered.
G.R. No. 70722             July 3, 1991

CANUTA PAGKATIPUNAN, FLORA VELASQUEZ, BENJAMIN VELASQUEZ,

RODOLFO VELASQUEZ, ALFREDO VELASQUEZ, NAPOLEON VELASQUEZ, MANUEL
VELASQUEZ, JULIO VELASQUEZ, VICTORIA VELASQUEZ, CARLOS VELASQUEZ,
LEONOR VELASQUEZ, ELENA VELASQUEZ, PATROCINIO VELASQUEZ, PATRICIA
VELASQUEZ, SANTIAGO ZAPANTA, HERMINIGILDO SISON, ALFREDO AGAPITO,
MOISES SANTOS, MAGDALENA PAGKATIPUNAN, AGAPITO MANALO, MIGUEL
ANGELES, MATIAS ALVAREZ, PATRICIO LAYSA, TEOFILO DE LUNA, ISIDRO
ANINAO, APOLINAR CASAL, MOISES GALLARDO, BONIFACIO PEREZ, DELFIN
LAYBA, AND HERMOGENES FLORES, petitioners, 
vs.
HON. INTERMEDIATE APPELLATE COURT, JOSE R. VELASQUEZ, JR., LOURDES
VELASQUEZ, EDGARDO VELASQUEZ, LOLITA VELASQUEZ, MINERVA VELASQUEZ,
CYNTHIA VELASQUEZ, CESAR GONZALES, ADOLFO GONZALES, EVELYN
GONZALES, AMELITA GONZALES, RUBEN GONZALES, AND CARMENCITA
GONZALES, respondents.

Bengzon, Zarraga, Narciso, Cudala, Pecson, Ascuna & Bengson for petitioners.
Tomas P. Añonuevo for private respondents.

MEDIALDEA, J.:

This petition for certiorari seeks to nullify the decision of the Intermediate Appellate

Court (now Court of Appeals) in AC-G.R. CV No. 68431 dated February 7, 1986,
affirming the decision of the Court of First Instance (now Regional Trial Court) of
Laguna, Branch II, Santa Cruz, Laguna, in Civil Case No. SC-894, the dispositive portion
of which reads:

WHEREFORE, the appealed decision of the lower court is affirmed, with the
following modification:

The entire house and lot on West Avenue, Quezon City, shall be divided as follows:

One-half value of said house and lot to defendant-appellant Canuta Pagkatipunan

and her 13 co-defendants-appellants children (now petitioners) to the extent of
their respective proportional contributions as stated above; and

The other one-half value of the said house and lot goes to the second conjugal
partnership of the deceased husband and his second spouse Canuta Pagkatipunan
to be partitioned one-fourth to Canuta Pagkatipunan and the other one-fourth
appertaining to the deceased Jose Velasquez, Sr. to be divided equally among his
18 heirs as follows:

1/18 undivided portion to Canuta Pagkatipunan;

1/18 undivided portion to the plaintiff-appellee Lourdes Velasquez;

1/18 undivided portion to the plaintiffs-appellees Edgardo, Lolita, Minerva,

Cynthia, and Jennifer, all surnamed Velasquez;

1/18 undivided portion to the plaintiffs-appellee Teresa Magtibay and her children,
Ricardo, Lourdes, Celia and Aida, all surnamed Velasquez;

1/1 8 undivided portion to the plaintiffs-appellees Cesar, Adolfo, Evelyn, Angelita,

Ruben, and Carmencita, all surnamed Gonzales;
 1/18 undivided portion to each of the 13 defendants-appellants Flora, Leonor,
Patrocinio, Benjamin, Rodolfo, Alfredo, Napoleon, Manuel, Julio, Elena, Patricia,
Victoria, and Carlos, all surnamed Velasquez.

SO ORDERED. (p. 55, Rollo)

The facts from the records are as follows:

The principal litigants in this case are the successors- in-interest of Jose Velasquez, Sr.
who died intestate on February 24, 1961. Petitioner Canuta Pagkatipunan is the
surviving spouse of Jose Velasquez, Sr. and the other 13 petitioners are their children
namely: Flora, Leonor, Patrocinio, Julio, Benjamin, Rodolfo, Alfredo, Napoleon, Manuel,
Elena, Patricia, Victoria and Carlos. On the other hand, the private respondents are the
descendants of Jose Velasquez, Sr. with his first wife Victorina Real who died in 1920 at
Santa Cruz, Laguna. Private respondents Jose Velasquez, Jr. (substituted after his death
during the pendency of this suit by his surviving spouse Teresa Magtibay and their
children Ricardo, Lourdes, Celia and Aida), and Lourdes Velasquez are two of the five
children of Jose Velasquez, Sr. and Victorina Real. The other three, Amelia, Guillermo
and Lutgarda, all surnamed Velasquez, all died before the commencement of this case.
Amelia Velasquez died without any issue. Guillermo Velasquez was survived by private
respondents Edgardo, Lolita, Minerva, Cynthia and Jennifer, all surnamed Velasquez, his
children, forced heirs and lawful successors-in-interest. Lutgarda Velasquez was survived
by private respondents Cesar, Adolfo, Evelyn, Amelita, Ruben and Carmencita, all
surnamed Gonzales, likewise her children, forced heirs and successors-in-interest.

This case was judicially instituted by the private respondents against the petitioners in
1969 in a complaint entitled "accion reivindicatoria, annulment of deeds of sale, partition
and damages." However, both the trial and the appellate courts considered that the real
controversy in this case is the liquidation of the conjugal partnership properties acquired
by the deceased Jose Velasquez, Sr. in his two marriages, one with Victorina Real, who
predeceased him, and the other with Canuta Pagkatipunan, as well as the partition of
the estate of said Jose Velasquez, Sr. among his heirs.

It appears that after the death of Victorina Real in 1920, no dissolution of the first
conjugal property has been made. Consequently, Jose Velasquez, Sr. enjoyed full
possession, use, usufruct and administration of the whole conjugal property of the first
marriage.

In 1930, Jose Velasquez, Sr. took Canuta Pagkatipunan as his second wife although they
cohabited as early as 1921, when she was 16, soon after his first wife's death. From this
marriage, the other 13 co-petitioners were born. Neither had there been any liquidation
of the second conjugal partnership after the death of Jose Velasquez, Sr. in 1961. This
situation gave rise to the controversies in the instant case spawned by the parties'
conflicting claims from both sides of the two marriages.

The trial court appointed two sets of commissions — one on January 31, 1975, for the
purpose of making an inventory of the estate of Jose Velasquez, Sr., and the other on
November 15, 1976, to determine which of the parcels of land listed in such inventory
submitted by the first set of commissioners belong to the conjugal partnership of the
first marriage or to the conjugal partnership of the second marriage.

Based on the Report and Inventory submitted on May 29, 1975, the commissioners
listed the following properties as acquired by the late Jose Velasquez, Sr. during his
marriage with Victorina Real:

1. Tax Declaration No. 2718. A riceland, located in Luya and with an area of
93,662 square meters;

2. Tax Declaration No. 3125. A Secano land located in Luya and with an area of
12,540 square meters;
3. Tax Declaration No. 2623. A Cocal and Forestal, situated in Salang-Bato
(Macasipac) and with an area of 500,000 square meters;

4. Tax Declaration No. 2096. A riceland, situated in Islang Munti and with an area
of 40,328 square meters;

5. A Cocal and Forestal land situated in Bankang Bato containing an area of

240,000 square meters;

6. Tax Declaration No. 4251. A Cocal, Secano and Cogonal land situated in
Cambuja and containing an area of 163,121 square meters;

7. Tax Declaration No. 1342. A parcel of land situated in Bagumbayan and

containing an area of 80,258 square meters;

8. Tax Declaration No. 3541. A Cocal and Secano land, situated in Bagumbayan
and containing an area of 20 hectares;

(Total area as surveyed is 392,503 square meters. This includes the area of the
land stated in Item 7 of the Inventory).

9. Tax Declaration No. 82. A Cogonal land situated in Tungkod (Ikalong Tumid),
containing an area of 385,324 square meters;

10. Tax Declaration No. 1500. A riceland, situated in Pague, containing an area of
9,228 square meters;

11. Tax Declaration No. 5688

a) A parcel of land situated in NAPSE (Masinao), containing an area of

24,725 square meters;

b) A parcel of land situated in NAPSE (Masinao), containing an area of

25,000 square meters;

12. Tax Declaration No. 543. A parcel of land situated in Gomez Street, containing
an area of 755 square meters;

13. Tax Declaration No. 4139. A parcel of land situated in Caboan, containing an
area of 367.2 square meters;

14. Tax Declaration No. 4139. A parcel of land situated in Caboan, containing an
area of 367.2 square meters.

15. Tax Declaration No. 4139. A parcel of land situated in Caboan, containing an
area of 367.2 square meters.

16. Tax Declaration No. 4139. A parcel of land situated in Caboan, containing an
area of 367.2 square meters.

17. Tax Declaration No. 4139. A parcel of land situated in Caboan, containing an
area of 1,275 square meters.

18. Tax Declaration No. 804-A. Three parcels of land situated in Salang Bato,
containing an area of 450,000 square meters;

19. Tax Declaration No. 2560. A parcel of land situated in Salang Bato which area
is included in item no. 18.

20. A parcel of land situated in Burgos St. (Papers cannot be located but subject
lot is known to both parties).
 21. A parcel of land situated in Burgos St., containing an area of 5,000 square
meters. (Papers cannot be located but subject lot is known to both parties).

22. A parcel of land situated in Gomez St., containing an area of 300 square
meters. (Papers cannot be located but subject lot is known to both parties).

23. A parcel of land situated in Gomez St., containing an area of 1,050 square
meters. (Papers cannot be located but subject lot is known to both parties).

24. A parcel of land situated in Gomez St. (Papers cannot be located but subject
lot is known to both parties).

25. A parcel of land situated in Zamora St., containing an area of 3,605. (Papers
cannot be located but subject lot is known to both parties).

26. Tax Declaration No. 2412: A parcel of land situated in Caboan, containing an
area of 12,867 square meters;

27. A parcel of land situated in Dra. Amelia St.

On the other hand, the commissioners listed the following properties as acquired by Jose
Velasquez, Sr. on February 11, 1921 or after the death of Victorina Real:

28. Tax Declaration No. 2547. A parcel of land situated in Barandilla, containing an
area of 21,566 square meters;

29. A parcel of land situated in Barandilla, containing an area of 93.191 square

meters. (Commissioner's Inventory, Rollo, pp. 355-360)

Worth noting are the following findings of the commissioners:

3) That among the properties acquired by the late Jose Velasquez, Sr. during his
lifetime, only the one mentioned in Item 7 of the Inventory (Annex "A") is still
intact. It is situated in Bagumbayan, Sta. Maria, Laguna, and is containing an area
of 80,258 square meters, more or less;

4) That Item 8 of the Inventory is only 200,000 square meters, more or less in
Tax Declaration No. 3541, but as per Survey caused by the defendants (which is
not yet approved) it contains an area of 330,345 square meters. That the Tax
Declaration of said parcel of land is under the name of Canuta Pagkatipunan, but
plaintiff Jose Velasquez, Jr. is the one in possession of said property. That the area
as contained in the Survey includes the area of the land mentioned in Item 7 of
the Inventory (80,258 sq. m.);

5) That the other properties of the late Jose Velasquez Sr. were disposed of by the
said decedent during his lifetime and some were sold and/or disposed of by the
parties and heirs of the late Jose Velasquez, Sr.;

6) That the Barandilla properties, as evidenced by the Venta Absoluta dated

February 11, 1921 executed by Pedro Villanueva in favor of Jose Velasquez Sr.,
were disposed of portion by portion. It was sold by the late Jose Velasquez who
disposed of some portions and the rest by either the plaintiffs or defendants. An
area of 11,200 square meters more or less was DONATED (donacion propter
Nupcias) in favor of Canuta Pagkatipunan by the decedent Jose Velasquez, Sr. as
evidenced by Kasulatan ng Panibagong Documento Donacion Propter Nupcias
notarized under Inst. 135; Page 47; Book 1; Series of 1947 of Notary Public
Bonifacio de Ramos;

7) That the parcels of land appearing in Items 5 and 6 of the Inventory (Annex
"A") were DONATED by the late Jose Velasquez Sr. to Guillermo Velasquez;
 8) That parcels of land mentioned in Items 18 and 19 of the Inventory (Annex "A")
were DONATED by the late Jose Velasquez, Sr. to Jose Velasquez, Jr. Said
properties were sold by the Donee to Sps. Santiago Recio and Filomena
Dimaculangan;

9) The property mentioned in Item 27, page 3 of the Inventory was given by the
late Jose Velasquez, Sr. to one of his daughters, Dra. Amelia Velasquez while she
was still living and now owned by her heirs;

10) A residential lot at 7 West Avenue, Quezon City, titled in the name of Canuta
Pagkatipunan, was acquired from the PHHC (People's Homesite and Housing
Corporation, now National Housing Authority) and presently occupied by the
defendants. (Rollo, pp. 351-353)

There is divergence of findings and opinion among the three members of the second set
of commissioners with respect to the properties covered by Items 7 and 8 and the
property in the unnumbered item relating to Lot 2-A West Avenue, Quezon City and the
house thereon of the Inventory submitted by the first set of commissioners. They refuse
to make findings as to the nature of the properties because the petitioners had caused
the issuance of titles covering said properties. However, all the commissioners were in
agreement that all the other properties listed in the Inventory belonged to the conjugal
partnership of the first marriage.

The records before Us will show that the properties covered by items 7 and 8 were
originally declared for taxation purposes in the names of the spouses Real and
Velasquez. This has been admitted by Canuta Pagkatipunan during the hearing before
the Commissioner and is duly supported by documentary evidence.

After the death of Jose Velasquez, Sr. the full possession of said property was acquired
by Canuta Pagkatipunan. On March 4, 1967, she sold the same property to the spouses
Moises Santos and Magdalena Pagkatipunan, her brother-in-law and sister, respectively
(they were previously impleaded in the trial court as party-defendants). Subsequently,
Tax Declaration No. 4843 was issued in the names of the said spouses who later resold
the same property to Canuta Pagkatipunan. Thereafter, tax declaration covering said
property was issued in her name, During the pendency of this suit, this property was
subdivided and assigned by Canuta Pagkatipunan in favor of her thirteen children. The
latter caused the issuance of separate free patent titles in their favor covering the
subdivided lots conveyed to them by their mother. Original Certificates of Title Nos. P-
2000 to P-2012 were accordingly issued in their names.

With regard to the West Avenue property it is not disputed that said residential lot was
purchased on installments from People's Homesite and Housing Corporation (now
National Housing Authority) by the spouses Jose Velasquez Sr. and Canuta
Pagkatipunan. The installments were paid by the said spouses until Jose Velasquez, Sr.
died on February 24, 1961. Canuta Pagkatipunan, with the help of some of her children,
shouldered the payment of the remaining installments until said property was fully paid
in 1965. On February 23, 1968, the PHHC executed a deed of absolute sale conveying
the said house and lot to Canuta Pagkatipunan.

On August 11, 1980, a judgment was rendered by the trial court:

1) Declaring the properties listed in the Inventory submitted by the Commissioners

on May 9, 1975, as belonging to the estate of the conjugal partnership of the
deceased spouses Jose Velasquez, Sr. and Victorina Real;

2) Confirming all the conveyances, either by way of sale or donation, executed by

Jose Velasquez, Sr. during his lifetime;

3) Declaring null and void, sham and fictitious, the following sales, transfers,
assignments or conveyances: (a) the sale executed by Canuta Pagkatipunan in
favor of her sister Magdalena Pagkatipunan in favor of Canuta Pagkatipunan (sic);
 (b) the deeds of assignments executed by Canuta Pagkatipunan in favor of her
children, covering the properties listed in Items 7 and 8 of the Inventory; and
ordering defendants (petitioners) to reconvey in favor of the plaintiffs (private
respondents) the parcels of land covered by Patent Titles Nos. P-2000 to P-2012;

4) Declaring as null, fictitious and fraudulent the sales by Canuta Pagkatipunan in

favor of her children and her sister Magdalena Pagkatipunan and brother-in-law
Moises Santos, listed in paragraph 13 of the Amended Complaint; declaring the
plaintiffs owners of the said properties; and ordering the defendant Canuta
Pagkatipunan and her children-defendants to deliver possession of said properties
to the plaintiffs;

5) Ordering the partition of the house and lot in West Avenue, Quezon City in the
following manner:

(a) One-half undivided portion to defendant Canuta Pagkatipunan; and the

other half appertaining to Jose Velasquez, Sr. to be divided among his heirs,
to wit:

1/18 undivided portion to Canuta Pagkatipunan;

1/18 undivided portion to Lourdes Velasquez;

1/18 undivided portion to the plaintiffs Edgardo, Lolita, Minerva, Cynthia and
Jennifer, all surnamed Velasquez;

1/18 undivided portion to the plaintiffs Teresa Magtibay and her children
Ricardo, Lourdes, Celia and Aida, all surnamed Velasquez;

1/18 undivided portion to the plaintiffs Cesar, Adolfo, Evelyn, Angelita,

Ruben and Carmencita, all surnamed Gonzales;

1/18 undivided portion to each of the defendants Flora, Leonor, Patrocinio,

Benjamin, Rodolfo, Alfredo, Napoleon, Manuel, Julio, Elena, Patricia, Victoria
and Carlos, all surnamed Velasquez;

Petitioners appealed to the respondent Intermediate Appellate Court.

On February 7, 1985, the Intermediate Appellate Court, Third Civil Cases Division
promulgated a decision, affirming the decision of the trial court, with the modification
that the entire house and lot in West Avenue, Quezon City be divided into two; one-half
value to the petitioners Canuta Pagkatipunan and her 13 children to the extent of their
respective proportional contributions and the other half value, to the second conjugal
partnership of Jose Velasquez, Sr. and Canuta Pagkatipunan to be partitioned one-fourth
to the wife and the other one-fourth appertaining to the deceased Jose Velasquez, Sr. to
be divided equally among his heirs.

Hence, this instant petition for review pointing out the following four (4) assignments of
error, to wit:

THE TRIAL COURT ERRED IN HOLDING THAT THE ENTIRE ESTATE LISTED IN THE
INVENTORY SUBMITTED BY THE COMMISSIONERS ON MAY 9, 1975 AS
BELONGING TO THE DECEASED SPOUSES JOSE VELASQUEZ, SR. AND VICTORINA
REAL.

II
 THAT THE LOWER COURT ERRED IN CONFIRMING ALL THE CONVENYANCES
EITHER BY WAY OF SALE OR DONATION EXECUTED BY JOSE VELASQUEZ, SR.
DURING HIS LIFETIME.

III

THAT THE LOWER COURT ERRED IN DECLARING NULL AND VOID, SHAM AND
FICTITIOUS THE FOLLOWING SALES: a) THE SALE EXECUTED BY CANUTA
PAGKATIPUNAN IN FAVOR OF HER SISTER MAGDALENA PAGKATIPUNAN AND
BROTHER-IN-LAW MOISES SANTOS; b) THE RESALE EXECUTED BY MOISES
SANTOS AND MAGDALENA PAGKATIPUNAN IN FAVOR OF CANUTA
PAGKATIPUNAN; c) THE DEEDS OF ASSIGNMENT EXECUTED BY CANUTA
PAGKATIPUNAN IN FAVOR OF HER CHILDREN: COVERING THE PROPERTIES
LISTED IN ITEMS 7 AND 8 OF THE INVENTORY; AND ORDERING DEFENDANT-
APPELLANT CANUTA PAGKATIPUNAN AND HER CHILDREN DEFENDANTS-
APPELLANTS TO RECONVEY IN FAVOR OF THE PLAINTIFFS-APPELLEES THE
PARCELS OF LAND COVERED BY PATENT TITLES NOS. P2-000 TO P-2012.

IV

THAT THE TRIAL COURT ERRED IN ORDERING THE PARTITION OF THE HOUSE
AND LOT IN WEST AVENUE, QUEZON CITY, ONE-HALF UNDIVIDED PORTION TO
DEFENDANT-APPELLANT CANUTA PAGKATIPUNAN AND THE OTHER HALF TO JOSE
VELASQUEZ, SR. (pp. 21-22, Rollo)

After a careful review of the records and the arguments presented by both parties, the
Court finds that both the trial court and the respondent Intermediate Appellate Court
failed to consider some basic principles observed in the law on succession Such an
oversight renders the appealed decision defective and hard to sustain.

It is a basic rule that before any conclusion about the legal share due to the heirs may
be reached, it is necessary that certain steps be taken first. In the assailed decision, the
respondent court affirmed the trial court's ruling, that Jose Velasquez, Sr. had already
disposed of and exhausted his corresponding share in the conjugal partnership owned by
him and Victorina Real, so that his heirs have nothing more to inherit from him, and that
accordingly, whatever remaining portion of the conjugal property must necessarily
appertain only to the private respondents as heirs of the deceased Victorina Real.
Clearly, the trial court failed to consider among others, the following provisions of the
Civil Code:

Art. 908. To determine the legitime, the value of the property left at the death of
the testator shall be considered, deducting all debts and charges, which shall not
include those imposed in the will.

To the net value of the hereditary estate, shall be added the value of all donations
by the testator that are subject to collation, at the time he made them.

Art. 1061. Every compulsory heir, who succeeds with other compulsory heirs,
must bring into the mass of the estate any property or right which he may have
received from the decedent, during the lifetime of the latter, by way of donation,
or any other gratuitous title, in order that it may be computed in the
determination of the legitime of each heir, and in the account of the partition.

It is undeniable that numerous donations inter vivos were made by Jose Velasquez, Sr.

in favor of some of his compulsory heirs. They include among others, the donation made
in favor of Guillermo Velasquez on February 26,1953, consisting of 403,000 square
meters (Items 5 and 6); the donation made in 1926 in favor of Jose Velasquez, Jr.,
consisting of 450,000 square meters (Item No. 18); the donation in favor of Amelia
Velasquez (Item No. 27); and the donation in favor of Canuta Pagkatipunan, consisting
of 11,000 square meters (part of Item No. 29) (Commissioner's Report, Rollo, pp. 355-
360).
It appears that there was no determination whatsoever of the gross value of the
conjugal properties of Jose Velasquez, Sr. and Victorina Real. Obviously it is impossible
to determine the conjugal share of Jose Velasquez, Sr. from the said property
relationship. Likewise, no collation of the donations he executed during his lifetime was
undertaken by the trial court. Thus, it would be extremely difficult to ascertain whether
or not such donations trenched on the heirs' legitime so that the same may be
considered subject to reduction for being inofficious.

Article 909 of the Civil Code provides:

Art. 909. Donations given to children shall be charged to their legitime.

Donations made to strangers shall be charged to that part of the estate of which
the testator could have disposed by his last will.1âwphi1

Insofar as they may be inofficious or may exceed the disposable portion, they shall
be reduced according to the rules established by this Code.

With the avowed specific provisions of the aforesaid laws respecting collation, which are
ruled controlling even in intestate succession, this Court finds that the lower court's
ruling adjudicating the remaining portion of the conjugal estate to the private
respondents is purely speculative and conjectural.

Relative to the sale executed by Canuta Pagkatipunan to the spouses Magdalena

Pagkatipunan and Moises Santos; the resale of the same property to her; and the
subsequent deeds of assignment she executed in favor of her children, the trial court
had clearly established that Canuta Pagkatipunan employed fraudulent acts to acquire
title over the said properties. Hence, the trial court, as well as the respondent court are
correct in ruling that the said sales and assignments are null and void, sham and
fictitious.

The pertinent portion of the trial court's decision reads as follows:

From the evidence adduced by the parties during the hearing before this Court and
before the Commissioners, these properties were acquired on November 19, 1918
by the spouses Jose Velasquez, Sr. and Victorina Real from Estanislao Balasoto
(Exh. H-5 Commissioner). Said property was originally declared for taxation
purposes in the names of said spouses. (Exh. H Commissioner) On March 4, 1967,
defendant Canuta Pagkatipunan sold the same property to the spouses Moises
Santos and Magdalena Pagkatipunan (Exh. H-1-Commissioner). The vendee
Magdalena Pagkatipunan is the sister of the defendant Canuta Pagkatipunan.
Subsequently, Tax Declaration No. 4843 (Exh. H-2 Commissioner) was issued in
the names of the spouses Moises Santos and Magdalena Pagkatipunan resold (sic)
the same property to Canuta Pagkatipunan (Exh. H-3 Commissioner). Thereafter,
tax declaration covering said property was issued in the name of Canuta
Pagkatipunan (Exhibit H-4 Commissioner). During the pendency of this suit, this
property was subdivided and assigned by Canuta Pagkatipunan in favor of her
children, the defendants Flora, Leonor, Patrocinio, Benjamin, Rodolfo, Alfredo,
Napoleon, Manuel, Elena, Patricia, Julio, Victoria and Carlos, all surnamed
Velasquez. Said defendants-children of Canuta Pagkatipunan caused the issuance
of free patent titles in their favor covering the subdivided lots conveyed to them
respectively by their mother (Exh. 2, 2-A to 2-L)

It is evident that the parcels of land under Items 7 and 8 of the Inventory
belonged to the conjugal partnership of the spouses Jose Velasquez, Sr. and
Victorina Real. Canuta Pagkatipunan had no right to alienate the same. Her
conveyance of the same property to her brother-in-law and sister is fictitious or
simulated. Ten (10) days after she executed her sale, the same property was
resold to her by the vendees. She utilized said conveyance and reconveyance only
for the purpose of securing a tax declaration in her name over said property. Her
subsequent subdivision of said lot and transfer of the subdivided lots to each of
 their children further show her fraudulent intent to deprive the plaintiffs of their
rightful shares in the disputed property. (Rollo, pp. 606-607)

Despite the several pleadings filed by the petitioners in this Court, they did not rebut the
foregoing findings of the trial court but merely held on to their argument that since Free
Patent Titles Nos. P-2000 to P-2012 were already issued in their names, their title
thereto is indefeasible and incontrovertible. This is a misplaced argument.

The fact that they had succeeded in securing title over the said parcels of land does not
warrant the reversal of the trial court's ruling that the above mentioned sales and
assignments were sham and fictitious. A Torrens title does not furnish a shield for fraud
notwithstanding the long-standing rule that registration is a constructive notice of title
binding upon the whole world. The legal principle is that if the registration of the land is
fraudulent and the person in whose name the land is registered thus holds it as a mere
trustee, the real owner is entitled to file an action for reconveyance of the property
within a period of ten years (Pajarillo v. Intermediate Appellate Court, G.R. No. 72908,
August 11, 1969, 176 SCRA 340).

Since petitioners asserted claims of exclusive ownership over the said parcels of land but
acted in fraud of the private respondents, the former may be held to act as trustees for
the benefit of the latter, pursuant to the provision of 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, considered a trustee of an implied trust for the benefit of the
person from whom the property comes.

But while the trial court has the authority to order the reconveyance of the questioned
titles, We cannot agree that the reconveyance should be made in favor of the private
respondents. The reason is that it is still unproven whether or not the private
respondents are the only ones entitled to the conjugal properties of Jose Velasquez, Sr.
and Victoria Real. It is to be noted that as the lawful heirs of Jose Velasquez Sr. the
herein petitioners are also entitled to participate in his conjugal share. To reconvey said
property in favor of the private respondents alone would not only be improper but will
also make the situation more complicated. There are still things to be done before the
legal share of all the heirs can be properly adjudicated.

Relative to the last assignment of error, We find the ruling made by the respondent
appellate court proper and in accord with law insofar as it adjudicated the one-half (1/2)
portion of the house and lot situated at West Avenue, Quezon City, as belonging to the
petitioners to the extent of their respective proportional contributions, and the other half
to the conjugal partnership of Jose Velasquez, Sr. and Canuta Pagkatipunan. We must
modify it, however, as it readily partitioned the conjugal share of Jose Velasquez, Sr.
(1/2 of the conjugal property or 1/4 of the entire house and lot) to his 18 heirs.

As already said, no conclusion as to the legal share due to the compulsory heirs can be
reached in this case without (1) determining first the net value of the estate of Jose
Velasquez, Sr.; (2) collating all the donations inter vivos in favor of some of the heirs;
and (3) ascertaining the legitime of the compulsory heirs.1âwphi1

ACCORDINGLY, the decision of the trial court as modified by the respondent appellate
court is hereby SET ASIDE except insofar as it:

(a) declared the properties listed in the Inventory submitted by the commissioners
on May 9, 1975 as belonging to the estate of the conjugal partnership of the
spouses Jose Velasquez, Sr. and Victorina Real;

(b) declared null and void, sham and fictitious, the following sales, transfers,
assignments or conveyances:

1) the sale executed by Canuta Pagkatipunan in favor of her sister

Magdalena Pagkatipunan; 2) the resale of the same property executed in
 favor of Canuta Pagkatipunan; and 3) the deeds of assignments executed by
Canuta Pagkatipunan in favor of her 13 children; covering the properties
listed in Items 7 and 8;

(c) declared as null and void all the other conveyances made by Canuta
Pagkatipunan with respect to Item No. 13 of the inventory; and

d) dismissed the case against the other defendants except Canuta Pagkatipunan
and her children and the spouses Moises Santos and Magdalena Pagkatipunan.

Civil Case No. SC-894 is hereby remanded to the Regional Trial Court of Laguna, for
further proceedings and the same Court is directed to:

a) follow the procedure for partition herein prescribed;

b) expand the scope of the trial to cover other possible illegal dispositions of the
first conjugal partnership properties not only by Canuta Pagkatipunan but also by
the other heirs as can be shown in the records;

c) include the one-fourth (1/4) share of Jose Velasquez, Sr. in the residential
house in Quezon City with his conjugal share under his first marriage, if any, to
determine his net estate at the time of his death.

The trial court's pronouncement as to cost and damages is hereby deleted.

G.R. Nos. 140371-72             November 27, 2006

DY YIENG SEANGIO, BARBARA D. SEANGIO and VIRGINIA D.

SEANGIO, Petitioners, 
vs.
HON. AMOR A. REYES, in her capacity as Presiding Judge, Regional Trial Court,
National Capital Judicial Region, Branch 21, Manila, ALFREDO D. SEANGIO,
ALBERTO D. SEANGIO, ELISA D. SEANGIO-SANTOS, VICTOR D. SEANGIO,
ALFONSO D. SEANGIO, SHIRLEY D. SEANGIO-LIM, BETTY D. SEANGIO-OBAS
and JAMES D. SEANGIO, Respondents.

DECISION

AZCUNA, J.:

This is a petition for certiorari1 with application for the issuance of a writ of preliminary

injunction and/or temporary restraining order seeking the nullification of the orders,
dated August 10, 1999 and October 14, 1999, of the Regional Trial Court of Manila,
Branch 21 (the RTC), dismissing the petition for probate on the ground of preterition, in
the consolidated cases, docketed as SP. Proc. No. 98-90870 and SP. Proc. No. 99-
93396, and entitled, "In the Matter of the Intestate Estate of Segundo C. Seangio v.
Alfredo D. Seangio, et al." and "In the Matter of the Probate of the Will of Segundo C.
Seangio v. Dy Yieng Seangio, Barbara D. Seangio and Virginia Seangio."

The facts of the cases are as follows:

On September 21, 1988, private respondents filed a petition for the settlement of the
intestate estate of the late Segundo Seangio, docketed as Sp. Proc. No. 98–90870 of the
RTC, and praying for the appointment of private respondent Elisa D. Seangio–Santos as
special administrator and guardian ad litem of petitioner Dy Yieng Seangio.

Petitioners Dy Yieng, Barbara and Virginia, all surnamed Seangio, opposed the petition.
They contended that: 1) Dy Yieng is still very healthy and in full command of her
faculties; 2) the deceased Segundo executed a general power of attorney in favor of
Virginia giving her the power to manage and exercise control and supervision over his
business in the Philippines; 3) Virginia is the most competent and qualified to serve as
the administrator of the estate of Segundo because she is a certified public accountant;
and, 4) Segundo left a holographic will, dated September 20, 1995, disinheriting one of
the private respondents, Alfredo Seangio, for cause. In view of the purported
holographic will, petitioners averred that in the event the decedent is found to have left
a will, the intestate proceedings are to be automatically suspended and replaced by the
proceedings for the probate of the will.

On April 7, 1999, a petition for the probate of the holographic will of Segundo, docketed
as SP. Proc. No. 99–93396, was filed by petitioners before the RTC. They likewise
reiterated that the probate proceedings should take precedence over SP. Proc. No. 98–
90870 because testate proceedings take precedence and enjoy priority over intestate
proceedings.2

The document that petitioners refer to as Segundo’s holographic will is quoted, as

follows:

Kasulatan sa pag-aalis ng mana

Tantunin ng sinuman

Ako si Segundo Seangio Filipino may asawa naninirahan sa 465-A Flores St., Ermita,
Manila at nagtatalay ng maiwanag na pag-iisip at disposisyon ay tahasan at hayagang
inaalisan ko ng lahat at anumang mana ang paganay kong anak na si Alfredo Seangio
dahil siya ay naging lapastangan sa akin at isan beses siya ng sasalita ng masama
harapan ko at mga kapatid niya na si Virginia Seangio labis kong kinasama ng loob ko at
sasabe rin ni Alfredo sa akin na ako nasa ibabaw gayon gunit daratin ang araw na ako
nasa ilalim siya at siya nasa ibabaw.

Labis kong ikinasama ng loob ko ang gamit ni Alfredo ng akin pagalan para
makapagutang na kuarta siya at kanya asawa na si Merna de los Reyes sa China
Bangking Corporation na millon pesos at hindi ng babayad at hindi ng babayad ito ay
nagdulot sa aking ng malaking kahihiya sa mga may-ari at stockholders ng China
Banking.

At ikinagalit ko pa rin ang pagkuha ni Alfredo at ng kanyang asawa na mga custome[r]

ng Travel Center of the Philippines na pinagasiwaan ko at ng anak ko si Virginia.

Dito ako nagalit din kaya gayon ayoko na bilanin si Alfredo ng anak ko at hayanan kong
inaalisan ng lahat at anoman mana na si Alfredo at si Alfredo Seangio ay hindi ko siya
anak at hindi siya makoha mana.

Nila[g]daan ko ngayon ika 20 ng Setyembre 1995 sa longsod ng Manila sa harap ng

tatlong saksi. 3

(signed)

Segundo Seangio

Nilagdaan sa harap namin

(signed)

Dy Yieng Seangio (signed)

Unang Saksi ikalawang saksi

(signed)

ikatlong saksi

On May 29, 1999, upon petitioners’ motion, SP. Proc. No. 98–90870 and SP. Proc. No.
99–93396 were consolidated.4

On July 1, 1999, private respondents moved for the dismissal of the probate
proceedings5 primarily on the ground that the document purporting to be the
holographic will of Segundo does not contain any disposition of the estate of the
deceased and thus does not meet the definition of a will under Article 783 of the Civil
Code. According to private respondents, the will only shows an alleged act of
disinheritance by the decedent of his eldest son, Alfredo, and nothing else; that all other
compulsory heirs were not named nor instituted as heir, devisee or legatee, hence, there
is preterition which would result to intestacy. Such being the case, private respondents
maintained that while procedurally the court is called upon to rule only on the extrinsic
validity of the will, it is not barred from delving into the intrinsic validity of the same,
and ordering the dismissal of the petition for probate when on the face of the will it is
clear that it contains no testamentary disposition of the property of the decedent.

Petitioners filed their opposition to the motion to dismiss contending that: 1) generally,
the authority of the probate court is limited only to a determination of the extrinsic
validity of the will; 2) private respondents question the intrinsic and not the extrinsic
validity of the will; 3) disinheritance constitutes a disposition of the estate of a
decedent; and, 4) the rule on preterition does not apply because Segundo’s will does not
constitute a universal heir or heirs to the exclusion of one or more compulsory heirs.6

On August 10, 1999, the RTC issued its assailed order, dismissing the petition for
probate proceedings:
A perusal of the document termed as "will" by oppositors/petitioners Dy Yieng Seangio,
et al., clearly shows that there is preterition, as the only heirs mentioned thereat are
Alfredo and Virginia. [T]he other heirs being omitted, Article 854 of the New Civil Code
thus applies. However, insofar as the widow Dy Yieng Seangio is concerned, Article 854
does not apply, she not being a compulsory heir in the direct line.

As such, this Court is bound to dismiss this petition, for to do otherwise would amount to
an abuse of discretion. The Supreme Court in the case of Acain v. Intermediate
Appellate Court [155 SCRA 100 (1987)] has made its position clear: "for … respondents
to have tolerated the probate of the will and allowed the case to progress when, on its
face, the will appears to be intrinsically void … would have been an exercise in futility. It
would have meant a waste of time, effort, expense, plus added futility. The trial court
could have denied its probate outright or could have passed upon the intrinsic validity of
the testamentary provisions before the extrinsic validity of the will was
resolved(underscoring supplied).

WHEREFORE, premises considered, the Motion to Suspend Proceedings is hereby

DENIED for lack of merit. Special Proceedings No. 99–93396 is hereby DISMISSED
without pronouncement as to costs.

SO ORDERED.7

Petitioners’ motion for reconsideration was denied by the RTC in its order dated October
14, 1999.

Petitioners contend that:

THE RESPONDENT JUDGE ACTED IN EXCESS OF HER JURISDICTION OR WITH GRAVE

ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION AND
DECIDED A QUESTION OF LAW NOT IN ACCORD WITH LAW AND JURISPRUDENCE IN
ISSUING THE QUESTIONED ORDERS, DATED 10 AUGUST 1999 AND 14 OCTOBER 1999
(ATTACHMENTS "A" AND "B" HEREOF) CONSIDERING THAT:

THE RESPONDENT JUDGE, WITHOUT EVEN COMPLYING WITH SECTIONS 3 AND 4 OF

RULE 76 OF THE RULES OF COURT ON THE PROPER PROCEDURE FOR SETTING THE
CASE FOR INITIAL HEARING FOR THE ESTABLISHMENT OF THE JURISDICTIONAL
FACTS, DISMISSED THE TESTATE CASE ON THE ALLEGED GROUND THAT THE
TESTATOR’S WILL IS VOID ALLEGEDLY BECAUSE OF THE EXISTENCE OF PRETERITION,
WHICH GOES INTO THE INTRINSIC VALIDITY OF THE WILL, DESPITE THE FACT THAT IT
IS A SETTLED RULE THAT THE AUTHORITY OF PROBATE COURTS IS LIMITED ONLY TO A
DETERMINATION OF THE EXTRINSIC VALIDITY OF THE WILL, I.E., THE DUE EXECUTION
THEREOF, THE TESTATOR’S TESTAMENTARY CAPACITY AND THE COMPLIANCE WITH
THE REQUISITES OR SOLEMNITIES PRESCRIBED BY LAW;

II

EVEN ASSUMING ARGUENDO THAT THE RESPONDENT JUDGE HAS THE AUTHORITY TO

RULE UPON THE INTRINSIC VALIDITY OF THE WILL OF THE TESTATOR, IT IS
INDUBITABLE FROM THE FACE OF THE TESTATOR’S WILL THAT NO PRETERITON EXISTS
AND THAT THE WILL IS BOTH INTRINSICALLY AND EXTRINSICALLY VALID; AND,

III

RESPONDENT JUDGE WAS DUTY BOUND TO SUSPEND THE PROCEEDINGS IN THE

INTESTATE CASE CONSIDERING THAT IT IS A SETTLED RULE THAT TESTATE
PROCEEDINGS TAKE PRECEDENCE OVER INTESTATE PROCEEDINGS.

Petitioners argue, as follows:

First, respondent judge did not comply with Sections 3 and 4 of Rule 76 of the Rules of
Court which respectively mandate the court to: a) fix the time and place for proving the
will when all concerned may appear to contest the allowance thereof, and cause notice
of such time and place to be published three weeks successively previous to the
appointed time in a newspaper of general circulation; and, b) cause the mailing of said
notice to the heirs, legatees and devisees of the testator Segundo;

Second, the holographic will does not contain any institution of an heir, but rather, as its
title clearly states, Kasulatan ng Pag-Aalis ng Mana, simply contains a disinheritance of
a compulsory heir. Thus, there is no preterition in the decedent’s will and the
holographic will on its face is not intrinsically void;

Third, the testator intended all his compulsory heirs, petitioners and private respondents
alike, with the sole exception of Alfredo, to inherit his estate. None of the compulsory
heirs in the direct line of Segundo were preterited in the holographic will since there was
no institution of an heir;

Fourth, inasmuch as it clearly appears from the face of the holographic will that it is both
intrinsically and extrinsically valid, respondent judge was mandated to proceed with the
hearing of the testate case; and,

Lastly, the continuation of the proceedings in the intestate case will work injustice to
petitioners, and will render nugatory the disinheritance of Alfredo.

The purported holographic will of Segundo that was presented by petitioners was dated,
signed and written by him in his own handwriting. Except on the ground of preterition,
private respondents did not raise any issue as regards the authenticity of the document.

The document, entitled Kasulatan ng Pag-Aalis ng Mana, unmistakably showed

Segundo’s intention of excluding his eldest son, Alfredo, as an heir to his estate for the
reasons that he cited therein. In effect, Alfredo was disinherited by Segundo.

For disinheritance to be valid, Article 916 of the Civil Code requires that the same must
be effected through a will wherein the legal cause therefor shall be specified. With
regard to the reasons for the disinheritance that were stated by Segundo in his
document, the Court believes that the incidents, taken as a whole, can be considered a
form of maltreatment of Segundo by his son, Alfredo, and that the matter presents a
sufficient cause for the disinheritance of a child or descendant under Article 919 of the
Civil Code:

Article 919. The following shall be sufficient causes for the disinheritance of children and
descendants, legitimate as well as illegitimate:

(1) When a child or descendant has been found guilty of an attempt against the
life of the testator, his or her spouse, descendants, or ascendants;

(2) When a child or descendant has accused the testator of a crime for which the
law prescribes imprisonment for six years or more, if the accusation has been
found groundless;

(3) When a child or descendant has been convicted of adultery or concubinage

with the spouse of the testator;

(4) When a child or descendant by fraud, violence, intimidation, or undue influence

causes the testator to make a will or to change one already made;

(5) A refusal without justifiable cause to support the parents or ascendant who
disinherit such child or descendant;

(6) Maltreatment of the testator by word or deed, by the child or descendant; 8

 (7) When a child or descendant leads a dishonorable or disgraceful life;

(8) Conviction of a crime which carries with it the penalty of civil interdiction.

Now, the critical issue to be determined is whether the document executed by Segundo
can be considered as a holographic will.

A holographic will, as provided under Article 810 of the Civil Code, must be entirely
written, dated, and signed by the hand of the testator himself. It is subject to no other
form, and may be made in or out of the Philippines, and need not be witnessed.

Segundo’s document, although it may initially come across as a mere disinheritance

instrument, conforms to the formalities of a holographic will prescribed by law. It is
written, dated and signed by the hand of Segundo himself. An intent to dispose mortis
causa[9] can be clearly deduced from the terms of the instrument, and while it does not
make an affirmative disposition of the latter’s property, the disinheritance of Alfredo,
nonetheless, is an act of disposition in itself. In other words, the disinheritance results in
the disposition of the property of the testator Segundo in favor of those who would
succeed in the absence of Alfredo.10

Moreover, it is a fundamental principle that the intent or the will of the testator,
expressed in the form and within the limits prescribed by law, must be recognized as the
supreme law in succession. All rules of construction are designed to ascertain and give
effect to that intention. It is only when the intention of the testator is contrary to law,
morals, or public policy that it cannot be given effect.11

Holographic wills, therefore, being usually prepared by one who is not learned in the
law, as illustrated in the present case, should be construed more liberally than the ones
drawn by an expert, taking into account the circumstances surrounding the execution of
the instrument and the intention of the testator.12 In this regard, the Court is convinced
that the document, even if captioned as Kasulatan ng Pag-Aalis ng Mana, was intended
by Segundo to be his last testamentary act and was executed by him in accordance with
law in the form of a holographic will. Unless the will is probated,13 the disinheritance
cannot be given effect.14

With regard to the issue on preterition,15 the Court believes 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.
G.R. No. L-3751            February 21, 1908

EDUARDA BENEDICTO, administratrix of the estate of Maximino

Jalandoni, plaintiff-appellee, 
vs.
JULIO JAVELLANA, defendant-appellant.

C. Ledesma for appellant.

Rothrock and Foss for appellee.

TORRES, J.:

For the purpose of enforcing the terms of the will made on the 26th of June, 1903, by
Maximo Jalandoni, resident of Jaro, the brother of the testator, Maximino Jalandoni,
petitioned by a writing dated August 20, 1906, that the administrator or executor, Julio
Javellana, be directed to pay him the sum of P985 which he held in lieu of the land
donated to petitioner. To this end he alleged that according to the said will, one-half of
the hacienda "Lantad", situated in the pueblo of Silay, Occidental Negros, had been
bequeathed to him, which gift was subject to the payment of certain debts and expenses
of the estate, with respect to the products of the years 1903 and 1904 only, and which
had already been applied to that object by the administrator, Javellana; that one-half of
said hacienda was sold with the consent of the administrator, the sum P985 remaining in
the possession of the latter, from the entire proceeds of the sale, to meet any just or
lawful claim which might arise against the gift made to him, or until such time as the
court should confirm the legacy; that, as the administrator had already received the
products of the hacienda, he is no longer entitled to retain any portion of the legacy, nor
demand that he should respond for other debts or expenses of the estate, because with
the value of the portion inherited by the heirs Francisco Jalandoni and Sofia Jalandoni,
there was more than would be required to pay the other debts of the estate, and the
expenses.

Owing to the death of the plaintiff, Eduarda Benedicto, the administratrix of his estate,
represented him.

The administrator of the estate, Julio Javellana, in answer to the above motion, alleged
that it was not proper to ask, by means of a motion, for the relief that Maximino
Jalandoni claimed, but that a complaint should have been filed and action brought
against the other legatees, or rather against all the parties concerned in the estate, and
not against the administrator alone; that Francisco Jalandoni and Sofia Jalandoni should
not be considered as heirs but simply as the legatees of the testator, and that they are
in the same position as the petitioner, Maximino Jalandoni, with respect to the charges
against the estate; that the obligation to pay all the debts of the same was imposed on
the entire inheritance, and not any particular property, nor on any determined party in
interest named in the will; and that the amount in deposit with the administrator was
not P985 but P949.29, voluntarily deposited not only to pay certain debts but also to
meet all the charges against the estate and proportionately by the share allotted to
Maximino Jalandoni, as had been done by applying the said sum toward the payment of
debts, and for other reasons appearing therein.

The pertinent clauses or paragraphs of the will above referred to are as follows:

The hacienda "Malogo," owned by me and situated in the pueblo of Eustaquio

Lopez, Province of Occidental Negros, P.I., and one parcel of land situated in the
pueblo of Mandurriao, Province of Iloilo, P.I., I bequeath to Jose Jalbuena, the son
of Benito Jalbuena, to whom I profess particular affection, having taken care of
him in my own house from his most tender age.

I institute Francisco Jalandoni and Sofia Jalandoni, the children of my late brother
Nicolas Jalandoni, whose memory is so dear to me for the favors I have received
of him, as heirs to all the property real and personal, which I own in the Province
 of Iloilo, P.I., with the exception of the parcel of land previously assigned to Jose
Jalbuena, which property shall be divided between the above-mentioned heirs in
equal parts.

It is my will that my hacienda denominated "Lantad" shall be divided one half to

my brother, Maximino Jalandoni, and the other half to the sisters Maria, Felisa,
and Felicidad Jalandoni, daughters of Nazaria Hojilla.

On my entire estate I impose the obligation that out of the products thereof, all
my debts shall be paid, the same being about 2,300 pesos which I owe Francisco
Villanueva, without interest, and 2,550 pesos which I received on loan from Julio
Javellana, with interest thereon at the rate of 10 percent per annum, provided,
however, that one-half of the products which each parcel of land pertaining to the
estate may yield this year shall be devoted to the payment of said debts, and
should the said one-half not prove sufficient to meet the liabilities, two-thirds of
the said products, or the total amount thereof, shall be applied; and provided,
further, that in any case, the balance of such products shall remain in charge of
the administrator for the settlement of such other charges as the estate may be
subjected to.

And further on Francisco and Sofia Jalandoni I particularly impose the obligation to
pay Teodora Berola, for a period of ten years, an annuity of 300 pesos, Mexican
currency, or the equivalent thereof in Philippine currency; said obligation becoming
extinguished by the death of the said Teodora, in case of her demise before the
expiration of the said period of ten years.

The judge in view of the result of the proceedings issued an order on the 27th of
October, 1906, granting the motion filed by the legatee Maximino Jalandoni, as stated
therein, from which order the opponent appealed to this court.

From the printed and certified copy of the proceedings, and from the will inserted
therein, it appears that the testator, Maximo Jalandoni, on his death, left no lawful
ascendants or descendants having any direct claim as hereditary successors.

It also appears, by the will in question, that the testator has distributed all his property
in legacies, and that, notwithstanding the manner in which he designates his nephews
Francisco and Sofia Jalandoni in paragraph 3 of the same, in order to leave in their favor
all the real and personal property that he owned in Iloilo, with the exception of the
parcel of land situated in Mandurriao, bequeathed to Jose Jalbuena, the truth is that
such nephews of the testator are likewise legatees the same as the last beneficiary
under paragraph two of the said will.

Respect for the will of a testator as expressed in his last testamentary disposition,
constitutes the principal basis of the rules which the law prescribes for the correct
interpretation of all of the clauses of the will; the words and provisions therein written
must be plainly construed in order to avoid a violation of his intentions and real purpose.

The will of the testator clearly and explicitly stated must be respected and complied with
as an inviolable law among the parties in interest. such is the doctrine established by the
Supreme Court of Spain, constantly maintained in a great number of decisions, among
which are those of March 24, 1863, April 28, 1882, and December 16, 1903.

The testator, under clause 5 of his will, has imposed on his entire estate the obligation
to pay his debts with the products of the same, and has prescribed the manner in which
the same shall be done until all obligations are extinguished.

Such a testamentary disposition is not contrary to law, and as a matter of fact article
1027 of the Civil Code provides that —

The administrator can not pay the legacies until he has paid all the creditors.
Section 728 of the Code of Civil Procedure provides as follows:

If the testator makes provision by his will, or designates the estate to be

appropriated for the payment of his debts and the expenses of administration or
family expenses, they shall be paid according to the provisions of the will. But if
the provision made by the will or the estate appropriated is not sufficient for that
purpose, such part of the estate of the testator, real or personal, as is not
disposed of by will, if any shall be appropriated for that purpose.

Therefore, in accordance with the above legal provisions and with the doctrine
established by the courts, the aforesaid will of the late Maximo Jalandoni must be
complied with and carried into execution; and, considering that all those who are
benefited thereby have not received from the testator a universal succession to his
estate, but certain property expressly stated in his will, they should, under the law be
considered merely as legatees, without the right to received their share of the property
of the deceased until after his debts have been paid. (Secs. 729, 731 and 754, Code of
Civil Procedure).

None of the parties interested in the will of Maximo Jalandoni is invested with the
character of heir designated by law, and consequently, the provisions he has
incorporated in his last will do not injure any of the rights covered by the law which
protects the legitimate portions of such heirs. Article 858 of the Civil Code reads:

A testator may charge with legacies and bequests not only his heir, but also the
legatees.

The latter shall not be liable for the charge except to the extent of the value of the
legacy.

Article 859, following provides:

When the testator charges one of the heirs with a legacy the latter only shall be
obliged to fulfill the same.

Should he not charge any one in particular, all shall be liable in the same
proportion in which they may be heirs.

It is to be noticed that in the present case, where the whole of the inheritance was
distributed by legacies, the parties in interest are indiscriminately designated as heirs or
legatees.

As to specific devices, section 729 of the Code of Civil Procedure provides exemption
from the payment of debts and expenses if there is sufficient other property and if it
appears to the court necessary to carry into effect the intention of the testator; and, as
the legacies stated in the aforesaid will consist of specific property, less the annuity
provided for by clause 6, which is made a special lien upon the property for by clause 6,
which is made a special lien upon the property bequeathed to Francisco and Sofia
Jalandoni, it is unquestionable that in this case the debts and expenses of the estate
must be paid pro rata by the legatees in the manner provided in the will, or in
accordance with the provisions of sections 753 and 754 of the Code of Civil Procedure.

On the other hand, and for such effects as may be proper, it should be stated herein
that any challenge to the validity of a will, any objection to the authentication thereof,
and every demand or claim which any heir, legatee, or party in interest in a testate or
intestate succession may make, must be acted upon and decided within the same
special proceedings not in a separate action and the same judge having jurisdiction in
the administration of the estate shall take cognizance of the question raised, inasmuch
as when the day comes he will be called upon to make distribution and adjudication of
the property to the interested parties, as may be seen in part II of the Code of Civil
Procedure, from section 551 forward.
By the foregoing it has been shown that the judgment appealed from is not in
accordance with the law, therefore it is our opinion that the same should be reversed,
and that the request of the representative of Maximino Jalandoni, now sustained by
Eduarda Benedicto, the administratrix of his estate, should be dismissed without any
special ruling as to costs. So ordered.
G.R. No. 3459            March 22, 1907

CHIONG JOC-SOY, petitioner-appellant, 
vs.
JAIME VAÑO, ET AL., respondents-appellants.

Levering & Wood for petitioner.

Del-Pan, Ortigas & Fisher for respondents.

WILLARD, J.:

Genoveva Rosales, a resident of Cebu, made her will on the 26th day of October, 1903.
The third clause is in part as follows:

3. Of the third part of the estate, which is at my free disposal, I bequeath to the
Chinaman Chiong Joc-Soy, the sum of 50,000 pesos, Mexican currency, of which
amount 20,000 pesos are for the aforesaid Chiong Joc-Soy, and the balance of
30,000 pesos for the expenses of interment etc. of my late husband Don Nicasio
Veloso, . . . .

The rest of her property, which amounted in all to upward of 800,000 pesos, she left to
her children. After her death the will was presented for probate in the Court of First
Instance of the Province of Cebu and was duly proved and allowed on the 24th of
November, 1903, and an administrator with the will annexed was appointed. By order of
the court he was allowed one year from the 24th of November, 1903, in which to pay
the debts and legacies of the deceased.

On the 6th of February, 1905, the petitioner, Chiong Joc-Soy, the legatee named in the
will, filed a petition in the said proceeding for the settlement of the estate of the
deceased, Genoveva Rosales, asking that the administrator be directed to pay him the
50,000 pesos mentioned in the will. An order was made by consent on the 28th of
February, 1905, directing the administrator to pay to the petitioner the 20,000 pesos
expressed in the first part of the legacy. As to the remainder of the amount therein
expressed, the court, on the 6th day of May, 1906, made another order or judgment
which as afterwards modified directed as follows:

And the court hereby orders that the administrator shall immediately pay over the
said to the Joc-Soy the sum of 30,000 pesos, Mexican currency, or its equivalent
in Conant money, at this day's price, fixed by the court, with interest at the rate of
6 per cent annum from the date of the presentation of the claim, or that is, from
the 6th of February, 1905.

From this order both the petitioner, Chiong Joc-Soy, and the administrator and some of
the heirs have appealed. No appeal was taken by any one from the order probating the
will.

I. As to the appeal of the administrator and the heirs: It is alleged as the first
assignment of error that the will was not executed in accordance with the law; that the
legacy therein did not, therefore, exist and consequently that the court erred in ordering
the administrator to pay the amount thereof of the petitioner.

The complete answer to this claim is that the validity of the will was conclusively
established by the order of the court admitting it to probate. The question as to whether
in the execution of the will the requirements of the law were complied with was then
submitted to that court for decision. It had jurisdiction to decide that question. The heirs
who have now appealed were parties to that proceeding. After a hearing, the court
decided the question and from that decision none of the heirs appealed. The judgment of
the probate court in such case stands like any other decision of a court of competent
jurisdiction. Its judgments are binding upon the parties interested and their validity, in
the absence of any proof of fraud or accidents, or mistakes, can be called in question
only by an appeal. In this case there is no suggestion of the existence of any of those
things. There is no claim made that the heirs were not properly notified of the hearing
upon the probate of the will and nothing to indicate that they were not present and took
part in that hearing. Section 625 of the Code of Civil Procedure provides that "the
allowance by the court of a will of real and personal estate shall be conclusive as to its
due execution."

The second error assigned is that the court below ordered the payment of the 30,000
pesos without requiring the petitioner to give a bond conditioned that he would dispose
of the money as indicated in the will.

Article 797 of the Civil Code is as follows:

The statement of the object of the designation or of the legacy or the application
to be given to what has been left by the testator, or the charge imposed by the
same, shall not be considered as a condition, unless it appears that such was his
will.

What has been left in this manner may be immediately claimed and is
transmissible to the heirs who give security for the fulfillment of the orders of the
testator and the repayment of what they may have received, with its fruits and
interest, should they fail to comply with this obligation.

From the first paragraph of this article it is apparent that there is a presumption in cases
of this kind that the legacy is not conditional, and unless it clearly appears in the will
that it was the intention of the testratrix in this case to make the legacy conditional, the
words used must be considered as not imposing any condition. We think under all the
circumstances of the case that the testratrix did not intend to impose upon the legatee
any condition in making this gift of 30,000 pesos. It is true, as claimed by the heirs, that
it is very evident that she intended the 20,000 pesos to be the absolute property of the
petitioner and that as to the 30,000 pesos she had a different intention, but this does
not resolve the question presented. That she wished and desired the petitioner to
expend the 30,000 pesos as indicated in the will is apparent, but the question is, did she
intent to make her gift conditional, or did she rely upon her confidence in the petitioner
that he would carry out her suggestion without the necessity of imposing a condition
upon him? It appears that the husband of the testratrix was a Chinaman; that she was a
Filipina, and that the legatee was Chinaman. The manner in which persons of Chinese
descent spend money to perpetuate the memory of a deceased person of their race does
not appear, nor the amount that they are accustomed so to expend, nor the time during
which it may be expended. All these circumstances were doubtless known to the
testratrix and we believe that knowing them she intentionally selected a person of
Chinese birth to carry out her purposes in these regard. We hold, therefore, that they
legacy is not conditional.

When the legacy is not conditional, there may, however, be cases which do not fall
under the provisions of said article 797.

Scaevola says in his Commentaries on the Civil Code, volume 13, page 646:

It is doubtful if the definite directions of the testator, not imposed in the sense of a
duty, are embraced in the quoted expression of the purpose of the legacy, with
the consequences provided in paragraph 2 of the said article 797. Examples of this
class of instructions: "I bequeath to Luis my property and desire him to expend in
good works all in excess of that which is necessary for his support. I name him my
heir so that he may as in duty bound attend to the better education of his
children." In these cases, capable of infinite variety, attention must be paid to the
true intention of the testator, and if it appears that there was no wish to impose a
definite condition, but merely to express a desire or personal opinion as to the
best disposal of the estate, then article 797 would not be applicable.
We do not find it necessary to decide whether the legacy in question comes within the
provisions of the said article or not, for we are satisfied that, even if it does, the
judgment of the court below may be affirmed. A fair construction of the second
paragraph of the article indicates that the heirs of the legatee are the only ones who are
required to give security, and that such security is not required of the legatee himself.

In the case of Fuentes vs. Canon,1 No. 2386, decided April 16, 1906 (4 Off. Gaz., 379),
the will there in question contained the following clause:

Twentieth. I order the sum of 3,000 pesos to be delivered to the spouses Don
MIguel de la Fuente and Doña Potenciana Medrano to be expended in the purchase
of good agricultural land, one-third of which shall belong to them, and of the
remaining two-thirds, one third shall be given to the widow and son of Don
Eriberto de la Fuente and the other third to the sons and heirs of Don Honorio de
la Fuente.

We held that the heirs were bound to pay the full 3,000 pesos to the legatee named in
the will and that the court could not require such legatee to give security that they
would deliver to the other persons named in the will the parts corresponding to them.
The testratrix in that case, however, died prior to the enactment of the Civil Code.

The third assignment of error made by the heirs is that the court erred in ordering the
payment of interest from the date of the presentation of the petition. The petitioner in
his appeal has also assigned as error the failure of the court to order the payment of
interest from the date of the death of the testratrix, or at least from the expiration of the
period of one year granted to the administrator for the purpose of paying the debts.

Article 882 of the Civil Code provides that when the legacy relates to a specific article
the legatee is entitled to the income and rents from the death of the deceased, but
article 884 is as follows:

If the bequest should not be of a specific and determined thing, but generic or of
quantity, its fruits and interest from the death of the testator shall belong to the
legatee if the testator should have expressly so ordered.

In this case the testratrix did not expressly provide that the legatee should be entitled to
interest from her death. In the case of Fuentes vs. Canon, above cited, the same
question was presented and we there held that the legatee was entitled to interest from
the date of his demand for payment. We follow the rule laid down in that case and hold
that the court committed no error in ordering the judgment of interest from the date of
presentation of the petition by the legatee.

II. As to the appeal of the petitioner, what has been said disposes of all the assignments
of error made by him except one. After the court below had made its order of March 6,
1906, in which it directed the payment of 30,000 Mexican pesos, or its equivalent in
Philippine currency at that day's price fixed by the court, the petitioner made a motion
that the court fix the rate at 100 pesos, Mexican currency, for 100 pesos and 25
centavos, Philippine currency, and presented an affidavit to the effect that was the
market price of Mexican currency on the 6th day of March. The court below, in its order
of the 28th of April, which was not made by the same judge who made the order of the
6th of March, held that it was improper at that time to receive evidence as to the market
value of the two kinds of money; that no evidence had been presented at the trial as to
such market value, and that consequently the court, in making the order, must have
intended to apply the rate fixed by the Executive Order then in force.

We can not agree with the court's construction of the order of the 6th of March. We
think that order means that the rate of exchange should be the rate which actually
existed in Cebu on the 6th day of March, 1906, and the court, not having determined
that in his order, left it to the parties to ascertain and determine it when payment was
made. That price is a matter which can be easily determined at any time, and we hold
that it is the duty of the administrator, if he pays in Philippine currency, to pay at the
market price of Mexican currency at Cebu on the 6th day of March, 1906.

The judgment of the court below is affirmed, without costs to either party in this court.

After the expiration of twenty days let judgment be entered in accordance herewith and
ten days thereafter let the case be remanded to the court from whence it came for
proper action. So ordered.
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.

D. Tañedo, Jr. for appellants.

J. Palanca, Sr. for appellee.

AQUINO, J.:

This case is about the efficaciousness or enforceability of a devise of ricelands located at

Guimba, Nueva Ecija, with a total area of around 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 Lot Are Tax Ass

No. No. a in Dec. .
Has Val
. ue

T- 366 1.6 187 P

6530 3 249 40 34
0.0
0

T- 344 24. 187 7,2

6548 5-C 299 30 90.
8 00

T- 367 6.2 187 1,8

6525 0 665 36 80.
00

T- 366 11. 187 3,5

6521 6 925 33 80.
1 00

Total amount and value — 44.1163 P13,090.00

Judge Roman A. Cruz in his order of August 15, 1940, approving the project of partition,
directed that after payment of the obligations of the estate (including the sum of
P3,132.26 due to the church of the Victoria parish) the administratrix should deliver to
the devisees their respective shares.

It may be noted that the administratrix and Judge Cruz did not bother to analyze the
meaning and implications of Father Rigor's bequest to his nearest male relative who
would study for the priesthood. Inasmuch as no nephew of the testator claimed the
devise and as the administratrix and the legal heirs believed that the parish priest of
Victoria had no right to administer the ricelands, the same were not delivered to that
ecclesiastic. The testate proceeding remained pending.
About thirteen years after the approval of the project of partition, or on February 19,
1954, the parish priest of Victoria filed in the pending testate proceeding a petition
praying for the appointment of a new administrator (succeeding the deceased
administration Florencia Rigor), who should deliver to the church the said ricelands, and
further praying that the possessors thereof be ordered to render an accounting of the
fruits. The probate court granted the petition. A new administrator was appointed. On
January 31, 1957 the parish priest filed another petition for the delivery of the ricelands
to the church as trustee.

The intestate heirs of Father Rigor countered with a petition dated March 25, 1957
praying that the bequest be d inoperative and that they be adjudged as the persons
entitled to the said ricelands since, as admitted by the parish priest of Victoria, "no
nearest male relative of" the testator "has ever studied for the priesthood" (pp. 25 and
35, Record on Appeal). That petition was opposed by the parish priest of Victoria.

Finding that petition to be meritorious, the lower court, through Judge Bernabe de
Aquino, declared the bequest inoperative and adjudicated the ricelands to the testator's
legal heirs in his order of June 28, 1957. The parish priest filed two motions for
reconsideration.

Judge De Aquino granted the respond motion for reconsideration in his order of
December 10, 1957 on the ground that the testator had a grandnephew named Edgardo
G. Cunanan (the grandson of his first cousin) who was a seminarian in the San Jose
Seminary of the Jesuit Fathers in Quezon City. The administrator was directed to deliver
the ricelands to the parish priest of Victoria as trustee.

The legal heirs appealed to the Court of Appeals. It reversed that order. It held that
Father Rigor had created a testamentary trust for his nearest male relative who would
take the holy orders but that such trust could exist only for twenty years because to
enforce it beyond that period would violate "the rule against perpetuities. It ruled that
since no legatee claimed the ricelands within twenty years after the testator's death, the
same should pass to his legal heirs, citing articles 888 and 912(2) of the old Civil Code
and article 870 of the new Civil Code.

The parish priest in this appeal contends that the Court of Appeals erred in not finding
that the testator created a public charitable trust and in not liberally construing the
testamentary provisions so as to render the trust operative and to prevent intestacy.

As refutation, the legal heirs argue that the Court of Appeals d the bequest inoperative
because no one among the testator's nearest male relatives had studied for the
priesthood and not because the trust was a private charitable trust. According to the
legal heirs, that factual finding is binding on this Court. They point out that appellant
priest's change of theory cannot be countenanced in this appeal .

In this case, as in cases involving the law of contracts and statutory construction, where
the intention of the contracting parties or of the lawmaking body is to be ascertained,
the primary issue is the determination of the testator's intention which is the law of the
case (dicat testor et erit lex. Santos vs. Manarang, 27 Phil. 209, 215; Rodriguez vs.
Court of Appeals, 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.

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 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.
G.R. No. L-48627             February 19, 1943

TESTATE ESTATE OF VICENTE SINGSON PABLO, deceased. ROSALIA ROSARIO

VDA. DE SINGSON,petitioner-appellee, 
vs.
JOSEFINA F. VDA. DE LIM, oppositor-appellee,
EMILIA FLORENTINO, ET AL., oppositors-appellees,
EVARISTO SINGSON, ET AL., oppositors-appellants.

M.H. de Joya and Evaristo Singson for appellants.

Teofilo Mendoza and Vicente Paz for appellees.

OZAETA, J.:

Don Vicente Singson Pablo, a lawyer of Vigan, Ilocos Sur, died on April 15, 1938,
without any descendant or ascendant, his nearest surviving relatives being his widow
Doña Rosalia Rosario, four brothers, and four nieces, the children of a deceased sister.
He left a will which was duly probated, clause 8 of which reads as follows:

Eighth. - I order and direct that all my goods not otherwise arranged in this will be
distributed in equal parts to all those entitled to it.

The widow, as administratrix, presented a project of partition in which the properties not
disposed of in the will were adjudicated to the four brothers and the four nieces of the
deceased "in the proportion provided in paragraph 8 of the will." The brothers,
appellants herein, objected to the project of partition insofar as it includes the nieces of
the deceased, on the ground that under clause 8 of the will, in relation to article 751 of
the Civil Code, they were not entitled to any share. The nieces also objected to the
project of partition, alleging that certain other specified properties had been omitted
therefrom, which formed part of the properties not disposed of and which under clause 8
of the will "should be distributed in equal parts to all who are entitled thereto." The trial
court sustained the contention of the nieces (appellees herein) and ordered the
administratrix "to amend the project of partition so as to include therein the said
properties and that all of those not disposed of in the will be adjudicated in equal parts
to the brothers and nieces of the deceased."

The only question raised in this appeal is the interpretation of clause 8 of the will above
quoted. Said clause provides that "all of my properties not disposed of otherwise in this
testament shall be distributed in equal parts to all who are entitled thereto." In this
connection appellants invoke article 751 of the Civil Code, which provides that "a
disposition made in general terms in favor of the testator's relatives shall be understood
as made in favor of those nearest in degree."

The trial court noted that the testator, who was a lawyer, did not use the word
"relatives" in the clause in question. We do not need to decide here whether, had the
testator used the word "relatives," the nieces would be excluded. The authorities differ
on the interpretation of article 751. Some hold that under said article the nephews and
nieces inherit by representation together with the brothers and sisters of the testator, as
in legal succession; while others. Manresa among them, hold that said article excludes
nephews and nieces when brothers and sisters survive. We think the testator, by
referring to "all who are entitled thereto," instead of referring to his "relatives," precisely
meant to avoid the uncertainty of the interpretation of article 751 and to indicate his
wish that the residue of his estate be distributed in equal parts to all who would have
been entitled to inherit from him had he dies intestate. The order appealed from is
affirmed, with costs. So ordered.
G.R. No. 108581 December 8, 1999

LOURDES L. DOROTHEO, petitioner, 
vs.
COURT OF APPEALS, NILDA D. QUINTANA, for Herself and as Attorney-in-Fact
of VICENTE DOROTHEO and JOSE DOROTHEO, respondents.

YNARES-SANTIAGO, J.:

May a last will and testament admitted to probate but declared intrinsically void in an
order that has become final and executory still be given effect? This is the issue that
arose from the following antecedents:

Private respondents were the legitimate children of Alejandro Dorotheo and Aniceta
Reyes. The latter died in 1969 without her estate being settled. Alejandro died
thereafter. Sometime in 1977, after Alejandro's death, petitioner, who claims to have
taken care of Alejandro before he died, filed a special proceeding for the probate of the
latter's last will and testament. In 1981, the court issued an order admitting Alejandro's
will to probate. Private respondents did not appeal from said order. In 1983, they filed a
"Motion To Declare The Will Intrinsically Void." The trial court granted the motion and
issued an order, the dispositive portion of which reads:

WHEREFORE, in view of the foregoing, Order is hereby issued declaring

Lourdes Legaspi not the wife of the late Alejandro Dorotheo, the provisions
of the last will and testament of Alejandro Dorotheo as intrinsically void, and
declaring the oppositors Vicente Dorotheo, Jose Dorotheo and Nilda
Dorotheo Quintana as the only heirs of the late spouses Alejandro Dorotheo
and Aniceta Reyes, whose respective estates shall be liquidated and
distributed according to the laws on intestacy upon payment of estate and
other taxes due to the government.1

Petitioner moved for reconsideration arguing that she is entitled to some compensation
since she took care of Alejandro prior to his death although she admitted that they were
not married to each other. Upon denial of her motion for reconsideration, petitioner
appealed to the Court of Appeals, but the same was dismissed for failure to file
appellant's brief within the extended period
granted.2 This dismissal became final and executory on February 3, 1989 and a
corresponding entry of judgment was forthwith issued by the Court of Appeals on May
16, 1989. A writ of execution was issued by the lower court to implement the final and
executory Order. Consequently, private respondents filed several motions including a
motion to compel petitioner to surrender to them the Transfer Certificates of Titles (TCT)
covering the properties of the late Alejandro. When petitioner refused to surrender the
TCT's, private respondents filed a motion for cancellation of said titles and for issuance
of new titles in their names. Petitioner opposed the motion.

An Order was issued on November 29, 1990 by Judge Zain B. Angas setting aside the
final and executory Order dated January 30, 1986, as well as the Order directing the
issuance of the writ of execution, on the ground that the order was merely
"interlocutory", hence not final in character. The court added that the dispositive portion
of the said Order even directs the distribution of the estate of the deceased spouses.
Private respondents filed a motion for reconsideration which was denied in an Order
dated February 1, 1991. Thus, private respondents filed a petition before the Court of
Appeals, which nullified the two assailed Orders dated November 29, 1990 and February
1, 1991.

Aggrieved, petitioner instituted a petition for review arguing that the case filed by
private respondents before the Court of Appeals was a petition under Rule 65 on the
ground of grave abuse of discretion or lack of jurisdiction. Petitioner contends that in
issuing the two assailed orders, Judge Angas cannot be said to have no jurisdiction
because he was particularly designated to hear the case. Petitioner likewise assails the
Order of the Court of Appeals upholding the validity of the January 30, 1986 Order which
declared the intrinsic invalidity of Alejandro's will that was earlier admitted to probate.

Petitioner also filed a motion to reinstate her as executrix of the estate of the late
Alejandro and to maintain the status quo or lease of the premises thereon to third
parties.3 Private respondents opposed the motion on the ground that petitioner has no
interest in the estate since she is not the lawful wife of the late Alejandro.

The petition is without merit. A final and executory decision or order can no longer be
disturbed or reopened no matter how erroneous it may be. In setting aside the January
30, 1986 Order that has attained finality, the trial court in effect nullified the entry of
judgment made by the Court of Appeals. It is well settled that a lower court cannot
reverse or set aside decisions or orders of a superior court, for to do so would be to
negate the hierarchy of courts and nullify the essence of review. It has been ruled that a
final judgment on probated will, albeit erroneous, is binding on the whole world. 4

It has been consistently held that if no appeal is taken in due time from a judgment or
order of the trial court, the same attains finality by mere lapse of time. Thus, the order
allowing the will became final and the question determined by the court in such order
can no longer be raised anew, either in the same proceedings or in a different motion.
The matters of due execution of the will and the capacity of the testator acquired the
character of res judicata and cannot again be brought into question, all juridical
questions in connection therewith being for once and forever closed.5 Such final order
makes the will conclusive against the whole world as to its extrinsic validity and due
execution.6

It should be noted that probate proceedings deals generally with the extrinsic validity of
the will sought to be probated,7 particularly on three aspects:

n whether the will submitted is indeed, the

decedent's last will and testament;

n compliance with the prescribed formalities for the

execution of wills;

n the testamentary capacity of the testator; 8

n and the due execution of the last will and

testament.9

Under the Civil Code, due execution includes a determination of whether the testator
was of sound and disposing mind at the time of its execution, that he had freely
executed the will and was not acting under duress, fraud, menace or undue influence
and that the will is genuine and not a forgery, 10 that he was of the proper testamentary
age and that he is a person not expressly prohibited by law from making a will. 11

The intrinsic validity is another matter and questions regarding the same may still be
raised even after the will has been authenticated. 12 Thus, it does not necessarily follow
that an extrinsically valid last will and testament is always intrinsically valid. Even if the
will was validly executed, if the testator provides for dispositions that deprives or impairs
the lawful heirs of their legitime or rightful inheritance according to the laws on
succession, 13 the unlawful provisions/dispositions thereof cannot be given effect. This is
specially so when the courts had already determined in a final and executory decision
that the will is intrinsically void. Such determination having attained that character of
finality is binding on this Court which will no longer be disturbed. Not that this Court
finds the will to be intrinsically valid, but that a final and executory decision of which the
party had the opportunity to challenge before the higher tribunals must stand and
should no longer be reevaluated. Failure to avail of the remedies provided by law
constitutes waiver. And if the party does not avail of other remedies despite its belief
that it was aggrieved by a decision or court action, then it is deemed to have fully
agreed and is satisfied with the decision or order. As early as 1918, it has been declared
that public policy and sound practice demand that, at the risk of occasional errors,
judgments of courts must at some point of time fixed by law 14 become final otherwise
there will be no end to litigation. Interes rei publicae ut finis sit litium — the very object
of which the courts were constituted was to put an end to controversies. 15 To fulfill this
purpose and to do so speedily, certain time limits, more or less arbitrary, have to be set
up to spur on the slothful. 16 The only instance where a party interested in a probate
proceeding may have a final liquidation set aside is when he is left out by reason of
circumstances beyond his control or through mistake or inadvertence not imputable to
negligence, 17 which circumstances do not concur herein.

Petitioner was privy to the suit calling for the declaration of the intrinsic invalidity of the
will, as she precisely appealed from an unfavorable order therefrom. Although the final
and executory Order of January 30, 1986 wherein private respondents were declared as
the only heirs do not bind those who are not parties thereto such as the alleged
illegitimate son of the testator, the same constitutes res judicata with respect to those
who were parties to the probate proceedings. Petitioner cannot again raise those
matters anew for relitigation otherwise that would amount to forum-shopping. It should
be remembered that forum shopping also occurs when the same issue had already been
resolved adversely by some other court. 18 It is clear from the executory order that the
estates of Alejandro and his spouse should be distributed according to the laws of
intestate succession.

Petitioner posits that the January 30, 1986 Order is merely interlocutory, hence it can
still be set aside by the trial court. In support thereof, petitioner argues that "an order
merely declaring who are heirs and the shares to which set of heirs is entitled cannot be
the basis of execution to require delivery of shares from one person to another
particularly when no project of partition has been filed." 19 The trial court declared in the
January 30, 1986 Order that petitioner is not the legal wife of Alejandro, whose only
heirs are his three legitimate children (petitioners herein), and at the same time it
nullified the will. But it should be noted that in the same Order, the trial court also said
that the estate of the late spouses be distributed according to the laws of intestacy.
Accordingly, it has no option but to implement that order of intestate distribution and
not to reopen and again re-examine the intrinsic provisions of the same will.

It can be clearly inferred from Article 960 of the Civil Code, on the law of successional
rights that testacy is preferred to intestacy. 20 But before there could be testate
distribution, the will must pass the scrutinizing test and safeguards provided by law
considering that the deceased testator is no longer available to prove the voluntariness
of his actions, aside from the fact that the transfer of the estate is usually onerous in
nature and that no one is presumed to give — Nemo praesumitur donare. 21 No intestate
distribution of the estate can be done until and unless the will had failed to pass both its
extrinsic and intrinsic validity. If the will is extrinsically void, the rules of intestacy apply
regardless of the intrinsic validity thereof. If it is extrinsically valid, the next test is to
determine its intrinsic validity — that is whether the provisions of the will are valid
according to the laws of succession. In this case, the court had ruled that the will of
Alejandro was extrinsically valid but the intrinsic provisions thereof were void. Thus, the
rules of intestacy apply as correctly held by the trial court.

Furthermore, Alejandro's disposition in his will of the alleged share in the conjugal
properties of his late spouse, whom he described as his "only beloved wife", is not a
valid reason to reverse a final and executory order. Testamentary dispositions of
properties not belonging exclusively to the testator or properties which are part of the
conjugal regime cannot be given effect. Matters with respect to who owns the properties
that were disposed of by Alejandro in the void will may still be properly ventilated and
determined in the intestate proceedings for the settlement of his and that of his late
spouse's estate.
Petitioner's motion for appointment as administratrix is rendered moot considering that
she was not married to the late Alejandro and, therefore, is not an heir. WHEREFORE,
the petition is DENIED and the decision appealed from is AFFIRMED.
G.R. No. 116775 January 22, 1998

HEIRS OF PASCASIO URIARTE, namely, ROSELYN URIARTE, MADRILYN and

LOURDES URIARTE, and FELOMINA BUNIEL URIARTE, and HEIRS OF PRIMITIVA
ARNALDO and HEIRS OF GREGORIO ARNALDO, represented herein by FELISA
ARNALDO SULLANO and LUPECINO ARNALDO, petitioners, 
vs.
COURT OF APPEALS and BENEDICTO ESTRADA, respondents.

MENDOZA, J.:

This is a petition for review on certiorari of the decision1 of the Court of Appeals,
reversing the decision of the Regional Trial Court, Branch 27, of Tandag,
Surigao del Sur, as well as the appellate court's resolution denying petitioners'
motion for reconsideration. At issue is the right of the parties to a 2.7 hectare
piece of land in Sungkit, Madrid, Surigao del Sur, which Justa Arnaldo-Sering
left upon her death on March 31, 1989.

The parties and their relationship to Justa Arnaldo-Sering are as follows:

Private respondent Benedicto Estrada is the son of Agatonica Arreza, whose

parents were Pedro Arreza and Ursula Tubil. Upon the death of Pedro Arreza,
Ursula married Juan Arnaldo by whom she had another daughter, the decedent
Justa.2 Private respondent Benedicto Estrada is thus the nephew of Justa by
her half sister Agatonica.

Petitioners, referred to in this case as the heirs of Pascasio Uriarte, are the
widow and daughters of Pascasio Uriarte. Pascasio was one of the sons of
Primitiva Arnaldo and Conrado Uriarte. His mother, Primitiva Uriarte, was the
daughter of Domingo Arnaldo and Catalina Azarcon. Domingo Arnaldo and
Justa's father, Juan Arnaldo, were brothers.3 Petitioners are thus
grandchildren, the relatives within the fifth degree of consanguinity, of Justa
by her cousin Primitiva Arnaldo Uriarte.

The other petitioners are the children of Primitiva and those of her brother
Gregorio.4 The children of Primitiva by Conrado Uriarte, aside from Pascasio,
are Josefina, Gaudencio, Simplicio, Domingo and Virgilio, all surnamed Uriarte.
The children of Gregorio Arnaldo, Primitiva's brother, by Julieta Ilogon, are
Jorencio, Enecia, Nicolas, Lupecino and Felisa. These other petitioners are thus
grandchildren and relatives within the fifth degree of consanguinity of Justa by
her cousins Gregorio Arnaldo and Primitiva Arnaldo.

Private respondent Benedicto Estrada brought this case in the Regional Trial
Court for the partition of the land left by Justa Arnaldo-Sering. The land,
consisting of 2.7 hectares, had been acquired by Justa as follows: 0.5 hectare
by inheritance from her parents Juan Arnaldo and Ursula Tubil, and 2.2
hectares by purchase.5 Private respondent claimed to be the sole surviving heir
of Justa, on the ground that the latter died without issue. He complained that
Pascasio Uriarte who, he claimed, worked the land as Justa's tenant, refused to
give him (private respondent) his share of the harvest. 6 He contended that
Pascasio had no right to the entire land of Justa but could claim only one-half
of the 0.5 hectare land which Justa had inherited from her parents Juan
Arnaldo and Ursula Tubil.7

Pascasio died during the pendency of the case and was substituted by his
heirs. 8 In their answer, the heirs denied they were mere tenants of Justa 9 but
the latter's heirs entitled to her entire land.
They claimed that the entire land, subject of the case, was originally owned by
Ambrocio Arnaldo, 10 their great granduncle. It was allegedly bequeathed to
Domingo and Juan Arnaldo, Ambrocio's nephews, in a holographic will
executed by Ambrocio in 1908. 11 Domingo was to receive two-thirds of the
land and Juan, one-third. 12 The heirs claimed that the land had always been in
their possession and that in her lifetime Justa never asserted exclusive right
over the property but only received her share of the harvest from it. 13They
alleged that private respondent did not have any right to the property because
he was not an heir of Ambrocio Arnaldo, 14 the original owner of the property.

The trial court sustained petitioners' contention. In its decision rendered on

November 8, 1991 it ruled:

As earlier stated, the land of Ambrosio Arnaldo which he left to his

two nephews, Domingo and Juan Arnaldo, was only .5481 hectares,
divided as follows: two-thirds or 3,654 square meters to Domingo,
and one-third or 1,827 square meters to Juan. The area increased to
2.7588 hectares from .5481 hectares because the adjacent lot of
about two hectares was acquired by Justa Arnaldo Sering, daughter
of Juan Arnaldo, after the latter's death. The entire 2.7588 hectares
was covered by tax declaration in the name of Justa Arnaldo Sering.
The latter however died intestate and without issue. Her nearest
surviving relatives are the children of her uncle Domingo Arnaldo, to
whom her entire estate passed on after her death by operation of
law, to the exclusion of all other relatives. Thus, the rights to the
succession are transmitted from the moment of the death of the
decedent (Art. 277, Civil Code).15

Accordingly, the court ordered:

WHEREFORE, judgment is hereby rendered in favor of the

defendants and the intervenors [herein petitioners] and against the
plaintiff [private respondent], declaring the defendants and the
intervenors, together with the other heirs of the late Domingo
Arnaldo, as entitled to the entire parcel of land described in Tax
Declaration No. 124 and subsequent revising tax declarations in the
name of Justa Arnaldo Sering. No cost.

SO ORDERED. 16

On appeal, the Court of Appeals reversed. Contrary to the trial court's finding,
the appellate court found that the 0.5 hectares had been acquired by Justa's
parents, Juan Arnaldo and Ursula Tubil, during their marriage. As the nephew
of Justa by her half-sister Agatonica, private respondent was held to be entitled
to share in the estate of Justa. In the dispositive portion of its decision the
appellate court ordered:

WHEREFORE, the judgment appealed from is hereby REVERSED and

another is hereby entered —

Ordering the partition of the property described in the second

amended complaint in the following manner:

(1) .2500 hectare as the share of defendants-intervenors, and

(2) 2.58 hectare as the share of the plaintiff.

For this purpose, the court a quo is hereby directed to proceed with
the partition in accordance with the procedure laid down in Rule 69
of the Rules of Court.
 SO ORDERED.17

Hence, this petition by the heirs of Pascasio Uriarte, the heirs of Primitiva
Uriarte, and the heirs of Gregorio Arnaldo. Petitioners allege:

I — THE RESPONDENT COURT OF APPEALS GRAVELY ABUSED ITS

DISCRETION TANTAMOUNT TO LACK AND/OR IN EXCESS OF
JURISDICTION IN HOLDING THAT THE PLAINTIFF IS THE SON OF
AGATONA ARREZA, THE HALF SISTER OF JUSTA ARNALDO SERING;

II — THE RESPONDENT COURT OF APPEALS PREFERRED

TECHNICALITY OVER SUBSTANTIALITY WHEN IT GRAVELY ABUSED
ITS DISCRETION IN HOLDING THAT THE HOLOGRAPHIC WILL LEFT
BY THE DECEASED AMBROCIO ARNALDO CANNOT PASS REAL OR
PERSONAL PROPERTY;

III — THE PRAYERS FOR RESTRAINING ORDER AND/OR WRIT OF

PRELIMINARY INJUNCTION AND DAMAGES IS MERITORIOUS;

IV — AND THE INSTANT PETITION IS IMPRESSED WITH MERIT AND

SHOULD HAVE BEEN GRANTED.18

After due consideration of the petition, we find it to be without merit. As

already stated, Justa left a piece of land consisting 2.7 hectares. Half of this
land (0.5 hectares), as the Court of Appeals found, formerly was conjugal
property of her parents, Juan Arnaldo and Ursula Tubil. The rest, consisting of
2.2 hectares, was acquired by Justa after the death of her parents. Accordingly,
the division of Justa's property should be as follows as private respondent
contends:

A — The first 1/2 hectare should be divided into two parts, the share
of Juan Arnaldo which will accrue to petitioners and the second half
which pertains to Ursula Tubil, which will accrue to private
respondent.

B — As to the second portion of the area of the land in question

which as already stated was consolidated with the 1/2 hectare
originally belonging to the conjugal partnership of Juan Arnaldo and
Ursula Tubil, the same shall accrue to private respondent, who is the
son of Agatonica Arreza, and who is only three degrees from Justa
Arnaldo, whereas petitioners who are the children of Primitiva
Arnaldo and Gregorio Arnaldo, are five degrees removed from Justa
Arnaldo.19

The issue in this case is who among the petitioners and the private respondent
is entitled to Justa's estate as her nearest relatives within the meaning of Art.
962 of the Civil Code.

As a preliminary matter, petitioners contend that the Court of Appeals gravely

abused its discretion in holding that private respondent is the son of Agatonica
Arreza, who was the half-sister of Justa Arnaldo. Petitioners are raising this
issue only now. It is well-settled, however, that questions not taken up during
the trial of a case cannot be raised for the first time on appeal. With more
reason, therefore, should such a question be disallowed when raised for the
first time on appeal to this Court. 20

It is noteworthy that, in their brief before the Court of Appeals, 21 petitioners

admitted that private respondent is Justa's nephew, his mother, Agatonica,
being Justa's half-sister. Apparently they are now questioning private
respondent's filiation because, as explained by the Court of Appeals, private
respondent is the nearest relative of Justa and, therefore, the only one entitled
to her estate.

Indeed, given the fact that 0.5 hectares of the land in question belonged to the
conjugal partnership of Justa's parents, Justa was entitled to 0.125 hectares of
the half hectare land as her father's (Juan Arnaldo's) share in the conjugal
property, while petitioners are entitled to the other 0.125 hectares. In addition,
Justa inherited her mother's (Ursula Tubil's) share consisting of 0.25 hectares.
Plus the 2.2 hectares which belonged to her in her own right, Justa owned a
total of 2.575 or 2.58 hectares of the 2.7 — hectare land. This 2.58-hectare land
was inherited by private respondent Benedicto Estrada as Justa's nearest
surviving relative. As the Court of Appeals held:

According to Article 962 of the Civil Code, In every inheritance, the

relative nearest in degree excludes the more distant ones, saving
the right of representation when it properly takes place.

Relatives in the same degree shall inherit in equal shares, subject to

the provisions of Article 1006 with respect to relatives of the full and
half blood, and of Article 987, paragraph 2, concerning division
between paternal and maternal lines.

The manner of determining the proximity of relationship are

provided by Articles 963 — 966 of the Civil Code. They provide:

Art. 963. Proximity of relationship is determined by the

number of generations. Each generation forms a degree.

Art. 964. A series of degrees forms a line, which may be

either direct or collateral.

A direct line is that constituted by the series of degrees

among ascendants and descendants.

A collateral line is that constituted by the series of

degrees among persons who are not ascendants and
descendants, but who come from a common ancestor.

Art. 965. The direct line is either descending or ascending.

The former unites the head of the family with those who
descend from him.

The latter binds a person with those from whom he

descends.

Art. 966. In the line, as many degrees are counted as

there are generations or persons, excluding the
progenitor.

In the direct line, ascent is made to the common ancestor.

Thus the child is one degree removed from the parent,
two from the grandfather, and three from the great-
grandparent.

In the collateral line, ascent is made to the common

ancestor and then descent is made to the person with
whom the computation is to be made. Thus, a person is
two degrees removed from his brother, three from his
uncle, who is the brother of his father, four from his first
cousin, and so forth.
 In this case, plaintiff is the son of Agatonica, the half-sister of Justa.
He is thus a third degree relative of Justa.

On the other hand, defendants and intervenors are the sons and
daughters of Justa's cousin. They are thus fifth degree relatives of
Justa.

Applying the principle that the nearest excludes the farthest, then
plaintiff is the lawful heir of Justa. The fact that his mother is only a
half-sister of Justa is of no moment. 22

Nevertheless, petitioners make much of the fact that private respondent is not
an Arnaldo, his mother being Ursula's daughter not by Juan Arnaldo but by
Pedro Arreza. They claim that this being the case, private respondent is not an
heir of Justa and thus not qualified to share in her estate.

Petitioners misappreciate the relationship between Justa and private

respondent. As already stated, private respondent is the son of Justa's half-
sister Agatonica. He is therefore Justa's nephew. A nephew is considered a
collateral relative who may inherit if no descendant, ascendant, or spouse
survive the decedent. 23 That private respondent is only a half-blood relative is
immaterial. This alone does not disqualify him from being his aunt's heir. As
the Court of Appeals correctly pointed out, "The determination of whether the
relationship is of the full or half blood is important only to determine the extent
of the share of the survivors."24

Because of the conclusion we have thus reached, the third and fourth grounds
of the petition for review must fail. WHEREFORE, the petition is DENIED. The
temporary restraining order issued by this Court is LIFTED, and the decision of
the Court of Appeals is AFFIRMED.
G.R. No. 140975, Promulgated December 8, 2000

OFELIA HERNANDO BAGUNU, Petitioner. 

vs.
PASTORA PIEDAD, Respondent.

VITUG, J.:

On 28 August 1995, herein petitioner Ofelia Hernando Bagunu moved to intervene in

Special Proceedings No. 3652, entitled "In the matter of the Intestate Proceedings of the
Estate of Augusto H. Piedad," pending before the Regional Trial Court ("RTC"), Branch
117, of Pasay City. Asserting entitlement to a share of the estate of the late Augusto H.
Piedad, petitioner assailed the finality of the order of the trial court awarding the entire
estate to respondent Pastora Piedad contending that the proceedings were tainted with
procedural infirmities, including an incomplete publications of the notice of hearing, lack
of personal notice to the heirs and creditors, and irregularity in the disbursements of
allowances and withdrawals by the administrator of the estate. The trial court denied the
motion, prompting petitioners to raise her case to the Court of Appeals. Respondent
sought the dismissal of the appeal on the thesis that the issues brought up on appeal
only involving nothing else but questions of law to be raised before the Supreme Court
by petition for review on certiorari in accordance with Rule 45 thereof and consistently
with Circular 2-90 of the Court.

In a well-written resolution, the Court of Appeals belabored the distinctions between

questions of law and questions of fact, thus:

"There is a question of law in a given case when the doubt or difference

arises as to what the law is on a certain state of facts, and there is a
question of fact when the doubt or difference arises as to the truth or the
falsehood of alleged facts. There is question of fact when the query
necessarily invites calibration of the whole evidence considering mainly the
credibility of witnesses, existence and relevance of specific surrounding
circumstances and their relation to each other and to the whole and the
probabilities of the situation."1

Justice Eugenio S. Labitoria, speaking for the appellate court, ratiocinated that whether
or not the RTC erred in denying the intervention considering (1) that the intervenor-
appellant had a prima facie interest over the case (2) that the jurisdiction over the
person of the proper parties was not acquired in view of the deficient publication or
notice of hearing, and (3) that the proceedings had yet to be closed and terminated,
were issues which did not qualify as "questions of fact" as to place the appeal within the
jurisdiction of the appellate court; thus;

"The issues are evidently pure questions of law because their resolution are based on
facts not in dispute. Admitted are the facts that intervenor-appellant is a collateral
relative within the fifth degree of Augusto H. Piedad; the she is the daughter of the first
cousin of Augusto H. Piedad; that as such, intervenor-appellant seek to inherit was
published for three consecutive weeks in a newspaper of general circulation; that there
was no order of closure of proceedings that has been issued by the intestate court; and
that the intestate court has already issued an order for the transfer of the remaining
estate of Augusto H. Piedad to petitioner-appellee.

"These facts are undisputed.

"In this case, there is no doubt nor difference that arise as to the truth or falsehood on
alleged facts. The question as to whether intevenor-appellants as a collateral relative
within the fifth civil degree, has legal interest in the intestate proceeding which would
justify her intervention; the question as to whether the publication of notice of hearing
made in this case is defective which would amount to lack of jurisdiction over the
persons of the parties and the question as to whether the proceedings has already been
terminated when the intestate court issued the order of transfer of the estate of Augusto
H. Piedad to petitioner-appellee, in spite the absence of an order of closure of the
intestate court, all call for the application and interpretation of the proper law is
applicable on a certain undisputed state of facts.

"The resolution of the issues raised does not require the review of the evidence, nor the
credibility of witnesses presented, nor the existence and relevance of specific
surrounding circumstances. Resolution on the issues may be had even without going to
examination of facts on record."2

Still unsatisfied, petitioner contested the resolution of the appellate court in the instant
petition for review on certiorari.

The Court finds no reversible error in the ruling of the appellate court. But let us set
aside the alleged procedural decrepitude and take on the basic substantive issue.
Specifically, can petitioner, a collateral relative of the fifth civil degree, inherit alongside
respondent, a collateral relative of the third civil degree? Elsewise stated does the rule of
proximity in intestate succession find application among collateral relatives?

Augusto H. Piedad without any direct descendants or ascendants. Respondent is the

maternal aunt of the decedent, a third-degree relative of the decedent, while petitioner
is the daughter of a first cousin of the deceased, or a fifth-degree relative of the
decedent.

The various provisions of the Civil Code on succession embody an almost complete set of
law to govern, either by will or by operation of law, the transmission of property, rights
and obligations of a person upon his death. Each article is construed in congruity with,
rather than in isolation of, the system set out by the Code.

The rule on proximity is a concept that favors the relatives nearest in degree to the
decedent and excludes the more distant ones except when and to the extent that the
right of representation can apply. Thus, Article 962 of the Civil Code provides:

"ART. 962. In every inheritance, the relative nearest in degree excludes the more distant
ones, saving the right of representation when it properly takes place.

"Relatives in the same degree shall inherit in equal shares, subject to the provisions of
article 1006 with respect to relatives of the full and half blood, and of article 987,
paragraph 2, concerning division between the paternal and maternal lines."

By right of representation, a more distant blood relative of a decedent is, by operation of

law, "raised to the same place and degree" of relationship as that of a closer blood
relative of the same decedent. The representative thereby steps into the shoes of the
person he represents and succeeds, not from the latter, but from the person to whose
estate the person represented would have succeeded.

"ART. 970. Representation is a right created by fiction of law, by virtue of which the
representative is raised to the place and the degree of the person represented, and
acquires the rights which latter would have if he were living or if he could have
inherited."

"ART. 971. The representative is called to the succession by the law and not by the
person represented. The representative does not succeed the person represented but
the one whom the person represented would have succeeded."

"ART. 970. Representation is a right created by fiction of law, by virtue of which the
representative is raised to the place and the degree of the person represented, and
acquires the rights which latter would have if he were living or if he could have
inherited."
"ART. 971. The representative is called to the succession by the law and not by the
person represented. The representative does not succeed the person represented but
the one whom the person represented would have succeeded."

In the direct line, right of representation is proper only in the descending, never in the
ascending, line. In the collateral line, the right of representation may only take place in
favor of the children of brothers or sisters of the decedent when such children survive
with their uncles or aunts.

"ART. 972. The right of representation takes place in the direct descending line, but
never in the ascending.

"In the collateral line, it takes place only in favor of the children of brothers or sisters,
whether they be of the full or half blood.

"ART. 974. Whenever there is succession by representation, the division of the estate
shall be made per stripes, in such manner that the representative or representatives
shall not inherit more than what the person they represent would inherit, if he were
living or could inherit."

"ART. 975. When children of one or more brothers or sisters of the deceased survive,
they shall inherit from the latter by representation, if they survive with their uncles or
aunts. But if they alone survive, they shall inherit in equal portions."

The right of representation does not apply to "others collateral relatives within the fifth
civil degree" (to which group both petitioner and respondent belong) who are sixth in
the order of preference following, firstly, the legitimate children and descendants,
secondly, the legitimate parents and ascendants, thirdly, the illegitimate children and
descendants, fourthly, the surviving spouse, and fifthly, the brothers and
sisters/nephews and nieces, fourth decedent. Among collateral relatives, except only in
the case of nephews and nieces of the decedent concurring with their uncles or aunts,
the rule of proximity, expressed in Article 962, aforequoted, of the Code, is an absolute
rule. In determining the degree of relationship of the collateral relatives to the decedent,
Article 966 of the Civil Code gives direction.

"Article 966. xxx

"In the collateral line, ascent is made to the common ancestor and then descent is made
ancestor and then descent is made to the person with whom the computation is to be
made. Thus, a person is two degrees removed from his brother, three from his uncle,
who is the brother of his father, four from his first cousin and so forth."

Accordingly----

Respondent, being a relative within the third civil degree, of the late Augusto H. Piedad
excludes petitioner, a relative of the fifth degree, from succeeding an intestato to the
estate of the decedent.

The provisions of Article 1009 and Article 1010 of the Civil Code

"Article 1009, Should there be neither brothers nor sisters nor children of brothers or
sisters, the other collateral relatives shall succeed to the estate.

"The latter shall succeed without distinction of lines or preference among them by
reason of relationship by the whole blood."

"Article 1010. The right to inherit ab intestato shall not extend beyond the fifth degree of
relationship in the collateral line." Invoked by petitioner do not at all support her cause.
The law means only that among the other collateral relatives (the sixth in the line of
succession), no preference or distinction shall be observed "by reason of relationship by
the whole blood." In fine, a maternal aunt can inherit equally with a first cousin of the
half blood but an uncle or an aunt, being a third-degree relative, excludes the cousins of
the decedent, being in the fourth degree of relationship; the latter, in turn, would have
priority in succession to a fifth-degree relative. WHEREFORE, the instant Petition is
DENIED. No costs.
G.R. No. 77867 February 6, 1990

ISABEL DE LA PUERTA, petitioner, 
vs.
THE HONORABLE COURT OF APPEALS and CARMELITA DE LA
PUERTA, respondents.

Isabel de la Puerta for and in her own behalf.

Gilbert D. Camaligan for private respondent.

CRUZ, J.:

The basic issue involved in this case is the filiation of private respondent Carmelita de la
Puerta, who claims successional lights to the estate of her alleged grandmother.

Dominga Revuelta died on July 3, 1966, at the age of 92, with a will leaving her
properties to her three surviving children, namely, Alfredo, Vicente and Isabel, all
surnamed de la Puerta. Isabel was given the free portion in addition to her legitime and
was appointed executrix of the will.1

The petition for the probate of the will filed by Isabel was opposed by her brothers, who
averred that their mother was already senile at the time of the execution of the will and
did not fully comprehend its meaning. Moreover, some of the properties listed in the
inventory of her estate belonged to them exclusively. 2

Meantime, Isabel was appointed special administratrix by the probate court. 3 Alfredo

subsequently died, leaving Vicente the lone oppositor. 4

On August 1, 1974, Vicente de la Puerta filed with the Court of First Instance of Quezon
a petition to adopt Carmelita de la Puerta. After hearing, the petition was
granted. 5 However, the decision was appealed by Isabel to the Court of Appeals. During
the pendency of the appeal, Vicente died, prompting her to move for the dismissal of the
case 6

On November 20, 1981, Carmelita, having been allowed to intervene in the probate
proceedings, filed a motion for the payment to her of a monthly allowance as the
acknowledged natural child of Vicente de la Puerta.7 At the hearing on her motion,
Carmelita presented evidence to prove her claimed status to which Isabel was allowed to
submit counter-evidence.

On November 12,1982, the probate court granted the motion, declaring that it was
satisfied from the evidence at hand that Carmelita was a natural child of Vicente de la
Puerta and was entitled to the amounts claimed for her support. The court added that
"the evidence presented by the petitioner against it (was) too weak to discredit the
same.8

On appeal, the order of the lower court was affirmed by the respondent court,9 which is
now in turn being challenged in this petition before us.

The petitioner's main argument is that Carmelita was not the natural child of Vicente de
la Puerta, who was married to Genoveva de la Puerta in 1938 and remained his wife
until his death in 1978. Carmelita's real parents are Juanita Austrial and Gloria Jordan.

Invoking the presumption of legitimacy, she argues that Carmelita was the legitimate
child of Juanita Austrial and Gloria Jordan, who were legally or presumably married.
Moreover, Carmelita could not have been a natural child of Vicente de la Puerta because
he was already married at the time of her birth in 1962.
To prove her point, Isabel presented Amado Magpantay, who testified that he was a
neighbor of Austrial and Jordan. According to him, the two were living as husband and
wife and had three children, including a girl named "Puti," presumably Carmelita. He
said though that he was not sure if the couple was legally married.10

Another witness, Genoveva de la Puerta, Identified herself as Vicente de la Puerta's wife

but said they separated two years after their marriage in 1938 and were never
reconciled. In 1962, Gloria Jordan started living with Vicente de la Puerta in his house,
which was only five or six houses away from where she herself was staying. Genoveva
said that the relationship between her husband and Gloria was well known in the
community.11

In finding for Carmelita, the lower court declared that:

. . . By her evidence, it was shown to the satisfaction of the Court that she
was born on December 18, 1962 per her birth certificate (Exh. A); that her
father was Vicente de la Puerta and her mother is Gloria Jordan who were
living as common law husband and wife until his death on June 14, 1978;
that Vicente de la Puerta was married to, but was separated from, his legal
wife Genoveva de la Puerta; that upon the death of Vicente de la Puerta on
June 14, 1978 without leaving a last will and testament, she was the only
child who survived him together with his spouse Genoveva de la Puerta with
whom he did not beget any child; that she was treated by Vicente de la
Puerta as a true child from the time of her birth until his father died; that
the fact that she was treated as a child of Vicente de la Puerta is shown by
the family pictures showing movant with Vicente de la Puerta (Exhs. D, D-1
and D-2) and school records wherein he signed the report cards as her
parent (Exh. E and E-1); that during the hearing of her adoption case in
Special Proceeding No. 0041 in Branch V of this Court at Mauban, Quezon,
Vicente de la Puerta categorically stated in court that Carmelita de la Puerta
is his daughter with Gloria Jordan (Exhs. B and B-1); that it was Vicente de
la Puerta during his lifetime who spent for her subsistence, support and
education; . . . 12

This is a factual finding that we do not see fit to disturb, absent any of those
circumstances we have laid down in a long line of decisions that will justify
reversal.13 Among these circumstances are: (1) the conclusion is a finding grounded
entirely on speculation, surmise and conjecture; (2) the inference made is manifestly
mistaken; (3) there is grave abuse of discretion; (4) the judgment is based on a
misapprehension of facts; (5) the findings of fact are conflicting; (6) the Court of
Appeals went beyond the issues of the case and its findings are contrary to the
admissions of both appellant and appellees; (7) the findings of fact of the Court of
Appeals are contrary to those of the trial court; (8) said findings of facts are conclusions
without citation of specific evidence on which they are based; (9) the facts set forth in
the petition as well as in the petitioner's main and reply briefs are not disputed by the
respondents; and (10) the findings of fact of the Court of Appeals are premised on the
supposed absence of evidence and contradicted by the evidence on record.

The petitioner insists on the application of the following provisions of the Civil Code to
support her thesis that Carmelita is not the natural child of Vicente de la Puerta but the
legitimate child of Juanito Austrial and Gloria Jordan:

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 husband's 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.

These rules are in turn based on the presumption that Juanito and Gloria were married
at the time of Carmelita's birth in 1962, pursuant to Rule 131, Sec. 5(bb) of the Rules of
Court, providing that:

Sec. 5. Disputable presumptions.—The following presumptions are

satisfactory if uncontradicted, but may be contradicted and overcome by
other evidence:

x x x           x x x          x x x

(bb) That a man and woman deporting themselves as husband and wife
have entered into a lawful contract of marriage;

But this last-quoted presumption is merely disputable and may be refuted with evidence
to the contrary. As the Court sees it, such evidence has been sufficiently established in
the case at bar.

The cases 14 cited by the petitioner are not exactly in point because they involve
situations where the couples lived continuously as husband and wife and so could be
reasonably presumed to be married. In the case before us, there was testimony from
Vicente's own wife that her husband and Gloria lived together as a married couple,
thereby rebutting the presumption that Gloria was herself the lawful wife of Juanita
Austrial.

Such testimony would for one thing show that Juanito and Gloria did not continuously
live together as a married couple. Moreover, it is not explained why, if he was really
married to her, Juanito did not object when Gloria left the conjugal home and started
openly consorting with Vicente, and in the same neighborhood at that. That was
unnatural, to say the least. It was different with Genoveva for she herself swore that she
had separated from Vicente two years after their marriage and had long lost interest in
her husband. In fact, she even renounced in open court any claim to Vicente's estate.15

The presumption of marriage between Juanito and Gloria having been destroyed, it
became necessary for the petitioner to submit additional proof to show that the two
were legally married. She did not.

Turning now to the evidence required to prove the private respondent's filiation, we
reject the petitioner's contention that Article 278 of the Civil Code is not available to
Carmelita. It is error to contend that as she is not a natural child but a spurious child (if
at all) she cannot prove her status by the record of birth, a will, a statement before a
court of record, or any authentic writing. On the contrary, it has long been settled that:

The so-called spurious children or illegitimate children other than natural

children, commonly known as bastards, include adulterous children or those
born out of wedlock to a married woman cohabiting with a man other than
her husband or to a married man cohabiting with a woman other than his
wife. They are entitled to support and successional rights (Art. 287, CC). But
their filiation must be duly proven.(Ibid, Art. 887)
 How should their filiation be proven? Article 289 of the Civil Code allows the
investigation of the paternity or maternity of spurious children under the
circumstances specified in Articles 283 and 284 of the Civil Code. The
implication is that the rules on compulsory recognition of natural children are
applicable to spurious children.

Spurious children should not be in a better position than natural children.

The rules on proof of filiation of natural children or the rule on voluntary and
compulsory acknowledgment for natural children may be applied to spurious
children. 16

This being so, we need not rule now on the admissibility of the private respondent's
certificate of birth as proof of her filiation. That status was sufficiently established by the
sworn testimony of Vicente de la Puerta at the hearing of the petition for adoption on
September 6, 1976, where he categorically declared as follows:

Q What relation if any do you have with Carmelita de la Puerta?

A She is my daughter. 17

Finally, we move to the most crucial question, to wit: May Carmelita de la Puerta claim
support and successional rights to the estate of Dominga Revuelta?

According to Article 970 of the Civil Code:

Art. 970. Representation is a right created by fiction of law, by virtue of

which the representative is raised to the place and the degree of the person
represented, and acquires the rights which the latter would have if he were
living or if he could have inherited.

The answer to the question posed must be in the negative. The first reason is that
Vicente de la Puerta did not predecease his mother; and the second is that Carmelita is
a spurious child.

It is settled that —

In testamentary succession, the right of representation can take place only

in the following cases: first, when the person represented dies before the
testator; second, when the person represented is incapable of succeeding
the testator; and third, when the person represented is disinherited by the
testator. In all of these cases, since there is a vacancy in the inheritance, the
law calls the children or descendants of the person represented to succeed
by right of representation. 18

x x x           x x x          x x x

The law is clear that there is representation only when relatives of a

deceased person try to succeed him in his rights which he would have had if
still living. In the present case, however, said deceased had already
succeeded his aunt, the testatrix herein. . . . It is a fact that at the time of
the death of the testatrix, Reynaldo Cuison was still alive. He died two
months after her (testatrix's) death. And upon his death, he transmitted to
his heirs, the petitioners herein Elisa Cuison et al., the legacy or the right to
succeed to the legacy. . . . In other words, the herein petitioners-appellants
are not trying to succeed to the right to the property of the testatrix, but
rather to the right of the legatee Reynaldo Cuison in said property. 19

Not having predeceased Dominga Revuelta, her son Vicente had the right to inherit from
her directly or in his own right. No right of representation was involved, nor could it be
invoked by Carmelita upon her father's death, which came after his own mother's death.
It would have been different if Vicente was already dead when Dominga Revuelta died.
Carmelita could then have inherited from her in representation of her father Vicente,
assuming the private respondent was a lawful heir.

But herein lies the crux, for she is not. As a spurious child of Vicente, Carmelita is barred
from inheriting from Dominga because of Article 992 of the Civil Code, which lays down
the barrier between the legitimate and illegitimate families. This article provides quite
clearly:

Art. 992. 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.

Applying this rule in Leonardo v. Court of Appeals, 20 this Court declared:

. . . even if it is true that petitioner is the child of Sotero Leonardo, still he

cannot, by right of representation, claim a share of the estate left by the
deceased Francisca Reyes considering that, as found again by the Court of
Appeals, he was born outside wedlock as shown by the fact that when he
was born, his alleged putative father and mother were not yet married, and
what is more, his alleged father's first marriage was still subsisting. At most,
petitioner would be an illegitimate child who has no right to inherit ab
intestato from the legitimate children and relatives of his father, like the
deceased Francisca Reyes.

The reason for this rule was explained in the recent case of Diaz v. Intermediate
Appellate Court, 21 thus:

Article 992 of the New Civil Code provides a barrier or iron curtain in that it
prohibits absolutely a succession ab intestato between the illegitimate child
and the legitimate children and relatives of the father or mother of said
legitimate child. They may have a natural tie of blood, but this is not
recognized by law for the purpose of Article 992. Between the legitimate
family and the illegitimate family there is presumed to be an intervening
antagonism and incompatibility. The illegitimate child is disgracefully looked
down upon by the legitimate family; the family is in turn, hated by the
illegitimate child the latter considers the privileged condition of the former,
and the resources of which it is thereby deprived; the former in turn sees in
the illegitimate child nothing but the product of sin, palpable evidence of a
blemish broken in life; the law does no more than recognize this truth, by
avoiding further ground of resentment. 22

Indeed, even as an adopted child, Carmelita would still be barred from inheriting from
Dominga Revuelta for there would be no natural kindred ties between them and
consequently, no legal ties to bind them either. As aptly pointed out by Dr. Arturo M.
Tolentino:

If the adopting parent should die before the adopted child, the latter cannot
represent the former in the inheritance from the parents or ascendants of
the adopter. The adopted child is not related to the deceased in that case,
because the filiation created by fiction of law is exclusively between the
adopter and the adopted. "By adoption, the adopters can make for
themselves an heir, but they cannot thus make one for their kindred. 23

The result is that Carmelita, as the spurious daughter of Vicente de la Puerta, has
successional rights to the intestate estate of her father but not to the estate of Dominga
Revuelta. Her claims for support and inheritance should therefore be filed in the
proceedings for the settlement of her own father's
estate 24 and cannot be considered in the probate of Dominga Revuelta's Will.

WHEREFORE, the petition is GRANTED and the appealed decision is hereby REVERSED
and SET ASIDE, with costs against the private respondent. It is so ordered.
G.R. No. L-28265             November 5, 1928

NATIVIDAD CENTENO, ET AL., plaintiffs-appellants, 

vs.
MARTINA CENTENO, ET AL., defendants-appellees. 
NICOLAS CENTENO, ET AL., intervenors-appellants.

Vicente Singson Pablo for appellants. 

Antonio Belmonte for intervenors. 
Vicente de Vera, Julio Borbon and Maximino Mina for appellees.

VILLA-REAL, J.:

This is an appeal taken by the plaintiffs Natividad Centeno in her own behalf and as
administratrix of the estate of her deceased father, Valentin Centeno, Jesus Centeno
First, Rosalia and Rosario Centeno, and by the intervenors Nicolas, Emilio, Isaac and
Jesus Centeno Second, from the judgment of the Court of First Instance of Ilocos Sur, of
which the following is the dispositive part:

The agreement of partition in question is hereby upheld, with the adjudications to

the parties thereto, and therefore the partition prayed for in this civil case by
plaintiffs and intervenors respecting the realty described in the sixth paragraph of
the original complaint is denied. The other petition that said partition be held void
and of no effect in so far as it refers only to the said portion adjucated to
defendants, is also denied.

It is held parcels Nos. 70, 86, and 95, described in the aforementioned sixth
paragraphs of the original complaint, are held by defendants pro indiviso; and the
others, Nos. 53, 54, 55, 60, 62, and 69, with the metes and bounds given in the
said sixth paragraph, which are in possession of the plaintiff Jesus Centeno First,
as well as the others, Nos. 82, 85, and 99, which are in the possession of the
defendant Telesforo Centeno.

The defendants' petition that the first 51 parcels of land described in the said sixth
paragraph of the original complaint, reproduced in the last amendatory complaint,
be partitioned in this case and parcel No. 116 described in the inventory Exhibit F
of the plaintiffs, and 6 of the defendants, as well as the said parcels Nos. 53, 54,
55, 60, 62, and 69, and the credits is denied; all of which are considered and
declared to the pro indiviso (Exhibit 7 of the defendants), without prejudice to said
partition being made in such manner as they may agree upon.

It is ordered that the plaintiffs deliver to defendants the two parcels of land
described in the latters' cross complaint in their second cause of action, and said
two mares and harness cannot be ordered delivered, because they are not
formally detailed and difficulties would arise in the execution of such an order.

As Fabian Cabanilla and Simplicio Gaberto possessors of parcels Nos. 76, 77, 59,
and 100 claimed by plaintiffs and intervenorst, were not made defendants in this
case, no pronouncement is here made against them, nor as to parcels Nos. 52, 66,
94, and 61, the possessors of which are unknown. lawphi1.net

Defendants are absolved from the claims with respect to parcels Nos. 105, 106,
107, 11, 57, 75, 93, 102, 112, 115, 56, 58, 63, 64, 65, 67, 68, 71, 72, 73, 74, 78,
79, 80, 81, 83, 84, 87, 88, 89, 90, 91, 92, 96, 97, 98, 101, 103, 108, 109, 110,
113, and 114 (43) described in the complaint.
 The pious legacy of parcel No. 104 made by the testatrix Melchora Arroyo, is
upheld.

It is ordered that each of the parties, plaintiffs, intervenors, and defendants, pay a
third part of the costs of the trial.

It is so ordered.

Plaintiffs support their appeal by assigning nineteen alleged errors, and the intervenors
another nineteen, to the trial court in its judgment, which we shall discuss hereinafter:

In their second and last amended complaint, the plaintiffs pray for judgment on the
cause of action therein set forth: (a) Ordering the partion between plaintiffs and
intervenors in accordance with the law and the wills of Isaac Centeno and Melchora
Arroyo of all properties described in the sixth paragraph of the original complaint,
together with the property constituting the portion then adjudicated to the defendants in
the said partition; (b) holding the said partion to be void and of no effect, only insofar as
it refers to the portion adjudicated to the defendants and ordering the latter to deliver
the property in their possession numbered from 52 to 115, with all its fruits, and to
return what they have unduly received in said erroneous partition; (c) ordering the
defendants to pay the costs of the action; and (d) granting plaintiffs such further
remedy not herein prayed for as may be just and equitable.

In their second amended complaint the intervenors pray for the causes of action therein
set forth that the voluntary partition of the property left by the deceased spouses Isaac
Centeno and Melchora Arroyo be declared null and void, in so far as it respect the
portion adjudicated to the defendants, ordering the latter to return to said plaintiffs and
intervenors what they have unduly received in said partition.

In their amended answer, the defendants generally and specifically deny each and every
one of the allegations of the complaints of the plaintiffs and the intervenors, with a
special defense and cross-complaint and pray the court: (a) To absolve the said
defendants from the complaint entirely; (b) to order the partition of the property under
Nos. 1 to 51, 53, 54, 55, 60, 61, 69, 116, 119 and 120 with their corresponding fruits or
their equivalent in money, and that their respective portions be adjucated and delivered
to these defendants, and that the credits of the deceased so far collected be equally
distributed among the heirs; (c) that the plaintiff Valentin Centeno be ordered to deliver
to said defendants Martina Jose and Telesforo Centeno, the property specified in
paragraph 3 of the cross-complaint, with all the fruits they produced or should have
produce from 1911 up to present date, or in default thereof, to pay the value of said
fruits with the proper legal interest; (d) that the plaintiff Valentin Centeno be ordered to
pay the costs of this action; and (e) grant said defendants all such further remedies with
respect to their rights as may be just and equitable.

The case having passed though all the proper proceeding and after hearing the evidence
presented by the parties in support of their respective claims, the lower court rendered
judgment, the dispositive part of which is quoted above.

The preponderance of the evidence establishes the following pertinent facts necessary to
the solution of the questions of fact and of law raised in the present appeal.

Isaac Centeno and Melchora Arroyo were husband and wife who brought no property to
the marriage but acquired much property during their married life.

Isaac Centeno died on October 7, 1905, and was survived by his wife Melchora Arroyo,
and their three son, Valentin, Faustino and Antonio Centeno. Before his death, that is,
on June 30, 1904, Isaac Centeno executed a will, one of the clauses of which contained
the following provision: "I hereby named and institute as my sole and universal heirs my
three sons Antonio, Valentin and Faustino Centeno or their heirs, if any, to one-half of
the above-named property, provided, that the same be divided equally among my three
said sons." (Exhibit D of plaintiffs and Exhibit 4 of defendants.) The will having been
admitted to probate and his widow Melchora Arroyo, appointed administratrix of the
property left by him, said Melchora Arroyo, as such administrator, filed with the court a
detailed inventory of all the property left by her deceased husband which had come into
her possession. (Exhibit F of plaintiffs and Exhibit 6 of defendants.)

On October 30, 1907, Antonio Centeno died leaving a widow, Gabriela Fernadez, and a
will executed on October 9, 1907, clauses 3 and 8 of which are as follows:

Third. I declare that I was married once, being still married to Dna. Gabriela
Fernandez y Bribiesca, and during our union we had not a single child; I also
declared that although I said I have no child, the God of pity has given me eight,
who are my children by another woman, three of whom are called natural, who are
Martina, Jose (alias Pepe), and Telesforo Centeno, because they were born even
before I married my aforesaid wife, Dna. Gabriela the five are Sisenando,
Antonina, Gregorio, Jose (alias Peping), and Gabriel Centeno, and are called
illegitimate, because they were born after my marriage; nevertheless I
acknowledge them all for I have had them since theit birth supporting and bringing
all of them, up until now.

Eight. Of my portion from my deceased father Isaac Centeno Purugganan, and of

my future portion from my mother Dna. Melchora Arroyo, I institute as my
universal heirs my three children called natural, to have and to hold in fee simple
during their lives, under God's blessing and my own. (Exhibit 9-b of defendants.)

This will was probated on petition of his mother Melchora Arroyo de Centeno, and his
widow, Gabriela Fernandez de Centeno.

Melchora Arroyo de Centeno died on December 8, 1909, leaving one son named Valentin
Centeno, and a will executed on November 3, 1909, clause 3 of which provides:

(c) The third part shall be divided equally, neither more nor less, among my sons
Antonio and Faustino Centeno, may they rest in peace, and Valentin Centeno.
(Exhibit E of plaintiffs and Exhibit 5 of defendants.)

This will was probated upon petition of Valentin Centeno, one of the executors named
therein.

While testamentary proceedings for the settlement of the estates of Isaac Centeno and
Melchora Arroyo were being had, the heirs of both, desiring a just and lawful partition in
accordance with the wills of both, submitted for its approval to the Court of First
Instance of Ilocos Sur, in November, 1910 and agreement of partition executed in
October, 1910 wherein Valentin Centeno, Gabriela Fernandez de Centeno widow of
Antonio Centeno, and the latter's acknowledged natural children, Martina and Emilio A.
Centeno, and Asuncion Arcebal, widow of Faustino Centeno, for herself and in behalf of
her minor son Jesus Centeno, jr., interverned as parties. (Exhibit 7 of defendants.)

On March 10, 1911, the court, acting on the motion presented by said heirs, ordered the
publication in newspaper of the largest circulation in the locality once a week for three
consecutive weeks, of a notice of the filing in said court of the agreement of partition of
the testate estate of the deceased spouses, Isaac Centeno and Melchor Arroyo, so that
each and every person interested in said property and those who might have claims
thereto may present themselves before the court on the day appointed and show cause
if any, why said agreement of partition should not be approved or why said estate
should not be declared closed. (Exhibit 8-b of defendants.) On March 8, 1911 in
pursuance of said order, the clerk of the Court of First Instance of Ilocos Sur set the 8th
of April 1911 for the hearing of the approval of the said agreement of partition. On April
20, 1911, the Court of First Instance of Ilocos Sur issued the following order:

All the heirs in this case and in No. 264 having bound themselves to answer for all
just claims agaist the estates the subject matter of the aforesaid two cases, and
having complied with the order of March 10, 1911 issued in the present case with
 respect to the publication in the newspapers of the proper notification to those
interested in the estate or those holding any claim against said estate, for the
approval of the scheme of partition filed by the heirs the court, notwithstanding
the opposition of Pedro Arroyo to such approval, hereby approves said scheme of
partition declaring said two cases closed, without prejudice to the oppositor, Pedro
Arroyo, claiming his rights and legal fees from said heirs.

It is so ordered. (Exhibit FF of plaintiffs and Exhibit 8-c of defendants.)

On October 22, 1913 the said Court of First Instance of Ilocos Sur issued also the
following order:

The present case being called for trial for the approval of the account presented by the
administratrix Gabriela F. de Centeno, the latter appeared with the heirs name Telesforo
and Sisenando Centeno, and the legatee Antonina Centeno, minor.

Inasmuch as said administratrix declares that the aforesaid heirs Telesforo and
Sisenando, as well as the other heirs not present, Martina and Jose Centeno, have
already received their corresponding share of the inheritance; and as the said
present heirs confirm this declaration of the administratrix; and as the latter
further declares that she holds the legacy corresponding to said Antonina and her
three brothers Gregorio, Jose (alias Peping), and Gabriela, all surnamed Centeno,
the court orders that Mr. Sisenando Centeno be appointed guardian of the said
minors with his consent, and with the acquiescence of the minor Antonio Centeno.

It is likewise ordered that the said heirs file a statement showing those who have
already received their proper share of the inheritance.

The administratrix is also ordered to present the inventory of the property given as
a legacy to said minors, which will be turned over to the guardian appointed upon
his giving bond, the amount of which is to be fixed according to the
aforementioned inventory. So ordered.

In the partition agreement submitted by the heirs to the court and approved by the
latter, the property mentioned in plaintiffs' account Exhibit G, was adjudicated to
Antonio Centeno, said exhibit being singed by all the heirs who took part in said
agreement of partition.

Besides the property left by the deceased spouses, Isaac Centeno and Melchora Arroyo,
which was partitioned among the heirs, 115 parcels of land described in the sixth
paragraph of plaintiffs' complaint remained undistributed, of which fifty-one, marked
Nos. 1 to 51, were in the possession of the plaintiff Valentin Centeno and is now held by
his sons, the herein plaintiffs, who took his place after his death which occured in the
course of the present proceeding in the lower court; two, designated Nos. 76 and 77
were in the power and possession of Fabian Cabanilla who has had them in his
possession as owner for more than ten years previous to the filing of the complaint
having inherited them from his father, who, in turn, inherited them from his father,
having paid the land tax on the same; two others, designated Nos. 59 and 100, are held
by Simplicio Gaberto, who has been in possession thereof from time immemorial without
any interruption of any kind, having inherited them from his father.

As to those marked Nos. 52, 66 and 94, there is no evidence showing who holds and
possesses them. Moreover the two alleged possessors named are not parties in the
present suit.

The parcel of land marked No. 104, tax No. 10318, is the same parcel bearing the same
tax number included in the partion made in October, 1910 (Exhibit 7), destined to pious
purposes by the deceased Melchora Arroyo, according to her will (Exhibit E of the
plaintiffs).
The four parcels of land marked Nos. 105, 106, 107 and 111, and identified by sworn
declarations of ownership Nos. 10328, 10329, 10330 and 10335, respectively, are the
same parcels of land referred to in the said partition made in the month of October,
1910 (Exhibit 7 of defendants, designated as the legacy of Martina Centeno one of the
defendants according to the will of the deceased Isaac Centeno (Exhibit D of plaintiffs).

The parcel of land marked Nos. 57, 75, 93, 102, 112 and 115 and identified by sworn
declarations of ownership Nos. 10374, 10474, 10533, 10549, 10388 and 10429,
respectively, were adjudicated to the defendants in the said partition made in October,
1910 (Exhibit G of defendants, who hold them).

The parces of land marked Nos. 53, 54, 55, 60, 62 and 69, and identified by sworn
declarations of ownership Nos. 10333, 10337, 10367, 10410, 10425 and 10459,
respectively, and mentioned in defendants' answer, are held by Jesus Centeno First.

The declarations of ownership in the name of Melchora Arroyo de Centeno of the parcels
designated by Nos. 82, 85 and 99, in the complaint were cancelled and substituted by
those numbered 37522, 39333 and 21058, respectively (Exhibit 1 of the defendants). It
does not appear in whose posssession said parcels are, but it is to be presumed that
they are held by Telesforo Centeno in whose name the new declarations were made.
Neither does it appear how the latter acquired them. As they are not included in the
partition they should be considered as part of the undivided share of Melchora Arroyo de
Centeno in the estate.

The parcels of land designated by Nos. 56, 58, 101 and 103 in the complaint have been
in possession of the herein defendants Telesforo and Martina Centeno since the death of
the deceased spouses Isaac Centeno since the death of the deceased spouses Isaac
Centeno and Melchora Arroyo, which took place on October 7, 1905 and December 8,
1909, respectively, who have been gathering their products and enjoying their fruits
exclusively. These four parcels of land are not included in the inventory of the conjugal
property left by said deceased spouses, which gives rise to the presumption that said
four parcels do not belong to their share in the estate; otherwise, Melchora Arroyo, who
must have known all the property of the conjugal partnership, would have included them
in said inventory which she submitted to the court.

The parcels of land bearing Nos. 70, 86 and 95, are the same ones designated by Nos.
145, 132 and 135 in said inventory, but which were not included in the partition
agreement. These three parcels of land are in possession of the herein defendants, but it
does not appear that said possession meets all the requirements prescribed by law in
order that it may ripen into title.

The parcels of land Nos. 113 and 114, which are also enumerated in the said inventory,
have been in possession of the herein defendants since the death of the spouses Isaac
Centeno and Melchora Arroyo, who have been gathering their fruits and enjoying them
exclusively.

The parcels of land designated in the complaint by Nos. 63, 64, 65, 68, 71, 72, 73, 74,
78, 79, 80, 81, 83, 84, 87, 88, 89, 90, 91, 92, 96, 97, 98, 108, 109 and 110 also are
not mentioned in the aforesaid inventory and are possessed by the defendants, who
have been enjoying their products exclusively.

As to the parcels of land Nos. 116, 119 and 120, which are the subject matter of the
defendants' cross-complaint said three parcels belonged to the spouses Isaac Centeno
and Melchora Arroyo during their lifetime and are now in the possession of the plaintiffs.
Two of said parcels, those designated by Nos. 116 and 120 are identified with Nos. 57
and 251 in the inventory of the estate of Isaac Centeno. The parcel of land No. 120 is
the same parcel No. 60 mentioned in the complaint. The parcel of land 119 is the same
parcel land No. 23 is the same complaint. The parcel of land No. 116 must be added to
the one hundred and fifteen parcels claimed in the complaint as having belonged to the
deceased spouses Isaac Centeno and Melchora Arroyo and is pro indiviso.
There are two more parcels of land with sworn declarations of ownership Nos. 10375
and 10386, which appear in the list of the properties adjudicated to Antonio Centeno
(Exhibit G of plaintiffs) and which are in the possession of the plaintiffs.

The chattels and cattle adjudicated to Antonio Centeno in the scheme of partition and
which were in the possession of Valentin Centeno have not yet been delivered to the
defendants.

With respect to the uncollected credits which amount to P8,950 according to the
partition agreement Exhibit 7 of the defendants, and the collection of which was
intrusted to Valentin Centeno, the latter collected P300 owed by Pedro Biloria, leaving
P8,650 uncollected, which is pro indiviso, as well as the house and lot valued at P300
and adjudicated in part payment of said credit.

To summarize, then, it appears that the only parcels of land which may be the subject
matter of the partition among the parties are the following: Those designated in the
original complaint by Nos. 1 to 51, and which are in possession of the plaintiffs; those
designated in said original complaint by Nos. 53, 54, 55, 60, 62 and 69 which are in
possession of Jesus Centeno First; those designated in said original complaint by Nos.
82, 85 and 99, which are in the possession of Telesforo Centeno; those designated in
said original complaint by Nos. 70, 86 and 95, which are in the possession of the
defendants; and those designated in the cross-complaint by Nos. 116, 119 and 120,
which are in the possession of the plaintiffs, the two last of which are designated in the
complaint as Nos. 23 and 60, respectively.

The credits should also be partitioned.

Before entering fully into a discussion of the question of law raised by the plaintiffs and
the intervenors in their respective briefs, it is well to decide the legal question of
procedure raised by said parties as to whether or not the trial court erred in not
declaring the defendants in default for not having answered the plaintiffs' second
amended complaint and in permitting said defendants to present their answer on the
day of the trial, upon oral motion made in open court.

In maintaining the affirmative, the plaintiffs-appellants invoke the provisions of articles

10 and 11 of the Rules of Courts of First Instance, which require that all motions shall be
in writing and shall be filed with the proper court making it appear that the adverse
party had notice thereof three days before the time set for the hearing thereof, and
providing that unless it so appears, no action shall be taken on them.

The purpose of requiring such conditions is doubtless to give sufficient time and
opportunity to the adverse party to become informed of any motion which may be
presented in which he may be interested, and may interpose his objection should he so
desire. When a motion is made in open court and in the presence of all the parties, it is
not necessary to make it in writing nor that the adverse party be notified thereof, since
proceedings in Courts of First Instance as courts of record, are reduced to writing by the
official court stenographer, and the adverse party has an opportunity to become
informed of said motion and of its nature and may object to it at once if he so desires, or
may ask the court for a period within which to file his opposition.

Since the defendants made the motion for the admission of their answer to the second
amended complaint in open court and in the presence of all the parties, the trial court
did not err in granting it and admitting said answer and in not declaring them in default,
in accordance with section 110 of the Code of Civil Procedure.

Entering now upon the discussion of the question on the merit, we may say at the outset
that with respect to the questions of fact raised by the plaintiffs-appellants and
intervenors-appellants in their repective briefs, we have examined the evidence, both
documentary and oral, adduced at the trial by the respective parties in support of their
respective contentions, and have found the preponderance of the evidence fully justifies
the findings of fact made by the trial court in its judgment, and they are the same as set
forth above.

Touching the questions of law raised also by the plaintiffs- appellants and intervenors-
appellants in their respective briefs, they may be reduced to the following:

1. Are the defendants entitled, as acknowledged natural children of Antonio

Centeno, to inherit from his legitimate father Isaac Centeno?

2. Are said defendants entitled, as such acknowledged natural children of Antonio

Centeno, to the reservation of one-half of said hereditary portion which Melchora
Arroyo inherited from her legitimate son Antonio Centeno which hereditary portion
the latter had inherited from his likewise legitimate father Isaac Centeno?

3. Are the defendants entitled, as such acknowledged natural children of Antonio

Centeno, to represent their natural father Antonio Centeno in the inheritance of
their natural grandmother Melchora Arroyo, legitimate mother of Antonio Centeno?

4. Is the partition made among the plaintiffs, intervenors and defendants, and duly
approved by the court, of the conjugal property left by the deceased spouses Isaac
Centeno and Melchora Arroyo, valid?

5. Did the defendants acquire by prescription the ownership of the parcels of land
adjudicated to them in the partition, and of the parcels of land included in the
inventory of the properties left by Isaac Centeno and not adjudicated to them in
the partition but which are in the possession of said defendants?

6. Are the defendants entitled, as acknowledged natural children of Antonio

Centeno, to recover from the heirs of Valentin Centeno the personal and real
property, cattle and credits which were adjudicated to them in said partition and
which remained in the possession of said Valentin Centeno?

7. Are said defendants entitled, as such acknowledged natural children of Antonio

Centeno, to participate in the conjugal property left by Isaac Centeno and
Melchora Arroyo included in the inventory but not included in the partition?

8. May the partition of the conjugal property left by the spouses Isaac Centeno
and Melchora Arroyo and still remaining pro indiviso be ordered in these
proceedings?

With regard to the first question, the defendants-appellees did not inherit from their
natural granfather Isaac Centno by intestate succession, but from their natural father
Antonio Centeno, who acknowledged them in his will and named them heirs to the
property he had inherited from his deceased father Isaac Centeno, who had died before
him. The fact the inheritance left by Isaac Centeno remained pro indiviso when Antonio
Centeno died, did not prevent him from acquiring during his lifetime, a right to inherit
from his deceased father, since article 657 plainly provides that the rights to succession
of any person are transmitted from the moment of his death.

As to the second question, the defendants, as acknowledged natural children of Antonio

Centeno, are not entitled to more than the half of the part of the inheritance which could
be freely disposed of by their natural father, the latter not having left any legitimate
decendants, but a legitimate ascendants, who is his mother Melchora Arroyo, without
prejudice to the legitime of his widow Gabriela Fernandez, in accordance with article 841
in connection with article 836 of the Civil Code, the other half of his estate going to his
mother Melchora Arroyo as her legitime, as provided in article 809 of the same Code.
Melchora Arroyo having died, said defendants, as acknowledged natural children of
Antonio Centeno, are not entitled to the reservation of the hereditary portion which said
Melchora Arroyo acquired gratuitously from her legitimate son Antonio Centeno who, in
turn, also acquired it gratuitously, from his legitimate father Isaac Centeno, according to
the doctrine laid down and Deocampo ([1920], 41 Phil., 915), as follows:
 RESERVABLE RIGHTS IN PROPERTY; INHERITANCE BY RELATIVES WITHIN THE
THIRD DEGREE; ILLEGITIMATE RELATIVES. — Article 811 of the Civil Code which
provides that any ascendants who inherits from his descendants any property
acquired by the latter gratuitously from some other ascendant, or from a brother
or sister, is obliged to reserve such of the property as he may have acquired by
operation of law for the benefit of relatives within the third degree belonging to
the line from which such property came,' does not apply to illegitimate relatives.
(See also the decision of the Supreme Court of Spain rendered of June 10, 1918.)

Passing now to the third question, while it is true that in his will Antonio Centeno named
the herein defendants as his heirs, not only with respect to the hereditary portion given
him in the will of his father Isaac Centeno, but also with respect to the hereditary
portion of the property left by his mother Melchora Arroyo, which he would inherit,
nevertheless said testamentary disposition with regard to the property of this mother is
void and of no effect, because since his mother still lived, he had not acquired any right
to her inheritance and therefore could not dispose of said property, since it is a rule of
law that no one can dispose of anything that does not belong to him. (Sy Joc Lieng vs.
Encarnacion, 16 Phil., 137.)

Although Melchora Arroyo in her will named her son Antonio Centeno as one of her
heirs, since he died before her, the herein defendants, as acknowledged natural children
of said Antonio Centeno have no right to represent their deceased father, according to
the doctrine laid down by the Supreme Court of Spain, in the judgment rendered on
June 10, 1918, supra, which is as follows:

Considering that the truth of this doctrine, and that the judgment appealed from
has not violated the laws cited in the fifth, sixth and seventh assignments of
errors, is shown, besides the text of article 807 already cited, by that of articles
836, 944 of the same Code, in comparison with articles 808, 843, and 941 thereof,
because while the first of these, in dealing with the legitime due to legitimate
children includes the legitimate decendants thereof, articles 843 and 941 in
connection with natural children specifically provide that the portion corresponding
to them in the hereditary estate of the parents who acknowledged them is
transmitted upon the death of these children to their legitimate or natural
decendants. The latter's right, however, to represent their natural father in the
hereditary estate of their grandfather is not admitted because the law does not call
them to participate in the latter's estate, and for a like reason, in default of
parents acknowledging the natural child, the grandfather, according to article 945,
cannot inherit from the granchild, — the doctrine laid down by this court in its
decision of February 13, 1903, to the effect that a natural child whose deceased
father was legitimate, has no right to inherit from his grandfather, even if the
latter should die without any surviving legitimate decendants is a necessary
consequence of the aforecited legal provisions, because, as children inherit in their
own right and grandchildren by representation, it is clear that such representation
of the grandchildren only refers to and includes those who are in the same legal
status as the person represented, and never those who are in a different legal
status. (M. Ruiz, Civil Code, vol. 7, p.175.)

Touching the fourth question, "the heirs of the deceased Isaac Centeno and his wife
Melchora Arroyo de Centeno, also deceased, desiring to make a just and lawful partition,
and in accord with the wills of both," submitted to the consideration and approval of the
Court of First Instance of Ilocos Sur an agreement of partition of the pro indivisoconjugal
property left by the deceased spouses as appearing in instrument Exhibit 7 of the
defendants. Said partition agreement having been submitted to the court, the latter
ordered the fixing of a day for the hearing of the accompanying motion, and the
publication of a notice for the appearance of all who might have an interest therein, and
the presentation of the claims and objections they might have. The day for the hearing
having arrived, and all the parties having been heard, who stated that they bound
themselves to answer for all the just claims against the two estates of Isaac Centeno
and Melchora Arroyo, the court approved the partition and declared said two
testamentary proceedings closed by its order dated April 20, 1911.
While it is true that the partition agreement was made by all the heirs extrajudicially, in
submitting it to the court for approval, and in being approved by the latter after having
announced the hearing through publication in the newspapers, said extrajudicial
agreement of partition became judicial, and the order of the court approving it and
declaring the respective testamentary proceedings involving the estates of the deceased
spouses closed, became final and absolute, and binding upon all the parties who took
part in the said partition agreement, and acquiesced therein. More than six years having
elapsed from the date the order of the court approving the extrajudicial agreement of
partition became final until the filing of the first complaint praying for the annulment of
said partition, there is absolutely no legal reason for setting aside said order which must
therefore be considered irrevocable, and the partition made in accordance with the
agreement valid.

The fact that Jesus Centeno Second was a minor at the time said agreement of partition
was entered into, does not render it void with respect to him, because he was
represented by his mother Asuncion Arcebal, who was his natural guardian by law,
although without the right to the custody of his property unless so authorized by the
court (sec. 553, Act No. 190), and when the court approved said agreement, said
representation was impliedly approved and the acts of the mother were validated.

Neither does the fact that the defendants were mere acknowledged natural children, and
therefore without the right of equal participation with the legitimate children, render said
partition void. Article 1081 of the Civil Code provides that a partition made with the
inclusion of any person who was believed, but was not, and heir shall be void. The
herein defendants-appellees were not strangers to the inheritance for they were named
as heirs by their natural father, whom they succeeded in his rights to the hereditary
portion which should have gone to him from the unsettled estate left by his deceased
father Isaac Centeno.

Furthermore, the plaintiffs and intervenors cannot allege ignorance of the condition of
the defendants-appellees as acknowledged natural children, for this condition appeared
from the will of Antonio Centeno, and in making the partition in the form in which they
made it, they desired to do so, in a just, lawful manner, in accordance with the wills of
the deceased spouses Isaac Centeno and Melchora Arroyo, and they made it appear so
in the preable to the scheme of partition, Exhibit 7 of the defendants.

It follows, then, that the defendants-appellees not only were not strangers to the
inheritance, but that, with full knowledge of their status of acknowledge natural children,
the plaintiffs and intervenors adjudicated to them the property appearing in the
agreement of partition, deeming it just, legal, and in conformity with the wills of their
predecessors in interest, and said partition is therefore legal and valid.

As to the fifth question, having arrived at the conclusion that the partition made among
the plaintiffs, the intervenors, and the defendants is valid and irrevocable, it is needless
to discuss whether, in addition, said defendants acquired rights of ownership to the
goods ajudicated to them and appearing in Exhibit G of the plaintiffs, by acquisitive
prescription, and we shall limit ourselves to considering the conjugal property left by the
deceased spouses Isaac Centeno and Melchora Arroyo, included in inventory Exhibit F of
the plaintiffs, and 6 of the defendants, and not included in the scheme of partition,
Exhibit 7 of the defendants, but which is in the latters' possession.

It cannot be doubted that if the defendants have been in possession of said property
adversely, continuously, publicly and as owners thereof for a period of ten years, they
have acquired the ownership threof by prescription. (Sec. 41, Act No. 190; Casanas vs.
Rosello [1927] 50 Phil., 97.)

Taking up now the sixth question after the fourth has been solved by holding that the
partition among the plaintiffs, intervenors, and defendants is legal and valid, and since
the personal and real property, the cattle, and credits claimed by the defendants in their
cross-complaint are included in said partition, they are entitled to claim them from the
plaintiffs who now have them in their possession. With respect to the seventh question,
the defendants, as natural children of Antonio Centeno, acknowledged by the latter as
such and named as his heirs in his will, are entitled to one-half of the the hereditary
portion belonging to their natural father from the estate of the deceased Isaac Centeno,
which was included in the inventory of the property left by the latter and which was not
included in the agreement of partition, the other half of said hereditary portion of
Antonio Centeno belonging to his mother Melchora Arroyo who survived him, with said
natural children.

As to the eight question, the plaintiffs and intervenors in their respective complaints
pray for the annulment and setting aside of the agreement of partition entered into by
and between them and the defendants in October, 1910, in so far only as it refers to the
portion adjudicated to the latter; that it be ordered that said defendants return to said
plaintiffs and intervenors what they have received in excess; and that it be ordered
likewise that in accordance with the wills of Isaac Centeno and Melchora Arroyo, the
property mentioned in paragraph six of the original complaint be partitioned between
the plaintiffs and intervenors, together with the property constituting the portion
adjudicated in the said partition.

The defendants in their cross-complaint pray that the property designated by Nos. 1 to
51, 53, 60, 62, 69, 116, 117, 118, 119 and 120, and their corresponding fruits or their
equivalent in money, be partitioned, and that plaintiff Valentin Centeno be ordered to
deliver to said defendants the property specified in paragraph three of the cross-
complaint, with all the fruits produced, or which it should have produced from the year
1911 up to the present time, or in its default thereof to pay value of said fruits, plus the
proper legal interest thereon, and the costs of the action.

As will be seen, the action instituted by the plaintiffs and the intervenors, respectively, is
for the recovery of property through the annulment of the partition, and to have another
partition made. The defendants' cross-complaint is for the recovery and partition of
undivided property. The ownership of the property which is the subject matter of the
action for recovery having been settled, and its delivery to the proper party ordered, and
the property belonging in common and pro indiviso to the parties determined, there in
no bar in law, either positive or adjective, to the partition thereof.

In the case of Africa vs. Africa (42 Phil., 934), this court enunciated the following
doctrine:

1. PARTITION; RECOVERY OF PROPERTY; ACTION FOR. — An action cannot be

considered as one for the partition of an inheritance, even though it is so entitled
and the prayer of the complaint is to this effect, if any party to the suit denies
the pro indiviso character of the estate whose partition is sought, and claims
exclusive title thereto, or to any part thereof. In such case the action becomes one
for the recovery of property in so far as the property claimed exclusively by any of
the parties is concerned.

What this court meant in saying that an action cannot be considered as one for the
partition of an inheritance, even though it is so entitled and the prayer of the complaint
is to this effect, if any party to the suit denies the pro indivisocharacter of the estate of
coownership is not recognized by all the parties, but that some claim to be exclusive
owners thereof, and it is found that there is no property to partition, the action for
partition loses its character as such and becomes one for the recovery of property; but
when the action is for the recovery of property based upon the annulment of a partition
and at the same time for the partition of the property declared to be undivided common
property, it is not improper to order the partition of the estate which has been declared
to be undivided common property, since there is no incompatibility between the action
for the recovery of property and for partition of an inheritance, once the court has
declared that the property, the recovery of which is sought, belongs to the parties in
common and pro indiviso.

The conjugal property which has just been declared to be pro indiviso, and which must
be divided into two equal parts for the purpose of ascertaining the participation of the
defendants separating the one-half which corresponds to Isaac Centeno from the other
half that belongs to Melchor Arroyo. The defendants, as we have said, are only entitled
to the one-half of the hereditary portion which belonged to their natural father Antonio
Centeno of the conjugal property left by Isaac Centeno, and not to the conjugal property
left by Melchora Arroyo. There being three children who survived Isaac Centeno,
namely, Valentin, Faustino, and Antonio Centeno, said one-half of the conjugal property
which still remains undivided, left by Isaac Centeno, must be divided into three parts,
one-third pertaining pro indiviso to the children of Valentin Centeno, and Faustino
Centeno, respectively. Of the one-third which belongs to Antonio Centeno, one-half, that
is, one-sixth of the whole, is what belongs to the defendants, and the other half, or the
other sixth part, to his legitimate mother Melchora Arroyo, who inherited from her
legitimate son Antonio Centeno, becuase he died before her saving always the rights of
Gabriela Fernandez, as surviving spouse of Antonio Centeno.

As to the one-half of the undivided conjugal property which belongs to Melchora Arroyo,
the only ones entitled to it are the plaintiffs and intervenors.

Summarizing all the above, we are of the opinion, and so hold: (1) That the defendants,
as acknowledged natural children and named heirs of Antonio Centeno in his will, are
entitled to inherit the one-half of hereditary portion which their deceased natural father
had inherited from his legitimate father by will; (2) that said defendants, though they
are acknowledged natural children of Antonio Centeno, are not entiltled to the
reservation of the one-half which Melchora Arroyo received as her legitimate from the
hereditary portion which her son had received from his father, Isaac Centeno also
legitimate; (3) that the defendants, thought they are acknowledged natural children of
Antonio Centeno, are not entitled to represent the latter in the inheritance of his
legitimate mother Melchora Arroyo; (4) that the fact that defendants, as acknowledged
natural children of Antonio Centeno, took part, together with Valentin Centeno,
legitimate brother of said Antonio Centeno, and with the children of Faustino Centeno,
another legitimate brother of said deceased Antonio Centeno, in the partition of the
estates left by Isaac Centeno and Melchora Arroyo, father and mother Antonio, Valentin
and Faustino Centeno, does not make the partition void; (5) that the partition made
between the heirs, while extrajudicial at the beginning became judicial on being
approved by the court after complying with the proper requirements prescribed by the
law, and once all the periods have elapsed within which the law permits its revocation
for any reason, it became final and irrevocable; (6) that the fact that Jesus Centeno
Second, son of Faustino Centeno, was a minor at the time the agreement of partition
was entered into, does not make said agreement void, since he was represented by his
mother Asuncion ARcebal, and when said agreement was approved by the court, said
representation was implied approved, and all her acts became validated ipso facto; (7)
that in the absence of a preponderance of evidence to the contrary, the defendants are
exclusive owners of the parcels of land designated by Nos. 113 and 114, which are
included in the inventor of the estate of Isaac Centeno, having acquired title thereto by
prescription; (8) that the defendants, as cross-complaint, are entitled to the ownership
and possesion of the two parcels of land described in the third paragraph of the second
cause of action of the cross-complaint, as well as the two mares and the harness which
are in possession of the plaintiffs; (9) that the defendants are entitled to one-sixth part
of the undivided conjugal property left by Isaac Centeno, which is yet to be partitioned;
(10) that the action for the recovery of the undivided property is not incompatible with
the action for partition, once the existence of the community of the property of the
estate whose recovery and partition are sought, has been declared.

For the foregoing, and with the sole modification of orderinfg the partition of the
conjugal property left by the deceased spouses Isaac Centeno and Melchora Arroyo
declared by lower court to be pro indiviso, the judgment appealed from is affirmed in all
other respects, without special pronoucement as to costs. So ordered.
G.R. No. L-51263 February 28, 1983

CRESENCIANO LEONARDO, petitioner, 
vs.
COURT OF APPEALS, MARIA CAILLES, JAMES BRACEWELL and RURAL BANK OF
PARAÑAQUE, INC., respondents.

Porfirio C. David for petitioner.

Marquez & Marquez for private respondent.

DE CASTRO, J.:

Petition for review on certiorari of the decision of the Court of Appeals in CA-G.R. No.
43476-R, promulgated on February 21, 1979, reversing the judgment of the Court of
First Instance of Rizal in favor of petitioner:

(a) Declaring plaintiff Cresenciano Leonardo as the great grandson and heir
of deceased FRANCISCA REYES, entitled to one-half share in the estate of
said deceased, jointly with defendant Maria Cailles;

(b) Declaring the properties, subject of this complaint, to be the properties

of the deceased FRANCISCA REYES and not of defendants Maria Cailles and
James Bracewen

(c) Declaring null and void any sale of these properties by defendant Maria
Cailles in so far as the share of Cresenciano Leonardo are affected;

(d) Ordering the partition within 30 days from the finality of this decision, of
the properties subject of this litigation, between defendant Maria Cailles and
plaintiff Cresenciano Leonardo, share and share alike;

(e) Ordering defendants Maria Cailles and James Bracewell, within 30 days
from the finality of this decision, to render an accounting of the fruits of the
properties, and 30 days thereafter to pay to plaintiff Cresenciano Leonardo
his one-half share thereof with interest of 6% per annum;

(f) Ordering defendants Maria Cailles and James to pay jointly and severally
plaintiff Cresenciano Leonardo the amount of P2,000.00 as attorney's fees;

(g) Ordering defendants to pay the costs; and

(h) Dismissing defendants' counterclaim. 1

From the record, it appears that Francisca Reyes who died intestate on July 12, 1942
was survived by two (2) daughters, Maria and Silvestra Cailles and a grandson, Sotero
Leonardo, the son of her daughter, Pascuala Cailles who predeceased her. Sotero
Leonardo died in 1944, while Silvestra Cailles died in 1949 without any issue.

On October 29, 1964, petitioner Cresenciano Leonardo, claiming to be the son of the late
Sotero Leonardo, filed a complaint for ownership of properties, sum of money and
accounting in the Court of First Instance of Rizal seeking judgment (1) to be declared
one of the lawful heirs of the deceased Francisca Reyes, entitled to one-half share in the
estate of said deceased jointly with defendant, private respondent herein, Maria Cailles,
(2) to have the properties left by said Francisca Reyes, described in the complaint,
partitioned between him and defendant Maria Cailles, and (3) to have an accounting of
all the income derived from said properties from the time defendants took possession
thereof until said accounting shall have been made, delivering to him his share therein
with legal interest.

Answering the complaint, private respondent Maria Cailles asserted exclusive ownership
over the subject properties and alleged that petitioner is an illegitimate child who cannot
succeed by right of representation. For his part, the other defendant, private respondent
James Bracewell, claimed that said properties are now his by virtue of a valid and legal
deed of sale which Maria Cailles had subsequently executed in his favor. These
properties were allegedly mortgaged to respondent Rural Bank of Paranaque, Inc.
sometime in September 1963.

After hearing on the merits, the trial court rendered judgment in favor of the petitioner,
the dispositive portion of which was earlier quoted, finding the evidence of the private
respondent insufficient to prove ownership of the properties in suit.

From said judgment, private respondents appealed to the Court of Appeals which, as
already stated, reversed the decision of the trial court, thereby dismissing petitioner's
complaint, reconsideration having been denied by the appellate court, this petition for
review was filed of the following assignment of errors:

RESPONDENT COURT ERRED IN HOLDING THAT PROPERTIES IN QUESTION

ARE THE EXCLUSIVE PROPERTIES OF PRIVATE RESPONDENTS.

II

RESPONDENT COURT ERRED IN HOLDING THAT PETITIONER HAS NOT

ESTABLISHED HIS FILIATION.

III

RESPONDENT COURT ERRED IN HOLDING THAT PETITIONER, AS THE GREAT

GRANDSON OF FRANCISCA REYES, HAS NO LEGAL RIGHT TO INHERIT BY
REPRESENTATION.

To begin with, the Court of Appeals found the subject properties to be the exclusive
properties of the private respondents.

There being two properties in this case both will be discussed separately, as
each has its own distinct factual setting. The first was bought in 1908 by
Maria Cailles under a deed of sale (Exh. '60'), which describes it as follows:

. . . radicada en la calle Desposorio de este dicho Municipio

dentro de los limites y linderos siquientes: Por la derecha a la
entrada el solar de Teodorico Reyes por la izquierda el solar de
Maria Calesa (Cailles) arriba citada por la espalda la via ferrea
del Railroad Co., y la frente la dicha calle Desposorio

After declaring it in her name, Maria Cailles paid the realty taxes starting
from 1918 up to 1948. Thereafter as she and her son Narciso Bracewell, left
for Nueva Ecija, Francisca Reyes managed the property and paid the realty
tax of the land. However, for unexplained reasons, she paid and declared the
same in her own name. Because of this, plaintiff decided to run after this
property, erroneously thinking that as the great grandson of Francisca
Reyes, he had some proprietary right over the same.

The second parcel on the other hand, was purchased by Maria Cailles in
1917 under a deed of sale (Exh. '3') which describes the property as follows:
 . . . una parcela de terreno destinado al beneficio de la sal, que
linda por Norte con la linea Ferrea y Salinar de Narciso Mayuga,
por Este con los de Narciso Mayuga y Domingo Lozada, por Sur
con los de Domingo Lozada y Fruto Silverio y por Oeste con el de
Fruto Silverio y Linea Ferrea de una extension superficial de
1229.00 metros cuadrados.

After declaring it in her name, Maria Cailles likewise paid the realty tax in
1917 and continued paying the same up to 1948. Thereafter when she and
her son, Narciso Bracewell, established their residence in Nueva Ecija,
Francisco Reyes administered the property and like in the first case, declared
in 1949 the property in her own name. Thinking that the property is the
property of Francisca Reyes, plaintiff filed the instant complaint, claiming a
portion thereof as the same allegedly represents the share of his father,

As earlier stated, the court a quo decided the case in favor of the plaintiff
principally because defendants' evidence do not sufficiently show that the 2
properties which they bought in 1908 and 1917, are the same as the
properties sought by the plaintiff.

Carefully going over the evidence, We believe that the trial judge
misinterpreted the evidence as to the identification of the lands in question.

To begin with, the deed of sale (Exh. '60') of 1908 clearly states that the
land sold to Maria Cailles is en la cane Desposorio in Las Pinas Rizal which
was bounded by adjoining lands owned by persons living at the time,
including the railroad track of the Manila Railroad Co. ('la via ferrea del
Railroad Co.')

With the exception of the area which was not disclosed in the deed, the
description fits the land now being sought by the plaintiff, as this property is
also located in Desposorio St. and is bounded by the M.R.R. Co.

With these natural boundaries, there is indeed an assurance that the

property described in the deed and in the tax declaration is one and the
same property.

The change of owners of the adjoining lands is immaterial since several

decades have already passed between the deed and the declaration and
'during that period, many changes of abode would likely have occurred.

Besides, it is a fact that defendants have only one property in Desposorio St.
and they have paid the realty taxes of this property from May 29, 1914 up to
May 28, 1948. Hence, there is no reason to doubt that this property is the
same, if not Identical to the property in Desposorio St. which is now being
sought after by the plaintiff.

With respect to the other parcel which Maria Cailles bought from Tranquilino
Mateo in 1917, it is true that there is no similar boundaries to be relied
upon. It is however undeniable that after declaring it in her name, Maria
Cailles began paying the realty taxes thereon on July 24, 1917 until 1948.
(Reference to Exhibits omitted.)2

Petitioner takes issue with the appellate court on the above findings of fact, forgetting
that since the present petition is one for review on certiorari, only questions of law may
be raised. It is a well-established rule laid down by this Court in numerous cases that
findings of facts by the Court of Appeals are, generally, final and conclusive upon this
Court. The exceptions are: (1) when the conclusion is a finding grounded entirely on
speculation; (2) when the inference made is manifestly mistaken, absurd or impossible;
(3) when there is a grave abuse of discretion; (4) when the judgment is based on a
misapprehension of facts; and (5) when the Court of Appeals, in making its findings,
went beyond the issues of the case and the same are contrary to the submission of both
appellant and appellee. 3 None of the above exceptions, however, exists in the case at
bar, hence, there is no reason to disturb the findings of facts of the Court of Appeals.

Anent the second assignment of error, the Court of Appeals made the following findings:

Going to the issue of filiation, plaintiff claims that he is the son of Sotero
Leonardo, the son of one of the daughters (Pascuala) of Francisca Reyes. He
further alleges that since Pascuala predeceased Francisca Reyes, and that
his father, Sotero, who subsequently died in 1944, survived Francisca Reyes,
plaintiff can consequently succeed to the estate of Francisca Reyes by right
of representation.

In support of his claim, plaintiff submitted in evidence his alleged birth

certificate showing that his father is Sotero Leonardo, married to Socorro
Timbol, his alleged mother.

Since his supposed right will either rise or fall on the proper evaluation of
this vital evidence, We have minutely scrutinized the same, looking for that
vital link connecting him to the family tree of the deceased Francisca Reyes.
However, this piece of evidence does not in any way lend credence to his
tale.

This is because the name of the child described in the birth certificate is not
that of the plaintiff but a certain 'Alfredo Leonardo' who was born on
September 13, 1938 to Sotero Leonardo and Socorro Timbol. Other than his
bare allegation, plaintiff did not submit any durable evidence showing that
the 'Alfredo Leonardo' mentioned in the birth certificate is no other than he
himself. Thus, even without taking time and space to go into further details,
We may safely conclude that plaintiff failed to prove his filiation which is a
fundamental requisite in this action where he is claiming to be an heir in the
inheritance in question. 4

That is likewise a factual finding which may not be disturbed in this petition for review in
the absence of a clear showing that said finding is not supported by substantial
evidence, or that there was a grave abuse of discretion on the part of the court making
the finding of fact.

Referring to the third assignment of error, even if it is true that petitioner is the child of
Sotero Leonardo, still he cannot, by right of representation, claim a share of the estate
left by the deceased Francisca Reyes considering that, as found again by the Court of
Appeals, he was born outside wedlock as shown by the fact that when he was born on
September 13, 1938, his alleged putative father and mother were not yet married, and
what is more, his alleged father's first marriage was still subsisting. At most, petitioner
would be an illegitimate child who has no right to inherit ab intestato from the legitimate
children and relatives of his father, like the deceased Francisca Reyes. (Article 992, Civil
Code of the Philippines.)

WHEREFORE, the decision of the Court of Appeals sought to be reviewed in this petition
is hereby affirmed, with costs against the petitioner.
G.R. No. L-66574

ANSELMA DIAZ, guardian of VICTOR, RODRIGO, ANSELMINA and MIGUEL, all

surnamed SANTERO, petitioners, and FELIXBERTA PACURSA guardian of
FEDERICO SANTERO, et al., 
vs.
INTERMEDIATE APPELLATE COURT and FELISA PAMUTI JARDIN, respondents.

Ambrosia Padilla, Mempin & Reyes Law Offices for petitioners.

Pedro S. Sarino for respondent F.P. Jardin.

PARAS, J.:

Private respondent filed a Petition dated January 23, 1976 with the Court of First
Instance of Cavite in Sp. Proc. Case No. B-21, "In The Matter of the Intestate Estate of
the late Simona Pamuti Vda. de Santero," praying among other things, that the
corresponding letters of Administration be issued in her favor and that she be appointed
as special Administratrix of the properties of the deceased Simona Pamuti Vda. de
Santero.

It is undisputed: 1) that Felisa Pamuti Jardin is a niece of Simona Pamuti Vda. de

Santero who together with Felisa's mother Juliana were the only legitimate children of
the spouses Felipe Pamuti and Petronila Asuncion; 2) that Juliana married Simon Jardin
and out of their union were born Felisa Pamuti and another child who died during
infancy; 3) that Simona Pamuti Vda. de Santero is the widow of Pascual Santero and the
mother of Pablo Santero; 4) that Pablo Santero was the only legitimate son of his
parents Pascual Santero and Simona Pamuti Vda. de Santero; 5) that Pascual Santero
died in 1970; Pablo Santero in 1973 and Simona Santero in 1976; 6) that Pablo Santero,
at the time of his death was survived by his mother Simona Santero and his six minor
natural children to wit: four minor children with Anselma Diaz and two minor children
with Felixberta Pacursa.

Judge Jose Raval in his Orders dated December 1, 1976 1 and December 9,

1976 2 declared Felisa Pamuti Jardin as the sole legitimate heir of Simona Pamuti Vda.
de Santero.

Before the trial court, there were 4 interrelated cases filed to wit:

a) Sp. Proc. No. B-4 — is the Petition for the Letters of Administration of the
intestate Estate of Pablo Santero;

b) Sp. Proc. No. B-5 — is the Petition for the Letters of Administration of the
Intestate Estate of Pascual Santero;

c) Sp. Proc. No. B-7 — is the Petition for Guardianship over the properties of an
Incompetent Person, Simona Pamuti Vda. de Santero;

d) Sp. Proc. No. B-21 — is the Petition for Settlement of the Intestate Estate of
Simona Pamuti Vda. de Santero.

Felisa Jardin upon her Motion to Intervene in Sp. Proceedings Nos. B-4 and B-5, was
allowed to intervene in the intestate estates of Pablo Santero and Pascual Santero by
Order of the Court dated August 24, 1977.

Petitioner Anselma Diaz, as guardian of her minor children, filed her "Opposition and
Motion to Exclude Felisa Pamuti Jardin dated March 13, 1980, from further taking part or
intervening in the settlement of the intestate estate of Simona Pamuti Vda. de Santero,
as well as in the intestate estate of Pascual Santero and Pablo Santero.

Felixberta Pacursa guardian for her minor children, filed thru counsel, her Manifestation
of March 14, 1980 adopting the Opposition and Motion to Exclude Felisa Pamuti, filed by
Anselma Diaz.

On May 20, 1980, Judge Ildefonso M. Bleza issued an order excluding Felisa Jardin "from
further taking part or intervening in the settlement of the intestate estate of Simona
Pamuti Vda. de Santero, as well as in the intestate estates of Pascual Santero and Pablo
Santero and declared her to be, not an heir of the deceased Simona Pamuti Vda. de
Santero." 3

After her Motion for Reconsideration was denied by the trial court in its order dated
November 1, 1980, Felisa P. Jardin filed her appeal to the Intermediate Appellate Court
in CA-G.R. No. 69814-R. A decision 4 was rendered by the Intermediate Appellate Court
on December 14, 1983 (reversing the decision of the trial court) the dispositive portion
of which reads —

WHEREFORE, finding the Order appealed from not consistent with the facts and
law applicable, the same is hereby set aside and another one entered sustaining
the Orders of December 1 and 9, 1976 declaring the petitioner as the sole heir of
Simona Pamuti Vda. de Santero and ordering oppositors-appellees not to interfere
in the proceeding for the declaration of heirship in the estate of Simona Pamuti
Vda. de Santero.

Costs against the oppositors-appellees.

The Motion for Reconsideration filed by oppositors-appellees (petitioners herein) was

denied by the same respondent court in its order dated February 17, 1984 hence, the
present petition for Review with the following:

ASSIGNMENT OF ERRORS

I. The Decision erred in ignoring the right to intestate succession of

petitioners grandchildren Santero as direct descending line (Art. 978) and/or
natural/"illegitimate children" (Art. 988) and prefering a niece, who is a collateral
relative (Art. 1003);

II. The Decision erred in denying the right of representation of the natural
grandchildren Santero to represent their father Pablo Santero in the succession to
the intestate estate of their grandmother Simona Pamuti Vda.de Santero (Art.
982);

III. The Decision erred in mistaking the intestate estate of the

grandmother Simona Pamuti Vda. de Santero as the estate of "legitimate child or
relative" of Pablo Santero, her son and father of the petitioners' grandchildren
Santero;

IV. The Decision erred in ruling that petitioner-appellant Felisa P. Jardin who is a

niece and therefore a collateral relative of Simona Pamuti Vda. de Santero
excludes the natural children of her son Pablo Santero, who are her
direct descendants and/or grand children;

V. The Decision erred in applying Art. 992, when Arts. 988, 989 and 990 are the
applicable provisions of law on intestate succession; and

VI. The Decision erred in considering the orders of December 1 and December 9,
1976 which are provisional and interlocutory as final and executory.
The real issue in this case may be briefly stated as follows — who are the legal heirs of
Simona Pamuti Vda. de Santero — her niece Felisa Pamuti Jardin or her grandchildren
(the natural children of Pablo Santero)?

The dispute at bar refers only to the intestate estate of Simona Pamuti Vda. de Santero
and the issue here is whether oppositors-appellees (petitioners herein) as illegitimate
children of Pablo Santero could inherit from Simona Pamuti Vda. de Santero, by right of
representation of their father Pablo Santero who is a legitimate child of Simona Pamuti
Vda, de Santero.

Now then what is the appropriate law on the matter? Petitioners contend in their
pleadings that Art. 990 of the New Civil Code is the applicable law on the case. They
contend that said provision of the New Civil Code modifies the rule in Article 941 (Old
Civil Code) and recognizes the right of representation (Art. 970) to descendants,
whether legitimate or illegitimate and that Art. 941, Spanish Civil Code denied
illegitimate children the right to represent their deceased parents and inherit from their
deceased grandparents, but that Rule was expressly changed and/or amended by Art.
990 New Civil Code which expressly grants the illegitimate children the right to
represent their deceased father (Pablo Santero) in the estate of their grandmother
Simona Pamuti)." 5

Petitioners' contention holds no water. Since the heridatary conflict refers solely to the
intestate estate of Simona Pamuti Vda. de Santero, who is the legitimate mother of
Pablo Santero, the applicable law is the provision of Art. 992 of the Civil Code which
reads as follows:

ART. 992. 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. (943a)

Pablo Santero is a legitimate child, he is not an illegitimate child. On the other hand, the
oppositors (petitioners herein) are the illegitimate children of Pablo Santero.

Article 992 of the New Civil Code provides a barrier or iron curtain in that it prohibits
absolutely a succession ab intestato between the illegitimate child and the legitimate
children and relatives of the father or mother of said legitimate child. They may have a
natural tie of blood, but this is not recognized by law for the purposes of Art. 992,
Between the legitimate family and the illegitimate family there is presumed to be an
intervening antagonism and incompatibility. The illegitimate child is disgracefully looked
down upon by the legitimate family; the family is in turn, hated by the illegitimate child;
the latter considers the privileged condition of the former, and the resources of which it
is thereby deprived; the former, in turn, sees in the illegitimate child nothing but the
product of sin, palpable evidence of a blemish broken in life; the law does no more than
recognize this truth, by avoiding further grounds of resentment. 6

Thus, petitioners herein cannot represent their father Pablo Santero in the succession of
the letter to the intestate estate of his legitimate mother Simona Pamuti Vda. de
Santero, because of the barrier provided for under Art. 992 of the New Civil Code.

In answer to the erroneous contention of petitioners that Article 941 of the Spanish Civil
Code is changed by Article 990 of the New Civil Code, We are reproducing herewith the
Reflections of the Illustrious Hon. Justice Jose B.L. Reyes which also finds full support
from other civilists, to wit:

In the Spanish Civil Code of 1889 the right of representation was admitted only
within the legitimate family; so much so that Article 943 of that Code prescribed
that an illegitimate child can riot inherit ab intestato from the legitimate children
and relatives of his father and mother. The Civil Code of the Philippines apparently
adhered to this principle since it reproduced Article 943 of the Spanish Code in its
own Art. 992, but with fine inconsistency, in subsequent articles (990, 995 and
998) our Code allows the hereditary portion of the illegitimate child to pass to his
 own descendants, whether legitimate or illegitimate. So that while Art. 992
prevents the illegitimate issue of a legitimate child from representing him in the
intestate succession of the grandparent, the illegitimates of an illegitimate child
can now do so. This difference being indefensible and unwarranted, in the future
revision of the Civil Code we shall have to make a choice and decide either that
the illegitimate issue enjoys in all cases the right of representation, in which case
Art. 992 must be suppressed; or contrariwise maintain said article and modify
Articles 995 and 998. The first solution would be more in accord with an
enlightened attitude vis-a-vis illegitimate children. (Reflections on the Reform of
Hereditary Succession, JOURNAL of the Integrated Bar of the Philippines, First
Quater, 1976, Volume 4, Number 1, pp. 40-41).

It is therefore clear from Article 992 of the New Civil Code that the phrase "legitimate
children and relatives of his father or mother" includes Simona Pamuti Vda. de Santero
as the word "relative" includes all the kindred of the person spoken of. 7 The record
shows that from the commencement of this case the only parties who claimed to be the
legitimate heirs of the late Simona Pamuti Vda. de Santero are Felisa Pamuti Jardin and
the six minor natural or illegitimate children of Pablo Santero. Since petitioners herein
are barred by the provisions of Article 992, the respondent Intermediate Appellate Court
did not commit any error in holding Felisa Pamuti-Jardin to be the sole legitimate heir to
the intestate estate of the late Simona Pamuti Vda. de Santero.

Lastly, petitioners claim that the respondent Intermediate Appellate Court erred in ruling
that the Orders of the Court a quo dated December 1, 1976 and December 9, 1976 are
final and executory. Such contention is without merit. The Hon. Judge Jose Raval in his
order dated December 1, 1976 held that the oppositors (petitioners herein) are not
entitled to intervene and hence not allowed to intervene in the proceedings for the
declaration of the heirship in the intestate estate of Simona Pamuti Vda. de Santero.
Subsequently, Judge Jose Raval issued an order, dated December 9, 1976, which
declared Felisa Pamuti-Jardin to be the sole legitimate heir of Simona Pamuti. The said
Orders were never made the subjects of either a motion for reconsideration or a
perfected appeal. Hence, said orders which long became final and executory are already
removed from the power of jurisdiction of the lower court to decide anew. The only
power retained by the lower court, after a judgment has become final and executory is
to order its execution. The respondent Court did not err therefore in ruling that the
Order of the Court a quo dated May 30, 1980 excluding Felisa Pamuti Jardin as intestate
heir of the deceased Simona Pamuti Vda. de Santero "is clearly a total reversal of an
Order which has become final and executory, hence null and void. "

WHEREFORE, this petition is hereby DISMISSED, and the assailed decision is hereby
AFFIRMED.
G.R. Nos. 89224-25 January 23, 1992

MAURICIO SAYSON, ROSARIO SAYSON-MALONDA, BASILISA SAYSON-LIRIO,

REMEDIOS SAYSON-REYES and JUANA C. BAUTISTA, petitioners, 
vs.
THE HONORABLE COURT OF APPEALS, DELIA SAYSON, assisted by her husband,
CIRILO CEDO, JR., EDMUNDO SAYSON AND DORIBEL SAYSON, respondents.

CRUZ, J.:

At issue in this case is the status of the private respondents and their capacity to inherit
from their alleged parents and grandparents. The petitioners deny them that right,
asserting if for themselves to the exclusion of all others.

The relevant genealogical facts are as follows.

Eleno and Rafaela Sayson begot five children, namely, Mauricio, Rosario, Basilisa,
Remedios and Teodoro. Eleno died on November 10, 1952, and Rafaela on May 15,
1976. Teodoro, who had married Isabel Bautista, died on March 23, 1972. His wife died
nine years later, on March 26, 1981. Their properties were left in the possession of
Delia, Edmundo, and Doribel, all surnamed Sayson, who claim to be their children.

On April 25, 1983, Mauricio, Rosario, Basilisa, and Remedios, together with Juana C.
Bautista, Isabel's mother, filed a complaint for partition and accounting of the intestate
estate of Teodoro and Isabel Sayson. It was docketed as Civil Case No. 1030 in Branch
13 of the Regional Trial Court of Albay. The action was resisted by Delia, Edmundo and
Doribel Sayson, who alleged successional rights to the disputed estate as the decedents'
lawful descendants.

On July 11, 1983, Delia, Edmundo and Doribel filed their own complaint, this time for
the accounting and partition of the intestate estate of Eleno and Rafaela Sayson, against
the couple's four surviving children. This was docketed as Civil Case No. 1042 in the
Regional Trial Court of Albay, Branch 12. The complainants asserted the defense they
raised in Civil Case No. 1030, to wit, that Delia and Edmundo were the adopted children
and Doribel was the legitimate daughter of Teodoro and Isabel. As such, they were
entitled to inherit Teodoro's share in his parents' estate by right of representation.

Both cases were decided in favor of the herein private respondents on the basis of
practically the same evidence.

Judge Rafael P. Santelices declared in his decision dated May 26, 

1986, 1 that Delia and Edmundo were the legally adopted children of Teodoro and Isabel
Sayson by virtue of the decree of adoption dated March 9, 1967. 2 Doribel was their
legitimate daughter as evidenced by her birth certificate dated February 27,
1967. 3 Consequently, the three children were entitled to inherit from Eleno and Rafaela
by right of representation.

In his decision dated September 30, 1986, 4 Judge Jose S. Sañez dismissed Civil Case
No. 1030, holding that the defendants, being the legitimate heirs of Teodoro and Isabel
as established by the aforementioned evidence, excluded the plaintiffs from sharing in
their estate.

Both cases were appealed to the Court of Appeals, where they were consolidated. In its
own decision dated February 28, 1989, 5 the respondent court disposed as follows:

WHEREFORE, in Civil Case No. 1030 (CA-G.R. No. 11541), the appealed
decision is hereby AFFIRMED. In Civil case No. 1042 (CA-G.R. No. 12364),
the appealed decision is MODIFIED in that Delia and Edmundo Sayson are
 disqualified from inheriting from the estate of the deceased spouses Eleno
and Rafaela Sayson, but is affirmed in all other respects.

SO ORDERED.

That judgment is now before us in this petition for review by certiorari. Reversal of the
respondent court is sought on the ground that it disregarded the evidence of the
petitioners and misapplied the pertinent law and jurisprudence when it declared the
private respondents as the exclusive heirs of Teodoro and Isabel Sayson.

The contention of the petitioners is that Delia and Edmundo were not legally adopted
because Doribel had already been born on February 27, 1967, when the decree of
adoption was issued on March 9, 1967. The birth of Doribel disqualified her parents from
adopting. The pertinent provision is Article 335 of the Civil Code, naming among those
who cannot adopt "(1) Those who have legitimate, legitimated, acknowledged natural
children, or natural children by legal fiction."

Curiously enough, the petitioners also argue that Doribel herself is not the legitimate
daughter of Teodoro and Isabel but was in fact born to one Edita Abila, who manifested
in a petition for guardianship of the child that she was her natural mother. 6

The inconsistency of this position is immediately apparent. The petitioners seek to annul
the adoption of Delia and Edmundo on the ground that Teodoro and Isabel already had a
legitimate daughter at the time but in the same breath try to demolish this argument by
denying that Doribel was born to the couple.

On top of this, there is the vital question of timeliness. It is too late now to challenge the
decree of adoption, years after it became final and executory. That was way back in
1967. 7 Assuming the the petitioners were proper parties, what they should have done
was seasonably appeal the decree of adoption, pointing to the birth of Doribel that
disqualified Teodoro and Isabel from adopting Delia and Edmundo. They did not. In fact,
they should have done this earlier, before the decree of adoption was issued. They did
not, although Mauricio claimed he had personal knowledge of such birth.

As the respondent court correctly observed:

When Doribel was born on February 27, 1967, or about TEN (10) days
before the issuance of the Order of Adoption, the petitioners could have
notified the court about the fact of birth of DORIBEL and perhaps withdrew
the petition or perhaps petitioners could have filed a petition for the
revocation or rescission of the adoption (although the birth of a child is not
one of those provided by law for the revocation or rescission of an adoption).
The court is of the considered opinion that the adoption of the plaintiffs
DELIA and EDMUNDO SAYSON is valid, outstanding and binding to the
present, the same not having been revoked or rescinded.

Not having any information of Doribel's birth to Teodoro and Isabel Sayson, the trial
judge cannot be faulted for granting the petition for adoption on the finding inter
alia that the adopting parents were not disqualified.

A no less important argument against the petitioners is that their challenge to the
validity of the adoption cannot be made collaterally, as in their action for partition, but in
a direct proceeding frontally addressing the issue.

The settled rule is that a finding that the requisite jurisdictional facts exists,
whether erroneous or not, cannot be questioned in a collateral proceeding,
for a presumption arises in such cases where the validity of the judgment is
thus attacked that the necessary jurisdictional facts were proven [Freeman
on Judgments, Vol. I, Sec. 350, pp. 719-720]. (Emphasis supplied.)

In the case of Santos v. Aranzanso, 8 this Court declared:

 Anent this point, the rulings are summed up in 2 American Jurisprudence,
2nd Series, Adoption, Sec. 75, p. 922, thus:

An adoption order implies the finding of the necessary facts and

the burden of proof is on the party attacking it; it cannot be
considered void merely because the fact needed to show
statutory compliance is obscure. While a judicial determination of
some particular fact, such as the abandonment of his next of kin
to the adoption, may be essential to the exercise of jurisdiction
to enter the order of adoption, this does not make it essential to
the jurisdictional validity of the decree that the fact be
determined upon proper evidence, or necessarily in accordance
with the truth; a mere error cannot affect the jurisdiction, and
the determination must stand until reversed on appeal, and
hence cannot be collaterally attacked. If this were not the rule,
the status of adopted children would always be uncertain, since
the evidence might not be the same at all investigations, and
might be regarded with different effect by different tribunals,
and the adoption might be held by one court to have been valid,
while another court would hold it to have been of no avail.
(Emphasis supplied.)

On the question of Doribel's legitimacy, we hold that the findings of the trial courts as
affirmed by the respondent court must be sustained. Doribel's birth certificate is a
formidable piece of evidence. It is one of the prescribed means of recognition under
Article 265 of the Civil Code and Article 172 of the Family Code. It is true, as the
petitioners stress, that the birth certificate offers only prima facie evidence 9 of filiation
and may be refuted by contrary evidence. However, such evidence is lacking in the case
at bar.

Mauricio's testimony that he was present when Doribel was born to Edita Abila was
understandbly suspect, coming as it did from an interested party. The affidavit of
Abila 10 denying her earlier statement in the petition for the guardianship of Doribel is of
course hearsay, let alone the fact that it was never offered in evidence in the lower
courts. Even without it, however, the birth certificate must be upheld in line with Legaspi
v. Court of Appeals, 11where we ruled that "the evidentiary nature of public documents
must be sustained in the absence of strong, complete and conclusive proof of its falsity
or nullity."

Another reason why the petitioners' challenge must fail is the impropriety of the present
proceedings for that purpose. Doribel's legitimacy cannot be questioned in a complaint
for partition and accounting but in a direct action seasonably filed by the proper party.

The presumption of legitimacy in the Civil Code . . . does not have this
purely evidential character. It serves a more fundamental purpose. It
actually fixes a civil status for the child born in wedlock, and that civil
status cannot be attacked collaterally. The legitimacy of the child can be
impugned only in a direct action brought for that purpose, by the proper
parties, and within the period limited by law.

The legitimacy of the child cannot be contested by way of defense or as a

collateral issue in another action for a different purpose. . . . 12 (Emphasis
supplied.)

In consequence of the above observations, we hold that Doribel, as the legitimate

daughter of Teodoro and Isabel Sayson, and Delia and Edmundo, as their adopted
children, are the exclusive heirs to the intestate estate of the deceased couple,
conformably to the following Article 979 of the Civil Code:
 Art. 979. Legitimate children and their descendants succeed the parents and
other ascendants, without distinction as to sex or age, and even if they
should come from different marriages.

An adopted child succeeds to the property of the adopting parents in the

same manner as a legitimate child.

The philosophy underlying this article is that a person's love descends first to his
children and grandchildren before it ascends to his parents and thereafter spreads
among his collateral relatives. It is also supposed that one of his purposes in acquiring
properties is to leave them eventually to his children as a token of his love for them and
as a provision for their continued care even after he is gone from this earth.

Coming now to the right of representation, we stress first the following pertinent
provisions of the Civil Code:

Art. 970. Representation is a right created by fiction of law, by virtue of

which the representative is raised to the place and the degree of the person
represented, and acquires the rights which the latter would have if he were
living or if he could have inherited.

Art. 971. The representative is called to the succession by the law and not
by the person represented. The representative does not succeed the person
represented but the one who the person represented would have succeeded.

Art. 981. Should children of the deceased and descendants of other children
who are dead, survive, the former shall inherit in their own right, and the
latter by right of representation.

There is no question that as the legitimate daughter of Teodoro and thus the
granddaughter of Eleno and Rafaela, Doribel has a right to represent her deceased
father in the distribution of the intestate estate of her grandparents. Under Article 981,
quoted above, she is entitled to the share her father would have directly inherited had
he survived, which shall be equal to the shares of her grandparents' other children. 13

But a different conclusion must be reached in the case of Delia and Edmundo, to whom
the grandparents were total strangers. While it is true that the adopted child shall be
deemed to be a legitimate child and have the same right as the latter, these rights do
not include the right of representation. The relationship created by the adoption is
between only the adopting parents and the adopted child and does not extend to the
blood relatives of either party. 14

In sum, we agree with the lower courts that Delia and Edmundo as the adopted children
and Doribel as the legitimate daughter of Teodoro Sayson and Isabel Bautista, are their
exclusive heirs and are under no obligation to share the estate of their parents with the
petitioners. The Court of Appeals was correct, however, in holding that only Doribel has
the right of representation in the inheritance of her grandparents' intestate estate, the
other private respondents being only the adoptive children of the deceased Teodoro.

WHEREFORE, the petition is DENIED, and the challenged decision of the Court of Appeals
is AFFIRMED in toto, with costs against the petitioners.
G.R. No. 82233 March 22, 1990

JOSE BARITUA and EDGAR BITANCOR, petitioners, 

vs.
HONORABLE COURT OF APPEALS, NICOLAS NACARIO and VICTORIA RONDA
NACARIO, respondents.

Domingo Lucenario for petitioners.

Ernesto A. Atienza for private respondents.

SARMIENTO, J.:

This petition for review on certiorari assails as erroneous and contrary to existing

relevant laws and applicable jurisprudence the decision 1 of the Court of Appeals dated
December 11, 1987 which reversed and set aside that of the Regional Trial Court,
Branch XXXII, at Pili, Camarines Sur. 2 The challenged decision adjudged the petitioners
liable to the private respondents in the total amount of P20,505.00 and for costs.

The facts are as follows:

In the evening of November 7, 1979, the tricycle then being driven by Bienvenido
Nacario along the national highway at Barangay San Cayetano, in Baao, Camarines Sur,
figured in an accident with JB Bus No. 80 driven by petitioner Edgar Bitancor and owned
and operated by petitioner Jose Baritua. 3 As a result of that accident Bienvenido and his
passenger died 4 and the tricycle was damaged. 5 No criminal case arising from the
incident was ever instituted. 6

Subsequently, on March 27, 1980, as a consequence of the extra-judicial settlement of

the matter negotiated by the petitioners and the bus insurer — Philippine First Insurance
Company, Incorporated (PFICI for brevity) — Bienvenido Nacario's widow, Alicia
Baracena Vda. de Nacario, received P18,500.00. In consideration of the amount she
received, Alicia executed on March 27, 1980 a "Release of Claim" in favor of the
petitioners and PFICI, releasing and forever discharging them from all actions, claims,
and demands arising from the accident which resulted in her husband's death and the
damage to the tricycle which the deceased was then driving. Alicia likewise executed an
affidavit of desistance in which she formally manifested her lack of interest in instituting
any case, either civil or criminal, against the petitioners. 7

On September 2, 1981, or about one year and ten months from the date of the accident
on November 7, 1979, the private respondents, who are the parents of Bienvenido
Nacario, filed a complaint for damages against the petitioners with the then Court of
First Instance of Camarines Sur. 8 In their complaint, the private respondents alleged
that during the vigil for their deceased son, the petitioners through their representatives
promised them (the private respondents) that as extra-judicial settlement, they shall be
indemnified for the death of their son, for the funeral expenses incurred by reason
thereof, and for the damage for the tricycle the purchase price of which they (the private
respondents) only loaned to the victim. The petitioners, however, reneged on their
promise and instead negotiated and settled their obligations with the long-estranged
wife of their late son. The Nacario spouses prayed that the defendants, petitioners
herein, be ordered to indemnify them in the amount of P25,000.00 for the death of their
son Bienvenido, P10,000.00 for the damaged tricycle, P25,000.00 for compensatory and
exemplary damages, P5,000.00 for attorney's fees, and for moral damages. 9

After trial, the court a quo dismissed the complaint, holding that the payment by the
defendants (herein petitioners) to the widow and her child, who are the preferred heirs
and successors-in-interest of the deceased Bienvenido to the exclusion of his parents,
the plaintiffs (herein private respondents), extinguished any claim against the
defendants (petitioners). 10
The parents appealed to the Court of Appeals which reversed the judgment of the trial
court. The appellate court ruled that the release executed by Alicia Baracena Vda. de
Nacario did not discharge the liability of the petitioners because the case was instituted
by the private respondents in their own capacity and not as "heirs, representatives,
successors, and assigns" of Alicia; and Alicia could not have validly waived the damages
being prayed for (by the private respondents) since she was not the one who suffered
these damages arising from the death of their son. Furthermore, the appellate court said
that the petitioners "failed to rebut the testimony of the appellants (private respondents)
that they were the ones who bought the tricycle that was damaged in the incident.
Appellants had the burden of proof of such fact, and they did establish such fact in their
testimony . . . 11 Anent the funeral expenses, "(T)he expenses for the funeral were
likewise shouldered by the appellants (the private respondents). This was never
contradicted by the appellees (petitioners). . . . Payment (for these) were made by the
appellants, therefore, the reimbursement must accrue in their favor. 12

Consequently, the respondent appellate court ordered the petitioners to pay the private
respondents P10,000.00 for the damage of the tricycle, P5,000.00 for "complete" funeral
services, P450.00 for cemetery lot, P55.00 for oracion adulto, and P5,000.00 for
attorney's fees. 13 The petitioners moved for
a reconsideration of the appellate court's decision 14 but their motion was
denied. 15 Hence, this petition.

The issue here is whether or not the respondent appellate court erred in holding that the
petitioners are still liable to pay the private respondents the aggregate amount of
P20,505.00 despite the agreement of extrajudicial settlement between the petitioners
and the victim's compulsory heirs.

The petition is meritorious.

Obligations are extinguished by various modes among them being by payment. Article
1231 of the Civil Code of the Philippines provides:

Art. 1231. Obligations are extinguished:

(1) By payment or performance;

(2) By the loss of the thing due;

(3) By the condonation or remission of the debt;

(4) By the confusion or merger of the rights of creditor and debtor;

(5) By compensation;

(6) By novation.

(Emphasis ours.)

There is no denying that the petitioners had paid their obligation petition arising from
the accident that occurred on November 7, 1979. The only question now is whether or
not Alicia, the spouse and the one who received the petitioners' payment, is entitled to
it.

Article 1240 of the Civil Code of the Philippines enumerates the persons to whom
payment to extinguish an obligation should be made.

Art 1240. Payment shall be made to the person in whose favor the obligation
has been constituted, or his successor in interest, or any person authorized
to receive it.
Certainly there can be no question that Alicia and her son with the deceased are the
successors in interest referred to in law as the persons authorized to receive payment.
The Civil Code states:

Article 887. The following are compulsory heirs:

1. Legitimate children and descendants, with respect to their legitimate

parents and ascendants;

2. In default of the foregoing, legitimate parents and ascendants with

respect to their legitimate children and decendants;

3. The widow or widower;

4. Acknowledged natural children and natural children by legal fiction;

5. Other illegitimate children referred to in Article 287.

Compulsory heirs mentioned in Nos. 3, 4 and 5 are not excluded by those in

Nos. 1 and 2. Neither do they exclude one another. (Emphasis ours.)

Article 985. In default of legitimate children and descendants of the

deceased, his parents and ascendants shall inherit from him, to the
exclusion of collateral relatives.

(Emphasis ours.)

It is patently clear that the parents of the deceased succeed only when the latter dies
without a legitimate descendant. On the other hand, the surviving spouse concurs with
all classes of heirs. As it has been established that Bienvenido was married to Alicia and
that they begot a child, the private respondents are not successors-in-interest of
Bienvenido; they are not compulsory heirs. The petitioners therefore acted correctly in
settling their obligation with Alicia as the widow of Bienvenido and as the natural
guardian of their lone child. This is so even if Alicia had been estranged from Bienvenido.
Mere estrangement is not a legal ground for the disqualification of a surviving spouse as
an heir of the deceased spouse.

Neither could the private respondents, as alleged creditors of Bienvenido, seek relief and
compensation from the petitioners. While it may be true that the private respondents
loaned to Bienvenido the purchase price of the damaged tricycle and shouldered the
expenses for his funeral, the said purchase price and expenses are but money claims
against the estate of their deceased son. 16 These money claims are not the liabilities of
the petitioners who, as we have said, had been released by the agreement of the extra-
judicial settlement they concluded with Alicia Baracena Vda. de Nacario, the victim's
widow and heir, as well as the natural guardian of their child, her co-heir. As a matter of
fact, she executed a "Release Of Claim" in favor of the petitioners.

WHEREFORE, the petition is GRANTED; the decision of the Court of Appeals is

REVERSED and SET ASIDE and the decision of the Regional Trial Court is hereby
REINSTATED. Costs against the private respondents.
G.R. No. L-22469 October 23, 1978

TOMAS CORPUS, plaintiff-appellant, 
vs.
ADMINISTRATOR and/or EXECUTOR of the Estate of Teodoro R. Yangco,
RAFAEL CORPUS, AMALIA CORPUS, JOSE A. V. CORPUS, RAMON L. CORPUS,
ENRIQUE J. CORPUS, S. W. STAGG, SOLEDAD ASPRER and CIPRIANO
NAVARRO, defendants-appellees.

AQUINO, J.:

Teodoro R. Yangco died in Manila on April 20, 1939 at the age of seventy-seven years.
His will dated August 29, 1934 was probated in the Court of First Instance of Manila in
Special Proceeding No. 54863. The decree of probate was affirmed in this Court's 1941
decision in Corpus vs. Yangco, 73 Phil. 527. The complete text of the will is quoted in
that decision.

Yangco had no forced heirs. At the time of his death, his nearest relatives were (1) his
half brother, Luis R. Yangco, (2) his half sister, Paz Yangco, the wife of Miguel Ossorio
(3) Amalia Corpus, Jose A. V. Corpus, and Ramon L. Corpus, the children of his half
brother, Pablo Corpus, and (4) Juana (Juanita) Corpus, the daughter of his half brother
Jose Corpus. Juanita died in October, 1944 at Palauig, Zambales.

Teodoro R. Yangco was the son of Luis Rafael Yangco and Ramona Arguelles, the widow
of Tomas Corpus. Before her union with Luis Rafael Yangco, Ramona had begotten five
children with Tomas Corpus, two of whom were the aforenamed Pablo Corpus and Jose
Corpus.

Pursuant to the order of the probate court, a project of partition dated November 26,
1945 was submitted by the administrator and the legatees named in the will. That
project of partition was opposed by the estate of Luis R. Yangco whose counsel
contended that an intestacy should be declared Because the will does not contain an
institution of heir. It was also opposed by Atty. Roman A. Cruz, who represented Juanita
Corpus, Pedro Martinez and Juliana de Castro. Juanita Corpus was already dead when
Atty. Cruz appeared as her counsel.

Atty. Cruz alleged in his opposition that the proposed partion was not in conformity with
the will because the testator intended that the estate. should be "conserved" and not
physically partitioned. Atty. Cruz prayed "que declare que el finado no dispuso en su
testamento de sus bienes y negocios y que ha lugar a sucession intestado con respecio
a los raismos y que same un dia en esta causa para la recepcion de pruebas previa a la
declaracion de quienes son los herederos legales o abintestato del difunto."

The Probate court in its order of December 26, 1946 approved the project of partition. It
held that in certain clauses of the will the testator intended to conserve his properties
not in the sense of disposing of them after his death but for the purpose of Preventing
that "tales bienes fuesen malgastados o desfilpar radios por los legatarios" and that if
the testator intended a Perpetual prohibition against alienation, that conch tion would be
regarded "como no puesta o no existents". it concluded that "no hay motives legales o
morales para que la sucession de Don Teodoro R. Yangco sea declarada intestada (See
Barretto vs. Tuason, 50 Phil. 888, which cites article 785 of the Spanish Civil Code as
prohibiting perpetual entails, and Rodriguez vs. Court of Appeals, L-28734, March 28,
1969, 27 SCRA 546.)

From that order, Pedro Martinez, Juliana de Castro , Juanita Corpus (deceased) and the
estate of Luis R. Yangco aped to this Court (L-1476). Those appeals were dismissed in
tills Court's resolutions of October 10 and 31, 1947 after the legatees and the appellants
entered into compromise agreements. In the compromise dated October 7, 1947 the
legatees agreed to pay P35,000 to Pedro Martinez, the heirs of Pio V. Corpus, the heirs
of Isabel Corpus and the heir of Juanita Corpus. Herein appellant Tomas Corpus signed
that compromise settlement as the sole heir of Juanita Corpus. The estate of Luis R.
Yangco entered into a similar compromise a ment A the resolution dismissing the appeal
became, final and executory on October 14 and November 4, 1947, entries of judgment
were made on those dates.

Pursuant to the compromise agreement, Tomas Corpus Signed a receipt dated October
24, 1947 wherein he acknowledge that he received from the Yangco estate the sum of
two thousand pesos (P2,000) "as settlement in full of my share of the compromise
agreement as per understanding with Judge Roman Cruz, our attorney in this case"
(Exh. D or 17).

On September 20, 1949, the legatees executed an agreement for the settlement and
physical partition of the Yangco estate. The probate court approved that agreement and
noted that the 1945 project of partition was pro tanto modified. That did not set at rest
the controvery over the Yangco's estate.

On October 5, 1951, Tomas Corpus, as the sole heir of Juanita corpus, filed an action in
the Court of First Instance of Manila to recover her supposed share in Yangco intestate
estate. He alleged in his complaint that the dispositions in his Yangcos will sing perpetual
prohibitions upon alienation rendered it void under article 785 of the old Civil Code and
that the 1949 partition is invalid and, therefore, the decedent's estate should be
distributed according to the rules on intestacy.

The trial court in its decision of July 2, 1956 dismissed the action on the grounds of res
judicata and laches. It held that the intrinsic validity of Yangco's will was passed upon in
its order dated December 26, 1946 in Special Proceeding No. 54863 approving the
project of partition for the testator's estate.

Tomas Corpus appealed to the Court of Appeals which in its resolution dated January 23,
1964 in CA-G. R. No. 18720-R certified the appeal to this Court because it involves real
property valued at more than fifty thousand pesos (Sec. 17151 Judiciary Law before it
was amended by Republic Act No. 2613).

Appellant Corpus contends in this appeal that the trial court erred in holding (1) that
Teodoro R. Yangco was a natural child, (2) that his will had been duly legalized and (3)
that plaintiff's action is barred by res judicata and laches.

In the disposition of this appeal it is not necessary to resolve whether Yangco's will had
been duly legalized and whether the action of Tomas Corpus is barred by res judicata
and laches. The appeal may be resolved by de whether Juanita Corpus, the mother of
apt Tomas Corpus was a legal heir of Yangco. Has Tomas Corpus a cause of action to
recover his mother's supposed intestate share in Yangco's estate?

To answer that question, it is necessary to ascertain Yangco's filiation The trial court
found that Yangco "a su muerte tambien le sbrevivieron Luis y Paz appellidados Yangco,
hermanos naturales reconocidos por su padre natural Luis R. Yangco". The basis of the
trial court's conclusion that Teodoro R. Yangco was an acknowledged natural child and
not a legitimate child was the statement in the will of his father, Luis Rafael Yangco,
dated June 14, 1907, that Teodoro and his three other children were his acknowledged
natural children. His exact words are:

Primera. Declaro que tengo cuatro hijos naturales reconocidos,

Hamados Teodoro, Paz, Luisa y Luis, los cuales son mis unicos herederos
forzosos (Exh. 1 in Testate Estate of Teodoro Yangco).

That will was attested by Rafael del Pan Francisco Ortigas, Manuel Camus and Florencio
Gonzales Diez
Appellant Corpus assails the probative value of the will of Luis R. Yangco, Identified as
Exhibit 1 herein, which he says is a mere copy of Exhibit 20, as found in the record on
appeal in Special Proceeding No. 54863. He contends that it should not prevail over the
presumption of legitimacy found in section 69, Rule 123 of the old Rules of Court and
over the statement of Samuel W. Stagg in his biography of Teodoro R. Yangco, that Luis
Rafael Yangco made a second marital venture with Victoria Obin implying that he had a
first marital venture with Ramona Arguelles, the mother of Teodoro.

These contentions have no merit. The authenticity of the will of Luis Rafael Yangco, as
reproduced in Exhibit I herein and as copied from Exhibit 20 in the proceeding for the
probate of Teodoro R. Yangco's wilt in incontestable. The said will is part of a public or
official judicial record.

On the other hand, the children of Ramona Arguelles and Tomas Corpus are presumed
to be legitimate. A marriage is presumed to have taken place between Ramona and
Tomas. Semper praesumitur pro matrimonio. It is disputably presumption "That a man
and a woman deporting themselves as husband and wife have entered into a lawful
contract of marriage"; "that a child born in lawful wedlock, there being no divorce,
absolute or from bed and board, is legitimate", and "that things have happened
according to the ordinary course of nature and the ordinary habits of life" (Sec. 5[z],
[bb] and cc Rule 131, Rules of Court).

Since Teodoro R. Yangco was an acknowledged natural child or was illegitimate and
since Juanita Corpus was the legitimate child of Jose Corpus, himself a legitimate child,
we hold that appellant Tomas Corpus has no cause of action for the recovery of the
supposed hereditary share of his mother, Juanita Corpus, as a legal heir, in Yangco's
estate. Juanita Corpus was not a legal heir of Yangco because there is no reciprocal
succession between legitimate and illegitimate relatives. The trial court did not err in
dismissing the complaint of Tomas Corpus.

Article 943 of the old Civil code provides that "el hijo natural y el legitimado no tienen
derecho a suceder abintestato a los hijos y parientes legitimos del padre o madre que to
haya reconocido, ni ellos al hijo natural ni al legitimado". Article 943 "prohibits all
successory reciprocity mortis causa between legitimate and illegitimate relatives" 16
Sanchez Roman, Civil Code, pp. 996-997 cited in Director of Lands vs. Aguas, 63 Phil.
279, 287. See 16 Scaevola Codigo Civil, 4th Ed., 455-6). ...

Appellant Corpus concedes that if 'Teodoro R. Yangco was a natural child, he (Tomas
Corpus) would have no legal personality to intervene in the distribution of Yangco's
estate (p. 8, appellant's brief).

The rule in article 943 is now found in article 992 of the Civil Code which provides 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".

That rule is based on the theory that the illegitimate child is disgracefully looked upon by
the legitimate family while the legitimate family is, in turn, hated by the illegitimate
child.

The law does not recognize the blood tie and seeks to avod further grounds of
resentment (7 Manresa, Codigo Civil, 7th Ed., pp. 185- 6).

Under articles 944 and 945 of the Spanish Civil Code, "if an acknowledged natural or
legitimated child should die without issue, either legitimate or acknowledged, the father
or mother who acknowledged such child shall succeed to its entire estate; and if both
acknowledged it and are alive, they shall inherit from it share and share alike. In default
of natural ascendants, natural and legitimated children shall be succeeded by
their natural brothers and sisters in accordance with the rules established for legitimate
brothers and sisters." Hence, Teodoro R. Yangco's half brothers on the Corpus side, who
were legitimate, had no right to succeed to his estate under the rules of intestacy.
Following the rule in article 992, formerly article 943, it was held that the legitimate
relatives of the mother cannot succeed her illegitimate child (Cacho vs. Udan L- 19996,
April 30, 1965, 13 SCRA 693. See De Guzman vs. Sevilla, 47 Phil. 991).

Where the testatrix, Rosario Table was the legitimate daughter of Jose Table the two
acknowledged natural children of her uncle, Ramon Table her father's brother, were held
not to be her legal heirs (Grey vs. Table 88 Phil. 128).

By reason of that same rule, the natural child cannot represent his natural father in the
succession to the estate of the legitimate grandparent (Llorente vs. Rodriguez, 10 Phil.
585; Centeno vs. Centeno, 52 Phil. 322; Allarde vs. Abaya, 57 Phil. 909).

The natural daughter cannot succeed to the estate of her deceased uncle, a legitimate
brother of her natural mother (Anuran vs. Aquino and Ortiz, 38 Phil. 29). WHEREFORE
the lower court's judgment is affirmed. No costs.
G.R. No. 84240 March 25, 1992

OLIVIA S. PASCUAL and HERMES S. PASCUAL, petitioners, 

vs.
ESPERANZA C. PASCUAL-BAUTISTA, MANUEL C. PASCUAL, JOSE C. PASCUAL,
SUSANA C. PASCUAL-BAUTISTA, ERLINDA C. PASCUAL, WENCESLAO C.
PASCUAL, JR., INTESTATE ESTATE OF ELEUTERIO T. PASCUAL, AVELINO
PASCUAL, ISOCELES PASCUAL, LEIDA PASCUAL-MARTINES, VIRGINIA
PASCUAL-NER, NONA PASCUAL-FERNANDO, OCTAVIO PASCUAL, GERANAIA
PASCUAL-DUBERT, and THE HONORABLE PRESIDING JUDGE MANUEL S.
PADOLINA of Br. 162, RTC, Pasig, Metro Manila, respondents.

PARAS, J.:

This is a petition for review on certiorari which seeks to reverse and set aside: (a) the
decision of the Court of Appeals 1 dated April 29, 1988 in CA-G.R. SP. No. 14010 entitled
"Olivia S. Pascual and Hermes S. Pascual v. Esperanza C. Pascual-Bautista, Manuel C.
Pascual, Jose Pascual, Susana C. Pascual-Bautista, Erlinda C. Pascual, Wenceslao C.
Pascual, Jr., et al." which dismissed the petition and in effect affirmed the decision of the
trial court and (b) the resolution dated July 14, 1988 denying petitioners' motion for
reconsideration.

The undisputed facts of the case are as follows:

Petitioners Olivia and Hermes both surnamed Pascual are the acknowledged natural
children of the late Eligio Pascual, the latter being the full blood brother of the decedent
Don Andres Pascual (Rollo, petition, p. 17).

Don Andres Pascual died intestate on October 12, 1973 without any issue, legitimate,
acknowledged natural, adopted or spurious children and was survived by the following:

(a) Adela Soldevilla de Pascual, surviving spouses;

(b) Children of Wenceslao Pascual, Sr., a brother of the full blood of the
deceased, to wit:

Esperanza C. Pascual-Bautista
Manuel C. Pascual
Jose C. Pascual
Susana C. Pascual-Bautista
Erlinda C. Pascual
Wenceslao C. Pascual, Jr.

(c) Children of Pedro-Bautista, brother of the half blood of the deceased, to

wit:

Avelino Pascual
Isoceles Pascual
Loida Pascual-Martinez
Virginia Pascual-Ner
Nona Pascual-Fernando
Octavio Pascual
Geranaia Pascual-Dubert;

(d) Acknowledged natural children of Eligio Pascual, brother of the full blood
of the deceased, to wit:
 Olivia S. Pascual
Hermes S. Pascual

(e) Intestate of Eleuterio T. Pascual, a brother of the half blood of the

deceased and represented by the following:

Dominga M. Pascual
Mamerta P. Fugoso
Abraham S. Sarmiento, III
Regina Sarmiento-Macaibay
Eleuterio P. Sarmiento
Domiga P. San Diego
Nelia P. Marquez
Silvestre M. Pascual
Eleuterio M. Pascual
(Rollo, pp. 46-47)

Adela Soldevilla de Pascual, the surviving spouse of the late Don Andres Pascual, filed
with the Regional Trial Court (RTC), Branch 162 (CFI of Rizal, Br. XXIII), a Special
Proceeding, Case No. 7554, for administration of the intestate estate of her late husband
(Rollo, p. 47).

On December 18, 1973, Adela soldevilla de Pascual filed a Supplemental Petition to the
Petition for letters of Administration, where she expressly stated that Olivia Pascual and
Hermes Pascual, are among the heirs of Don Andres Pascual (Rollo, pp. 99-101).

On February 27, 1974, again Adela Soldevilla de Pascual executed an affidavit, to the
effect that of her own knowledge, Eligio Pascual is the younger full blood brother of her
late husband Don Andres Pascual, to belie the statement made by the oppositors, that
they were are not among the known heirs of the deceased Don Andres Pascual (Rollo, p.
102).

On October 16, 1985, all the above-mentioned heirs entered into a COMPROMISE
AGREEMENT, over the vehement objections of the herein petitioners Olivia S. Pascual
and Hermes S. Pascual, although paragraph V of such compromise agreement provides,
to wit:

This Compromise Agreement shall be without prejudice to the continuation

of the above-entitled proceedings until the final determination thereof by the
court, or by another compromise agreement, as regards the claims of Olivia
Pascual and Hermes Pascual as legal heirs of the deceased, Don Andres
Pascual. (Rollo, p. 108)

The said Compromise Agreement had been entered into despite the
Manifestation/Motion of the petitioners Olivia Pascual and Hermes Pascual, manifesting
their hereditary rights in the intestate estate of Don Andres Pascual, their uncle (Rollo,
pp. 111-112).

On September 30, 1987, petitioners filed their Motion to Reiterate Hereditary Rights
(Rollo, pp. 113-114) and the Memorandum in Support of Motion to reiterate Hereditary
Rights (Rollo, pp. 116-130).

On December 18, 1987, the Regional Trial Court, presided over by Judge Manuel S.
Padolina issued an order, the dispositive portion of which reads:

WHEREFORE, premises considered, this Court resolves as it is hereby

resolved to Deny this motion reiterating the hereditary rights of Olivia and
Hermes Pascual (Rollo, p. 136).

On January 13, 1988, petitioners filed their motion for reconsideration (Rollo, pp. 515-
526). and such motion was denied.
Petitioner appealed their case to the Court of Appeals docketed as CA-G.R. No. 14010
(Rollo, p. 15.).

On Aril 29, 1988, the respondent Court of Appeals rendered its decision the decision the
dispositive part of which reads:

WHEREFORE, the petition is DISMISSED. Costs against the petitioners.

SO ORDERED. (Rollo, p. 38)

Petitioners filed their motion for reconsideration of said decision and on July 14, 1988,
the Court of Appeals issued its resolution denying the motion for reconsideration (Rollo,
p. 42).

Hence, this petition for review on certiorari.

After all the requirements had been filed, the case was given due course.

The main issue to be resolved in the case at bar is whether or not Article 992 of the Civil
Code of the Philippines, can be interpreted to exclude recognized natural children from
the inheritance of the deceased.

Petitioners contend that they do not fall squarely within the purview of Article 992 of the
Civil Code of the Philippines, can be interpreted to exclude recognized and of the
doctrine laid down in Diaz v. IAC (150 SCRA 645 [1987]) because being acknowledged
natural children, their illegitimacy is not due to the subsistence of a prior marriage when
such children were under conception (Rollo, p. 418).

Otherwise stated they say the term "illegitimate" children as provided in Article 992
must be strictly construed to refer only to spurious children (Rollo, p. 419).

On the other hand, private respondents maintain that herein petitioners are within the
prohibition of Article 992 of the Civil Code and the doctrine laid down in Diaz v. IAC is
applicable to them.

The petition is devoid of merit.

Pertinent thereto, Article 992 of the civil Code, provides:

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 issue in the case at bar, had already been laid to rest in Diaz v. IAC, supra, where
this Court ruled that:

Article 992 of the Civil Code provides a barrier or iron curtain in that it
prohibits absolutely a succession ab intestato between the illegitimate child
and the legitimate children and relatives of the father or mother of said
legitimate child. They may have a natural tie of blood, but this is not
recognized by law for the purposes of Article 992. Between the legitimate
family and illegitimate family there is presumed to be an intervening
antagonism and incompatibility. The illegitimate child is disgracefully looked
down upon by the legitimate family; the family is in turn hated by the
illegitimate child; the latter considers the privileged condition of the former,
and the resources of which it is thereby deprived; the former, in turn, sees
in the illegitimate child nothing but the product of sin, palpable evidence of a
blemish broken in life; the law does no more than recognize this truth, by
avoiding further grounds of resentment.

Eligio Pascual is a legitimate child but petitioners are his illegitimate children.
Applying the above doctrine to the case at bar, respondent IAC did not err in holding
that petitioners herein cannot represent their father Eligio Pascual in the succession of
the latter to the intestate estate of the decedent Andres Pascual, full blood brother of
their father.

In their memorandum, petitioners insisted that Article 992 in the light of Articles 902
and 989 of the Civil Code allows them (Olivia and Hermes) to represent Eligio Pascual in
the intestate estate of Don Andres Pascual.

On motion for reconsideration of the decision in Diaz v. IAC, this Court further elucidated
the successional rights of illegitimate children, which squarely answers the questions
raised by the petitioner on this point.

The Court held:

Article 902, 989, and 990 clearly speaks of successional rights of illegitimate
children, which rights are transmitted to their descendants upon their death.
The descendants (of these illegitimate children) who may inherit by virtue of
the right of representation may be legitimate or illegitimate. In whatever
manner, one should not overlook the fact that the persons to be represented
are themselves illegitimate. The three named provisions are very clear on
this matter. The right of representation is not available to illegitimate
descendants of legitimate children in the inheritance of a legitimate
grandparent. It may be argued, as done by petitioners, that the illegitimate
descendant of a legitimate child is entitled to represent by virtue of the
provisions of Article 982, which provides that "the grandchildren and other
descendants shall inherit by right of representation." Such a conclusion is
erroneous. It would allow intestate succession by an illegitimate child to the
legitimate parent of his father or mother, a situation which would set at
naught the provisions of Article 992. Article 982 is inapplicable to the instant
case because Article 992 prohibits absolutely a succession ab
intestato between the illegitimate child and the legitimate children and
relatives of the father or mother. It may not be amiss to state Article 982 is
the general rule and Article 992 the exception.

The rules laid down in Article 982 that "grandchildren and other descendants
shall inherit by right of representation" and in Article 902 that the rights of
illegitimate children . . . are transmitted upon their death to their
descendants, whether legitimate or illegitimate are subject to the
limitation prescribed by Article 992 to the end that an illegitimate child has
no right to inherit ab intestato from the legitimate children and relatives of
his father or mother. (Amicus Curiae's Opinion by former Justice Minister
Ricardo C. Puno, p. 12). Diaz v. Intermediate Appellate Court, 182 SCRA
427; pp. 431-432; [1990]).

Verily, the interpretation of the law desired by the petitioner may be more humane but it
is also an elementary rule in statutory construction that when the words and phrases of
the statute are clear and unequivocal, their meaning must be determined from the
language employed and the statute must be taken to mean exactly what is says.
(Baranda v. Gustilo, 165 SCRA 758-759 [1988]). The courts may not speculate as to the
probable intent of the legislature apart from the words (Aparri v. CA, 127 SCRA 233
[1984]). When the law is clear, it is not susceptible of interpretation. It must be applied
regardless of who may be affected, even if the law may be harsh or onerous.
(Nepomuceno, et al. v. FC, 110 Phil. 42). And even granting that exceptions may be
conceded, the same as a general rule, should be strictly but reasonably construed; they
extend only so far as their language fairly warrants, and all doubts should be resolved in
favor of the general provisions rather than the exception. Thus, where a general rule is
established by statute, the court will not curtail the former nor add to the latter by
implication (Samson v. C.A., 145 SCRA 654 [1986]).

Clearly the term "illegitimate" refers to both natural and spurious.

Finally under Article 176 of the Family Code, all illegitimate children are generally placed
under one category, which undoubtedly settles the issue as to whether or not
acknowledged natural children should be treated differently, in the negative.

It may be said that the law may be harsh but that is the law (DURA LEX SED LEX).

PREMISES CONSIDERED, the petition is DISMISSED for lack of merit and the assailed
decision of the respondent Court of Appeals dated April 29, 1988 is AFFIRMED.
G.R. No. 126707 February 25, 1999

BLANQUITA E. DELA MERCED, LUISITO E. DELA MERCED, BLANQUTIA 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.

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 dela 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 (Evarista's 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.

xxx xxx xxx

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. . . . (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 latter's inheritance from the deceased Evarista.

The relevant and dispositive part of the Decision of the Court of Appeals, reads:

xxx xxx xxx

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 sister's estate at
the moment of the latter's death. Said 1/3 of Evarista's estate formed part
of Francisco's 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 Francisco's estate
from the time of the latter's 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 father's 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 latter's 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 (Francisco's) 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 latter's 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 father's
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 father's 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.
G.R. No. 117246 August 21, 1995

BENIGNO MANUEL, LIBERATO MANUEL, LORENZO MANUEL, PLACIDA MANUEL,

MADRONA MANUEL, ESPERANZA MANUEL, AGAPITA MANUEL, BASILISA
MANUEL, EMILIA MANUEL and NUMERIANA MANUEL, petitioners, 
vs.
HON. NICODEMO T. FERRER, Presiding Judge, Regional Trial Court, Branch 37,
Lingayen, Pangasinan, MODESTA BALTAZAR and ESTANISLAOA
MANUEL, respondents.

VITUG, J.:

The property involved in this petition for review on certiorari is the inheritance left by an
illegitimate child who died intestate without any surviving descendant or ascendant.

Petitioners, the legitimate children of spouses Antonio Manuel and Beatriz Guiling,
initiated this suit. During his marriage with Beatriz, Antonio had an extra-marital affair
with one Ursula Bautista. From this relationship, Juan Manuel was born. Several years
passed before Antonio Manuel, his wife Beatriz, and his mistress Ursula finally crossed
the bar on, respectively, 06 August 1960, 05 February 1981 and 04 November 1976.

Juan Manuel, the illegitimate son of Antonio, married Esperanza Gamba. In consideration
of the marriage, a donation propter nuptias over a parcel of land, with an area of 2,700
square meters, covered by Original Certificate of Title ("OCT") No. P-20594 was
executed in favor of Juan Manuel by Laurenciana Manuel. Two other parcels of land,
covered by OCT P-19902 and Transfer Certificate of Title ("TCT") No. 41134, were later
bought by Juan and registered in his name. The couple were not blessed with a child of
their own. Their desire to have one impelled the spouses to take private respondent
Modesta Manuel-Baltazar into their fold and so raised her as their own "daughter".

On 03 June 1980, Juan Manuel executed in favor of Estanislaoa Manuel a Deed of

Sale Con Pacto de Retro (with a 10-year period of redemption) over a one-half (1/2)
portion of his land covered by TCT No. 41134. Juan Manuel died intestate on 21
February 1990. Two years later, or on 04 February 1992, Esperanza Gamba also passed
away.

On 05 March 1992, a month after the death of Esperanza, Modesta executed an Affidavit
of Self-Adjudication claiming for herself the three parcels of land covered by OCT P-
20594, OCT P-19902 and TCT No. 41134 (all still in the name of Juan Manuel). Following
the registration of the document of adjudication with the Office of the Register of Deeds,
the three titles 
(OCT P-20594, OCT P-19902 and TCT No. 41134) in the name of Juan Manuel were
canceled and new titles, TCT No. 184223, TCT No. 184224 and TCT No. 184225, were
issued in the name of Modesta Manuel-Baltazar. On 19 October 1992, Modesta executed
in favor of her co-respondent Estanislaoa Manuel a Deed of Renunciation and Quitclaim
over the unredeemed one-half (1/2) portion of the land (now covered by TCT No.
184225) that was sold to the latter by Juan Manuel under the 1980 Deed of Sale Con
Pacto de Retro. These acts of Modesta apparently did not sit well with petitioners. In a
complaint filed before the Regional Trial Court of Lingayen, Pangasinan, the petitioners
sought the declaration of nullity of the aforesaid instruments.

The case, there being no material dispute on the facts, was submitted to the court a
quo for summary judgment.

The trial court, in its now assailed 15th August 1994 decision, dismissed the complaint
holding that petitioners, not being heirs ab intestato of their illegitimate brother Juan
Manuel, were not the real parties-in-interest to institute the suit. Petitioners were also
ordered to jointly and severally (solidarily) pay 
(a) respondent Modesta Manuel-Baltazar the sum of P5,000.00 for moral damages,
P5,000.00 for exemplary damages, P5,000.00 for attorney's fees and P500.00 for
litigation expenses and (b) Estanislaoa Manuel the sum of P5,000.00 for moral damages,
P5,000.00 for exemplary damages and P500.00 for attorney's fees.

Petitioners' motion for reconsideration was denied by the trial court.

The petition before us raises the following contentions: That —

1. THE LOWER COURT (HAS) FAILED TO CONSIDER THE LAST PARAGRAPH OF

ARTICLE 994 OF THE NEW CIVIL CODE, AS THE CONTROLLING LAW APPLICABLE
BY VIRTUE OF THE ADMITTED FACTS, AND NOT ARTICLE 992 OF THE SAME
CODE.

2. THE LOWER COURT, IN NOT ANNULLING ALL THE ACTS OF, AND VOIDING ALL
DOCUMENTS EXECUTED BY, RESPONDENT MODESTA BALTAZAR, WHO
ARROGATED UNTO HERSELF THE RIGHTS OF AN HEIR TO THE ESTATE OF
DECEDENT JUAN MANUEL, (HAS) VIRTUALLY GRANTED SAID RESPONDENT THE
STATUS OF AN HEIR MANIFESTLY CONTRARY TO LAW, MORALS AND PUBLIC
POLICY.

3. TO ENFORCE ONE'S RIGHT WHEN THEY ARE VIOLATED IS NEVER A LEGAL

WRONG.1

Petitioners argue that they are the legal heirs over one-half of Juan's intestate estate
(while the other half would pertain to Juan's surviving spouse) under the provision of the
last paragraph of Article 994 of the Civil Code, providing thusly:

Art. 994. In default of the father or mother, an illegitimate child shall be

succeeded by his or her surviving spouse, who shall be entitled to the entire
estate.

If the widow or widower should survive with brothers and sisters, nephews and
nieces, she or he shall inherit one-half of the estate, and the latter the other
half. (Emphasis supplied)

Respondents, in turn, submit that Article 994 should be read in conjunction with Article
992 of the Civil Code, which reads:

Art. 992. 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
relative inherit in the same manner from the illegitimate child. (Emphasis supplied)

Article 992, a basic postulate, enunciates what is so commonly referred to in the rules
on succession as the "principle of absolute separation between the legitimate family and
the illegitimate family." The doctrine rejects succession ab intestato in the collateral
line between legitimate relatives, on the one hand, and illegitimate relatives, on other
hand, although it does not totally disavow such succession in the direct line. Since the
rule is predicated on the presumed will of the decedent, it has no application, however,
on testamentary dispositions.

This "barrier" between the members of the legitimate and illegitimate family in intestacy
is explained by a noted civilist.2 His thesis:

What is meant by the law when it speaks of brothers and sisters, nephews and
nieces, as legal or intestate heirs of an illegitimate child? It must be noted that
under Art. 992 of the Code, there is a barrier dividing members of the illegitimate
family from members of the legitimate family. It is clear that by virtue of this
barrier, the legitimate brothers and sisters as well as the children, whether
legitimate or illegitimate, of such brothers and sisters, cannot inherit from the
illegitimate child. Consequently, when the law speaks of "brothers and sisters,
 nephews and nieces" as legal heirs of an illegitimate child, it refers to illegitimate
brothers and sisters as well as to the children, whether legitimate or illegitimate,
of such brothers and sisters. (Emphasis supplied)

The Court, too, has had occasions to explain this "iron curtain", firstly, in the early case
of Grey v. Fabie3 and, then, in the relatively recent cases of Diaz v. Intermediate
Appellate Court4 and De la Puerta v. Court of Appeals.5 In Diaz,we have said:

Article 992 of the New Civil Code . . . prohibits absolutely a succession ab

intestato between the illegitimate child and the legitimate children and relatives of
the father or mother of said legitimate child. They may have a natural tie of blood,
but this is not recognized by law for the purposes of Article 992. Between the
legitimate family and the illegitimate family there is presumed to be an intervening
antagonism and incompatibility. The illegitimate child is disgracefully looked down
upon by the legitimate family; the legitimate family is, in turn, hated by the
illegitimate child; the latter considers the privileged condition of the former, and
the resources of which it is thereby deprived; the former, in turn, sees in the
illegitimate child nothing but the product of sin, palpable evidence of a blemish
broken in life; the law does no more than recognize this truth, by avoiding further
grounds of resentment.

The rule in Article 992 has consistently been applied by the Court in several other cases.
Thus, it has ruled that where the illegitimate child had 
half-brothers who were legitimate, the latter had no right to the former's
inheritance;6 that the legitimate collateral relatives of the mother cannot succeed from
her illegitimate child;7 that a natural child cannot represent his natural father in the
succession to the estate of the legitimate grandparent;8 that the natural daughter cannot
succeed to the estate of her deceased uncle who is a legitimate brother of her natural
father;9 and that an illegitimate child has no right to inherit ab intestato from the
legitimate children and relatives of his father.10 Indeed, the law on succession is
animated by a uniform general intent, and thus no part should be rendered
inoperative11 by, but must always be construed in relation to, any other part as to
produce a harmonious whole.12

In passing, we might, in easy graphic presentation, collate the order of preference and
concurrence in intestacy expressed in Article 978 through 
Article 1014, inclusive, of the Civil Code; viz.:

Order of Preference Order of Concurrence

(a) Legitimate Children and (a) Legitimate Children and

Descendants Descendants, Illegitimate

Children and
Descendants,
and Surviving Spouse

(b Legitimate Parents and (b) Legitimate Parents and

)
Ascendants Ascendants Illegitimate

Children and
Descendants,
and Surviving Spouse

(c) Illegitimate Children and (c) Illegitimate Children and

Descendants (in the Descendants and
absence Surviving
of ICDs and LPAs, the Spouse
 Illegitimate Parents)

(d Surviving Spouse (d) Surviving Spouse and

)
Illegitimate Parents

(e) Brothers and Sisters/ (e) Brothers and Sisters/

Nephews and Nephews and Nieces

Nieces and Surviving Spouse

(f) Other Collateral Relatives (f) Alone

(within the fifth civil
degree)
(g State (g) Alone
)

In her answer to the complaint, Modesta candidly admitted that she herself is not
an intestate heir of Juan Manuel. She is right. A ward (ampon), without the benefit
of formal (judicial) adoption, is neither a compulsory nor a legal heir.13

We must hold, nevertheless, that the complaint of petitioners seeking the nullity of
the Affidavit of Self-Adjudication executed by Modesta, the three (3) TCT's issued
to her favor, as well as the Deed of Renunciation and Quitclaim in favor of
Estanislaoa Manuel, was properly dismissed by the trial court. Petitioners, not
being the real "parties-in-interest"14 in the case, had neither the standing nor the
cause of action to initiate the complaint.

The Court, however, sees no sufficient reason to sustain the award of amounts for
moral and exemplary damages, attorney's fees and litigation expenses. An
adverse result of a suit in law does not mean that its advocacy is necessarily so
wrongful as to justify an assessment of damages against the actor.15

WHEREFORE, the appealed decision of the Regional Trial Court of Pangasinan

(Branch 37) is AFFIRMED, except insofar as it has awarded moral and exemplary
damages, as well as attorney's fees and litigation expenses, in favor of private
respondents, which portion is hereby DELETED. No special pronouncement on
costs.
G.R. No. 183053               October 10, 2012

EMILIO A.M. SUNTAY III, Petitioner, 

vs.
ISABEL COJUANGCO-SUNTAY, Respondent.

RESOLUTION

PEREZ, J.:

The now overly prolonged, all-too familiar and too-much-stretched imbroglio over the
estate of Cristina Aguinaldo-Suntay has continued. We issued a Decision in the dispute
as in Inter Caetera.1 We now find a need to replace the decision.

Before us is a Motion for Reconsideration filed by respondent Isabel Cojuangco-Suntay

(respondent Isabel) of our Decision2 in G.R. No. 183053 dated 16 June 2010, directing
the issuance of joint letters of administration to both petitioner Emilio A.M. Suntay III
(Emilio III) and respondent. The dispositive portion thereof reads:

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals in CA-G.R.
CV No. 74949 is REVERSED and SET ASIDE. Letters of Administration over the estate of
decedent Cristina Aguinaldo-Suntay shall issue to both petitioner Emilio A.M. Suntay III
and respondent Isabel Cojuangco-Suntay upon payment by each of a bond to be set by
the Regional Trial Court, Branch 78, Malolos, Bulacan, in Special Proceeding Case No.
117-M-95. The Regional Trial Court, Branch 78, Malolos, Bulacan is likewise directed to
make a determination and to declare the heirs of decedent Cristina Aguinaldo-Suntay
according to the actual factual milieu as proven by the parties, and all other persons
with legal interest in the subject estate. It is further directed to settle the estate of
decedent Cristina Aguinaldo-Suntay with dispatch. No costs.3

We are moved to trace to its roots the controversy between the parties.

The decedent Cristina Aguinaldo-Suntay (Cristina) died intestate on 4 June 1990.

Cristina was survived by her spouse, Dr. Federico Suntay (Federico) and five
grandchildren: three legitimate grandchildren, including herein respondent, Isabel; and
two illegitimate grandchildren, including petitioner Emilio III, all by Federico’s and
Cristina’s only child, Emilio A. Suntay (Emilio I), who predeceased his parents.

The illegitimate grandchildren, Emilio III and Nenita, were both reared from infancy by
the spouses Federico and Cristina. Their legitimate grandchildren, Isabel and her
siblings, Margarita and Emilio II, lived with their mother Isabel Cojuangco, following the
separation of Isabel’s parents, Emilio I and Isabel Cojuangco. Isabel’s parents, along
with her paternal grandparents, were involved in domestic relations cases, including a
case for parricide filed by Isabel Cojuangco against Emilio I. Emilio I was eventually
acquitted.

In retaliation, Emilio I filed a complaint for legal separation against his wife, charging her
among others with infidelity. The trial court declared as null and void and of no effect
the marriage of Emilio I and Isabel Cojuangco on the finding that:

From February 1965 thru December 1965 plaintiff was confined in the Veterans
memorial Hospital. Although at the time of the trial of parricide case (September 8,
1967) the patient was already out of the hospital, he continued to be under observation
and treatment.

It is the opinion of Dr. Aramil that the symptoms of the plaintiffs mental aberration
classified as schizophernia (sic) had made themselves manifest even as early as 1955;
that the disease worsened with time, until 1965 when he was actually placed under
expert neuro-psychiatrist (sic) treatment; that even if the subject has shown marked
progress, the remains bereft of adequate understanding of right and wrong.
There is no controversy that the marriage between the parties was effected on July 9,
1958, years after plaintiffs mental illness had set in. This fact would justify a declaration
of nullity of the marriage under Article 85 of the Civil Code which provides:

Art. 95. (sic) A marriage may be annulled for any of the following causes after (sic)
existing at the time of the marriage:

xxxx

(3) That either party was of unsound mind, unless such party, after coming to reason,
freely cohabited with the other as husband or wife.

There is a dearth of proof at the time of the marriage defendant knew about the mental
condition of plaintiff; and there is proof that plaintiff continues to be without sound
reason. The charges in this very complaint add emphasis to the findings of the neuro-
psychiatrist handling the patient, that plaintiff really lives more in fancy than in reality, a
strong indication of schizophernia (sic).4

Intent on maintaining a relationship with their grandchildren, Federico and Isabel filed a
complaint for visitation rights to spend time with Margarita, Emilio II, and Isabel in the
same special lower court. The Juvenile Domestic Relations Court in Quezon City (JDRC-
QC) granted their prayer for one hour a month of visitation rights which was
subsequently reduced to thirty minutes, and ultimately stopped, because of respondent
Isabel’s testimony in court that her grandparents’ visits caused her and her siblings
stress and anxiety.5

On 27 September 1993, more than three years after Cristina’s death, Federico adopted
his illegitimate grandchildren, Emilio III and Nenita.

On 26 October 1995, respondent Isabel, filed before the Regional Trial Court (RTC),
Malolos, Bulacan, a petition for the issuance of letters of administration over Cristina’s
estate docketed as Special Proceeding Case No. 117-M-95. Federico, opposed the
petition, pointing out that: (1) as the surviving spouse of the decedent, he should be
appointed administrator of the decedent’s estate; (2) as part owner of the mass of
conjugal properties left by the decedent, he must be accorded preference in the
administration thereof; (3) Isabel and her siblings had been alienated from their
grandparents for more than thirty (30) years; (4) the enumeration of heirs in the
petition was incomplete as it did not mention the other children of his son, Emilio III and
Nenita; (5) even before the death of his wife, Federico had administered their conjugal
properties, and thus, is better situated to protect the integrity of the decedent’s estate;
(6) the probable value of the estate as stated in the petition was grossly overstated; and
(7) Isabel’s allegation that some of the properties are in the hands of usurpers is untrue.

Federico filed a Motion to Dismiss Isabel’s petition for letters of administration on the
ground that Isabel had no right of representation to the estate of Cristina, she being an
illegitimate grandchild of the latter as a result of Isabel’s parents’ marriage being
declared null and void. However, in Suntay v. Cojuangco-Suntay, we categorically
declared that Isabel and her siblings, having been born of a voidable marriage as
opposed to a void marriage based on paragraph 3, Article 85 of the Civil Code, were
legitimate children of Emilio I, who can all represent him in the estate of their legitimate
grandmother, the decedent, Cristina.

Undaunted by the set back, Federico nominated Emilio III to administer the decedent’s
estate on his behalf in the event letters of administration issues to Federico.
Consequently, Emilio III filed an Opposition-In-Intervention, echoing the allegations in
his grandfather’s opposition, alleging that Federico, or in his stead, Emilio III, was better
equipped than respondent to administer and manage the estate of the decedent,
Cristina.

On 13 November 2000, Federico died.

Almost a year thereafter or on 9 November 2001, the trial court rendered a decision
appointing Emilio III as administrator of decedent Cristina’s intestate estate:

WHEREFORE, the petition of Isabel Cojuangco-Suntay is DENIED and the Opposition-in-

Intervention is GRANTED.

Accordingly, the Intervenor, Emilio A.M. Suntay, III (sic) is hereby appointed
administrator of the estate of the decedent Cristina Aguinaldo Suntay, who shall enter
upon the execution of his trust upon the filing of a bond in the amount of ₱ 200,000.00,
conditioned as follows:

(1) To make and return within three (3) months, a true and complete inventory;

(2) To administer the estate and to pay and discharge all debts, legatees, and charge on
the same, or dividends thereon;

(3) To render a true and just account within one (1) year, and at any other time when
required by the court, and

(4) To perform all orders of the Court.

Once the said bond is approved by the court, let Letters of Administration be issued in
his favor.6

On appeal, the Court of Appeals reversed and set aside the decision of the RTC, revoked
the Letters of Administration issued to Emilio III, and appointed respondent as
administratrix of the subject estate:

WHEREFORE, in view of all the foregoing, the assailed decision dated November 9, 2001
of Branch 78, Regional Trial Court of Malolos, Bulacan in SPC No. 117-M-95 is
REVERSED and SET ASIDE and the letters of administration issued by the said court to
Emilio A.M. Suntay III, if any, are consequently revoked. Petitioner Isabel Cojuangco-
Suntay is hereby appointed administratrix of the intestate estate of Cristina Aguinaldo
Suntay. Let letters of administration be issued in her favor upon her filing of a bond in
the amount of Two Hundred Thousand (₱ 200,000.00) Pesos.7

As previously adverted to, on appeal by certiorari, we reversed and set aside the ruling
of the appellate court. We decided to include Emilio III as co-administrator of Cristina’s
estate, giving weight to his interest in Federico’s estate. In ruling for co-administration
between Emilio III and

Isabel, we considered that:

1. Emilio III was reared from infancy by the decedent, Cristina, and her husband,
Federico, who both acknowledged him as their grandchild;

2. Federico claimed half of the properties included in the estate of the decedent,
Cristina, as forming part of their conjugal partnership of gains during the
subsistence of their marriage;

3. Cristina’s properties, forming part of her estate, are still commingled with those
of her husband, Federico, because her share in the conjugal partnership remains
undetermined and unliquidated; and

4. Emilio III is a legally adopted child of Federico, entitled to share in the

distribution of the latter’s estate as a direct heir, one degree from Federico, and
not simply in representation of his deceased illegitimate father, Emilio I.

In this motion, Isabel pleads for total affirmance of the Court of Appeals’ Decision in
favor of her sole administratorship based on her status as a legitimate grandchild of
Cristina, whose estate she seeks to administer.
Isabel contends that the explicit provisions of Section 6, Rule 78 of the Rules of Court on
the order of preference for the issuance of letters of administration cannot be ignored
and that Article 992 of the Civil Code must be followed. Isabel further asserts that Emilio
III had demonstrated adverse interests and disloyalty to the estate, thus, he does not
deserve to become a co-administrator thereof.

Specifically, Isabel bewails that: (1) Emilio III is an illegitimate grandchild and therefore,
not an heir of the decedent; (2) corollary thereto, Emilio III, not being a "next of kin" of
the decedent, has no interest in the estate to justify his appointment as administrator
thereof; (3) Emilio III’s actuations since his appointment as administrator by the RTC on
9 November 2001 emphatically demonstrate the validity and wisdom of the order of
preference in Section 6, Rule 78 of the Rules of Court; and (4) there is no basis for joint
administration as there are no "opposing parties or factions to be represented."

To begin with, the case at bar reached us on the issue of who, as between Emilio III and
Isabel, is better qualified to act as administrator of the decedent’s estate. We did not
choose. Considering merely his demonstrable interest in the subject estate, we ruled
that Emilio III should likewise administer the estate of his illegitimate grandmother,
Cristina, as a co-administrator. In the context of this case, we have to make a choice
and therefore, reconsider our decision of 16 June 2010.

The general rule in the appointment of administrator of the estate of a decedent is laid
down in Section 6, Rule 78 of the Rules of Court:

SEC. 6. When and to whom letters of administration granted. – If no executor is named

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

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

(b) If such surviving husband or wife, as the case may be, or next of kin, or the person
selected by them, be incompetent or unwilling, or if the husband or widow, or next of
kin, neglects for thirty (30) days after the death of the person to apply for
administration or to request that administration be granted to some other person, it may
be granted to one or more of the principal creditors, if competent and willing to serve;

(c) If there is not such creditor competent and willing to serve, it may be granted to
such other person as the court may select.

Textually, the rule lists a sequence to be observed, an order of preference, in the

appointment of an administrator. This order of preference, which categorically seeks out
the surviving spouse, the next of kin and the creditors in the appointment of an
administrator, has been reinforced in jurisprudence.8

The paramount consideration in the appointment of an administrator over the estate of a

decedent is the prospective administrator’s interest in the estate.9 This is the same
consideration which Section 6, Rule 78 takes into account in establishing the order of
preference in the appointment of administrator for the estate. The rationale behind the
rule is that those who will reap the benefit of a wise, speedy and economical
administration of the estate, or, in the alternative, suffer the consequences of waste,
improvidence or mismanagement, have the highest interest and most influential motive
to administer the estate correctly.10 In all, given that the rule speaks of an order of
preference, the person to be appointed administrator of a decedent’s estate must
demonstrate not only an interest in the estate, but an interest therein greater than any
other candidate.

To illustrate, the preference bestowed by law to the surviving spouse in the

administration of a decedent’s estate presupposes the surviving spouse’s interest in the
conjugal partnership or community property forming part of the decedent’s
estate.11 Likewise, a surviving spouse is a compulsory heir of a decedent12 which evinces
as much, if not more, interest in administering the entire estate of a decedent, aside
from her share in the conjugal partnership or absolute community property.

It is to this requirement of observation of the order of preference in the appointment of

administrator of a decedent’s estate, that the appointment of co-administrators has
been allowed, but as an exception. We again refer to Section 6(a) of Rule 78 of the
Rules of Court which specifically states that letters of administration may be issued to
both the surviving spouse and the next of kin. In addition and impliedly, we can refer to
Section 2 of Rule 82 of the Rules of Court which say that "x x x when an executor or
administrator dies, resigns, or is removed, the remaining executor or administrator may
administer the trust alone, x x x."

In a number of cases, we have sanctioned the appointment of more than one

administrator for the benefit of the estate and those interested therein.13 We recognized
that the appointment of administrator of the estate of a decedent or the determination
of a person’s suitability for the office of judicial administrator rests, to a great extent, in
the sound judgment of the court exercising the power of appointment.14

Under certain circumstances and for various reasons well-settled in Philippine and
American jurisprudence, we have upheld the appointment of co-administrators: (1) to
have the benefits of their judgment and perhaps at all times to have different interests
represented;15 (2) where justice and equity demand that opposing parties or factions be
represented in the management of the estate of the deceased; (3) where the estate is
large or, from any cause, an intricate and perplexing one to settle;16 (4) to have all
interested persons satisfied and the representatives to work in harmony for the best
interests of the estate;17 and when a person entitled to the administration of an estate
desires to have another competent person associated with him in the office.18

In the frequently cited Matias v. Gonzales, we dwelt on the appointment of special co-
administrators during the pendency of the appeal for the probate of the decedent’s will.
Pending the probate thereof, we recognized Matias’ special interest in the decedent’s
estate as universal heir and executrix designated in the instrument who should not be
excluded in the administration thereof. Thus, we held that justice and equity demands
that the two (2) factions among the non-compulsory heirs of the decedent, consisting of
an instituted heir (Matias) and intestate heirs (respondents thereat), should be
represented in the management of the decedent’s estate.19

Another oft-cited case is Vda. de Dayrit v. Ramolete, where we held that "inasmuch as
petitioner-wife owns one-half of the conjugal properties and that she, too, is a
compulsory heir of her husband, to deprive her of any hand in the administration of the
estate prior to the probate of the will would be unfair to her proprietary interests."20

Hewing closely to the aforementioned cases is our ruling in Ventura v. Ventura21 where

we allowed the appointment of the surviving spouse and legitimate children of the
decedent as co-administrators. However, we drew a distinction between the heirs
categorized as next of kin, the nearest of kin in the category being preferred, thus:

In the case at bar, the surviving spouse of the deceased Gregorio Ventura is Juana
Cardona while the next of kin are: Mercedes and Gregoria Ventura and Maria and Miguel
Ventura. The "next of kin" has been defined as those persons who are entitled under the
statute of distribution to the decedent’s property (citations omitted). It is generally said
that "the nearest of kin, whose interest in the estate is more preponderant, is preferred
in the choice of administrator. ‘Among members of a class the strongest ground for
preference is the amount or preponderance of interest. As between next of kin, the
nearest of kin is to be preferred.’" (citations omitted)

As decided by the lower court and sustained by the Supreme Court, Mercedes and
Gregoria Ventura are the legitimate children of Gregorio Ventura and his wife, the late
Paulina Simpliciano. Therefore, as the nearest of kin of Gregorio Ventura, they are
entitled to preference over the illegitimate children of Gregorio Ventura, namely: Maria
and Miguel Ventura. Hence, under the aforestated preference provided in Section 6 of
Rule 78, the person or persons to be appointed administrator are Juana Cardona, as the
surviving spouse, or Mercedes and Gregoria Ventura as nearest of kin, or Juana Cardona
and Mercedes and Gregoria Ventura in the discretion of the Court, in order to represent
both interests.22 (Emphasis supplied)

In Silverio, Sr. v. Court of Appeals,23 we maintained that the order of preference in the
appointment of an administrator depends on the attendant facts and circumstances. In
that case, we affirmed the legitimate child’s appointment as special administrator, and
eventually as regular administrator, of the decedent’s estate as against the surviving
spouse who the lower court found unsuitable. Reiterating Sioca v. Garcia24 as good law,
we pointed out that unsuitableness for appointment as administrator may consist in
adverse interest of some kind or hostility to those immediately interested in the estate.

In Valarao v. Pascual,25 we see another story with a running theme of heirs squabbling
over the estate of a decedent. We found no reason to set aside the probate court’s
refusal to appoint as special co-administrator Diaz, even if he had a demonstrable
interest in the estate of the decedent and represented one of the factions of heirs,
because the evidence weighed by the probate court pointed to Diaz’s being remiss in his
previous duty as co-administrator of the estatein the early part of his administration.
Surveying the previously discussed cases of Matias, Corona, and Vda. de Dayrit, we
clarified, thus:

Respondents cannot take comfort in the cases of Matias v. Gonzales, Corona v. Court of
Appeals, and Vda. de Dayrit v. Ramolete, cited in the assailed Decision. Contrary to their
claim, these cases do not establish an absolute right demandable from the probate court
to appoint special co-administrators who would represent the respective interests of
squabbling heirs. Rather, the cases constitute precedents for the authority of the
probate court to designate not just one but also two or more special co-administrators
for a single estate. Now whether the probate court exercises such prerogative when the
heirs are fighting among themselves is a matter left entirely to its sound discretion.

Furthermore, the cases of Matias, Corona and Vda. de Dayrit hinge upon factual
circumstances other than the incompatible interests of the heirs which are glaringly
absent from the instant case. In Matias this Court ordered the appointment of a special
co-administrator because of the applicant's status as the universal heir and executrix
designated in the will, which we considered to be a "special interest" deserving
protection during the pendency of the appeal. Quite significantly, since the lower court in
Matias had already deemed it best to appoint more than one special administrator, we
found grave abuse of discretion in the act of the lower court in ignoring the applicant's
distinctive status in the selection of another special administrator.

In Corona we gave "highest consideration" to the "executrix's choice of Special

Administrator, considering her own inability to serve and the wide latitude of discretion
given her by the testatrix in her will," for this Court to compel her appointment as
special co-administrator. It is also manifest from the decision in Corona that the
presence of conflicting interests among the heirs therein was not per se the key factor in
the designation of a second special administrator as this fact was taken into account
only to disregard or, in the words of Corona, to "overshadow" the objections to the
appointment on grounds of "impracticality and lack of kinship."

Finally in Vda. de Dayrit we justified the designation of the wife of the decedent as
special co-administrator because it was "our considered opinion that inasmuch as
petitioner-wife owns one-half of the conjugal properties and that she, too, is a
compulsory heir of her husband, to deprive her of any hand in the administration of the
estate prior to the probate of the will would be unfair to her proprietary interests." The
special status of a surviving spouse in the special administration of an estate was also
emphasized in Fule v. Court of Appeals where we held that the widow would have more
interest than any other next of kin in the proper administration of the entire estate since
she possesses not only the right of succession over a portion of the exclusive property of
the decedent but also a share in the conjugal partnership for which the good or bad
administration of the estate may affect not just the fruits but more critically the naked
ownership thereof. And in Gabriel v. Court of Appeals we recognized the distinctive
status of a surviving spouse applying as regular administrator of the deceased spouse's
estate when we counseled the probate court that "there must be a very strong case to
justify the exclusion of the widow from the administration."

Clearly, the selection of a special co-administrator in Matias, Corona and Vda. de Dayrit
was based upon the independent proprietary interests and moral circumstances of the
appointee that were not necessarily related to the demand for representation being
repeatedly urged by respondents.26(Emphasis supplied)

In Gabriel v. Court of Appeals, we unequivocally declared the mandatory character of

the rule on the order of preference for the issuance of letters of administration:

Evidently, the foregoing provision of the Rules prescribes the order of preference in the
issuance of letters of administration, it categorically seeks out the surviving spouse, the
next of kin and the creditors, and requires that sequence to be observed in appointing
an administrator. It would be a grave abuse of discretion for the probate court to
imperiously set aside and insouciantly ignore that directive without any valid and
sufficient reason therefor.27

Subsequently, in Angeles v. Angeles-Maglaya,28 we expounded on the legal

contemplation of a "next of kin," thus:

Finally, it should be noted that on the matter of appointment of administrator of the

estate of the deceased, the surviving spouse is preferred over the next of kin of the
decedent. When the law speaks of "next of kin," the reference is to those who are
entitled, under the statute of distribution, to the decedent's property; one whose
relationship is such that he is entitled to share in the estate as distributed, or, in short,
an heir. In resolving, therefore, the issue of whether an applicant for letters of
administration is a next of kin or an heir of the decedent, the probate court perforce has
to determine and pass upon the issue of filiation. A separate action will only result in a
multiplicity of suits. Upon this consideration, the trial court acted within bounds when it
looked into and passed upon the claimed relationship of respondent to the late Francisco
Angeles.29

Finally, in Uy v. Court of Appeals,30 we took into consideration the size of, and benefits
to, the estate should respondent therein be appointed as co-administrator. We
emphasized that where the estate is large or, from any cause, an intricate and
perplexing one to settle, the appointment of co-administrators may be sanctioned by
law.

In our Decision under consideration, we zeroed in on Emilio III’s demonstrable interest

in the estate and glossed over the order of preference set forth in the Rules. We gave
weight to Emilio III’s demonstrable interest in Cristina’s estate and without a closer
scrutiny of the attendant facts and circumstances, directed co-administration thereof.
We are led to a review of such position by the foregoing survey of cases.

The collected teaching is that mere demonstration of interest in the estate to be settled
does not ipso facto entitle an interested person to co-administration thereof. Neither
does squabbling among the heirs nor adverse interests necessitate the discounting of
the order of preference set forth in Section 6, Rule 78. Indeed, in the appointment of
administrator of the estate of a deceased person, the principal consideration reckoned
with is the interest in said estate of the one to be appointed as administrator.31 Given
Isabel’s unassailable interest in the estate as one of the decedent’s legitimate
grandchildren and undoubted nearest "next of kin," the appointment of Emilio III as co-
administrator of the same estate, cannot be a demandable right. It is a matter left
entirely to the sound discretion of the Court32 and depends on the facts and the
attendant circumstances of the case.33
Thus, we proceed to scrutinize the attendant facts and circumstances of this case even
as we reiterate Isabel’s and her sibling’s apparent greater interest in the estate of
Cristina.

These considerations do not warrant the setting aside of the order of preference mapped
out in Section 6, Rule 78 of the Rules of Court. They compel that a choice be made of
one over the other.

1. The bitter estrangement and long-standing animosity between Isabel, on the

one hand, and Emilio III, on the other, traced back from the time their paternal
grandparents were alive, which can be characterized as adverse interest of some
kind by, or hostility of, Emilio III to Isabel who is immediately interested in the
estate;

2. Corollary thereto, the seeming impossibility of Isabel and Emilio III working
harmoniously as co-administrators may result in prejudice to the decedent’s
estate, ultimately delaying settlement thereof; and

3. Emilio III, for all his claims of knowledge in the management of Cristina’s
estate, has not looked after the estate’s welfare and has acted to the damage and
prejudice thereof.

Contrary to the assumption made in the Decision that Emilio III’s demonstrable interest
in the estate makes him a suitable co-administrator thereof, the evidence reveals that
Emilio III has turned out to be an unsuitable administrator of the estate. Respondent
Isabel points out that after Emilio III’s appointment as administrator of the subject
estate in 2001, he has not looked after the welfare of the subject estate and has actually
acted to the damage and prejudice thereof as evidenced by the following:

1. Emilio III, despite several orders from the probate court for a complete
inventory, omitted in the partial inventories34 he filed therewith properties of the
estate35 including several parcels of land, cash, bank deposits, jewelry, shares of
stock, motor vehicles, and other personal properties, contrary to Section
1,36paragraph a, Rule 81 of the Rules of Court.

2. Emilio III did not take action on both occasions against Federico’s settlement of
the decedent’s estate which adjudicated to himself a number of properties properly
belonging to said estate (whether wholly or partially), and which contained a
declaration that the decedent did not leave any descendants or heirs, except for
Federico, entitled to succeed to her estate.37

In compliance to our Resolution dated 18 April 2012 requiring Emilio III to respond to
the following imputations of Isabel that:

1. Emilio III did not file an inventory of the assets until November 14, 2002;

2. The inventory Emilio III submitted did not include several properties of the decedent;

3. That properties belonging to the decedent have found their way to different
individuals or persons; several properties to Federico Suntay himself; and

4. While some properties have found their way to Emilio III, by reason of falsified
documents;38

Emilio III refutes Isabel’s imputations that he was lackadaisical in assuming and
performing the functions of administrator of Cristina’s estate:

1. From the time of the RTC’s Order appointing Emilio III as administrator, Isabel,
in her pleadings before the RTC, had vigorously opposed Emilio III’s assumption of
that office, arguing that "the decision of the RTC dated 9 November 2001 is not
 among the judgments authorized by the Rules of Court which may be immediately
implemented or executed;"

2. The delay in Emilio III’s filing of an inventory was due to Isabel’s vociferous
objections to Emilio III’s attempts to act as administrator while the RTC decision
was under appeal to the Court of Appeals;

3. The complained partial inventory is only initiatory, inherent in the nature

thereof, and one of the first steps in the lengthy process of settlement of a
decedent’s estate, such that it cannot constitute a complete and total listing of the
decedent’s properties; and

4. The criminal cases adverted to are trumped-up charges where Isabel, as private
complainant, has been unwilling to appear and testify, leading the Judge of the
Regional Trial Court, Branch 44 of Mamburao, Occidental Mindoro, to warn the
prosecutor of a possible motu propio dismissal of the cases.

While we can subscribe to Emilio III’s counsel’s explanation for the blamed delay in the
filing of an inventory and his exposition on the nature thereof, partial as opposed to
complete, in the course of the settlement of a decedent’s estate, we do not find any
clarification on Isabel’s accusation that Emilio III had deliberately omitted properties in
the inventory, which properties of Cristina he knew existed and which he claims to be
knowledgeable about.

The general denial made by Emilio III does not erase his unsuitability as administrator
rooted in his failure to "make and return x x x a true and complete inventory" which
became proven fact when he actually filed partial inventories before the probate court
and by his inaction on two occasions of Federico’s exclusion of Cristina’s other
compulsory heirs, herein Isabel and her siblings, from the list of heirs.

As administrator, Emilio III enters into the office, posts a bond and executes an oath to
faithfully discharge the duties of settling the decedent’s estate with the end in view of
distribution to the heirs, if any. This he failed to do. The foregoing circumstances of
Emilio III’s omission and inaction become even more significant and speak volume of his
unsuitability as administrator as it demonstrates his interest adverse to those
immediately interested in the estate of the decedent, Cristina.

In this case, palpable from the evidence on record, the pleadings, and the protracted
litigation, is the inescapable fact that Emilio III and respondent Isabel have a deep
aversion for each other.1awp++i1 To our mind, it becomes highly impractical, nay,
improbable, for the two to work as co-administrators of their grandmother’s estate. The
allegations of Emilio III, the testimony of Federico and the other witnesses for Federico
and Emilio III that Isabel and her siblings were estranged from their grandparents
further drive home the point that Emilio III bears hostility towards Isabel. More
importantly, it appears detrimental to the decedent’s estate to appoint a co-
administrator (Emilio III) who has shown an adverse interest of some kind or hostility to
those, such as herein respondent Isabel, immediately interested in the said estate.

Bearing in mind that the issuance of letters of administration is simply a preliminary

order to facilitate the settlement of a decedent’s estate, we here point out that Emilio III
is not without remedies to protect his interests in the estate of the decedent. In Hilado
v. Court of Appeals,39 we mapped out as among the allowable participation of "any
interested persons" or "any persons interested in the estate" in either testate or
intestate proceedings:

xxxx

4. Section 640 of Rule 87, which allows an individual interested in the estate of the
deceased "to complain to the court of the concealment, embezzlement, or conveyance of
any asset of the decedent, or of evidence of the decedent’s title or interest therein;"
5. Section 1041 of Rule 85, which requires notice of the time and place of the
examination and allowance of the Administrator’s account "to persons interested;"

6. Section 7(b)42 of Rule 89, which requires the court to give notice "to the persons
interested" before it may hear and grant a petition seeking the disposition or
encumbrance of the properties of the estate; and

7. Section 1,43 Rule 90, which allows "any person interested in the estate" to petition for
an order for the distribution of the residue of the estate of the decedent, after all
obligations are either satisfied or provided for.44

In addition to the foregoing, Emilio III may likewise avail of the remedy found in Section
2, Rule 82 of the Rules of Court, to wit:

Sec. 2. Court may remove or accept resignation of executor or

administrator. Proceedings upon death, resignation, or removal. – If an executor or
administrator neglects to render his account and settle the estate according to law, or to
perform an order or judgment of the court, or a duty expressly provided by these rules,
or absconds, or becomes insane, or otherwise incapable or unsuitable to discharge the
trust, the court may remove him, or, in its discretion, may permit him to resign. When
an executor or administrator dies, resigns, or is removed, the remaining executor or
administrator may administer the trust alone, unless the court grants letters to someone
to act with him. If there is no remaining executor or administrator, administration may
be granted to any suitable person.

Once again, as we have done in the Decision, we exercise judicial restraint: we uphold
that the question of who are the heirs of the decedent Cristina is not yet upon us. Article
992 of the Civil Code or the curtain bar rule is inapplicable in resolving the issue of who
is better qualified to administer the estate of the decedent.

Thus, our disquisition in the assailed Decision:

Nonetheless, it must be pointed out that judicial restraint impels us to refrain from
making a final declaration of heirship and distributing the presumptive shares of the
parties in the estates of Cristina and Federico, considering that the question on who will
administer the properties of the long deceased couple has yet to be settled.

Our holding in Capistrano v. Nadurata on the same issue remains good law:

The declaration of heirs made by the lower court is premature, although the evidence
sufficiently shows who are entitled to succeed the deceased. The estate had hardly been
judicially opened, and the proceeding has not as yet reached the stage of distribution of
the estate which must come after the inheritance is liquidated.

Section 1, Rule 90 of the Rules of Court does not depart from the foregoing admonition:

Sec. 1. When order for distribution of residue is made. - x x x. 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.45

Lastly, we dispose of a peripheral issue raised in the Supplemental Comment46 of Emilio

III questioning the Special Second Division which issued the 18 April 2012 Resolution.
Emilio III asseverates that "the operation of the Special Second Division in Baguio is
unconstitutional and void" as the Second Division in Manila had already promulgated its
Decision on 16 June 2010 on the petition filed by him:
7. The question is: who created the Special Second Division in Baguio, acting separately
from the Second Division of the Supreme Court in Manila? There will then be two Second
Divisions of the Supreme Court: one acting with the Supreme Court in Manila, and
another Special Second Division acting independently of the Second Division of the
Supreme Court in Manila.47

For Emilio III’s counsels’ edification, the Special Second Division in Baguio is not a
different division created by the Supreme Court.

The Second Division which promulgated its Decision on this case on 16 June 2010,
penned by Justice Antonio Eduardo B. Nachura, now has a different composition, with
the advent of Justice Nachura’s retirement on 13 June 2011. Section 7, Rule 2 of the
Internal Rules of the Supreme Court provides:

Sec. 7. Resolutions of motions for reconsideration or clarification of decisions or signed

resolutions and all other motions and incidents subsequently filed; creation of a Special
Division. – Motions for reconsideration or clarification of a decision or of a signed
resolution and all other motions and incidents subsequently filed in the case shall be
acted upon by the ponente and the other Members of the Division who participated in
the rendition of the decision or signed resolution.

If the ponente has retired, is no longer a Member of the Court, is disqualified, or has
inhibited himself or herself from acting on the motion for reconsideration or clarification,
he or she shall be replaced through raffle by a new ponente who shall be chosen among
the new Members of the Division who participated in the rendition of the decision or
signed resolution and who concurred therein. If only one Member of the Court who
participated and concurred in the rendition of the decision or signed resolution remains,
he or she shall be designated as the new ponente.

If a Member (not the ponente) of the Division which rendered the decision or signed
resolution has retired, is no longer a Member of the Court, is disqualified, or has
inhibited himself or herself from acting on the motion for reconsideration or clarification,
he or she shall be replaced through raffle by a replacement Member who shall be chosen
from the other Divisions until a new Justice is appointed as replacement for the retired
Justice. Upon the appointment of a new Justice, he or she shall replace the designated
Justice as replacement Member of the Special Division.

Any vacancy or vacancies in the Special Division shall be filled by raffle from among the
other Members of the Court to constitute a Special Division of five (5) Members.

If the ponente and all the Members of the Division that rendered the Decision or signed
Resolution are no longer Members of the Court, the case shall be raffled to any Member
of the Court and the motion shall be acted upon by him or her with the participation of
the other Members of the Division to which he or she belongs.

If there are pleadings, motions or incidents subsequent to the denial of the motion for
reconsideration or clarification, the case shall be acted upon by the ponente on record
with the participation of the other Members of the Division to which he or she belongs at
the time said pleading, motion or incident is to be taken up by the Court. (Emphasis
supplied)

As regards the operation thereof in Baguio City, such is simply a change in venue for the
Supreme Court's summer session held last April.48

WHEREFORE, the Motion for Reconsideration is PARTIALLY GRANTED. Our Decision

in G.R. No. 183053 dated 16 June 2010 is MODIFIED. Letters of Administration over
the estate of decedent Cristina Aguinaldo-Suntay shall solely issue to respondent Isabel
Cojuangco-Suntay upon payment of a bond to be set by the Regional Trial Court, Branch
78, Malolos, Bulacan, in Special Proceeding Case No. 117-M-95. The Regional Trial
Court, Branch 78, Malolos, Bulacan is likewise directed to settle the estate of decedent
Cristina Aguinaldo-Suntay with dispatch. No costs.
G.R. No. 183053               June 16, 2010

IN THE MATTER OF THE INTESTATE ESTATE OF CRISTINA AGUINALDO-SUNTAY;

EMILIO A.M. SUNTAY III,Petitioner, 
vs.
ISABEL COJUANGCO-SUNTAY, Respondent.

DECISION

NACHURA, J.:

Unlike Pope Alexander VI1 who, faced with the impasse between Spain and Portugal,
deftly and literally divided the exploration, or more appropriately, the riches of the New
World by issuing the Inter Caetera,2 we are confronted with the difficult, albeit, all too
familiar tale of another family imbroglio over the estate of a decedent.3

This is a petition for review on certiorari under Rule 45 of the Rules of Court, assailing
the Decision of the Court of Appeals (CA) in CA-G.R. CV No. 74949,4 reversing the
decision of the Regional Trial Court (RTC), Branch 78, Malolos, Bulacan, in Special
Proceeding Case No. 117-M-95.5

Before anything else, we disentangle the facts.

On June 4, 1990, the decedent, Cristina Aguinaldo-Suntay (Cristina), married to Dr.

Federico Suntay (Federico), died intestate. In 1979, their only son, Emilio Aguinaldo
Suntay (Emilio I), predeceased both Cristina and Federico. At the time of her death,
Cristina was survived by her husband, Federico, and several grandchildren, including
herein petitioner Emilio A.M. Suntay III (Emilio III) and respondent Isabel Cojuangco-
Suntay.

During his lifetime, Emilio I was married to Isabel Cojuangco, and they begot three
children, namely: herein respondent, Isabel; Margarita; and Emilio II, all surnamed
Cojuangco-Suntay. Emilio I’s marriage to Isabel Cojuangco was subsequently annulled.
Thereafter, Emilio I had two children out of wedlock, Emilio III and Nenita Suntay
Tañedo (Nenita), by two different women, Concepcion Mendoza and Isabel Santos,
respectively.

Despite the illegitimate status of Emilio III, he was reared ever since he was a mere
baby, nine months old, by the spouses Federico and Cristina and was an acknowledged
natural child of Emilio I. Nenita is an acknowledged natural child of Emilio I and was
likewise brought up by the spouses Federico and Cristina.

As previously adverted to, the marriage between Emilio I and Isabel was
annulled.6 Consequently, respondent and her siblings Margarita and Emilio II, lived with
their mother on Balete Drive, Quezon City, separately from their father and paternal
grandparents.

Parenthetically, after the death of Emilio I, Federico filed a petition for visitation rights
over his grandchildren: respondent Isabel, Margarita, and Emilio II. Although the
Juvenile and Domestic Relations Court in Quezon City granted the petition and allowed
Federico one hour of visitation monthly, initially reduced to thirty minutes, it was
altogether stopped because of a manifestation filed by respondent Isabel, articulating
her sentiments on the unwanted visits of her grandparents.

Significantly, Federico, after the death of his spouse, Cristina, or on September 27,
1993, adopted their illegitimate grandchildren, Emilio III and Nenita.71avvphi1

On October 26, 1995, respondent filed a petition for the issuance of letters of
administration in her favor, containing the following allegations:
[A]t the time of [the decedent’s] death, [she] was a resident of the Municipality of
Hagonoy, Province of Bulacan; that the [decedent] left an estate of real and personal
properties, with a probable gross value of ₱29,000,000.00; that the names, ages and
residences of the surviving heirs of the [decedent] are: (1) Federico C. Suntay, 89 years
old, surviving spouse and a resident of x x x; (2) Isabel Cojuangco-Suntay, 36 years old,
legitimate granddaughter and a resident of x x x; (3) Margarita Cojuangco-Suntay, 39
years old, legitimate granddaughter and a resident of x x x; and (4) Emilio Cojuangco-
Suntay, 35 years old, legitimate grandson and a resident of x x x; and that as far as
[respondent] knew, the decedent left no debts or obligation at the time of her death.8

Disavowing the allegations in the petition of his grandchild, respondent Isabel, Federico
filed his opposition on December 21, 1995, alleging, among others, that:

[B]eing the surviving spouse of Cristina, he is capable of administering her estate and he
should be the one appointed as its administrator; that as part owner of the mass of
conjugal properties left by Cristina, he must be accorded legal preference in the
administration thereof; that Isabel and her family had been alienated from their
grandparents for more than thirty (30) years; that the enumeration of heirs in the
petition was incomplete as it did not mention the other children of his son[,] namely:
Emilio III and Nenita S. Tañedo; that he is better situated to protect the integrity of the
estate of Cristina as even before the death of his wife[,] he was already the one who
managed their conjugal properties; that the probable value of the estate as stated in the
petition was grossly overstated (sic); and that Isabel’s allegation that some of the
properties are in the hands of usurpers is untrue.9

Meanwhile, after a failed attempt by the parties to settle the proceedings amicably,
Federico filed a Manifestation dated March 13, 1999, nominating his adopted son, Emilio
III, as administrator of the decedent’s estate on his behalf, in the event he would be
adjudged as the one with a better right to the letters of administration.

Subsequently, the trial court granted Emilio III’s Motion for Leave to Intervene
considering his interest in the outcome of the case. Emilio III filed his Opposition-In-
Intervention, which essentially echoed the allegations in his grandfather’s opposition,
alleging that Federico, or in his stead, Emilio III, was better equipped than respondent
to administer and manage the estate of the decedent, Cristina. Additionally, Emilio III
averred his own qualifications that: "[he] is presently engaged in aquaculture and
banking; he was trained by the decedent to work in his early age by involving him in the
activities of the Emilio Aguinaldo Foundation which was established in 1979 in memory
of her grandmother’s father; the significant work experiences outside the family group
are included in his curriculum vitae; he was employed by the oppositor [Federico] after
his graduation in college with management degree at F.C.E. Corporations and Hagonoy
Rural Bank; x x x."10

In the course of the proceedings, on November 13, 2000, Federico died.

After the testimonies of both parties’ witnesses were heard and evidence on their
respective allegations were adduced, the trial court rendered a decision on November 9,
2001, appointing herein petitioner, Emilio III, as administrator of decedent Cristina’s
intestate estate, to wit:

WHEREFORE, the petition of Isabel Cojuangco[-]Suntay is DENIED and the

Opposition[-]in[-]Intervention is GRANTED.

Accordingly, the Intervenor, Emilio A.M. Suntay, III is hereby appointed administrator of
the estate of the decedent Cristina Aguinaldo Suntay, who shall enter upon the
execution of his trust upon the filing of a bond in the amount of ₱200,000.00,
conditioned as follows:

(1) To make and return within three (3) months, a true and complete inventory;
 (2) To administer the estate and to pay and discharge all debts, legatees, and
charge on the same, or dividends thereon;

(3) To render a true and just account within one (1) year, and at any other time
when required by the court, and

(4) To perform all orders of the Court.

Once the said bond is approved by the court, let Letters of Administration be issued in
his favor.

SO ORDERED.11

Aggrieved, respondent filed an appeal before the CA, which reversed and set aside the
decision of the RTC, revoked the Letters of Administration issued to Emilio III, and
appointed respondent as administratrix of the intestate estate of the decedent, Cristina,
to wit:

WHEREFORE, in view of all the foregoing, the assailed decision dated November 9, 2001
of Branch 78, Regional Trial Court of Malolos, Bulacan in SPC No. 117-M-95 is
REVERSED and SET ASIDE and the letters of administration issued by the said court to
Emilio A.M. Suntay III, if any, are consequently revoked. Petitioner Isabel
Cojuangco[-]Suntay is hereby appointed administratrix of the intestate estate of Cristina
Aguinaldo Suntay. Let letters of administration be issued in her favor upon her filing of a
bond in the amount of Two Hundred Thousand (₱200,000.00) Pesos.

No pronouncement as to costs.

SO ORDERED.12

The motion for reconsideration of Emilio III having been denied, he appeals by certiorari
to this Court, raising the following issues:

A. IN THE APPOINTMENT OF AN ADMINISTRATOR OF THE ESTATE UNDER SECTION 6 OF

RULE 78 OF THE RULES OF COURT, WHETHER ARTICLE 992 OF THE CIVIL CODE
APPLIES; and

B. UNDER THE UNDISPUTED FACTS WHERE HEREIN PETITIONER WAS REARED BY THE
DECEDENT AND HER SPOUSE SINCE INFANCY, WHETHER ARTICLE 992 OF THE NEW
CIVIL CODE APPLIES SO AS TO BAR HIM FROM BEING APPOINTED ADMINISTRATOR OF
THE DECEDENT’S ESTATE.13

In ruling against the petition of herein respondent, the RTC ratiocinated, thus:

Evidence objectively assessed and carefully evaluated, both testimonial and

documentary, the court opines that it is to the best interest of the estate of the decedent
and all claimants thereto, that the Intervenor, Emilio A.M. Suntay III, be appointed
administrator of the estate in the above-entitled special proceedings.

Based on the evidence and demeanor of the parties in court, [respondent’s immediate]
family and that of the decedent are apparently estranged. The root cause of which, is
not for this court to ascertain nor is this the right time and the proper forum to dwell
upon. What matters most at this time is the welfare of the estate of the decedent in the
light of such unfortunate and bitter estrangement.

The Court honestly believes that to appoint the petitioner would go against the wishes of
the decedent who raised [Emilio III] from infancy in her home in Baguio City as her own
child. Certainly, it would go against the wishes of the surviving spouse x x x who
nominated [Emilio III] for appointment as administrator.
As between [respondent] and the oppositor [Federico], the latter is accorded preference
as the surviving spouse under Sec 6(a), Rule 78, Rules of Court. On the basis of such
preference, he vigorously opposed the appointment of the petitioner and instead
nominated [Emilio III], his grandchild and adopted child. Such nomination, absent any
valid and justifiable reason, should not be imperiously set aside and insouciantly
ignored, even after the oppositor [Federico] has passed away, in order to give effect to
the order of preference mandated by law. Moreover, from the viewpoint of the estate,
the nomination of [Emilio III] appear[s] intrinsically meritorious. For the benefit of the
estate and its claimants, creditors, as well as heirs, the administrator should be one who
is prepared, academically and by experience, for the demands and responsibilities of the
position. While [respondent], a practicing physician, is not unqualified, it is clear to the
court that when it comes to management of real estate and the processing and payment
of debts, [Emilio III], a businessman with an established track record as a manager has
a decided edge and therefore, is in a position to better handle the preservation of the
estate.14

In marked contrast, the CA zeroed in on Emilio III’s status as an illegitimate child of

Emilio I and, thus, barred from representing his deceased father in the estate of the
latter’s legitimate mother, the decedent. On the whole, the CA pronounced that Emilio
III, who was merely nominated by Federico, and which nomination hinged upon the
latter’s appointment as administrator of the decedent’s estate, cannot be appointed as
the administrator of the decedent’s estate for the following reasons:15

1. The appointment of Emilio III was subject to a suspensive condition, i.e.,

Federico’s appointment as administrator of the estate, he being the surviving
spouse of Cristina, the decedent. The death of Federico before his appointment as
administrator of Cristina’s estate rendered his nomination of Emilio III inoperative;

2. As between the legitimate offspring (respondent) and illegitimate offspring

(Emilio III) of decedent’s son, Emilio I, respondent is preferred, being the "next of
kin" referred to by Section 6, Rule 78 of the Rules of Court, and entitled to share
in the distribution of Cristina’s estate as an heir;

3. Jurisprudence has consistently held that Article 99216 of the Civil Code bars the
illegitimate child from inheriting ab intestato from the legitimate children and
relatives of his father or mother. Thus, Emilio III, who is barred from inheriting
from his grandmother, cannot be preferred over respondent in the administration
of the estate of their grandmother, the decedent; and

4. Contrary to the RTC’s finding, respondent is as much competent as Emilio III to

administer and manage the subject estate for she possesses none of the
disqualifications specified in Section 1,17 Rule 78 of the Rules of Court.

The pivotal issue in this case turns on who, as between Emilio III and respondent, is
better qualified to act as administrator of the decedent’s estate.

We cannot subscribe to the appellate court’s ruling excluding Emilio III in the
administration of the decedent’s undivided estate. Mistakenly, the CA glosses over
several undisputed facts and circumstances:

1. The underlying philosophy of our law on intestate succession is to give

preference to the wishes and presumed will of the decedent, absent a valid and
effective will;

2. The basis for Article 992 of the Civil Code, referred to as the iron curtain bar
rule,18 is quite the opposite scenario in the facts obtaining herein for the actual
relationship between Federico and Cristina, on one hand, and Emilio III, on the
other, was akin to the normal relationship of legitimate relatives;

3. Emilio III was reared from infancy by the decedent, Cristina, and her husband,
Federico, who both acknowledged him as their grandchild;
 4. Federico claimed half of the properties included in the estate of the decedent,
Cristina, as forming part of their conjugal partnership of gains during the
subsistence of their marriage;

5. Cristina’s properties forming part of her estate are still commingled with that of
her husband, Federico, because her share in the conjugal partnership, albeit
terminated upon her death, remains undetermined and unliquidated; and

6. Emilio III is a legally adopted child of Federico, entitled to share in the

distribution of the latter’s estate as a direct heir, one degree from Federico, not
simply representing his deceased illegitimate father, Emilio I.

From the foregoing, it is patently clear that the CA erred in excluding Emilio III from the
administration of the decedent’s estate. As Federico’s adopted son, Emilio III’s interest
in the estate of Cristina is as much apparent to this Court as the interest therein of
respondent, considering that the CA even declared that "under the law, [Federico], being
the surviving spouse, would have the right of succession over a portion of the exclusive
property of the decedent, aside from his share in the conjugal partnership." Thus, we
are puzzled why the CA resorted to a strained legal reasoning – Emilio III’s nomination
was subject to a suspensive condition and rendered inoperative by reason of Federico’s
death – wholly inapplicable to the case at bar.

Section 6, Rule 78 of the Rules of Court lists the order of preference in the appointment
of an administrator of an estate:

SEC. 6. When and to whom letters of administration granted. – If no executor is named

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

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

(b) If such surviving husband or wife, as the case may be, or next of kin, or the
person selected by them, be incompetent or unwilling, or if the husband or widow,
or next of kin, neglects for thirty (30) days after the death of the person to apply
for administration or to request that administration be granted to some other
person, it may be granted to one or more of the principal creditors, if competent
and willing to serve;

(c) If there is no such creditor competent and willing to serve, it may be granted
to such other person as the court may select.

However, the order of preference is not absolute for it depends on the attendant facts
and circumstances of each case.19 Jurisprudence has long held that the selection of an
administrator lies in the sound discretion of the trial court.20 In the main, the attendant
facts and circumstances of this case necessitate, at the least, a joint administration by
both respondent and Emilio III of their grandmother’s, Cristina’s, estate.

In the case of Uy v. Court of Appeals,21 we upheld the appointment by the trial court of a
co-administration between the decedent’s son and the decedent’s brother, who was
likewise a creditor of the decedent’s estate. In the same vein, we declared in Delgado
Vda. de De la Rosa v. Heirs of Marciana Rustia Vda. de Damian22 that:

[i]n the appointment of an administrator, the principal consideration is the interest in

the estate of the one to be appointed. The order of preference does not rule out the
appointment of co-administrators, specially in cases where justice and equity demand
that opposing parties or factions be represented in the management of the estates, a
situation which obtains here.
Similarly, the subject estate in this case calls to the succession other putative heirs,
including another illegitimate grandchild of Cristina and Federico, Nenita Tañedo, but
who was likewise adopted by Federico, and the two (2) siblings of respondent Isabel,
Margarita and Emilio II. In all, considering the conflicting claims of the putative heirs,
and the unliquidated conjugal partnership of Cristina and Federico which forms part of
their respective estates, we are impelled to move in only one direction, i.e., joint
administration of the subject estate.

One final note. Counsel for petitioner meticulously argues that Article 992 of the Civil
Code, the successional bar between the legitimate and illegitimate relatives of a
decedent, does not apply in this instance where facts indubitably demonstrate the
contrary – Emilio III, an illegitimate grandchild of the decedent, was actually treated by
the decedent and her husband as their own son, reared from infancy, educated and
trained in their businesses, and eventually legally adopted by decedent’s husband, the
original oppositor to respondent’s petition for letters of administration.

We are not unmindful of the critiques of civilists of a conflict and a lacuna in the law
concerning the bone of contention that is Article 992 of the Civil Code, beginning with
the eminent Justice J.B.L. Reyes:

In the Spanish Civil Code of 1889 the right of representation was admitted only within
the legitimate family; so much so that Article 943 of that Code prescribed that an
illegitimate child can not inherit ab intestato from the legitimate children and relatives of
his father and mother. The Civil Code of the Philippines apparently adhered to this
principle since it reproduced Article 943 of the Spanish Code in its own Art. 992, but with
fine inconsistency, in subsequent articles (990, 995 and 998) our Code allows the
hereditary portion of the illegitimate child to pass to his own descendants, whether
legitimate or illegitimate. So that while Art. 992 prevents the illegitimate issue of a
legitimate child from representing him in the intestate succession of the grandparent,
the illegitimates of an illegitimate child can now do so. This difference being indefensible
and unwarranted, in the future revision of the Civil Code we shall have to make a choice
and decide either that the illegitimate issue enjoys in all cases the right of
representation, in which case Art. 992 must be suppressed; or contrariwise maintain
said article and modify Articles 995 and 998. The first solution would be more in accord
with an enlightened attitude vis-à-vis illegitimate children.23

Manresa explains the basis for the rules on intestate succession:

The law [of intestacy] is founded… on the presumed will of the deceased… Love, it is
said, first descends, then ascends, and, finally, spreads sideways. Thus, the law first
calls the descendants, then the ascendants, and finally the collaterals, always preferring
those closer in degree to those of remoter degrees, on the assumption that the
deceased would have done so had he manifested his last will… Lastly, in default of
anyone called to succession or bound to the decedent by ties of blood or affection, it is
in accordance with his presumed will that his property be given to charitable or
educational institutions, and thus contribute to the welfare of humanity.24

Indeed, the factual antecedents of this case accurately reflect the basis of intestate
succession, i.e., love first descends, for the decedent, Cristina, did not distinguish
between her legitimate and illegitimate grandchildren. Neither did her husband,
Federico, who, in fact, legally raised the status of Emilio III from an illegitimate
grandchild to that of a legitimate child. The peculiar circumstances of this case,
painstakingly pointed out by counsel for petitioner, overthrow the legal presumption in
Article 992 of the Civil Code that there exist animosity and antagonism between
legitimate and illegitimate descendants of a deceased.

Nonetheless, it must be pointed out that judicial restraint impels us to refrain from
making a final declaration of heirship and distributing the presumptive shares of the
parties in the estates of Cristina and Federico, considering that the question on who will
administer the properties of the long deceased couple has yet to be settled.
Our holding in Capistrano v. Nadurata25 on the same issue remains good law:

[T]he declaration of heirs made by the lower court is premature, although the evidence
sufficiently shows who are entitled to succeed the deceased. The estate had hardly been
judicially opened, and the proceeding has not as yet reached the stage of distribution of
the estate which must come after the inheritance is liquidated.

Section 1, Rule 90 of the Rules of Court does not depart from the foregoing admonition:

Sec. 1. When order for distribution of residue is made. – x x x. 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.

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals in CA-G.R.
CV No. 74949 is REVERSED and SET ASIDE. Letters of Administration over the estate of
decedent Cristina Aguinaldo-Suntay shall issue to both petitioner Emilio A.M. Suntay III
and respondent Isabel Cojuangco-Suntay upon payment by each of a bond to be set by
the Regional Trial Court, Branch 78, Malolos, Bulacan, in Special Proceeding Case No.
117-M-95. The Regional Trial Court, Branch 78, Malolos, Bulacan is likewise directed to
make a determination and to declare the heirs of decedent Cristina Aguinaldo-Suntay
according to the actual factual milieu as proven by the parties, and all other persons
with legal interest in the subject estate. It is further directed to settle the estate of
decedent Cristina Aguinaldo-Suntay with dispatch. No costs.
G.R. No. 143256            August 28, 2001

RODOLFO FERNANDEZ and MERCEDES CARANTO FERNANDEZ, HUSBAND and

WIFE, EDDIE C. FERNANDEZ and LUZ FERNANDEZ, SPOUSES, petitioners, 
vs.
ROMEO FERNANDEZ, POTENCIANO FERNANDEZ, FRANCISCO FERNANDEZ,
JULITA FERNANDEZ, WILLIAM FERNANDEZ, MARY FERNANDEZ, ALEJANDRO
FERNANDEZ, GERARDO FERNANDEZ, RODOLFO FERNANDEZ and GREGORIO
FERNANDEZ, respondents.

GONZAGA-REYES, J.:

Before Us is a petition for review on certiorari assailing the decision1 of the respondent
Court of Appeals dated December 22, 1999 affirming the decision2 of the Regional Trial
Court Branch 40, Dagupan City in an action for nullity of contracts, partition, recovery of
possession and damages in favor of plaintiffs-appellees, herein respondents.

The facts as found by the respondent Court of Appeals, are as follows:3

"The late Spouses Dr. Jose K. Fernandez, and Generosa A. de Venecia were the
registered owners of a parcel of land located at Dagupan City covered by TCT No.
T-9267 (525) consisting of 194 sq. meters, and the two-storey building
constructed thereon covered by Tax Declaration 22-592-1. It is undisputed that
Generosa gave birth to a baby boy named Rogelio who died when he was only
twelve (12) years old as paralytic. In the testimony of Romeo Fernandez (TSN,
Aug. 31, 1994, pp. 9-14) it was revealed that the late Spouses being childless by
the death of their son, purchased from a certain Miliang for P20.00 a one (1)
month baby boy. The boy being referred to was later on identified as Rodolfo
Fernandez, the herein appellant. Appellant was taken care of by the couple and
was sent to school and became a dental technician. He lived with the couple until
they became old and disabled.

On July 20, 1982, Jose K. Fernandez died thereby leaving his wife Generosa A. de
Venecia and Rodolfo Fernandez and an estate consisting of the following:

(a) "A parcel of land (Lot 9132, before Lot No. 444-C, of the Cadastral
Survey of Dagupan, Cadastral Case No. 41, G.L.R.O. Cadastral Record No.
925), situated in the Barrio of Pantal, City of Dagupan. Bounded on the NE.
by Lot No. 447; on the SE. by Lot No. 9134; on the SW. by the Arellano
Street; and on the NW. by Lot No. 9131. Containing an area of One Hundred
Ninety Four (194) square meters, more or less. Covered by Transfer
Certificate of Title No. 525 (T-9267) Pangasinan Registry of Deeds."

(b) "A two (2) storey residential building made of concrete and wood, G. I.
roofing with a floor area of 154 square meters and 126 square meters of the
first and second floor, respectively. Declared under Tax Decl. No. 22- 592-1
and assessed therein at P26,000.00."

On August 31, 1989, appellant and Generosa de Venecia executed a Deed of Extra-
judicial Partition dividing and allocating to themselves the following:

To: Generosa de Venecia Vda. De Fernandez

(a) 119.5 sq. m. located on the southwestern portion of the land;

(b) Whole residential house above-mentioned;

To: Rodolfo V. Fernandez

74.5 square meters to be taken on the northeastern portion of the land.

 On the same day, Generosa de Venecia executed a Deed of Absolute Sale in favor
of Eddie Fernandez, appellant's son over the following:

"A portion of One Hundred Nineteen and One-Half (119.5) Square meters
including the building and/or all existing thereon to be taken from the
southwestern portion of the parcel of land described as follows, to wit:

'A parcel of land (Lot No. 9132, before Lot No. 444-C, of the Cadastral
Survey of Dagupan, Cadastral Case No. 41, G.L.R.O. Cadastral Record No.
925), situated in the Barrio of Pantal, City of Dagupan. Bounded on the NE.
by Lot No. 447; on the SE by Lot No. 9134; on the SW. by the Arellano
Street; and on the NW. by Lot No. 9131. Containing an area of One Hundred
and Ninety-Four (194), Square Meters, more or less, covered by TRANSFER
CERTIFICATE OF TITLE NO. 525 (T-9267) — Pangasinan Registry of Deeds"
(Exh. "8", Exhibits for the Defendants)

After learning the transaction, Romeo, Potenciano, Francisco, Julita, William, Mary,
Alejandro, Gerardo, Rodolfo and Gregorio, all surnamed Fernandez, being nephews
and nieces of the deceased Jose K. Fernandez, their father Genaro being a brother
of Jose, filed on September 21, 1994, an action to declare the Extra-Judicial
Partition of Estate and Deed of Sale void ab initio (docketed as Civil Case No. 94-
00016-D).

The complaint alleged that defendants (herein appellants), motivated by

unmitigated greed, deliberate and malicious acts of depriving the plaintiff and
other heirs (herein appellees) of the deceased spouses, without basis of heirship or
any iota of rights to succession or inheritance, taking advantage of the total
physical and mental incapacity of the deceased Generosa de Venecia aggravated
by unlawful scheme confederated, colluded and conspired with each other in
causing the fake, simulated grossly inauthentic contracts purporting to be
executed on August 31, 1989 and jointly on the same date, caused the execution
of the deed of absolute sale purportedly signed by Generosa de Venecia covering
the same property described in the deed of extra-judicial partition and by virtue of
the said acts, appellants were able to secure new land titles in their favor
(Records, pp. 3-4, Complaint). Appellees thus prayed that the Deed of Extra-
judicial Partition, Deed of Absolute Sale and Transfer Certificate of Title No. 54641
be declared void from the beginning.

Significantly, in their answer, defendants alleged:

"16. That the deceased Sps. Jose K. Fernandez and Generosa were husband
and wife blessed with one child the herein defendant Rodolfo V.
Fernandez whom they acknowledged during their lifetime. (italics supplied)

18. That the Deed of Extrajudicial Partition and Deed of Absolute Sale
executed by the late Generosa de Venecia and defendant Rodolfo V.
Fernandez which are now in question were all made with the full knowledge,
consent and approval of the parties thereto and for value." (Records, pp. 20-
21, Answer)."

On May 10, 1996, the Regional Trial Court rendered a decision in favor of the plaintiffs,
the dispositive portion reads:4

"WHEREFORE, judgment is hereby rendered in favor of plaintiffs and against the

defendants;

1. Declaring the Deed of Extra-Judicial Partition dated August 31, 1989 (Exh. "3 ),
the Deed of Absolute Sale dated August 31, 1989 (Exh. 8"), the TCT No. 54641,
and the TCT No. 54693 null and void;
 2. Ordering the defendants to reconvey to, and to peacefully surrender to the
plaintiffs the possession of the house and lot in question;

3. Ordering the defendants, jointly and severally to pay to plaintiffs the following:

(a) P50,000.00 as compensatory damages;

(b) P100,000.00 as moral damages;

(c) P20,000.00 as attorney's fees; and

(d) P2,000.00 as litigation costs.

SO ORDERED."

In so ruling, the trial court found that defendant Rodolfo Fernandez was not a legitimate
nor a legally adopted child of spouses Dr. Jose Fernandez and Generosa de Venecia
Fernandez, hence Rodolfo could not inherit from the spouses. Rodolfo's claim as a son of
the deceased spouses Fernandez was negated by the fact that (1) he only reached high
school and was told to stop studying so that he could help in the clinic of Dr. Fernandez,
(2) he failed to present any birth certificate, (3) the book entitled Fercolla clan which
was compiled and edited by respected people such as Ambassador Armando Fernandez,
Justice Jorge Coquia and Teresita Coquia-Sison, showed the geneology of the family of
Dr. Jose and Generosa Fernandez without a child; a pedigree may be admitted in
evidence to prove the facts of genealogy and that entries in a family bible or other
family books or charts, engravings or rings, family portraits and the like, may be
received as evidence of pedigree,5 (4) the certification issued by the Records
Management and Archives Office that there was no available information about the birth
of petitioner Rodolfo to the spouses Fernandez, (5) the application of Dr. Jose Fernandez
for backpay certificate naming petitioner Rodolfo as his son was doubtful considering
that there were blemishes or alteration in the original copy; (6) that Rodolfo's baptismal
certificate was spurious and falsified since there were no available records of baptism
with the parish from June 7, 1930 to August 8, 1936, while Rodolfo's baptismal
certificate which was issued in 1989 showed that he was baptized on November 24,
1934. The court found that the extra-judicial partition and the deed of absolute sale
were prepared and executed under abnormal, unusual and irregular circumstances which
rendered the documents null and void.

Defendants Rodolfo Fernandez et. al appealed to the respondent Court of Appeals which
affirmed the trial court's judgment in its assailed decision dated December 22, 1999.

In resolving the appeal, the respondent court delved into the legitimacy of defendant-
appellant Rodolfo Fernandez' filiation with the deceased spouses. It found that
appellants' evidence which consisted of a certificate of baptism stating that he was a
child of the spouses Fernandez and the application for recognition of rights to back pay
under RA 897 filed by Dr. Jose Fernandez, wherein the latter referred to Rodolfo as his
son, did not acquire evidentiary weight to prove his filiation. The appellate court
concluded that while baptismal certificates may be considered public documents, they
were evidence only to prove the administration of the sacraments on the dates therein
specified, but not the veracity of the statements or declarations made therein with
respect to his kinsfolk; that while the application for back pay was a public document, it
was not executed to admit the filiation of Jose K. Fernandez with Rodolfo V. Fernandez,
the herein appellant; that the public document contemplated in Article 172 of the Family
Code referred to the written admission of filiation embodied in a public document
purposely executed as an admission of filiation and not as obtaining in this case wherein
the public document was executed as an application for the recognition of rights to back
pay under Republic Act No. 897.

Appellants Rodolfo Fernandez et al filed their motion for reconsideration which was
denied in a resolution dated May 17, 2000.6
Rodolfo Fernandez et al filed the instant petition for review with the following issues:

THE COURT OF APPEALS ERRED IN AFFIRMING THE JUDGMENT OF THE TRIAL

COURT ORDERING THE DEFENDANTS, PETITIONERS HEREIN, TO RECONVEY TO,
AND PEACEFULLY SURRENDER TO THE PLAINTIFFS, RESPONDENTS HEREIN, THE
POSSESSION OF THE HOUSE AND LOT IN QUESTION BECAUSE THE SAID ORDER
IS PALPABLY CONTRARY TO THE ADMITTED FACTS THE LAW AND
JURISPRUDENCE, FOR THE FOLLOWING REASONS:

(a) THE HOUSE AND LOT IN QUESTION ARE ADMITTED BY THE PARTIES TO
BE CONJUGAL PROPERTIES OF THE SPOUSES DR. JOSE K. FERNANDEZ AND
GENEROSA DE VENECIA, AND

(b) RESPONDENTS, WHO ARE NOT RELATED TO GENEROSA DE VENECIA BY

CONSANGUINITY, ARE NOT HER INTESTATE HEIRS AND CANNOT SUCCEED
AB INTESTATO TO HER INTESTATE ESTATE.

II

THE COURT OF APPEALS ERRED IN AFFIRMING THE JUDGMENT OF THE TRIAL

COURT DECLARING (1) THE DEED OF EXTRA-JUDICIAL PARTITION DATED
AUGUST 31, 1989 (EXH. '3'), THE DEED OF ABSOLUTE SALE ALSO DATED
AUGUST 31, 1989 (EXH. '8'), TCT NO. 54641, AND TCT NO. 54693 NULL AND
VOID FOR THE FOLLOWING REASONS:

(a) IT HAS NO FACTUAL BASIS DULY ESTABLISHED BY THE EVIDENCE ON

RECORD, AND

(b) RESPONDENTS, NOT BEING PARTIES TO THE QUESTIONED DEEDS,

HAVE NO PERSONALITY TO CONTEST THE VALIDITY OF SAID DOCUMENTS.

III

THE COURT OF APPEALS ERRED IN AFFIRMING THE TRIAL COURT'S FINDING

THAT THE PETITIONER RODOLFO FERNANDEZ WAS NOT THE CHILD OF SPOUSES
DR. JOSE K. FERNANDEZ AND GENEROSA DE VENECIA BECAUSE

(a) THE FILIATION OF PETITIONER RODOLFO FERNANDEZ COULD NOT BE

COLLATERALLY ATTACKED IN AN ACTION FOR DECLARATION OF NULLITY
OF DOCUMENTS, PARTITION, RECOVERY OF POSSESSION AND DAMAGES,
AND;

(b) THE DECISION AS AFFIRMED BY THE COURT OF APPEALS DID NOT

DECLARE IN THE DISPOSITIVE PORTION THEREOF THAT PETITIONER
RODOLFO FERNANDEZ IS NOT THE CHILD OF SPOUSES DR. JOSE
FERNANDEZ AND GENEROSA FERNANDEZ.

IV

THE COURT OF APPEALS ERRED IN AFFIRMING THE AWARD OF DAMAGES AND

ATTORNEY'S FEES TO THE RESPONDENTS, THERE BEING NO FACTUAL BASIS IN
THE AFFIRMED DECISION TO JUSTIFY SUCH AWARD.

The principal issue for resolution in this case concerns the rights of the parties to the
conjugal property of the deceased spouses Fernandez.

Petitioners allege that the respondent court found the extra-judicial partition executed
by petitioner Rodolfo Fernandez and Generosa Fernandez, widow of Dr. Jose Fernandez,
null and void because the former allegedly failed to prove legitimate filiation to his
putative father, the late Dr. Jose Fernandez. Petitioners, contend, however, that the
burden of proof lies with the respondents because they were the ones contesting the
filiation of Rodolfo Fernandez. They insist that both lower courts had no power to pass
upon the matter of filiation because it could not be collaterally attacked in the present
action but in a separate and independent action directly impugning such filiation.

We are not persuaded.

It must be noted that the respondents' principal action was for the declaration of
absolute nullity of two documents, namely: deed of extra-judicial partition and deed of
absolute sale, and not an action to impugn one's legitimacy. The respondent court ruled
on the filiation of petitioner Rodolfo Fernandez in order to determine Rodolfo's right to
the deed of extra-judicial partition as the alleged legitimate heir of the spouses
Fernandez. While we are aware that one's legitimacy can be questioned only in a direct
action seasonably filed by the proper party, this doctrine has no application in the
instant case considering that respondents' claim was that petitioner Rodolfo was not
born to the deceased spouses Jose and Generosa Fernandez; we do not have a situation
wherein they (respondents) deny that Rodolfo was a child of their uncle's wife. The case
of Benitez-Badua vs. Court of Appeals,7 which has a similar factual backdrop is
instructive:

"A careful reading of the above articles8 will show that they do not contemplate a
situation, like in the instant case, where a child is alleged not to be the child of
nature or biological child of a certain couple. Rather, these articles govern a
situation where a husband (or his heirs) denies as his own a child of his wife.
Thus, under Article 166, it is the husband who can impugn the legitimacy of said
child by proving: (1) it was physically impossible for him to have sexual
intercourse, with his wife within the first 120 days of the 300 days which
immediately preceded the birth of the child; (2) that for biological or other
scientific reasons, the child could not have been his child; (3) that in case of
children conceived through artificial insemination, the written authorization or
ratification by either parent was obtained through mistake, fraud, violence,
intimidation or undue influence. Articles 170 and 171 reinforce this reading as they
speak of the prescriptive period within which the husband or any of his heirs
should file the action impugning the legitimacy of said child. Doubtless then, the
appellate court did not err when it refused to apply these articles to the case at
bench. For the case at bench is not where the heirs of the late Vicente are
contending that petitioner is not his child by Isabel. Rather, their clear submission
is that petitioner was not born to Vicente and Isabel. Our ruling in Cabatbat-Lim
vs. Intermediate Appellate Court, 166 SCRA 451, 457 cited in the impugned
decision is apropos, viz:

"Petitioners' recourse to Art. 263 of the New Civil Code (now Art. 170 of the
Family Code) is not well taken. This legal provision refers to an action to
impugn legitimacy. It is inapplicable to this case because this is not an
action to impugn the legitimacy of a child, but an action of the private
respondents to claim their inheritance as legal heirs of their childless
deceased aunt. They do not claim that petitioner Violeta Cabatbat Lim is an
illegitimate child of the deceased, but that she is not the decedent's child at
all. Being neither legally adopted child, nor an acknowledged natural child,
nor a child by legal fiction of Esperanza Cabatbat, Violeta is not a legal heir
of the deceased.""

Thus, it is necessary to pass upon the relationship of petitioner Rodolfo Fernandez to the
deceased spouses Fernandez for the purpose of determining what legal right Rodolfo has
in the property subject of the extra-judicial partition. In fact, the issue of whether or not
Rodolfo Fernandez was the son of the deceased spouses Jose Fernandez and Generosa
de Venecia was squarely raised by petitioners in their pre-trial brief9 filed before the trial
court, hence they are now estopped from assailing the trial court's ruling on Rodolfo's
status.
We agree with the respondent court when it found that petitioner Rodolfo failed to prove
his filiation with the deceased spouses Fernandez. Such is a factual issue which has been
thoroughly passed upon and settled both by the trial court and the appellate court.
Factual findings of the Court of Appeals are conclusive on the parties and not reviewable
by this Court and they carry even more weight10 when the Court of Appeals affirms the
factual findings of the trial court.11 We accordingly find no cogent reason to disagree with
the respondent court's evaluation of the evidence presented, thus:12

"The Records Management and Archives Office is bereft of any records of the birth
of appellant Rodolfo Fernandez. On October 11, 1995, it issued a certification
worded as follows:

"This is to certify that the Register of Births for the Municipality of Dagupan,
Pangasinan in the year 1984 is not on file with the National Archives, hence,
there is no available information about the birth of Rodolfo V. Fernandez
alleged to have been born on November 24, 1934 to the spouses Jose K.
Fernandez and Generosa de Venecia in Dagupan, Pangasinan" (Records, p.
146)

Appellant nonetheless, contends that the Application for Recognition of Back Pay
Rights Under Act No. 897 is a public document and a conclusive proof of the
legitimate filiation between him and the deceased spouses (Rollo, p. 41,
Appellants' Brief). We do not agree.

It may be conceded that the Application for Recognition of Back Pay Rights Under
Act No. 897 is a public document nevertheless, it was not executed to admit the
filiation of Jose K. Fernandez with Rodolfo V. Fernandez, the herein appellant. The
public document contemplated in Article 172 of the Family Code refer to the
written admission of filiation embodied in a public document purposely executed as
an admission of filiation and not as obtaining in this case wherein the public
document was executed as an application for the recognition of rights to back pay
under Republic Act No. 897. Section 23, Rule 132 of the Revised Rules on
Evidence provides:

"SECTION 32. Public documents as evidence — Documents consisting of

entries in public records made in the performance of a duty by a public
officer are prima facie evidence of the facts therein stated. All other public
documents are evidence, even against a third person, of the fact which gave
rise to their execution and of the date of the latter."

The rule is not absolute in the sense that the contents of a public document are
conclusive evidence against the contracting parties as to the truthfulness of the
statements made therein. They constitute only prima facie evidence of the facts
which give rise to their execution and of the date of the latter. Thus, a baptismal
certificate issued by a Spanish priest under the Spanish regime constitutes prima
facie evidence of the facts certified to by the parish priest from his own knowledge
such as the administration of the sacrament on the day and in the place and
manner set forth in the certificate; but it does not constitute proof of the
statements made therein concerning the parentage of the person baptized
(Francisco, Evidence, 1994 ed., p. 516, citing Garcia vs. Gajul, 53 Phil.
642; Adriano vs. de Jesus, 23 Phil. 350; Buan vs. Arquiza, 5 Phil. 193; Siguion vs.
Siguion, 8 Phil. 7). Public documents are perfect evidence of the fact which give
rise to their execution and of the date of the latter if the act which the officer
witnessed and certified to or the date written by him are not shown to be false;
but they are not conclusive evidence with respect to the truthfulness of the
statements made therein by the interested parties (Martin, Rules of Court in the
Philippines with Note and Comments, vol. 4, p. 577).

Corollarily, the Application for Recognition of Back Pay Rights Under Act No. 897 is
only a proof that Jose K. Fernandez filed said application on June 5, 1954 in
Dagupan City but it does not prove the veracity of the declaration and statement
 contained in the said application that concern the relationship of the applicant with
herein appellant. In like manner, it is not a conclusive proof of the filiation of
appellant with his alleged father, Jose K. Fernandez the contents being, only prima
facie evidence of the facts stated therein.

Additionally, appellant claims that he enjoyed and possessed the status of being a
legitimate child of the spouses openly and continuously until they died (Rollo, p.
42; Appellants' Brief). Open and continuous possession of the status of a
legitimate child is meant the enjoyment by the child of the position and privileges
usually attached to the status of a legitimate child such as bearing the paternal
surname, treatment by the parents and family of the child as legitimate, constant
attendance to the child's support and education, and giving the child the
reputation of being a child of his parents (Sempio-Diy, The Family Code of the
Philippines, pp. 245-246). However, it must be noted that, as was held
in Quismundo vs. WCC, 132 SCRA 590, possession of status of a child does not in
itself constitute an acknowledgment; it is only a ground for a child to compel
recognition by his assumed parent.

Lastly, to substantiate his claim of being a legitimate child appellant presented a

baptismal certificate issued by Fr. Rene Mendoza of the St. John Metropolitan
Cathedral of Dagupan City on August 10, 1989 stating therein that appellant is a
child of the late spouses having been born on November 15, 1934 and baptized on
November 24, 1934 (Exh. "1" Exhibits for the Defendants). As stated, while
baptismal certificates may be considered public documents, they are evidence only
to prove the administration of the sacraments on the dates therein specified, but
not the veracity of the statements or declarations made therein with respect to his
kinsfolk (Reyes vs. Court of Appeals, 135 SCRA 439). It may be argued that a
baptismal certificate is one of the other means allowed by the Rules of Court and
special laws of proving filiation but in this case, the authenticity of the baptismal
certificate was doubtful when Fr. Raymundo Q. de Guzman of St. John the
Evangelist Parish of Lingayen-Dagupan, Dagupan City issued a certification on
October 16, 1995 attesting that the records of baptism on June 7, 1930 to August
8, 1936 were all damaged (Records, p. 148, Exh. "G"). Neither the family portrait
offered in evidence establishes a sufficient proof of filiation Pictures do not
constitute proof of filiation (Reyes vs. Court of Appeals) (supra). In fine, the
evidence presented by appellant did not acquire evidentiary weight to prove his
filiation. Consequently the Extra-Judicial Partition dated August 31, 1989 executed
by appellant Rodolfo Fernandez and Generosa de Venecia is null and void."

Considering the foregoing findings, petitioner Rodolfo is not a child by nature of the
spouses Fernandez and not a legal heir of Dr. Jose Fernandez, thus the subject deed of
extra-judicial settlement of the estate of Dr. Jose Fernandez between Generosa vda. de
Fernandez and Rodolfo is null and void insofar as Rodolfo is concerned13pursuant to Art.
1105 of the New Civil Code which states:

"A partition which includes a person believed to be an heir, but who is not, shall be
void only with respect to such person."

Petitioners next contend that respondents admitted that the property in question was
the conjugal property of the late spouses Dr. Jose Fernandez and Generosa de Venecia,
thus when Dr. Jose Fernandez died intestate in 1982, his estate consisted solely of ½
pro indiviso of the conjugal property and the other half belonged to his wife Generosa de
Venecia; that granting Dr. Jose Fernandez was only survived by his wife, the
respondents nephews and nieces of Dr. Jose are entitled to inherit the ½ share of the
decedent's estate while the ¾ share of the conjugal property will still belong to Generosa
as the widow of Dr. Jose Fernandez, hence the trial court's order reconveying the
possession of the subject lot and building to respondents was contrary to the admitted
facts and law since respondents are not related by consanguinity to Generosa vda de
Fernandez.

We agree.
Article 1001 of the Civil Code provides:

"Should brothers and sisters or their children survive with the widow or widower,
the latter shall be entitled to one half of the inheritance and the brothers and
sisters or their children to the other half."

Generosa was the widow of Dr. Jose Fernandez and as provided in the above-quoted
Article 1001, she is entitled to the ½ of the inheritance and the respondents to the other
½. In effect, ¾ pro indiviso is the share of Generosa as the surviving spouse, i.e., ½ as
her share of the conjugal property estate and ½ of the remaining ½ as share as heir
from her husband's estate. Thus, we find well taken the petitioners' assertion that the
annulment of the extra-judicial partition between Generosa and petitioner Rodolfo does
not necessarily result in respondents' having exclusive right to the conjugal property, as
erroneously found by the respondent court. Generosa, during her lifetime, had the right
to enjoy and dispose of her property without other limitations than those established by
law,14 which right she exercised by executing a deed of sale in favor of petitioner Eddie
Fernandez.

Petitioners assails respondents' right, not being heirs of Generosa, to question the
validity of the deed of sale since the action for the annulment of contracts may only be
instituted by all who are thereby obliged principally or subsidiarily.15

We disagree.

As a rule, a contract cannot be assailed by one who is not a party obliged principally or
subsidiarily under a contract. However, when a contract prejudices the rights of a third
person, he may exercise an action for nullity of the contract if he is prejudiced in his
rights with respect to one of the contracting parties, and can show detriment which
would positively result to him from the contract in which he had no intervention.16 As we
have discussed above, respondents are entitled to the ¼ of the entire conjugal property,
i.e., lot and building; however considering that widow Generosa, during her lifetime, sold
the entire building to petitioner Eddie Fernandez, respondents had been deprived of their
¼ share therein, thus the deed of sale was prejudicial to the interest of respondents as
regards their ¼ share in the building. Respondents therefore, have a cause of action to
seek the annulment of said deed of sale.

Petitioners further allege that the respondent court erred in declaring null and void the
deed of sale executed between Generosa and petitioner Eddie Fernandez concluding that
the same was simulated or false and in affirming the trial court's findings that the deed
was prepared and executed under abnormal, unusual and irregular circumstances
without however, particularly stating the circumstances.

We agree.

Respondents allege that the deed of sale was fictitious and simulated because there was
no consideration for the sale. However, this assertion was controverted by vendee
petitioner Eddie Fernandez' declaration, that the money he paid for the sale came from
his savings as overseas contract worker in Saudi Arabia from 1982-1989 which
respondents failed to controvert by presenting evidence to the contrary. The
presumption that a contract has sufficient consideration cannot be overthrown by a mere
assertion that it has no consideration.17 Under Art. 1354 of the Civil Code, consideration
is presumed unless the contrary is proven.

Respondents also claim that the signature appearing in the deed of sale was not that of
Generosa because she was already bedridden with both legs amputated before she died.
Forgery cannot be presumed; it must be proved by clear, positive and convincing
evidence18 and whoever alleges it has the burden of proving the same;19 a burden
respondents failed to discharge. The respondents had not presented any convincing
proof to override the evidentiary value of the duly notarized deed of sale. A notarial
document is evidence of the facts in the clear unequivocal manner therein expressed. It
has in its favor the presumption of regularity. To contradict all these, there must be
evidence that is clear, convincing and more than merely preponderant.20

We note however, that Generosa sold the entire 2 storey building to petitioner Eddie
Fernandez, i.e. she did not only sell her ¾ undivided share in the building but also the ¼
share of the respondents. We rule, that such a sale of the entire building without the
consent of the respondents is not null and void as only the rights of the co-owner seller
are transferred, thereby making the buyer, petitioner Eddie, a co-owner of the ¾ share
of the building together with the respondents who owned the ¼ share therein.21

Finally, anent the issue of actual and moral damages and attorney's fees awarded by the
trial court, we find them to be bereft of factual basis. A party is entitled to an adequate
compensation for such pecuniary loss actually suffered by him as he has duly
proven.22 Such damages, to be recoverable, must not only be capable of proof, but must
actually be proved with a reasonable degree of certainty.23 Courts cannot simply rely on
speculation, conjecture or guesswork in determining the fact and amount of
damages.24 The testimony of respondent Romeo Fernandez that he suffered around
P100,000 actual damages was not supported by any documentary or other admissible
evidence. We also agree with the petitioners that the respondent court should not have
awarded moral damages in the amount of P100,000 since they also failed to show proof
of moral suffering, mental anguish, serious anxiety, besmirched reputation, wounded
feelings and social humiliation. Attorney's fees should likewise be deleted for lack of
factual basis and legal justification. Both the lower courts did not cite specific factual
basis to justify the award of attorney's fees, which is in violation of the proscription
against the imposition of a penalty on the right to litigate.25

WHEREFORE, premises considered, the assailed judgment is hereby Affirmed with

Modification, as follows:

1. Respondents as legitimate heirs of Dr. Jose Fernandez are entitled to the ¼ share of
the conjugal lot and building of the deceased spouses Jose and Generosa Fernandez who
died childless and intestate;

2. The deed of extra-judicial partition is nullified insofar as the share of petitioner

Rodolfo in the conjugal lot is concerned and the title issued pursuant thereto in the
name of Rodolfo Fernandez;

3. Considering that the deed of sale is valid insofar as the ¾ share of Generosa sold to
petitioner Eddie Fernandez, TCT No. 54693 is cancelled and a new title should be issued
in the names of petitioner Eddie Fernandez and respondents as co-owners of the ¾ and
¼ shares respectively in the conjugal building.

4. The awards of actual and moral damages and attorney's fees are deleted.
G.R. No. 109910 April 5, 1995

REMEDIOS G. SALVADOR and GRACIA G. SALVADOR, petitioners, 

vs.
COURT OF APPEALS, ALBERTO and ELPIA YABO, FRANCISCA YABO, et al.,
respondents.

DAVIDE, JR., J.:

Assailed in this petition is the legal determination made by the Court of Appeals on the
issues of which portion of Lot No. 6080 and Lot No. 6180 formed part of the conjugal
assets of the spouses Pastor Makibalo and Maria Yabo, and of whether or not the rights
of Pastor's co-heirs in the estate of Maria Yabo were extinguished through prescription
or laches.

Alipio Yabo was the owner of Lot No. 6080 and Lot No. 6180 situated in Barrio Bulua,
Cagayan de Oro City, containing an area of 1,267 and 3,816 square meters,
respectively. Title thereto devolved upon his nine children, namely, Victoriano, Procopio,
Lope, Jose, Pelagia, Baseliza, Francisca, Maria, and Gaudencia, upon his death sometime
before or during the second world war.

On 28 April 1976, Pastor Makibalo, who is the husband of Maria Yabo, one of Alipio's
children, filed with the then Court of First Instance of Misamis Oriental a complaint,
docketed as Civil Case No. 5000, against the spouses Alberto and Elpia Yabo for
"Quieting of Title, Annulment of Documents, and Damages." In the complaint, he alleged
that he owned a total of eight shares of the subject lots, having purchased the shares of
seven of Alipio's children and inherited the share of his wife, Maria, and that except for
the portion corresponding to Gaudencia's share which he did not buy, he occupied,
cultivated, and possessed continuously, openly, peacefully, and exclusively the two
parcels of land. He then prayed that he be declared the absolute owner of 8/9 of the lots
in question.1

On 8 October 1976, the grandchildren and great-grandchildren of the late Alipio

Yabo2 lodged with the same court a complaint for partition and quieting of title with
damages,3 docketed as Civil Case No. 5174, against Pastor Makibalo, Enecia Cristal, and
the spouses Eulogio and Remedies Salvador. They alleged that Lot No. 6080 and Lot No.
6180 are the common property of the heirs of Alipio Yabo, namely, the plaintiffs,
defendant Enecia Cristal, Maria Yabo and Jose Yabo, whose share had been sold to
Alberto Yabo; that after Alipio's death, the spouses Pastor and Maria Makibalo, Enecia
Cristal and Jose Yabo became the de facto administrators of the said properties; and
that much to their surprise, they discovered that the Salvador spouses, who were
strangers to the family, have been harvesting coconuts from the lots, which act as a
cloud on the plaintiffs' title over the lots.

The plaintiffs then prayed that (a) they, as well as defendant Pastor Makibalo, in
representation of his wife, and Enecia Cristal, in representation of Gaudencia, be
declared as the owners of the lots; (b) the Salvador spouses be declared as having no
rights thereto except as possible assignees of their co-defendants, Pastor Makibalo and
Enecia Cristal; (c) the lots be partitioned according to law among the aforementioned
co-owners; and (d) the defendants be made to pay for the value of the fruits they
harvested from the lots and for moral and exemplary damages, attorney's fees,
expenses of the litigation, and costs of the suit.

The two cases were consolidated and jointly heard by Branch 5 of the Court of First
Instance of Cagayan de Oro City.

By evidence, Pastor, Makibalo sought to prove the following allegations:

He was married to Maria Yabo who died on 17 March 1962.4 In August 1949, Jose and
Victoriano, both surnamed Yabo, sold their respective shares in the disputed lots to one
Pedro Ebarat, and in 1952 the latter sold both shares to Pastor Makibalo.5 Ebarat
formalized this conveyance by executing an Affidavit of Waiver and Quitclaim dated 30
May 1969 in favor of Pastor.6

On 16 January 1951, the heirs of the late Lope Yabo sold Lope's shares in the litigated
properties to one Dominador Canomon,7 who, in turn, sold the same to
Pastor.8 Canomon afterwards executed an Affidavit of Waiver and Quitclaim in favor of
the latter.9

Pastor Makibalo likewise purchased the shares of Baseliza in the two lots in 1942, of
Procopio in 1957, of Francisca in 1958, and of Pelagia in 1967. The only share he did not
buy was that of Gaudencia. After every purchase, he took possession of the portions
bought and harvested the products thereof.10

In 1966, Pastor sold back to Alberto a portion of Lot No. 6180 which was formerly the
share of Alberto's father, Procopio. 11

In December 1968, Pastor mortgaged the two lots to the spouses Eulogio and Remedios
Salvador. 12 On 26 September 1978, he executed a document denominated as a
"Confirmation and Quitclaim" whereby he waived all his rights, interests, and
participation in the lots in favor of the Salvador spouses. 13

On the other hand, by their evidence, l4 the spouses Alberto and Elpia Yabo tried to
prove that they had repurchased from Pastor Makibalo the share of Procopio, which was
previously sold to Pastor, and had bought the shares of Jose and Maria. 15

Filoteo Yabo denied having sold the share of his father, Lope Yabo, in the contested lots
and disowned his signature and those of his mother, brothers, and sisters appearing at
the back of Exhibit "C". 16

Ignacio Yabo testified that his father, Victoriano Yabo, did not know how to write and
sign his name. He further declared that he had no knowledge that his father affixed his
thumbmark in the document marked as Exhibit "A" purporting to alienate his father's
share in the disputed lots. l7

On 15 January 1983, the trial court rendered its decision 18 holding as follows:

Assuming that the thumbmark on the typewritten name "Jose Yabo" in Exh.
3 was that of Jose Yabo, Alberto Yabo and Elpia R. Yabo purchased the share
of Jose Yabo in bad faith because they knew before and up to the execution
of Exh. 3 on October 24, 1972 that Jose Yabo was no longer the owner of
that area because from the documents she borrowed from Mrs. Salvador
they came to know that Jose Yabo had sold his shares to Pedro Ebarat, and
they have seen that Pastor Makibalo has been in possession of those shares
together with the seven others exclusively as owner, he having mortgaged
them to Mrs. Salvador.

As Jose Yabo was no longer the owner of the one-ninth (1/9) shares which
he sold to Alberto Yabo and Elpia Yabo under Exh. 3, the sale is null and
void, and Alberto and Elpia acquired nothing because Jose Yabo had no more
title, right or interest to dispose of.

...

Pastor Makibalo had been in possession of Jose Yabo's share since 1949
after purchasing it from Ebarat, and has been in possession thereof up to
September 26, 1978 when he sold it to the spouses Eulogio Salvador and
Remedios Salvador, who are now in possession of the same.
Exh. A, evidencing the sale of Victoriano Yabo's share to Pedro Ebarat was
identified by the latter who testified that he sold it to Pastor Makibalo in
1951. Exh. A is an ancient document — 1949 when the document came to
existence up to now is more than 30 years, and the document had been in
the possession of Pastor Makibalo, then Remedios Salvador who had interest
in its preservation.

As regards the shares of Lope Yabo, the same had been sold by his surviving
spouse Juana Legaspi, and his children Filoteo, Andresa, Jovita, Bonifacio,
and Rundino for P105.00 on January 16, 1951 to Dominador Conomon (Exh.
C and C-1), who in turn sold it to Pastor Makibalo in 1952, executing a
formal Deed of Waiver and Quitclaim on May 30, 1969 
(Exh. D).

Exh. C is an ancient document, being more than 30 years old and has been
in the possession of Pastor Makibalo and then the spouses Eulogio and
Remedios Salvador — who had an interest in its preservation. The claim of
Filoteo Yabo that the signatures appearing in Exh. C are not his and those of
his brothers and sisters are of no avail, for if they were not the ones who
affixed those signatures and so they did not sell the shares of their father
Lope Yabo, why did they not then take possession of said shares — they
remained silent from 1951 to September 16, 1976 a period of 25 years.
They are now [e]stopped by laches.

And as regards the shares of Baseliza, Francisca and Pelagia, there is no

evidence presented to effectively rebut the testimony of Pastor Makibalo that
he acquired the shares of Baseliza Yabo in 1942 by changing it with a
buffalo; that he bought the shares of Francisca Yabo in 1958 and that he
bought the shares of Pelagia Yabo in 1967; Pastor Makibalo had been in
possession of these shares from the time he acquired them, continuously,
adversely, openly, and peacefully, as owner up to the time he sold his rights
and interest therein to the spouses Eulogio and Remedies Salvador. The
heirs of Baseliza, Francisca and Pelagia have not taken any step to protect
their rights over those shares for over 40 years in the case of Baseliza's
share, for about 20 years in the case of Francisca's share, and for more than
10 years in the case of Pelagia's share. Laches, likewise has rendered their
rights stale.

On March 10, 1966 Pastor Makibalo sold back to Alberto Yabo the share of
Procopio Yabo in Lot 6180 (Exh. 1 and 2), but there is nothing to show that.
Pastor Makibalo also sold back Procopio's share in Lot 6080.

So then, by purchase, Pastor Makibalo and Maria Yabo acquired the shares
of Baseliza, Victoriano, Jose, Lope, Procopio and Francisca, or six (6) shares
from Lots 6080 and 6180. These belonged to the conjugal partnership of
Pastor Makibalo and Maria Yabo. Maria Yabo had also a share from Lots 6080
and 6180, and Pastor Makibalo acquired the shares of Pelagia Yabo in both
Lots 6080 and 6180. All in all; Pastor Makibalo acquired eight shares in both
Lot 6080 and 6180.

While Maria Yabo died on March 17, 1962, and so one-fourth (1/4) of the
shares of Baseliza, Victoriano, Jose, Lope, and Francisca, or one-fourth of
five-ninth (5/9) of both lots and one-fourth (1/4) of Lot 6080 should go to
the children of the brothers and sisters of Maria Yabo by virtue of the
provisions of Article 1001 of the New Civil Code, the latter have lost their
rights thereto by laches for their inaction for a very long period and their
rights have become stale. On the other hand, Pastor Makibalo who had been
in possession of the whole of the eight shares in both Lots 6080 and 6180,
enjoying the fruits thereof exclusively, uninterruptedly, publicly, peacefully,
and continuously from the death of Maria Yabo up to the filing of the
complaint in Civil Case No. 5174 on October 8, 1976, or a period of 14
 years, had acquired title to the whole of the eight shares in Lot 6080 and
seven shares in Lot 6180 (the share of Procopio in Lot 6180 had been sold
back to Alberto Yabo).

IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered finding

Pastor Makibalo, now Eulogio Salvador and Remedios Salvador the owner of
eight (8) shares, equivalent to eight-ninth (8/9) of Lot No. 6080, and of
seven (7) shares, equivalent to seven-ninth (7/9) of Lot No. 6180, and
therefore, ordering the partition of Lot 6080 so that the one-ninth (1/9)
alloted to Gaudencia Yabo will go to her heirs or their assigns, and the
remaining eight-ninth (8/9) will go to the spouses Eulogio Salvador and
Remedios Salvador, as successor of Pastor Makibalo, and the partition of Lot
6180 so that the seven-ninth (7/9) portion which formerly belonged to
Baseliza, Victoriano, Jose, Lope, Maria, Francisca, and Pelagia will go to the
spouses Eulogio and Remedios Salvador, the one-ninth (1/9) which formerly
belonged to Procopio, will go to Alberto Yabo, and the remaining one-ninth
(1/9) which formerly belonged to Gaudencia, will go to Gaudencia's heirs or
their assigns.

Doc. No. 720, recorded on page 28 of Notarial Register No. VII, and
acknowledged before Notary Public Isidro S. Baculio (Exh. E) [purportedly
executed by Maria Yabo and Pastor Makibalo] is hereby declared null and
void, and so the Office of the City Fiscal is directed to cause an investigation
of this matter to find out the person or persons responsible for the
falsification of the said document, and if the evidence warrants, to file the
corresponding criminal action in court. The Office of the City Assessor of
Cagayan de Oro City is, likewise, directed to cause the cancellation of Tax
Declarations Nos. 33553, marked as Exh. H-3, 33557, marked as Exh. H-2,
both in the name of Alberto Yabo, for having been issued on the basis of a
falsified document. Let copies of this decision be furnished the Offices of the
City Fiscal and City Assessor, both of Cagayan de Oro City.

No pronouncement as to damages, attorney's fees and costs.

SO ORDERED. 19

The defendants in Civil Case No. 5000 and the plaintiffs in Civil Case No. 5174 appealed
from the decision to the Court of Appeals on 19 August 1983. 20

In its decision of 3 February 1993, 21 the Court of Appeals held that (a) Maria Yabo did
not sell her share to Alberto and Elpia Yabo; (b) prescription and laches have not run
against the private respondents with respect to the 1/9 share of Maria Yabo in the estate
of her father and to her conjugal share in the portions acquired from her brothers and
sisters; and (c) Procopio never sold his share in Lot No. 6080 to Pastor Makibalo. More
specifically it stated:

Exh. E is the document found by the lower court to be a falsification. This

finding appellants do not dispute and have not raised an error.

...

While acknowledging. that upon the death of Maria Yabo on March 17, 1962,
one-half (1/2) of the share of Maria Yabo in Lots 6080 and 6180 and one-
half (1/2) of Maria Yabo's conjugal share in the portions bought from
Basiliza, Victoriano, Jose, Lope, Pelagia and Francisca should go to the
children of the brothers and sisters of Maria in accordance with Article 1001
of the Civil Code, the lower court rule that said children have lost their rights
by laches "for their inaction for a very long period and their rights have
become stale" (Decision, p. 16; Record, Vol. 2, p. 158).

Appellants in their second assignment of error aver that this is an error.

We agree that the lower court erred.

While between March 17, 1962 when Maria Yabo died and October 8, 1976,
when Civil Case No. 5174 for partition was filed, was a period of more than
fourteen (14) years, that alone to our mind would not suffice to establish
laches or prescription. Upon the death of Maria Yabo, appellee Pastor
Makibalo and appellants and the other children of the brothers and sisters of
Maria, by operation of law become co-owners of the one-ninth (1/9) share of
Maria as heir of her father Alipio and the conjugal share of Maria in the
portions acquired from Basiliza, Victoriano, Jose, Lope, Pelagia and
Francisca. Time alone is not a decisive factor. Appellee Pastor Makibalo, it
must be remembered, is the husband of Maria and, therefore, an uncle in-
law of appellants. In our culture, a demand by an heir or heirs for partition
immediately upon the death of a relative is more often taken not as a
legitimate assertion of a right but of something else, like greed. It must also
be noted that the spouses, the appellee Pastor Makibalo and his deceased
wife Maria, were childless and, therefore, appellants and the other children
of the brothers and sisters of Maria must have felt that at any rate the
property would go to them in the course of time. This probably explains why
appellants started asserting their right over the property only after appellee
Pastor Makibalo sold the same to the spouses Eulogio and Remedios
Salvador. Besides, Lots 6080 and 6180 have a combined area only of 5,083
square meters and before the development of Northern Mindanao, and even
in 1962 when Maria Yabo died, were not that valuable. This is shown by the
fact that each heir sold his other share only for P110.00.

As we have said not time alone. In the early case of Cortes v. Oliva, 33 Phil.
480, it was held that"(o)rdinarily, possession by one joint owner will not be
presumed to be adverse to the others, but will, as a rule, be held to be for
the benefit of all. Much stronger evidence is required to show an adverse
holding by one of several joint owners than by a stranger; and in such cases,
to sustain a plea of prescription, it must always clearly appear that one who
was originally a joint owner has repudiated the claims of his co-owners, and
that his co-owners were apprised or should have been apprised of his claim
of adverse and exclusive ownership before the alleged prescription began to
run (at page 484). This ruling on prescription should apply with equal force
to laches.

The third assignment of error challenges the finding of the lower court that
"there is nothing to show that Pastor Makibalo also sold back Procopio's
share in Lot 6080" (Decision, p. 16; Records, Vol. 2,p. 158).

Exhibits 1 and 2 cover only Procopio's share in Lot 6180. In other words,
Exhibits 1 and. 2 conveyed back to Alberto Yabo only his father, Procopio's
share in Lot 6180.

There is indeed no evidence that Pastor Makibalo also sold back to Alberto,
his father Procopio's share in Lot 6080.

But from the evidence it appears that Procopio Yabo never sold his share in
Lot 6080 to Pastor Makibalo. So there was no need to convey back
Procopio's share in Lot 6080.

This fact is evident from the Affidavit of Confirmation of Sale (Exh. M) dated
April 22, 1970, executed by Alberto Yabo, which is the very document relied
upon by the lower court (Decision, p. 11; Record, Vol. 2, p. 153) in finding
that "Alberto Yabo admitted that the share of his father Procopio Yabo was
previously bought by Pastor Makibalo." A look at Exh. M, particularly par. 3
thereof, reveals that AlbertoYabo merely acknowledged or confirmed the
sale of his father's share to Pastor Makibalo in Lot 6180. In effect, it at the
same time proves that Lot 6080 was never sold by Procopio to appellee
 Pastor Makibalo; otherwise, it would have been included in the said Affidavit
of Confirmation of Sale. The Deed of Absolute Sale (Exh. 2) subsequently
executed by Pastor Makibalo in favor of Alberto Yabo on April 23, 1970,
further proves this point, since the latter merely bought back what was
previously sold, his father's share in Lot 6180.22

The respondent court then concluded and held as follows:

In summary, appellee Pastor Makibalo and his assigns, the spouses Eulogio
and Remedios Salvador, are entitled only to one-half (½) of the one-ninth
(1/9) share of Maria and three-fourths (3/4) of the six-ninth (6/9) shares
acquired from Basiliza, Victoriano, Jose, Lope, Pelagia and Francisca.
Accordingly, the partition should be done as follows:

(1) 1/9 of Lots 6080 end 6180 should be given to the heirs of
Gaudencia Yabo or their successors and assigns;

(2) 1/9 of Lot 6180 should go to Alberto Yabo and his wife Elpia
Yabo;

(3) 1/9 of Lot 6080 should be given to the heirs of Procopio Yabo
and their successors end assigns, including Alberto Yabo;

(4) The 1/9 share of Maria Yabo in Lots 6080 and 6180 should
be partitioned: One-half (1/2) for the surviving spouse Pastor
Makibalo (now the spouses Eulogio Salvador and Remedios
Salvador) and the other half for the children of the brothers and
sisters of Maria Yabo in equal shares.

(5) The remaining 6/9, one-half (1/2) of which is conjugal

between Maria Yabo and appellee Pastor Makibalo should be
partitioned three-fourths (3/4) for Pastor Makibalo (now the
spouses Eulogio Salvador and Remedios Salvador) and one-
fourth (1/4) for the children of the brothers and sisters of Maria
Yabo in equal shares.

(6) Jose Yabo if he is still alive should participate in the partition

as heir of Maria otherwise he shall be represented by his
children.

WHEREFORE, premises considered, subject to the modification in the

partition, as indicated above, the decision appealed from is AFFIRMED,
without pronouncement as to costs. The lower court is directed if necessary
to fully effect the partition, to conduct further hearings and determine
whether Jose Yabo is still alive and who are the children of the brothers and
sisters of Maria Yabo.23

Unable to obtain a reconsideration of the said-decision, Remedios Salvador, together

with her daughter, Ma. Gracia Salvador, as one of the successors-in-interest of Eulogio
M. Salvador who died during the pendency of the appeal, 24 elevated the case to this
Court contending that the respondent court erred in ruling that: (1) the shares of Pelagia
Yabo should be included in the partition; (2) prescription and laches have not run
against the private respondents in relation to the 1/9 share of Maria Yabo in the estate
of her father and to her ½ conjugal share in those acquired by purchase; (3) Procopio
Yabo never sold to Pastor Makibalo his share in Lot No. 6080; and(4) Jose Yabo should
be allowed to participate as heir of Maria even as he had openly rejected this option by
refusing to participate in both civil cases. 25

Article 160 of the Civil Code provides that all property of the marriage is presumed to
belong to the conjugal partnership, unless it be proved that it pertains .exclusively to the
husband or to the wife. Since the shares of Jose, Victoriano, Lope, Baseliza, Procopio,
and Francisca in Lot No. 6180 and Lot No. 6080 had been purchased by Pastor during
his marriage with Maria, and there is no proof that these were acquired with his
exclusive money, the same are deemed conjugal properties. Not forming part of the
conjugal partnership are: (1) the 1/9 share inherited by Maria which remained as her
exclusive property pursuant to Article 146 (2) of the Civil Code; (2) the 1/9 share of
Gaudencia which was not sold to Pastor; and (3) the 1/9 share of Pelagia which was
acquired by Pastor in 1967 or five years after the death of his wife and which was
therefore his exclusive property.

There is, thus; merit in the petitioners' first assigned error. The Court of .Appeals should
have excluded from the conjugal partnership the share of Pelagia which Pastor had
acquired after his wife's death.

Upon Maria's death in 1962, the conjugal partnership of gains was dissolved. 26 Half of
the conjugal properties, together with Maria's l/9 hereditary share in the disputed lots,
constituted Maria's estate and should thus go to her surviving heirs. 27 Under Article
1001 of the Civil Code, her heirs are her spouse, Pastor Makibalo, who shall be entitled
to-one-half (1/2) of her estate, her brother, Jose, and the children of her other brothers
and sisters, who shall inherit the other half. There having been no actual partition of the
estate yet, the said heirs became co-owners thereof by operation of law. 28

We now determine whether prescription and laches can be applied against the co-heirs
of Pastor Makibalo.

It has been said that Article 494 of the Civil Code which provides that each co-owner
may demand at any time the partition of the common property implies that an action to
demand partition is imprescriptible or cannot be barred by laches. 29 The
imprescriptibility of the action cannot, however, be invoked when one of the co-owners
has possessed the property as exclusive owner and for a period sufficient to acquire it by
prescription. 30

What needs to be addressed first is whether or not Pastor Makibalo has acquired by
prescription the shares of his other co-heirs or co-owners. Prescription as a mode of
acquiring ownership requires a continuous, open, peaceful, public, and adverse
possession for a period of time fixed by law.

This Court has held that the possession of a co-owner is like that of a trustee and shall
not be regarded as adverse to the other co-owners but in fact as beneficial to all of
them. 31 Acts which may be considered adverse to strangers may not be considered
adverse insofar as co-owners are concerned. A mere silent possession by a co-owner,
his receipt of rents, fruits or profits from the property, the erection of buildings and
fences and the planting of trees thereon, and the payment of land taxes, cannot serve
as proof of exclusive ownership, if it is not borne out by clear and convincing evidence
that he exercised acts of possession which unequivocably constituted an ouster or
deprivation of the rights of the other co-owners. 32

Thus, in order that a co-owner's possession may be deemed adverse to the cestui que
trust or the other co-owners, the following elements must concur: (1) that he has
performed unequivocal acts of repudiation amounting to an ouster of the cestui que
trust or the other co-owners; (2) that such positive acts of repudiation have been made
known to the cestui que trust or the other co-owners; and (3) that the evidence thereon
must be clear and convincing. 33

In Pangan vs. Court of Appeals, 34 this Court had occasion to lay down specific acts
which are considered as acts of repudiation:

Filing by a trustee of an action in court against the trustor to quiet title to

property, or for recovery of ownership thereof, held in possession by the
former, may constitute an act of repudiation of the trust reposed on him by
the latter.
 The issuance of the certificate of title would constitute an open and clear
repudiation of any trust, and the lapse of more than 20 years, open and
adverse possession as owner would certainly suffice to vest title by
prescription.

An action for the reconveyance of land based on implied or constructive trust

prescribes within 10 years. And it is from the date of the issuance of such
title that the effective assertion of adverse title for purposes of the statute of
limitation is counted.

The prescriptive period may only be counted from the time petitioners
repudiated the trust relation in 1955 upon the filing of the complaint for
recovery of possession against private respondents so that the counterclaim
of the private respondents contained in their amended answer wherein they
asserted absolute ownership of the disputed realty by reason of the
continuous and adverse possession of the same is well within the l0-year
prescriptive period.

There is clear repudiation of a trust when one who is an apparent

administrator of property causes the cancellation of the title thereto in the
name of the apparent beneficiaries and gets a new certificate of title in his
own name.

It is only when the defendants, alleged co-owners of the property in

question, executed a deed of partition and on the strength thereof obtained
the cancellation of the title in the name of their predecessor and the
issuance of a new one wherein they appear as the new owners of a definite
area each, thereby in effect denying or repudiating the ownership of one of
the plaintiffs over his alleged share in the entire lot, that the statute of
limitations started to run for the purposes of the action instituted by the
latter seeking a declaration of the existence of the co-ownership and of their
rights thereunder.

The records do not show that Pastor Makibalo adjudicated to himself the whole estate of
his wife by means of an affidavit filed with the Office of the Register of Deeds as allowed
under Section 1 Rule 74 of the Rules of Court, or that he caused the issuance of a
certificate of title in his name or the cancellation of the tax declaration in Alipio's name
and the issuance of a new one in his own name. The only act which may be deemed as a
repudiation by Pastor of the co-ownership over the lots is his filing on 28 April 1976 of
an action to quiet title (Civil Case No. 5000). The period of prescription started to run
only from this repudiation. However, this was tolled when his co-heirs, the private
respondents herein, instituted on 8 October 1976 an action for partition (Civil Case No.
5174) of the lots. Hence, the adverse possession by Pastor being for only about six
months would not vest in him exclusive ownership of his wife's estate, and absent
acquisitive prescription of ownership, laches and prescription of the action for partition
will not lie in favor of Pastor. 35

The issue presented by the petitioners in their third assigned error involves a question of
fact. This Court is not ordinarily a trier of facts, its jurisdiction being limited to errors of
law. Thus; the findings of facts of the Court of Appeals are as a rule deemed conclusive.
However, when the findings of facts of the appellate court vary with those of the trial
court, this Court has to review the evidence in order to arrive at the correct findings. 36

In the instant case, a conflict in the findings of facts of the lower courts exists. The trial
court found that Pastor was the owner of Procopio's share in Lot No. 6080, as there was
nothing to show that he sold it back to Alberto Yabo. The respondent court on the other
hand, held that Procopio Yabo never sold his share in Lot No. 6080 to pastor, thus, there
was no need to convey it back to Procopio's son, Alberto.

At this juncture, it is worthy to quote pertinent portions of the testimony of Pastor

Makibalo:
COURT: (To the witness.)

Q Where is AlbertoYabo living?

A It is there in their house at Bulua.

ATTY. JARAULA: (Continuing.)

Q In whose land?

A Alipio Yabo's land.

Q What relation has that land to the two (2) parcels of land
under litigation?

A I bought already.

Q So, will you please tell the Honorable Court, why Alberto Yabo
is staying on that land when you said you have bought that land
already.

A So, I sold back a portion to them because they requested me.

COURT: (To the witness.)

Q When was that when you said that Alberto Yabo requested a
portion?

A In 1967.

COURT:

Q Did you give that portion which they requested?

A Their share being inherited from their father Procopio was the
portion they requested.

COURT

Q Yes. Did you grant that?

A Yes.

Q That is the area you sold to Alberto Yabo, pursuant to his

request?

A Because that was the land they inherited from their father that
was what they requested.

Q All right. So that, the area now being occupied by Alberto

Yabo?

A Yes. That land in the Centro.

Q This is now identified as Lot No. 6180?

A Yes, Your Honor.

ATTY. JARAULA: (Continuing.)

Q Where did you sign a document ceding that portion requested

by Alberto Yabo?
 A We did not make any receipt in favor of AlbertoYabo because
they got only the receipt of that of his father.

COURT: (To the witness.)

Q You mean to say, that the receipt which Procopio signed when
he sold his share for [sic] the document which Alberto got?

A Yes.

COURT:

All right.

ATTY. JARAULA (Continuing.)

Q Now, for how much did you buy. the shares of each of the
brothers and sisters of your wife?

A One Hundred Ten (P110.00) Pesos.

Q When you sold back to Alberto Yabo, the portion

corresponding to the share of his father Procopio in the
Poblacion, how much did he pay you?

A The same.

Q By the same, you are referring by the same amount of One

Hundred Ten (P110.00) Pesos?

A Yes, Sir. The same amount. 37

The petitioners contend that the sales or conveyances made by Alipio's heirs were for
their consolidated shares in the two lots. If this was so, and the receipt which Procopio
signed when he sold his consolidated share to Pastor was turned over to Alberto, the
inevitable conclusion is that Alberto redeemed his father's share in both lots, not only in
Lot: No. 6180. This conclusion is further buttressed by the above-quoted testimony of
Pastor that he bought the shares (consolidated) of each of Alipio's heirs for P110.00 and
that when he sold back to Alberto the former share of Procopio, Alberto paid him the
same amount of P110.00.

However, since the share of Procopio in the two litigated parcels of land was purchased
by Pastor during his marriage with Maria, the same became conjugal property, and half
of it formed part of Maria's estate upon her death in 1962. Accordingly, Pastor's resale in
favor of Alberto could only be valid with respect to Pastor's one-half (1/2) conjugal share
and one-fourth (1/4) hereditary share as heir of Maria. 38 The remaining one-fourth
(1/4) should go to Pastor's co-heirs, the private respondents herein.

Now on the fourth assigned error.

Section 1, Rule 69 of the Rules of Court requires that all persons interested in the land
sought to be partitioned must be joined as defendants in the complaints. All co-owners
and persons having an interest in the property are considered indispensable parties and
an action for partition will not lie without the joinder of said persons. 39 It has been held
that the absence of an indispensable party in a case renders ineffective all the
proceedings subsequent to the filing of the complaint including the judgment. 40

It must be recalled that in Civil Case No. 5174 the private respondents sought the
partition of the two lots based on the co-ownership which arose from the right of
succession to Alipio's estate. Since Jose Yabo confirmed, through his thumbmark in the
verification of the complaint, that he had already parted with his share in Alipio's estate,
he in effect admitted that he had ceased to be a co-owner of the two lots which
comprised his father's estate. Thus, his non-joinder as a party-plaintiff in the complaint
would appear to be proper. He does not, as well, appear to be an indispensable party in
Civil Case No. 5000.

As it turned out, however, the evidence and the issues which cropped up rendered
imperative the determination of the conjugal assets of Pastor Makibalo and Maria Yabo
and the partition of the latter's estate among her heirs. Her estate consists of one-
half(½) of the conjugal properties, which should then be divided pursuant to Article
1001 of the Civil Code since the marriage produced no child; thus: one-half (½) to
Pastor, and the other half to her brother Jose, and to her nephews and nieces.

Insofar as the partition of Maria Yabo's estate is concerned, Jose is an indispensable

party. Strictly, the rule on indispensable parties may bar a partition of Maria's estate.
Considering, however, that such estate or its partition are but incidents in Civil Case No.
5000 and Civil Case No. 5174, and the parties have not offered any objection to the
propriety of the determination and partition of her estate, then in the light of Section 11
of Rule 3 41 and Sections 1 and 5, Rule 10 42 of the Rules of Court, and following the
rulings of this Court in the 1910 case of Alonso vs. Villamor43 and the 1947 case
of Cuyugan vs. Dizon, 44 an amendment of the complaint in Civil Case No. 5174 to
implead Jose Yabo as party plaintiff would be in order.

In Alonso, it was held that under Section 110 of the Code of Civil Procedure — whose
first paragraph is substantially the same as the aforesaid Section 1 of Rule 10 — and
Section 503 thereof, this Court "has full power, apart from that power and authority
which is inherent, to amend the process, pleadings, proceedings, and decision in this
case by substituting, as party plaintiff, the real party in interest." Our ruling
in Cuyugan states:

We, however, do not believe that the case should be dismissed for plaintiff's
failure to join her husband. (Sec. 11, Rule 2, Rules of Court). Nor should the
case be remanded to the court below and a new trial ordered on this
account. The complaint may and should be amended here, to cure the defect
of party plaintiffs, after final decision is rendered. Section 11, Rule 2, and
Section 2, Rule 17, explicitly authorize such procedure. As this Court had
occasion to say in Quison vs. Salud, (12 Phil., 109, 116), "a second action
would be but a repetition of the first and would involve both parties,
plaintiffs and defendant, in much additional expense and would cause much
delay, in that way defeating the purpose of the section, which is expressly
stated to be "that the actual merits of the controversy may speedily be
determined without regard to technicalities and in the most expeditious and
inexpensive manner." (See also Diaz vs. De la Rama, 73 Phil., 104)

To avoid further delay in the disposition of this case, we declare Civil Case No. 5174 as
thus duly amended. Consequently, Jose Yabo may participate in the partition of the
estate of Maria Yabo. The fourth assigned error must then be rejected.

In view of the foregoing disquisitions, the appealed judgment should be modified as

follows: (a) the former 1/9 share of Pelagia Yabo in Lots No. 6180 and 6080 which she
sold to Pastor should be treated as the latter's exclusive property which should now
pertain to the petitioners, his successors-in-interest; and (b) the former 1/9 share of
Procopio Yabo in both lots should be divided as follows: 3/4 (respondent Pastor's 1/2
conjugal share and 1/4 representing his share therein as Maria's heir) for the spouses
Alberto and Elpia Yabo, and 1/4 (representing the share therein of Maria's collateral
relatives as Maria's heirs) for the private respondents, including Alberto and Jose Yabo.
The partition of the two lots in controversy should therefore be made in this wise:

(1) 1/9 share of Gaudencia Yabo should be allotted to her heirs or

successors-in-interest;
 (2) 1/9 share formerly belonging to Pelagia Yabo — to the petitioners as
successors-in-interest of Pastor Makibalo;

(3) 1/9 hereditary share of Maria Yabo to be divided as follows:

(a) 1/2 for the petitioners (as successors-in-interest of Pastor

Makibalo), and

(b) 1/2 for the private respondents, including Jose Yabo or his
heirs;

(4) 1/9 share formerly belonging to Procopio Yabo to be divided thus:

(a) 3/4 for Spouses Alberto and Elpia Yabo, and

(b) 1/4 for the other private respondents, including Jose Yabo or
his heirs;

(5) 5/9 shares which became the conjugal properties of Pastor Makibalo and
Maria Yabo to be divided thus:

(a) 3/4 for the petitioners (as successors-in-interest of Pastor

Makibalo), and

(b) ¼ for the private respondents, including Jose Yabo or his

heirs.

In sum, Lots Nos. 6180 anid 6080 should be partitioned as follows:

1/9 or 4/36 — to Guadencia Yabo's heirs or successors-in-interest;

3/4 of 1/9 or 3/36 — to the spouses Alberto and Elpina Yabo;

8/36 — to the private respondents, including Jose Yabu or his heirs;

21/36 — to the petitioners as successors-in-interest of Pastor Makibalo.

WHEREFORE, the challenged decision of the Court of Appeals of 8 February 1993 in CA-
G.R. CV No. 12839 is AFFIRMED, subject to the modifications indicated above. Upon the
finality of this decision, let this case be forthwith remanded to the court a quo for further
proceedings on the partition of Lots Nos. 6180 and 6080 in conformity with this decision.
G.R. No. L-10033        December 28, 1956

BENJAMIN BUGAYONG, plaintiff-appellant, 
vs.
LEONILA GINEZ, defendant-appellee.

Florencio Dumapias for appellant. 

Numeriano Tanopo, Jr. for appellee.

FELIX, J.:

This is a case for legal separation filed in the Court of First Instance of Pangasinan
wherein on motion of the defendant, the case was dismissed. The order of dismissal was
appealed to the Court of Appeals, but said Tribunal certified the case to the Court on the
ground that there is absolutely no question of fact involved, the motion being predicated
on the assumption as true of the very facts testified to by plaintiff-husband.

The facts of the case abridgedly stated are as follows: Benjamin Bugayong, a
serviceman in the United States Navy, was married to defendant Leonila Ginez on
August 27, 1949, at Asingan, Pangasinan, while on furlough leave. Immediately after
their marriage, the couple lived with their sisters who later moved to Sampaloc, Manila.
After some time, or about July, 1951, Leonila Ginez left the dwelling of her sister-in-law
and informed her husband by letter that she had gone to reside with her mother in
Asingan, Pangasinan, from which place she later moved to Dagupan City to study in a
local college there.

As early as July, 1951, Benjamin Bugayong began receiving letters from Valeriana
Polangco (plaintiff's sister-in-law) and some from anonymous writers(which were not
produced at the hearing) informing him of alleged acts of infidelity of his wife which he
did not even care to mention. On cross-examination, plaintiff admitted that his wife also
informed him by letter, which she claims to have destroyed, that a certain "Eliong"
kissed her. All these communications prompted him in October, 1951 to seek the advice
of the Navy Chaplain as to the propriety of a legal separation between him and his wife
on account of the latter's alleged acts of infidelity, and he was directed to consult
instead the navy legal department.

In August, 1952, plaintiff went to Asingan, Pangasinan, and sought for his wife whom he
met in the house of one Mrs. Malalang, defendant's godmother. She came along with
him and both proceeded to the house of Pedro Bugayong, a cousin of the plaintiff-
husband, where they stayed and lived for 2 nights and 1 day as husband and wife. Then
they repaired to the plaintiff's house and again passed the night therein as husband and
wife. On the second day, Benjamin Bugayong tried to verify from his wife the truth of
the information he received that she had committed adultery but Leonila, instead of
answering his query, merely packed up and left, which he took as a confirmation of the
acts of infidelity imputed on her. After that and despite such belief, plaintiff exerted
efforts to locate her and failing to find her, he went to Bacarra, Ilocos Norte, "to soothe
his wounded feelings".

On November 18, 1952, Benjamin Bugayong filed in the Court of First Instance of
Pangasinan a complaint for legal separation against his wife, Leonila Ginez, who timely
filed an answer vehemently denying the averments of the complaint and setting up
affirmative defenses. After the issues were joined and convinced that a reconciliation
was not possible, the court set the case for hearing on June 9, 1953. Plaintiff's counsel
announced that he was to present 6 witnesses but after plaintiff-husband finished
testifying in his favor, counsel for the defendant orally moved for the dismissal of the
complaint, but the Court ordered him to file a written motion to that effect and gave
plaintiff 10 days to answer the same.
The motion to dismiss was predicted on the following grounds: (1)
Assuming arguendo the truth of the allegations of the commission of "acts of rank
infidelity amounting to adultery", the cause of action, if any, is barred by the statute of
limitations; (2) That under the same assumption, the act charged have been
condoned by the plaintiff-husband; and (3) That the complaint failed to state a cause of
action sufficient for this court to render a valid judgment.

The motion to dismiss was answered by plaintiff and the Court, considering only the
second ground of the motion to dismiss i. e., condonation, ordered the dismissal of the
action. After the motion for reconsideration filed by plaintiff was denied, the case was
taken up for review to the Court of Appeals, appellant's counsel maintaining that the
lower court erred:

(a) In so prematurely dismissing the case;

(b) In finding that there were condonation on the part of plaintiff-appellant; and

(c) In entertaining condonation as a ground for dismissal inasmuch as same was

not raised in the answer or in a motion to dismiss.

As the questions raised in the brief were merely questions of law, the Court of Appeals
certified the case to Superiority.

The Civil Code provides:

ART. 97. A petition for legal separation may be filed:

(1) For adultery on the part of the wife and for concubinage for the part of the
husband as defined on the Penal Code; or

(2) An attempt by one spouse against the life of the other.

ART. 100. The legal separation may be claimed only by the innocent
spouse, provided there has been no condonation of or consent to the adultery or
concubinage. Where both spouses are offenders, a legal separation cannot by
either of them. Collusion between the parties to obtain legal separation shall cause
the dismissal of the petition.

ART. 102. An action for legal separation cannot be filed except within one year
from and after the date on which the plaintiff became cognizant of the cause and
within five years from and after the date when such cause occurred.

As the only reason of the lower Court for dismissing the action was the alleged
condonation of the charges of adultery that the plaintiff-husband had preferred in the
complaint against his wife, We will disregard the other 2 grounds of the motion to
dismiss, as anyway they have not been raised in appellant's assignment of errors.

Condonation is the forgiveness of a marital offense constituting a ground for legal

separation or, as stated in I Bouver's Law Dictionary, p. 585, condonation is the
"conditional forgiveness or remission, by a husband or wife of a matrimonial
offense which the latter has committed". It is to be noted, however, that in defendant's
answer she vehemently and vigorously denies having committed any act of infidelity
against her husband, and even if We were to give full weight to the testimony of the
plaintiff, who was the only one that had the chance of testifying in Court and link such
evidence with the averments of the complaint, We would have to conclude that the facts
appearing on the record are far from sufficient to establish the charge of adultery, or, as
the complaint states, of "acts of rank infidelity amounting to adultery" preferred against
the defendant. Certainly, the letter that plaintiff claims to have received from his sister-
in-law Valeriana Polangco, which must have been too vague and indefinite as to
defendant's infidelity to deserve its production in evidence; nor the anonymous letters
which plaintiff also failed to present; nor the alleged letter that, according to plaintiff, his
wife addressed to him admitting that she had been kissed by one Eliong, whose identity
was not established and which admission defendant had no opportunity to deny because
the motion to dismiss was filed soon after plaintiff finished his testimony in Court, do not
amount to anything that can be relied upon.

But this is not a question at issue. In this appeal, We have to consider plaintiff's line of
conduct under the assumption that he really believed his wife guilty of adultery. What
did he do in such state of mind. In August, 1952, he went to Pangasinan and looked for
his wife and after finding her they lived together as husband and wife for 2 nights and 1
day, after which he says that he tried to verify from her the truth of the news he had
about her infidelity, but failed to attain his purpose because his wife, instead of
answering his query on the matter, preferred to desert him, probably enraged for being
subjected to such humiliation. And yet he tried to locate her, though in vain. Now, do
the husband's attitude of sleeping with his wife for 2 nights despite his alleged belief
that she was unfaithful to him, amount to a condonation of her previous and supposed
adulterous acts? In the order appealed from, the Court a quo had the following to say on
this point:

In the hearing of the case, the plaintiff further testified as follows:

Q. Now Mr. Bugayong, you have filed this action for legal separation from your
wife. Please tell this Hon. Court why you want to separate from your wife? — A. I
came to know that my wife is committing adultery, I consulted the chaplain and he
told me to consult the legal adviser. (p. 11, t.s.n.)

Q. Did you finally locate her?--A. Four days later or on the fifth day since my
arrival she went to the house of our god-mother, and as a husband I went to her
to come along with me in our house but she refused. (p. 12, t.s.n.)lawphil.net

Q. What happened next? — A. I persuaded her to come along with me. She
consented but I did not bring her home but brought her to the house of my cousin
Pedro Bugayong. (p. 12, t.s.n.)

Q. How long did you remain in the house of your cousin Pedro Bugayong? — A.
One day and one night. (p. 12. t.s.n.)

Q. That night when you stayed in the house of your cousin Pedro Bugayong as
husband and wife, did you slept together? — A. Yes, sir. (p. 19, t.s.n.)

Q. On the next night, when you slept in your own house, did you sleep together
also as husband and wife? — A. Yes, sir. (p. 19. t.s.n.)

Q. When was that? — A. That was in August, 1952. (p. 19 t.s.n.)

Q. How many nights did you sleep together as husband and wife? — A. Only two
nights. (p. 19, t.s.n.)

The New Civil Code of the Philippines, in its Art. 97, says:

A petition for legal separation may be filed:

(1) For adultery on the part of the wife and concubinage on the part of the
husband as defined on the Penal Code.

and in its Art. 100 it says:lawphil.net

The legal separation may be claimed only by the innocent spouse, provided there
has been no condonation of or consent to the adultery or concubinage. Where both
spouses are offenders, legal separation cannot be claimed by either of them.
Collusion between the parties to obtain legal separation shall cause the dismissal
of the petition.
 A detailed examination of the testimony of the plaintiff-husband, especially those
portions quoted above, clearly shows that there was a condonation on the part of
the husband for the supposed "acts of rank infidelity amounting to adultery"
committed by defendant-wife. Admitting for the sake of argument that the
infidelities amounting to adultery were committed by the defendant, a
reconciliation was effected between her and the plaintiff. The act of the latter in
persuading her to come along with him, and the fact that she went with him and
consented to be brought to the house of his cousin Pedro Bugayong and together
they slept there as husband and wife for one day and one night, and the further
fact that in the second night they again slept together in their house likewise as
husband and wife — all these facts have no other meaning in the opinion of this
court than that a reconciliation between them was effected and that there was a
condonation of the wife by the husband. The reconciliation occurred almost ten
months after he came to know of the acts of infidelity amounting to adultery.

In Shackleton vs. Shackleton, 48 N. J. Eq. 364; 21 Atl. 935, it has been held that

"condonation is implied from sexual intercourse after knowledge of the other
infidelity. such acts necessary implied forgiveness. It is entirely consonant with
reason and justice that if the wife freely consents to sexual intercourse after she
has full knowledge of the husband's guilt, her consent should operate as a pardon
of his wrong."

In Tiffany's Domestic and Family Relations, section 107 says:

Condonation. Is the forgiveness of a marital offense constituting a ground

for divorce and bars the right to a divorce. But it is on the condition, implied
by the law when not express, that the wrongdoer shall not again commit the
offense; and also that he shall thereafter treat the other spouse with
conjugal kindness. A breach of the condition will revive the original offense
as a ground for divorce. Condonation may be express or implied.

It has been held in a long line of decisions of the various supreme courts of the
different states of the U. S. that 'a single voluntary act of sexual intercourse by the
innocent spouse after discovery of the offense is ordinarily sufficient to constitute
condonation, especially as against the husband'. (27 Corpus Juris Secundum,
section 61 and cases cited therein).

In the lights of the facts testified to by the plaintiff-husband, of the legal

provisions above quoted, and of the various decisions above-cited, the inevitable
conclusion is that the present action is untenable.

Although no acts of infidelity might have been committed by the wife, We agree with the
trial judge that the conduct of the plaintiff-husband above narrated despite his belief
that his wife was unfaithful, deprives him, as alleged the offended spouse, of any action
for legal separation against the offending wife, because his said conduct comes within
the restriction of Article 100 of the Civil Code.

The only general rule in American jurisprudence is that any cohabitation with the guilty
party, after the commission of the offense, and with the knowledge or belief on the part
of the injured party of its commission, will amount to conclusive evidence of
condonation; but this presumption may be rebutted by evidence (60 L. J. Prob. 73).

If there had been cohabitation, to what extent must it be to constitute condonation?

Single voluntary act of marital intercourse between the parties ordinarily is

sufficient to constitute condonation, and where the parties live in the same house,
it is presumed that they live on terms of matrimonial cohabitation (27 C. J. S.,
section 6-d).

A divorce suit will not be granted for adultery where the parties continue to live
together after it was known (Land vs. Martin, 15 South 657; Day vs. Day, 80 Pac.
 974) or there is sexual intercourse after knowledge of adultery (Rogers vs. Rogers,
67 N. J. Eq. 534) or sleeping together for a single night (Toulson vs. Toulson, 50
Atl. 401, citing Phinizy vs. Phinizy, 114 S. E. 185, 154 Ga. 199; Collins vs. Collins,
193 So. 702), and many others. The resumption of marital cohabitation as a basis
of condonation will generally be inferred, nothing appearing to the contrary, from
the fact of the living together as husband and wife, especially as against the
husband (Marsh vs. Marsh, 14 N. J. Eq. 315).

There is no ruling on this matter in our jurisprudence but we have no reason to depart
from the doctrines laid down in the decisions of the various supreme courts of the United
States above quoted.

There is no merit in the contention of appellant that the lower court erred in entertaining
condonation as a ground for dismissal inasmuch as same was not raised in the answer
or in a motion to dismiss, because in the second ground of the motion to dismiss. It is
true that it was filed after the answer and after the hearing had been commenced, yet
that motion serves to supplement the averments of defendant's answer and to adjust
the issues to the testimony of plaintiff himself (section 4, Rule 17 of the Rules of Court).

Wherefore, and on the strength of the foregoing, the order appealed from is hereby
affirmed, with costs against appellant. It is so ordered.
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.

D. Tañedo, Jr. for appellants.

J. Palanca, Sr. for appellee.

AQUINO, J.:

This case is about the efficaciousness or enforceability of a devise of ricelands located at

Guimba, Nueva Ecija, with a total area of around 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 Lot Are Tax Ass

No. No. a in Dec. .
Has Val
. ue

T- 366 1.6 187 P

6530 3 249 40 34
0.0
0

T- 344 24. 187 7,2

6548 5-C 299 30 90.
8 00

T- 367 6.2 187 1,8

6525 0 665 36 80.
00

T- 366 11. 187 3,5

6521 6 925 33 80.
1 00

Total amount and value — 44.1163 P13,090.00

Judge Roman A. Cruz in his order of August 15, 1940, approving the project of partition,
directed that after payment of the obligations of the estate (including the sum of
P3,132.26 due to the church of the Victoria parish) the administratrix should deliver to
the devisees their respective shares.

It may be noted that the administratrix and Judge Cruz did not bother to analyze the
meaning and implications of Father Rigor's bequest to his nearest male relative who
would study for the priesthood. Inasmuch as no nephew of the testator claimed the
devise and as the administratrix and the legal heirs believed that the parish priest of
Victoria had no right to administer the ricelands, the same were not delivered to that
ecclesiastic. The testate proceeding remained pending.
About thirteen years after the approval of the project of partition, or on February 19,
1954, the parish priest of Victoria filed in the pending testate proceeding a petition
praying for the appointment of a new administrator (succeeding the deceased
administration Florencia Rigor), who should deliver to the church the said ricelands, and
further praying that the possessors thereof be ordered to render an accounting of the
fruits. The probate court granted the petition. A new administrator was appointed. On
January 31, 1957 the parish priest filed another petition for the delivery of the ricelands
to the church as trustee.

The intestate heirs of Father Rigor countered with a petition dated March 25, 1957
praying that the bequest be d inoperative and that they be adjudged as the persons
entitled to the said ricelands since, as admitted by the parish priest of Victoria, "no
nearest male relative of" the testator "has ever studied for the priesthood" (pp. 25 and
35, Record on Appeal). That petition was opposed by the parish priest of Victoria.

Finding that petition to be meritorious, the lower court, through Judge Bernabe de
Aquino, declared the bequest inoperative and adjudicated the ricelands to the testator's
legal heirs in his order of June 28, 1957. The parish priest filed two motions for
reconsideration.

Judge De Aquino granted the respond motion for reconsideration in his order of
December 10, 1957 on the ground that the testator had a grandnephew named Edgardo
G. Cunanan (the grandson of his first cousin) who was a seminarian in the San Jose
Seminary of the Jesuit Fathers in Quezon City. The administrator was directed to deliver
the ricelands to the parish priest of Victoria as trustee.

The legal heirs appealed to the Court of Appeals. It reversed that order. It held that
Father Rigor had created a testamentary trust for his nearest male relative who would
take the holy orders but that such trust could exist only for twenty years because to
enforce it beyond that period would violate "the rule against perpetuities. It ruled that
since no legatee claimed the ricelands within twenty years after the testator's death, the
same should pass to his legal heirs, citing articles 888 and 912(2) of the old Civil Code
and article 870 of the new Civil Code.

The parish priest in this appeal contends that the Court of Appeals erred in not finding
that the testator created a public charitable trust and in not liberally construing the
testamentary provisions so as to render the trust operative and to prevent intestacy.

As refutation, the legal heirs argue that the Court of Appeals d the bequest inoperative
because no one among the testator's nearest male relatives had studied for the
priesthood and not because the trust was a private charitable trust. According to the
legal heirs, that factual finding is binding on this Court. They point out that appellant
priest's change of theory cannot be countenanced in this appeal .

In this case, as in cases involving the law of contracts and statutory construction, where
the intention of the contracting parties or of the lawmaking body is to be ascertained,
the primary issue is the determination of the testator's intention which is the law of the
case (dicat testor et erit lex. Santos vs. Manarang, 27 Phil. 209, 215; Rodriguez vs.
Court of Appeals, 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.

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 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.
G.R. No. L-42539             October 23, 1936

In re Will of the deceased Felisa Javier. SULPICIO

RESURRECCION, administrator-appellee, 
vs.
AGUSTIN JAVIER, ET AL., oppositors-appellants.

German Boncan for the appellants.

Perfecto Gabriel for the appellee.

AVANCEÑA, C. J.:

On October 18, 1932, Felisa Francisco Javier made a will instituting her husband Sulpicio
Resurreccion as her universal heir and, among other things, left a legacy of P2,000 in
favor of her brother Gil Francisco Javier. The testatrix died on January 22, 1933, and her
will was probated on March 8th of said year.

On October 12, 1933, the court, finding that Gil Francisco Javier died in August, 1930,
even before the testatrix made her will, ordered that the legacy of P2,000 in his favor
revert to the fund of the estate.

Gil Francisco Javier's children and heirs, claiming that they are entitled to receive the
legacy of P2,000 in favor of their father, appeal from the court's resolution ordering the
reversion of this amount to the funds of the estate.

The important thing to determine in this appeal is the effect of a legacy made in favor of
a person who was already dead not only before the death of the testatrix but even
before the will was made.

The testatrix, having no forced heirs, may dispose by will of all her property or any part
thereof in favor of any person qualified to acquire it (art. 763, Civil Code). Upon being
instituted as legatee by the testatrix, Gil Francisco Javier lacked civil personality, which
is extinguished by death, and, therefore, lacked capacity to inherit by will on the ground
that he could not be the subject of a right (art. 32, Civil Code). Consequently, his
institution as a legatee had absolutely no legal effect and his heirs are not now entitled
to claim the amount of legacy. They cannot even claim under the principle of
representation because this takes place only in intestate inheritance. Furthermore, as
the legatee died before the testatrix, he could transmit nothing to his heirs (art. 766,
Civil Code).

The appellants also contend that the will should be interpreted in the sense that the
intention of the testatrix was to leave the legacy to the heirs of Gil Francisco Javier. To
this effect they have introduced evidence to show that the testatrix, in making her will,
knew that Gil Francisco Javier was already dead. This court, however, does not find
sufficient evidence to establish this fact. The only witness who testified to this effect was
Agustin Javier, Gil's brother, who alleged that he was in the house of the testatrix in
May, 1931, and in a conversation with her he informed her that their brother Gil had
already died, leaving a widow and children. But against this testimony was presented
that of Sulpicio Resurreccion, the widower of the testatrix, who testified that Agustin
Javier was in his house only once, in April or May, 1930, prior to the death of the
testatrix. According to this, he could not have given to the testatrix the information
about Gil's death which took place some months later, or in August, 1930.lâwphi1.nêt

Furthermore, if the testatrix, in making her will, knew that Gil was already dead and that
he had left children, it cannot be explained why she left the legacy to Gil and not to his
children, if such was her intention, particularly because, according to the evidence for
the appellants, she knew one of said children named Jose.
Consequently, in either case, whether the testatrix knew that Gil was already dead or
she was ignorant thereof, as she had left the legacy in favor of Gil, there is no reason to
admit that it was, nevertheless, her intention to leave it to his children. The appealed
judgment is affirmed, with costs to the appellants. So ordered.
G.R. No. L-62952 October 9, 1985

SOFIA J. NEPOMUCENO, petitioner, 
vs.
THE HONORABLE COURT OF APPEALS, RUFINA GOMEZ, OSCAR JUGO ANG,
CARMELITA JUGO, respondents.

GUTIERREZ, JR., J.:

This is a petition for certiorari to set aside that portion of the decision of the respondent
Court of Appeals (now intermediate Appellate Court) dated June 3, 1982, as amended
by the resolution dated August 10, 1982, declaring as null and void the devise in favor
of the petitioner and the resolution dated December 28, 1982 denying petitioner's
motion for reconsideration.

Martin Jugo died on July 16, 1974 in Malabon, Rizal. He left a last Will and Testament
duly signed by him at the end of the Will on page three and on the left margin of pages
1, 2 and 4 thereof in the presence of Celestina Alejandro, Myrna C. Cortez, and Leandro
Leano, who in turn, affixed their signatures below the attestation clause and on the left
margin of pages 1, 2 and 4 of the Will in the presence of the testator and of each other
and the Notary Public. The Will was acknowledged before the Notary Public Romeo
Escareal by the testator and his three attesting witnesses.

In the said Will, the testator named and appointed herein petitioner Sofia J.
Nepomuceno as his sole and only executor of his estate. It is clearly stated in the Will
that the testator was legally married to a certain Rufina Gomez by whom he had two
legitimate children, Oscar and Carmelita, but since 1952, he had been estranged from
his lawfully wedded wife and had been living with petitioner as husband and wife. In
fact, on December 5, 1952, the testator Martin Jugo and the petitioner herein, Sofia J.
Nepomuceno were married in Victoria, Tarlac before the Justice of the Peace. The
testator devised to his forced heirs, namely, his legal wife Rufina Gomez and his children
Oscar and Carmelita his entire estate and the free portion thereof to herein petitioner.
The Will reads in part:

Art. III. That I have the following legal heirs, namely: my aforementioned
legal wife, Rufina Gomez, and our son, Oscar, and daughter Carmelita, both
surnamed Jugo, whom I declare and admit to be legally and properly entitled
to inherit from me; that while I have been estranged from my above-named
wife for so many years, I cannot deny that I was legally married to her or
that we have been separated up to the present for reasons and justifications
known fully well by them:

Art. IV. That since 1952, 1 have been living, as man and wife with one Sofia
J. Nepomuceno, whom I declare and avow to be entitled to my love and
affection, for all the things which she has done for me, now and in the past;
that while Sofia J. Nepomuceno has with my full knowledge and consent, did
comport and represent myself as her own husband, in truth and in fact, as
well as in the eyes of the law, I could not bind her to me in the holy bonds of
matrimony because of my aforementioned previous marriage;

On August 21, 1974, the petitioner filed a petition for the probate of the last Will and
Testament of the deceased Martin Jugo in the Court of First Instance of Rizal, Branch
XXXIV, Caloocan City and asked for the issuance to her of letters testamentary.

On May 13, 1975, the legal wife of the testator, Rufina Gomez and her children filed an
opposition alleging inter alia that the execution of the Will was procured by undue and
improper influence on the part of the petitioner; that at the time of the execution of the
Will, the testator was already very sick and that petitioner having admitted her living in
concubinage with the testator, she is wanting in integrity and thus, letters testamentary
should not be issued to her.

On January 6, 1976, the lower court denied the probate of the Will on the ground that as
the testator admitted in his Will to cohabiting with the petitioner from December 1952
until his death on July 16, 1974, the Will's admission to probate will be an Idle exercise
because on the face of the Will, the invalidity of its intrinsic provisions is evident.

The petitioner appealed to the respondent-appellate court.

On June 2, 1982, the respondent court set aside the decision of the Court of First
Instance of Rizal denying the probate of the will. The respondent court declared the Will
to be valid except that the devise in favor of the petitioner is null and void pursuant to
Article 739 in relation with Article 1028 of the Civil Code of the Philippines. The
dispositive portion of the decision reads:

WHEREFORE, the decision a quo is hereby set aside, the will in question
declared valid except the devise in favor of the appellant which is declared
null and void. The properties so devised are instead passed on in intestacy
to the appellant in equal shares, without pronouncement as to cost.

On June 15, 1982, oppositors Rufina Gomez and her children filed a "Motion for
Correction of Clerical Error" praying that the word "appellant" in the last sentence of the
dispositive portion of the decision be changed to "appellees" so as to read: "The
properties so devised are instead passed on intestacy to the appellees in equal shares,
without pronouncement as to costs." The motion was granted by the respondent court
on August 10, 1982.

On August 23, 1982, the petitioner filed a motion for reconsideration. This was denied
by the respondent court in a resolution dated December 28, 1982.

The main issue raised by the petitioner is whether or not the respondent court acted in
excess of its jurisdiction when after declaring the last Will and Testament of the
deceased Martin Jugo validly drawn, it went on to pass upon the intrinsic validity of the
testamentary provision in favor of herein petitioner.

The petitioner submits that the validity of the testamentary provision in her favor cannot
be passed upon and decided in the probate proceedings but in some other proceedings
because the only purpose of the probate of a Will is to establish conclusively as against
everyone that a Will was executed with the formalities required by law and that the
testator has the mental capacity to execute the same. The petitioner further contends
that even if the provisions of paragraph 1 of Article 739 of the Civil Code of the
Philippines were applicable, the declaration of its nullity could only be made by the
proper court in a separate action brought by the legal wife for the specific purpose of
obtaining a declaration of the nullity of the testamentary provision in the Will in favor of
the person with whom the testator was allegedly guilty of adultery or concubinage.

The respondents on the other hand contend that the fact that the last Will and
Testament itself expressly admits indubitably on its face the meretricious relationship
between the testator and the petitioner and the fact that petitioner herself initiated the
presentation of evidence on her alleged ignorance of the true civil status of the testator,
which led private respondents to present contrary evidence, merits the application of the
doctrine enunciated in Nuguid v. Felix Nuguid, et al. (17 SCRA 449) and Felix
Balanay, Jr. v. Hon. Antonio Martinez, et al. (G.R. No. L- 39247, June 27, 1975).
Respondents also submit that the admission of the testator of the illicit relationship
between him and the petitioner put in issue the legality of the devise. We agree with the
respondents.

The respondent court acted within its jurisdiction when after declaring the Will to be
validly drawn, it went on to pass upon the intrinsic validity of the Will and declared the
devise in favor of the petitioner null and void.
The general rule is that in probate proceedings, the court's area of inquiry is limited to
an examination and resolution of the extrinsic validity of the Will. The rule is expressed
thus:

xxx xxx xxx

... It is elementary that a probate decree finally and definitively settles all
questions concerning capacity of the testator and the proper execution and
witnessing of his last Will and testament, irrespective of whether its
provisions are valid and enforceable or otherwise. (Fernandez v.
Dimagiba, 21 SCRA 428)

The petition below being for the probate of a Will, the court's area of inquiry
is limited to the extrinsic validity thereof. The testators testamentary
capacity and the compliance with the formal requisites or solemnities
prescribed by law are the only questions presented for the resolution of the
court. Any inquiry into the intrinsic validity or efficacy of the provisions of
the will or the legality of any devise or legacy is premature.

xxx xxx xxx

True or not, the alleged sale is no ground for the dismissal of the petition for
probate. Probate is one thing; the validity of the testamentary provisions is
another. The first decides the execution of the document and the
testamentary capacity of the testator; the second relates to descent and
distribution (Sumilang v. Ramagosa, 21 SCRA 1369)

xxx xxx xxx

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. ... (Castaneda v. Alemany, 3 Phil. 426)

The rule, however, is not inflexible and absolute. Given exceptional circumstances, the
probate court is not powerless to do what the situation constrains it to do and pass upon
certain provisions of the Will.

In Nuguid v. Nuguid (17 SCRA 449) cited by the trial court, the testator instituted the
petitioner as universal heir and completely preterited her surviving forced heirs. A will of
this nature, no matter how valid it may appear extrinsically, would be null and void.
Separate or latter proceedings to determine the intrinsic validity of the testamentary
provisions would be superfluous.

Even before establishing the formal validity of the will, the Court in Balanay .Jr. v.
Martinez (64 SCRA 452) passed upon the validity of its intrinsic provisions.

Invoking "practical considerations", we stated:

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 v. Nuguid, 64 O.G.
1527, 17 SCRA 449. Compare with Sumilang vs. Ramagosa L-23135,
December 26, 1967, 21 SCRA 1369; Cacho v. Udan L-19996, April 30, 1965,
13 SCRA 693).

There appears to be no more dispute at this time over the extrinsic validity of the Will.
Both parties are agreed that the Will of Martin Jugo was executed with all the formalities
required by law and that the testator had the mental capacity to execute his Will. The
petitioner states that she completely agrees with the respondent court when in resolving
the question of whether or not the probate court correctly denied the probate of Martin
Jugo's last Will and Testament, it ruled:

This being so, the will is declared validly drawn. (Page 4, Decision, Annex A
of Petition.)

On the other hand the respondents pray for the affirmance of the Court of Appeals'
decision in toto.

The only issue, therefore, is the jurisdiction of the respondent court to declare the
testamentary provision in favor of the petitioner as null and void.

We sustain the respondent court's jurisdiction. As stated in Nuguid v. Nuguid, (supra):

We pause to reflect. If the case were to be remanded for probate of the will,
nothing will be gained. On the contrary, this litigation will be protracted. And
for aught that appears in the record, in the record, in the event of probate or
if the court rejects the will, probability exists that the case will come up once
again before us on the same issue of the intrinsic validity or nullity of the
will. Result, waste of time, effort, expense, plus added anxiety. These are
the practical considerations that induce us to a belief that we might as well
meet head-on the issue of the validity of the provisions of the will in
question. (Section 2, Rule 1, Rules of Court. Case, et al. v. Jugo, et al., 77
Phil. 517, 522). After all, there exists a justiciable controversy crying for
solution.

We see no useful purpose that would be served if we remand the nullified provision to
the proper court in a separate action for that purpose simply because, in the probate of
a will, the court does not ordinarily look into the intrinsic validity of its provisions.

Article 739 of the Civil Code provides:

The following donations shall be void:

(1) Those made between persons who were guilty of adultery or

concubinage at the time of the donation;

(2) Those made between persons found guilty of the same criminal offense,
in consideration thereof;

(3) Those made to a public officer or his wife, descendants and ascendants,
by reason of his office.

In the case referred to in No. 1, the action for declaration of nullity may be
brought by the spouse of the donor or donee; and the guilt of the donor and
donee may be proved by preponderance of evidence in the same action.

Article 1028 of the Civil Code provides:

 The prohibitions mentioned in Article 739, concerning donations inter
vivos shall apply to testamentary provisions.

In Article III of the disputed Will, executed on August 15, 1968, or almost six years
before the testator's death on July 16, 1974, Martin Jugo stated that respondent Rufina
Gomez was his legal wife from whom he had been estranged "for so many years." He
also declared that respondents Carmelita Jugo and Oscar Jugo were his legitimate
children. In Article IV, he stated that he had been living as man and wife with the
petitioner since 1952. Testator Jugo declared that the petitioner was entitled to his love
and affection. He stated that Nepomuceno represented Jugo as her own husband but "in
truth and in fact, as well as in the eyes of the law, I could not bind her to me in the holy
bonds of matrimony because of my aforementioned previous marriage.

There is no question from the records about the fact of a prior existing marriage when
Martin Jugo executed his Will. There is also no dispute that the petitioner and Mr. Jugo
lived together in an ostensible marital relationship for 22 years until his death.

It is also a fact that on December 2, 1952, Martin Jugo and Sofia J. Nepomuceno
contracted a marriage before the Justice of the Peace of Victoria, Tarlac. The man was
then 51 years old while the woman was 48. Nepomuceno now contends that she acted in
good faith for 22 years in the belief that she was legally married to the testator.

The records do not sustain a finding of innocence or good faith. As argued by the private
respondents:

First. The last will and testament itself expressly admits indubitably on its
face the meretricious relationship between the testator and petitioner, the
devisee.

Second. Petitioner herself initiated the presentation of evidence on her

alleged ignorance of the true civil status of the testator, which led private
respondents to present contrary evidence.

In short, the parties themselves dueled on the intrinsic validity of the legacy
given in the will to petitioner by the deceased testator at the start of the
proceedings.

Whether or not petitioner knew that testator Martin Jugo, the man he had
lived with as man and wife, as already married, was an important and
specific issue brought by the parties before the trial court, and passed upon
by the Court of Appeals.

Instead of limiting herself to proving the extrinsic validity of the will, it was
petitioner who opted to present evidence on her alleged good faith in
marrying the testator. (Testimony of Petitioner, TSN of August 1, 1982, pp.
56-57 and pp. 62-64).

Private respondents, naturally, presented evidence that would refute the

testimony of petitioner on the point.

Sebastian Jugo, younger brother of the deceased testator, testified at length

on the meretricious relationship of his brother and petitioner. (TSN of August
18,1975).

Clearly, the good faith of petitioner was by option of the parties made a
decisive issue right at the inception of the case.

Confronted by the situation, the trial court had to make a ruling on the
question.
 When the court a quo held that the testator Martin Jugo and petitioner 'were
deemed guilty of adultery or concubinage', it was a finding that petitioner
was not the innocent woman she pretended to be.

xxx xxx xxx

3. If a review of the evidence must be made nonetheless, then private

respondents respectfully offer the following analysis:

FIRST: The secrecy of the marriage of petitioner with the deceased testator
in a town in Tarlac where neither she nor the testator ever resided. If there
was nothing to hide from, why the concealment' ? Of course, it maybe
argued that the marriage of the deceased with private respondent Rufina
Gomez was likewise done in secrecy. But it should be remembered that
Rufina Gomez was already in the family way at that time and it would seem
that the parents of Martin Jugo were not in favor of the marriage so much so
that an action in court was brought concerning the marriage. (Testimony of
Sebastian Jugo, TSN of August 18, 1975, pp. 29-30)

SECOND: Petitioner was a sweetheart of the deceased testator when they

were still both single. That would be in 1922 as Martin Jugo married
respondent Rufina Gomez on November 29, 1923 (Exh. 3). Petitioner
married the testator only on December 5, 1952. There was a space of about
30 years in between. During those 30 years, could it be believed that she did
not even wonder why Martin Jugo did not marry her nor contact her
anymore after November, 1923 - facts that should impel her to ask her
groom before she married him in secrecy, especially so when she was
already about 50 years old at the time of marriage.

THIRD: The fact that petitioner broke off from Martin Jugo in 1923 is by
itself conclusive demonstration that she new that the man she had openly
lived for 22 years as man and wife was a married man with already two
children.

FOURTH: Having admitted that she knew the children of respondent Rufina
Gomez, is it possible that she would not have asked Martin Jugo whether or
not they were his illegitimate or legitimate children and by whom? That is
un-Filipino.

FIFTH: Having often gone to Pasig to the residence of the parents of the
deceased testator, is it possible that she would not have known that the
mother of private respondent Oscar Jugo and Carmelita Jugo was
respondent Rufina Gomez, considering that the houses of the parents of
Martin Jugo (where he had lived for many years) and that of respondent
Rufina Gomez were just a few meters away?

Such pretentions of petitioner Sofia Nepomuceno are unbelievable. They are,

to say the least, inherently improbable, for they are against the experience
in common life and the ordinary instincts and promptings of human nature
that a woman would not bother at all to ask the man she was going to marry
whether or not he was already married to another, knowing that her groom
had children. It would be a story that would strain human credulity to the
limit if petitioner did not know that Martin Jugo was already a married man
in view of the irrefutable fact that it was precisely his marriage to
respondent Rufina Gomez that led petitioner to break off with the deceased
during their younger years.

Moreover, the prohibition in Article 739 of the Civil Code is against the making of a
donation between persons who are living in adultery or concubinage. It is
the donation which becomes void. The giver cannot give even assuming that the
recipient may receive. The very wordings of the Will invalidate the legacy because the
testator admitted he was disposing the properties to a person with whom he had been
living in concubinage.

WHEREFORE, the petition is DISMISSED for lack of merit. The decision of the Court of
Appeals, now Intermediate Appellate Court, is AFFIRMED. No costs.
G.R. No. 112483 October 8, 1999

ELOY IMPERIAL, petitioner,
vs.
COURT OF APPEALS, REGIONAL TRIAL COURT OF LEGASPI CITY, CESAR
VILLALON, JR., TERESA VILLALON, ANTONIO VILLALON, AUGUSTO VILLALON,
ROBERTO VILLALON, RICARDO VILLALON and ESTHER VILLALON, respondents.

GONZAGA-REYES, J.:

Petitioner seeks to set aside the Decision of the Court of Appeals

in C.A.-G.R. CV No. 31976 1, affirming the Decision of the Regional Trial Court of Legaspi
City 2, which rendered inofficious the donation made by Leoncio Imperial in favor of
herein petitioner, to the extent that it impairs the legitime of Victor Imperial, and
ordering petitioner to convey to herein private respondents, heirs of said Victor Imperial,
that portion of the donated land proportionate to Victor Imperial's legitime.

Leoncio Imperial was the registered owner of a 32,837-square meter parcel of land
covered by Original Certificate of Title No. 200, also known as Lot 45 of the Cadastral
Survey of Albay. On July 7, 1951, Leoncio sold the said lot for P1.00 to his
acknowledged natural son, petitioner herein, who then acquired title over the land and
proceeded to subdivide it into several lots. Petitioner and private respondents admit that
despite the contract's designation as one of "Absolute Sale", the transaction was in fact
a donation.1âwphi1.nêt

On July 28, 1953, or barely two years after the donation, Leoncio filed a complaint for
annulment of the said Deed of Absolute Sale, docketed as Civil Case No. 1177, in the
then Court of First Instance of Albay, on the ground that he was deceived by petitioner
herein into signing the said document. The dispute, however, was resolved through a
compromise agreement, approved by the Court of First Instance of Albay on November
3, 1961 3 , under which terms: (1) Leoncio recognized the legality and validity of the
rights of petitioner to the land donated; and (2) petitioner agreed to sell a designated
1,000-square meter portion of the donated land, and to deposit the proceeds thereof in
a bank, for the convenient disposal of Leoncio. In case of Leoncio's death, it was agreed
that the balance of the deposit will be withdrawn by petitioner to defray burial costs.

On January 8, 1962, and pending execution of the above judgment, Leoncio died,
leaving only two heirs — the herein petitioner, who is his acknowledged natural son, and
an adopted son, Victor Imperial. On March 8, 1962, Victor was substituted in place of
Leoncio in the above-mentioned case, and it was he who moved for execution of
judgment. On March 15, 1962, the motion for execution was duly granted.

Fifteen years thereafter, or on July 26, 1977, Victor died single and without issue,
survived only by his natural father, Ricardo Villalon, who was a lessee of a portion of the
disputed land. Four years hence, or on September 25, 1981, Ricardo died, leaving as his
only heirs his two children, Cesar and Teresa Villalon.

Five years thereafter, or sometime in 1986, Cesar and Teresa filed a complaint for
annulment of the donation with the Regional Trial Court of Legazpi City, docketed as
Civil Case No. 7646. Petitioner moved to dismiss on the ground of res judicata, by virtue
of the compromise judgment rendered by the Court of First Instance of Albay. The trial
court granted the motion to dismiss, but the Court of Appeals reversed the trial court's
order and remanded the case for further proceedings.

On October 18, 1989, Cesar and Teresa filed an amended complaint in the same case,
Civil Case No. 7646, for "Annulment of Documents, Reconveyance and Recovery of
Possession" with the Regional Trial Court of Legazpi City, seeking the nullification of the
Deed of Absolute Sale affecting the above property, on grounds of fraud, deceit and
inofficiousness. In the amended complaint, it was alleged that petitioner caused Leoncio
to execute the donation by taking undue advantage of the latter's physical weakness
and mental unfitness, and that the conveyance of said property in favor of petitioner
impaired the legitime of Victor Imperial, their natural brother and predecessor-in-
interest. 4

In his Answer, petitioner: (1) alleged that Leoncio had conveyed sufficient property to
Victor to cover his legitime, consisting of 563 hectares of agricultural land in Manito,
Albay; (2) reiterated the defense of res judicata, and (3) raised the additional defenses
of prescription and laches.

Plaintiff Cesar Villalon died on December 26, 1989, while the case was pending in the
Regional Trial Court, and was substituted in this action by his sons, namely, Antonio,
Roberto, Augusto, Ricardo and Cesar, Jr., all surnamed Villalon, and his widow, Esther
H. Villalon.

The RTC held the donation to be inofficious and impairing the legitime of Victor, on the
basis of its finding that at the time of Leoncio's death, he left no property other than the
32,837-square meter parcel of land which he had donated to petitioner. The RTC went
on further to state that petitioner's allegation that other properties existed and were
inherited by Victor was not substantiated by the evidence. 5

The legitime of Victor was determined by the trial court in this manner:

Considering that the property donated is 32,837 square meters, one half of
that or 16,418 square meters becomes the free portion of Leoncio which
could be absorbed in the donation to defendant. The other half, which is also
16,418 square meters is where the legitime of the adopted son Victor
Imperial has to be taken.

The proportion of the legitime of the legitimate child (including the adopted
child) in relation to the acknowledged natural child (defendant) is 10 is to
5[,] with the acknowledged natural child getting 1/2 of the legitime of the
legitimate (adopted) child, in accordance with Art. 895 of the New Civil Code
which provides:

The legitime of each of the acknowledged natural children and

each of the natural children by legal fiction shall consist of one-
half of the legitime of each of the legitimate children or
descendants.

From the 16,418 square meters left (after the free portion has been taken)
plaintiffs are therefore entitled to 10,940 square meters while defendant
gets 5,420 square meters. 6

The trial court likewise held that the applicable prescriptive period is 30 years under
Article 1141 of the Civil Code 7, reckoned from March 15, 1962, when the writ of
execution of the compromise judgment in Civil Case 1177 was issued, and that the
original complaint having been filed in 1986, the action has not yet prescribed. In
addition, the trial court regarded the defense of prescription as having been waived, this
not being one of the issues agreed upon at pre-trial.

Thus, the dispositive portion of the RTC's Decision of December 13, 1990 reads:

WHEREFORE, premises considered, the Deed of Absolute Sale otherwise

known as Doc. No. 8; Book No. 14; Page No. 1; Series of 1951 of the
Notarial file of Pompeyo B. Calleja which is considered a donation, is hereby
reduced proportionately insofar as it affected the legitime of the late Victor
Imperial, which share is inherited by the plaintiffs herein, to the extent that
plaintiffs are ordered to be given by defendant a portion of 10,940 square
meters thereof.
 In order to avoid further conflict, the 10,940 share to be given to plaintiffs
should include the portion which they are presently occupying, by virtue of
the extended lease to their father Ricardo Villalon, where the bungalow in
question stands.

The remaining portion to be given to plaintiffs may come from any other
portion that may be agreed upon by the parties, otherwise, this court will
appoint a commissioner to undertake the partition.

The other 21,897 square meters should go to the defendant as part of his
legitime and by virtue of the reduced donation.

No pronouncement as to damages as they were not sufficiently proved.

SO ORDERED. 8

The Court of Appeals affirmed the RTC Decision in toto.

Before us, petitioner questions the following findings of respondent court: (1) that there
was no res judicata, there being no identity of parties and cause of action between the
instant case and Civil Case No. 1177; (2) that private respondents had a right to
question the donation; (3) that private respondents' action is barred by prescription,
laches and estoppel; and (4) that the donation was inofficious and should be reduced.

It is an indispensable requirement in res judicata that there be, between the first and
second action, identity of parties, of subject matter and of cause of action. 9 A perusal of
the records leads us to conclude that there is no identity of parties and of cause of
action as between Civil Case No. 1177 and Civil Case No. 7646. Civil Case No. 1177 was
instituted by Leoncio in his capacity as donor of the questioned donation. While it is true
that upon his death, Victor was substituted as plaintiff of the action, such does not alter
the fact that Victor's participation in the case was in representation of the interests of
the original plaintiff, Leoncio. The purpose behind the rule on substitution of parties is to
ensure that the deceased party would continue to be properly represented in the suit
through the duly appointed legal representative of the estate 10, or his heir, as in this
case, for which no court appointment is required. 11 Petitioner's argument, therefore,
that there is substantial identity between Leoncio and private respondents, being heirs
and successors-in-interest of Victor, is unavailing.

Moreover, Leoncio's cause of action as donor of the property was fraud, purportedly
employed upon him by petitioner in the execution of the donation. While the same
circumstances of fraud and deceit are alleged in private respondents' complaint, it also
raises the additional ground of inofficiousness of donation.

Contrary to petitioner's contentions, inofficiousness of donation does not, and could not,
form part of Leoncio's cause of action in Civil Case No. 1177. Inofficiousness as a cause
of action may arise only upon the death of the donor, as the value of the donation will
then be contrasted with the net value of the estate of the donor-deceased. 12

Consequently, while in Civil Case No. 1177, Leoncio sought the revocation in full of the
donation on ground of fraud, the instant case actually has two alternative causes of
action. First, for fraud and deceit, under the same circumstances as alleged in Leoncio's
complaint, which seeks the annulment in full of the donation, and which the trial court
correctly dismissed because the compromise agreement in Civil Case No. 1177 served as
a ratification and waiver on the part of Leoncio of whatever defects in voluntariness and
consent may have been attendant in the making of the donation. The second cause of
action is the alleged inofficiousness of the donation, resulting in the impairment of
Victor's legitime, which seeks the annulment, not of the entire donation, but only of that
portion diminishing the legitime. 13 It is on the basis of this second cause of action that
private respondents prevailed in the lower courts.
Petitioner next questions the right of private respondents to contest the donation.
Petitioner sources his argument from Article 772 of the Civil Code, thus:

Only those who at the time of the donor's death have a right to the legitime
and their heirs and successors in interest may ask for the reduction of
inofficious donations . . . .

As argued by petitioner, when Leoncio died on January 8, 1962, it was only Victor who
was entitled to question the donation. However, instead of filing an action to contest the
donation, Victor asked to be substituted as plaintiff in Civil Case No. 1177 and even
moved for execution of the compromise judgment therein.

No renunciation of legitime may be presumed from the foregoing acts. It must be

remembered that at the time of the substitution, the judgment approving the
compromise agreement has already been rendered. Victor merely participated in the
execution of the compromise judgment. He was not a party to the compromise
agreement.

More importantly, our law on succession does not countenance tacit repudiation of
inheritance. Rather, it requires an express act on the part of the heir. Thus, under Article
1051 of Civil Code:

The repudiation of an inheritance shall be made in a public or authentic

instrument, or by petition presented to the court having jurisdiction over the
testamentary or intestate proceedings.

Thus, when Victor substituted Leoncio in Civil Case No. 1177 upon the latter's death, his
act of moving for execution of the compromise judgment cannot be considered an act of
renunciation of his legitime. He was, therefore, not precluded or estopped from
subsequently seeking the reduction of the donation, under Article 772. Nor are Victor's
heirs, upon his death, precluded from doing so, as their right to do so is expressly
recognized under Article 772, and also in Article 1053:

If the heir should die without having accepted or repudiated the inheritance,
his right shall be transmitted to his heirs.

Be that as it may, we find merit in petitioner's other assignment of errors. Having

ascertained this action as one for reduction of an inofficious donation, we cannot sustain
the holding of both the trial court and the Court of Appeals that the applicable
prescriptive period is thirty years, under Article 1141 of the Civil Code. The sense of
both courts that this case is a "real action over an immovable" allots undue credence to
private respondents' description of their complaint, as one for "Annulment of
Documents, Reconveyance and Recovery of Possession of Property", which suggests the
action to be, in part, a real action enforced by those with claim of title over the disputed
land.1âwphi1.nêt

Unfortunately for private respondents, a claim for legitime does not amount to a claim of
title. In the recent case of Vizconde vs. Court of
Appeals 14, we declared that what is brought to collation is not the donated property
itself, but the value of the property at the time it was donated. The rationale for this is
that the donation is a real alienation which conveys ownership upon its acceptance,
hence, any increase in value or any deterioration or loss thereof is for the account of the
heir or donee. 15

What, then, is the prescriptive period for an action for reduction of an inofficious
donation? The Civil Code specifies the following instances of reduction or revocation of
donations: (1) four years, in cases of subsequent birth, appearance, recognition or
adoption of a child; 16 (2) four years, for non-compliance with conditions of the
donation; 17 and (3) at any time during the lifetime of the donor and his relatives
entitled to support, for failure of the donor to reserve property for his or their
support. 18 Interestingly, donations as in the instant case, 19 the reduction of which
hinges upon the allegation of impairment of legitime, are not controlled by a particular
prescriptive period, for which reason we must resort to the ordinary rules of
prescription.

Under Article 1144 of the Civil Code, actions upon an obligation created by law must be
brought within ten years from the time the right of action accrues. Thus, the ten-year
prescriptive period applies to the obligation to reduce inofficious donations, required
under Article 771 of the Civil Code, to the extent that they impair the legitime of
compulsory heirs.

From when shall the ten-year period be reckoned? The case of Mateo vs. Lagua, 29
SCRA 864, which involved the reduction for inofficiousness of a donation propter
nuptias, recognized that the cause of action to enforce a legitime accrues upon the
death of the donor-decedent. Clearly so, since it is only then that the net estate may be
ascertained and on which basis, the legitimes may be determined.

It took private respondents 24 years since the death of Leoncio to initiate this case. The
action, therefore, has long prescribed.

As for the trial court's holding that the defense of prescription had been waived, it not
being one of the issues agreed upon at pre-trial, suffice it to say that while the terms of
the pre-trial order bind the parties as to the matters to be taken up in trial, it would be
the height of injustice for us to adhere to this technicality when the fact of prescription is
manifest in the pleadings of the parties, as well as the findings of fact of the lower
courts. 20

A perusal of the factual antecedents reveals that not only has prescription set in, private
respondents are also guilty of estoppel by laches. It may be recalled that Leoncio died
on January 8, 1962. Fifteen years later, Victor died, leaving as his sole heir Ricardo
Villalon, who also died four years later. While Victor was alive, he gave no indication of
any interest to contest the donation of his deceased father. As we have discussed
earlier, the fact that he actively participated in Civil Case No. 1177 did not amount to a
renunciation of his inheritance and does not preclude him from bringing an action to
claim his legitime. These are matters that Victor could not possibly be unaware of,
considering that he is a lawyer 21. Ricardo Villalon was even a lessee of a portion of the
donated property, and could have instituted the action as sole heir of his natural son, or
at the very least, raised the matter of legitime by way of counterclaim in an ejectment
case 22 filed against him by petitioner in 1979. Neither does it help private respondents'
cause that five years have elapsed since the death of Ricardo in 1981 before they filed
their complaint with the RTC.

Estoppel by laches is the failure or neglect for an unreasonable or unexplained length of

time to do that which, by exercising due diligence, could or should have been done
earlier, warranting a presumption that the person has abandoned his right or declined to
assert it. 23 We find the necessity for the application of the principle of estoppel by laches
in this case, in order to avoid an injustice.

A final word on collation of donations. We observe that after finding the donation to be
inofficious because Leoncio had no other property at the time of his death, the RTC
computed the legitime of Victor based on the area of the donated property. Hence, in its
dispositive portion, it awarded a portion of the property to private respondents as
Victor's legitime. This was upheld by the Court of Appeals.

Our rules of succession require that before any conclusion as to the legal share due to a
compulsory heir may be reached, the following steps must be taken: (1) the net estate
of the decedent must be ascertained, by deducting all the payable obligations and
charges from the value of the property owned by the deceased at the time of his death;
(2) the value of all donations subject to collation would be added to it. 24

Thus, it is the value of the property at the time it is donated, and not the property itself,
which is brought to collation. Consequently, even when the donation is found inofficious
and reduced to the extent that it impaired Victor's legitime, private respondents will not
receive a corresponding share in the property donated. Thus, in this case where the
collatable property is an immovable, what may be received is: (1) an equivalent, as
much as possible, in property of the same nature, class and quality; 25 (2) if such is
impracticable, the equivalent value of the impaired legitime in cash or marketable
securities; 26 or (3) in the absence of cash or securities in the estate, so much of such
other property as may be necessary, to be sold in public auction. 27

We believe this worth mentioning, even as we grant the petition on grounds of

prescription and laches.

ACCORDINGLY, the decision of the Court of Appeals in C.A. G.R. CV No. 31976,
affirming in toto the decision of the Regional Trial Court in Civil Case No. 7646, is
reversed and set aside. No costs.1âwphi1.nêt
G.R. No. 118449 February 11, 1998

LAURO G. VIZCONDE, petitioner, 
vs.
COURT OF APPEALS, REGIONAL TRIAL COURT, Branch 120, Caloocan City, and
RAMON G. NICOLAS, respondents.

FRANCISCO, J.:

Petitioner Lauro G. Vizconde and his wife Estrellita Nicolas-Vizconde had two
children, viz., Carmela and Jennifer. Petitioner's wife, Estrellita, is one of the five siblings
of spouses Rafael Nicolas and Salud Gonzales-Nicolas. The other children of Rafael and
Salud are Antonio Nicolas; Ramon Nicolas; Teresita Nicolas de Leon, and RicardoNicolas,
an incompetent. Antonio predeceased his parents and is now survived by his
widow, Zenaida, and their four children.

On May 22, 1979, Estrellita purchased from Rafael a parcel of land with an area of
10,110 sq. m. located at Valenzuela, Bulacan (hereafter Valenzuela property) covered by
TCT No. (T-36734) 13206 for One Hundred Thirty Five Thousand Pesos (P135,000.00),
evidenced by a "Lubusang Bilihan ng Bahagi ng Lupa na Nasasakupan ng Titulo TCT
No. T-36734".1 In view thereof, TCT No. V-554 covering the Valenzuela property was
issued to Estrellita. 2 On March 30, 1990, Estrellita sold the Valenzuela property
to Amelia Lim and Maria Natividad Balictar Chiu for Three Million, Four Hundred
Five Thousand, Six Hundred Twelve Pesos (P3,405,612.00). 3 In June of the
same year, Estrellita bought from Premier Homes, Inc., a parcel of land with
improvements situated at Vinzon St., BF Homes, Parañaque (hereafter
Parañaque property) using a portion of the proceeds of sale of the Valenzuela
property. The remaining amount of the proceeds was used in buying a car while
the balance was deposited in a bank.

The following year an unfortunate event in petitioner's life occurred. Estrellita

and her two daughters, Carmela and Jennifer, were killed on June 30, 1991, an
incident popularly known as the "Vizconde Massacre". The findings of the
investigation conducted by the NBI reveal that Estrellita died ahead of her
daughters.4 Accordingly, Carmela, Jennifer and herein petitioner succeeded
Estrellita and, with the subsequent death of Carmela and Jennifer, petitioner
was left as the sole heir of his daughters. Nevertheless, petitioner entered into
an "Extra-Judicial Settlement of the Estate of Deceased Estrellita Nicolas-
Vizconde With Waiver of Shares", 5 with Rafael and Salud, Estrellita's parents.
The extra-judicial settlement provided for the division of the properties of
Estrellita and her two daughters between petitioner and spouses Rafael and
Salud. The properties include bank deposits, a car and the Parañaque property.
The total value of the deposits deducting the funeral and other related
expenses in the burial of Estrellita, Carmela and Jennifer, amounts to Three
Million Pesos (P3,000,000.00).6 The settlement gave fifty percent (50%) of the
total amount of the bank deposits of Estrellita and her daughters to Rafael,
except Savings Account No. 104-111211-0 under the name of Jennifer which
involves a token amount. The other fifty percent (50%) was allotted to
petitioner. The Parañaque property and the car and were also given to
petitioner with Rafael and Salud waiving all their "claims, rights, ownership
and participation as heirs" 7 in the said properties.

On November 18, 1992, Rafael died. To settle Rafael's estate, Teresita

instituted an intestate estate proceeding8 docketed as Sp. Proc. No. C-1679,
with Branch 120 of the Regional Trial Court (RTC) of Caloocan City listing as
heirs Salud, Ramon, Ricardo, and the wife (Zenaida) and children of Antonio.
Teresita prayed to be appointed Special Administratrix of Rafael's estate.
Additionally, she sought to be appointed as guardian ad litem of Salud, now
senile, and Ricardo, her incompetent brother Herein private respondent Ramon
filed an opposition9 dated March 24, 1993, praying to be appointed instead as
Salud and Ricardo's guardian. Barely three weeks passed, Ramon filed another
opposition 10 alleging, among others, that Estrellita was given the Valenzuela
property by Rafael which she sold for not less than Six Million Pesos
(P6,000,000.00) before her gruesome murder. Ramon pleaded for the court's
intervention "to determine the legality and validity of the intervivos
distribution made by deceased Rafael to his children," 11Estrellita included. On
May 12, 1993, Ramon filed his own petition, docketed as Sp. Proc. No. C-1699,
entitled "In The Matter Of The Guardianship Of Salud G. Nicolas and Ricardo G.
Nicolas" and averred that their legitime should come from the collation of all
the properties distributed to his children by Rafael during his lifetime. 12 Ramon
stated that herein petitioner is one of Rafael's children "by right of
representation as the widower of deceased legitimate daughter of Estrellita." 13

In a consolidated Order, dated November 9, 1993, the RTC appointed Ramon as

the guardian of Salud and Ricardo while Teresita, in turn, was appointed as the
Special Administratrix of Rafael's estate. The court's Order did not include
petitioner in the slate of Rafael's heirs. 14 Neither was the Parañaque property
listed in its list of properties to be included in the estate. 15 Subsequently, the
RTC in an Order dated January 5, 1994, removed Ramon as Salud and Ricardo's
guardian for Selling his ward's property without the court's knowledge and
permission. 16

Sometime on January 13, 1994, the RTC released an Order giving petitioner
"ten (10) days . . . within which to file any appropriate petition or motion
related to the pending petition insofar as the case is concerned and to file any
opposition to any pending motion that has been filed by both the counsels for
Ramon Nicolas and Teresita de Leon." In response, petitioner filed a
Manifestation, dated January 19, 1994, stressing that he was neither a
compulsory heir nor an intestate heir of Rafael and he has no interest to
participate in the proceedings. The RTC noted said Manifestation in its Order
dated February 2, 1994. 17Despite the Manifestation, Ramon, through a motion
dated February 14, 1994, moved to include petitioner in the intestate estate
proceeding and asked that the Parañaque property, as well as the car and the
balance of the proceeds of the sale of the Valenzuela property, be
collated. 18 Acting on Ramon's motion, the trial court on March 10, 1994
granted the same in an Order which pertinently reads as follows:

x x x           x x x          x x x

On the Motion To Include Lauro G. Vizconde In Intestate

proceedings in instant case and considering the comment on his
Manifestation, the same is hereby granted.19

x x x           x x x          x x x

Petitioner filed its motion for reconsideration of the aforesaid Order which
Ramon opposed. 20 On August 12, 1994, the RTC rendered an Order denying
petitioner's motion for reconsideration. It provides:

x x x           x x x          x x x

The centerpoint of oppositor-applicant's argument is that spouses

Vizconde were then financially incapable of having purchased or
acquired for a valuable consideration the property at Valenzuela
from the deceased Rafael Nicolas.  Admittedly, the spouses Vizconde
were then living with the deceased Rafael Nicolas in the latter's
ancestral home.  In fact, as the argument further goes, said spouses
were dependent for support on the deceased Rafael Nicolas.  And,
Lauro Vizconde left for the United States in, de-facto separation,
 from the family for sometime and returned to the Philippines only
after the occurrence of violent deaths of Estrellita and her two
daughters.

To dispute the contention that the spouses Vizconde were financially

incapable to buy the property from the late Rafael Nicolas, Lauro
Vizconde claims that they have been engaged in business venture
such as taxi business, canteen concessions and garment
manufacturing.However, no competent evidence has been submitted
to indubitably support the business undertakings adverted to.

In fine, there is no sufficient evidence to show that the acquisition

of the property from Rafael Nicolas was for a valuable consideration.

Accordingly, the transfer of the property at Valenzuela in favor of

Estrellita by her father was gratuitous and the subject property in
Parañaque which was purchased out of the proceeds of the said
transfer of the property by the deceased Rafael Nicolas in favor of
Estrellita, is subject to collation.

WHEREFORE, the motion for reconsideration is hereby

DENIED. 21 (Emphasis added)

Petitioner filed a petition for certiorari and prohibition with respondent

Court of Appeals. In its decision of December 14, 1994, respondent Court
of Appeals 22 denied the petition stressing that the RTC correctly
adjudicated the question on the title of the Valenzuela property as "the
jurisdiction of the probate court extends to matters incidental and
collateral to the exercise of its recognized powers in handling the
settlement of the estate of the deceased (Cf.: Sec. 1, Rule 90, Revised
Rules of Court)." 23 Dissatisfied, petitioner filed the instant petition for
review on certiorari. Finding  prima faciemerit, the Court on December 4,
1995, gave due course to the petition and required the parties to submit
their respective memoranda.

The core issue hinges on the validity of the probate court's Order, which
respondent Court of Appeals sustained, nullifying the transfer of the Valenzuela
property from Rafael to Estrellita and declaring the Parañaque property as
subject to collation.

The appeal is well taken.

Basic principles of collation need to be emphasized at the outset. Article 1061

of the Civil Code speaks of collation. It states:

Art. 1061. Every compulsory heir, who succeeds with other

compulsory heirs, must bring into the mass of the estate any
property or right which he may have received from the decedent,
during the lifetime of the latter, by way of donation, or any other
gratuitous title, in order that it may be computed in the
determination of the legitime of each heir, and in the account of the
partition.

Collation is the act by virtue of which descendants or other forced heirs who
intervene in the division of the inheritance of an ascendant bring into the
common mass, the property which they received from him, so that the division
may be made according to law and the will of the testator. 24 Collation is only
required of compulsory heirs succeeding with other compulsory heirs and
involves property or rights received by donation or gratuitous title during the
lifetime of the decedent. 25 The purpose is to attain equality among the
compulsory heirs in so far as possible for it is presumed that the intention of
the testator or predecessor in interest making a donation or gratuitous transfer
to a forced heir is to give him something in advance on account of his share in
the estate, and that the predecessor's will is to treat all his heirs equally, in the
absence of any expression to the contrary. 26 Collation does not impose any lien
on the property or the subject matter of collationable donation. What is
brought to collation is not the property donated itself, but rather the value of
such property at the time it was donated, 27 the rationale being that the
donation is a real alienation which conveys ownership upon its acceptance,
hence any increase in value or any deterioration or loss thereof is for the
account of the heir or donee. 28

The attendant facts herein do not make a case of collation. We find that the
probate court, as well as respondent Court of Appeals, committed reversible
errors.

First: The probate court erred in ordering the inclusion of petitioner in the
intestate estate proceeding. Petitioner, a son-in-law of Rafael, is not one of
Rafael's compulsory heirs. Article 887 of the Civil Code is clear on this point:

Art. 887. The following are compulsory heirs:

(1) Legitimate children and descendants, with respect to their

legitimate parents and ascendants;

(2) In default of the following, legitimate parents and ascendants,

with respect to their legitimate children and ascendants;

(3) The widow or widower;

(4) Acknowledged natural children, and natural children by legal

fiction;

(5) Other illegitimate children referred to in article 287.

Compulsory heirs mentioned in Nos. 3, 4 and 5 are not excluded by

those in Nos. 1 and 2; neither do they exclude one another.

In all cases of illegitimate children, their filiation must be duly

proved.

The father or mother of illegitimate children of the three classes

mentioned, shall inherit from them in the manner and to the extent
established by this Code.

With respect to Rafael's estate, therefore, petitioner who was not even
shown to be a creditor of Rafael is considered a third person or a
stranger. 29 As such, petitioner may not be dragged into the intestate
estate proceeding. Neither may he be permitted or allowed to intervene
as he has no personality or interest in the said proceeding, 30 which
petitioner correctly argued in his manifestation. 31

Second: As a rule, the probate court may pass upon and determine the title or
ownership of a property which may or may not be included in the estate
proceedings. 32 Such determination is provisional in character and is subject to
final decision in a separate action to resolve title. 33 In the case at bench,
however, we note that the probate court went beyond the scope of its
jurisdiction when it proceeded to determine the validity of the sale of the
Valenzuela property between Rafael and Estrellita and ruled that the transfer of
the subject property between the concerned parties was gratuitous. The
interpretation of the deed and the true intent of the contracting parties, as well
as the presence or absence of consideration, are matters outside the probate
court's jurisdiction. These issues should be ventilated in an appropriate action.
We reiterate:

. . . we are of the opinion and so hold, that a court which takes

cognizance of testate or intestate proceedings has power and
jurisdiction to determine whether or not the properties included
therein or excluded therefrom belong  prima facie to the deceased,
although such a determination is not final or ultimate in nature, and
without prejudice to the right of the interested parties, in a proper
action, to raise the question bearing on the ownership or existence
of the right or credit.34

Third: The order of the probate court subjecting the Parañaque property to
collation is premature. Records indicate that the intestate estate proceedings is
still in its initiatory stage. We find nothing herein to indicate that the legitime
of any of Rafael's heirs has been impaired to warrant collation. We thus advert
to our ruling in Udarbe v. Jurado, 59 Phil. 11, 13-14, to wit:

We are of the opinion that this contention is untenable. In

accordance with the provisions of article 1035 35 of the Civil Code, it
was the duty of the plaintiffs to allege and prove that the donations
received by the defendants were inofficious in whole or in part and
prejudiced the legitime or hereditary portion to which they are
entitled. In the absence of evidence to that effect, the collation
sought is untenable for lack of ground or basis therefor.

Fourth: Even on the assumption that collation is appropriate in this case the
probate court, nonetheless, made a reversible error in ordering collation of the
Parañaque property. We note that what was transferred to Estrellita, by way of
deed of sale, is the Valenzuela property. The Parañaque property which
Estrellita acquired by using the proceeds of the sale of the Valenzuela property
does not become collationable simply by reason thereof. Indeed, collation of
the Parañaque property has no statutory basis. 36 The order of the probate
court presupposes that the Parañaque property was gratuitously conveyed by
Rafael to Estrellita. Records indicate, however, that the Parañaque property
was conveyed for and in consideration of P900,000.00, 37 by Premier Homes,
Inc., to Estrellita. Rafael, the decedent, has no participation therein, and
petitioner who inherited and is now the present owner of the Parañaque
property is not one of Rafael's heirs. Thus, the probate court's order of collation
against petitioner is unwarranted for the obligation to collate is lodged with
Estrellita, the heir, and not to herein petitioner who does not have any interest
in Rafael's estate. As it stands, collation of the Parañaque property is improper
for, to repeat, collation covers only properties gratuitously given by the
decedent during his lifetime to his compulsory heirs which fact does not obtain
anent the transfer of the Parañaque property. Moreover, Rafael, in a public
instrument, voluntarily and willfully waived any "claims, rights, ownership and
participation as heir" 38 in the Parañaque property.

Fifth: Finally, it is futile for the probate court to ascertain whether or not the
Valenzuela property may be brought to collation. Estrellita, it should be
stressed, died ahead of Rafael. In fact, it was Rafael who inherited from
Estrellita an amount more than the value of the Valenzuela property. 39 Hence,
even assuming that the Valenzuela property may be collated collation may not
be allowed as the value of the Valenzuela property has long been returned to
the estate of Rafael. Therefore, any determination by the probate court on the
matter serves no valid and binding purpose.

WHEREFORE, the decision of the Court of Appeals appealed from is hereby

REVERSED AND SET ASIDE.
 [G.R. No. 106401. September 29, 2000]

SPOUSES FLORENTINO ZARAGOZA and ERLINDA ENRIQUEZ-

ZARAGOZA, petitioners, vs. THE HONORABLE COURT OF APPEALS,
ALBERTA ZARAGOZA MORGAN, respondents.

DECISION
QUISUMBING, J.:

Before the Court is a petition for review on certiorari, which seeks (1) the reversal of
the decision[1] of the Court of Appeals promulgated on March 27, 1992 in CA - G.R. CV
No. 12587, which affirmed the decision[2]of the Regional Trial Court in Civil Case No.
14178, except the dismissal of private respondent's claim over lot 943; (2) the dismissal
of the complaint filed by private respondent in the Regional Trial Court of Iloilo; and (3)
the declaration of the deed of sale executed by Flavio Zaragoza covering Lot 943 as
valid.
The facts of the case as found by the Court of Appeals and on record are as follows:
Flavio Zaragoza Cano was the registered owner of certain parcels of land situated at
the Municipalities of Cabatuan, New Lucena and Sta. Barbara, Province of Iloilo. He had
four children: Gloria, Zacariaz, Florentino and Alberta, all surnamed Zaragoza. On
December 9, 1964, he died without a will and was survived by his four children.
On December 28, 1981, private respondent Alberta Zaragoza-Morgan filed a
complaint with the Court of First Instance of Iloilo against Spouses Florentino and
Erlinda, herein petitioners, for delivery of her inheritance share, consisting of Lots 943
and 871, and for payment of damages. She claims that she is a natural born Filipino
citizen and the youngest child of the late Flavio. She further alleged that her father, in
his lifetime, partitioned the aforecited properties among his four children. The shares of
her brothers and sister were given to them in advance by way of deed of sale, but
without valid consideration, while her share, which consists of lots no. 871 and 943, was
not conveyed by way of deed of sale then. She averred that because of her marriage,
she became an American citizen and was prohibited to acquire lands in the Philippines
except by hereditary succession. For this reason, no formal deed of conveyance was
executed in her favor covering these lots during her father's lifetime.
Petitioners, in their Answer, admitted their affinity with private respondent and the
allegations on the properties of their father. They, however, denied knowledge of an
alleged distribution by way of deeds of sale to them by their father. They said that lot
871 is still registered in their father's name, while lot 943 was sold by him to them for a
valuable consideration. They denied knowledge of the alleged intention of their father to
convey the cited lots to Alberta, much more, the reason for his failure to do so because
she became an American citizen. They denied that there was partitioning of the estate of
their father during his lifetime.
On November 23, 1983, petitioners filed a Motion to Dismiss, on the ground that the
complaint did not state a cause of action and it failed to implead indispensable
parties. The resolution of said Motion was deferred by the lower court until the case was
tried on the merits.
On October 7, 1986, the Regional Trial Court of Iloilo promulgated its decision, the
decretal portion of which reads:

WHEREFORE, in view of the above findings, judgment is hereby rendered, adjudicating

Lot 871 in the name of Flavio Zaragoza Cano to plaintiff Alberta Zaragoza-Morgan as
appertaining her share in his estate and ordering defendants to vacate its premises and
deliver immediately the portion occupied by them to herein plaintiff. Plaintiff's claim
against defendants over Lot 943 is dismissed as well as claims for damages interposed
against each other.[3]

In the above decision, the RTC found that Flavio partitioned his properties during his
lifetime among his three children by deeds of sales; that the conveyance of Lot 943 to
petitioners was part of his plan to distribute his properties among his children during his
lifetime; and that he intended Lot 871 to be the share of private respondent.[4]
Not satisfied with the above decision, both parties interposed an appeal in the Court
of Appeals docketed as CA -GR CV No. 12587.
On March 27, 1992, respondent court rendered the assailed decision, the decretal
portion of which reads:

WHEREFORE, WE reverse the decision appealed from, insofar as defendant-appellants,

spouses Florentino Zaragoza and Erlinda E. Zaragoza, were adjudged owner of Lot
943. In all other respects, the decision appealed from is hereby AFFIRMED.[5]

The appellate court gave weight to the testimonial and documentary evidence
presented by private respondent to support its finding that Lots 871 and 943 were
inheritance share of private respondent. Specifically, it noted the admission by petitioner
in his letter in 1981 to private respondent's counsel, that their father had given them
their inheritance.[6] Further, public respondent found that the alleged sale of lot 943 in
favor of petitioner Florentino was fictitious and void. The signature of Don Flavio in the
said document was markedly different from his other signatures appearing in other
documents he signed from January to February 1957.[7] The Motion for Reconsideration
was denied in a Resolution[8] dated June 26, 1992.
Hence, this petition for review on certiorari,[9] with a supplemental petition, raising
the following assigned errors:

A. THE COURT OF APPEALS ERRED IN HOLDING THAT LOTS 871 AND 943 ARE THE
INHERITANCE SHARE OF THE PRIVATE RESPONDENT NOTWITHSTANDING THE
FACT THAT THE DECEDENT FLAVIO ZARAGOZA HAS NOT EXECUTED ANY WILL
NOR ANY DOCUMENT GIVING THESE TWO PROPERTIES IN FAVOR OF PRIVATE
RESPONDENT;

B. THE COURT OF APPEALS ERRED IN ADMITTING AND GIVING WEIGHT TO THE

TESTIMONIES OF PRIVATE RESPONDENT'S WITNESSES TO THE EFFECT THAT
LOTS 871 AND 943 ARE THE INHERITANCE SHARE OF PRIVATE RESPONDENT AS
TOLD TO THEM BY FLAVIO ZARAGOZA DESPITE THE FACT THAT THESE
TESTIMONIES ARE HEARSAY;

C. THE COURT OF APPEALS ERRED IN CONCLUDING THAT THE DEED OF SALE

EXECUTED BY FLAVIO ZARAGOZA IN FAVOR OF PETITIONER OVER LOT 943 IS A
FORGERY, NOTWITHSTANDING THE FACT THAT:

1. THE THEORY THAT THE AFORESAID DEED OF SALE WAS A FORGERY WAS
NEVER RAISED IN THE COMPLAINT NOR ESTABLISHED BY EVIDENCE.
2. THE SAID DEED OF SALE WAS IN A PUBLIC INSTRUMENT.
3. NO WITNESSES WAS EVER PRESENTED TO ASSAIL THE GENUINENESS OF
THE SIGNATURE OF FLAVIO ZARAGOZA.
4. THE SAID DEED OF SALE WAS EVEN WITNESSED BY HIS OTHER DAUGHTER
GLORIA ZARAGOZA NUEZ AND NOTARIZED BY NOTARY PUBLIC ATTY.
EDURESE.

D. RESPONDENT COURT OF APPEALS ERRED IN MODIFYING THE DECISION OF THE

LOWER COURT WITH RESPECT TO LOT 943 WHEN THE LATTER SUSTAINED THE
GENUINENESS OF THE SIGNATURE OF PETITIONER'S FATHER FOUND IN EXH. I.
 E. THE COURT OF APPEALS ERRED IN APPLYING THE DOCTRINE OF ESTOPPEL,
IGNORING THE FACT THAT IT IS THE LAW ON INTESTATE SUCCESSION, AND THE
CORRESPONDING RULES OF COURT ON THE SETTLEMENT OF THE ESTATE THAT
IS APPLICABLE ON THIS CASE.[10]

In their Supplemental Petition for Review dated October 29, 1992, petitioners
additionally raised:
I. THE HONORABLE COURT OF APPEALS ERRED IN NOT DISMISSING THE
COMPLAINT FILED BEFORE THE TRIAL COURT FOR FAILURE TO STATE A
CAUSE OF ACTION,
II. ALTERNATIVELY, THE COURT ERRED IN NOT CONSIDERING THAT LOTS
TRANSFERRED INTER VIVOS TO THE OTHER HEIRS SHOULD HAVE BEEN
COLLATED TO THE MASS OF THE ESTATE OF THE DECEASED FLAVIO
ZARAGOZA (y) CANO.
III. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING AS LAWFUL AND
VALID ALL THE DISPOSITIONS MADE BY THE DECEASED FLAVIO ZARAGOZA
(y) CANO EXCEPT LOT # 943 DESPITE UTTER LACK OF EVIDENCE TO SUPPORT
ITS FINDING THAT THE SIGNATURE OF THE LATE FLAVIO ZARAGOZA (y)
CANO IN EXH. "M-11-A" APPEARING IN THE DEED OF SALE DATED FEBRUARY
5, 1957 (EXH. "1", FLORENTINO) WAS A FORGERY.
IV. THE COURT ERRED IN NOT CONSIDERING THAT TRANSFER CERTIFICATE OF
TITLE NO. T-35946 (EXHIBIT 2) COVERING LOT 943 IN FAVOR OF THE
PETITIONER CONCLUSIVELY EVIDENCES THE LATTER'S OWNERSHIP THEREOF.
[11]

Essentially, we are asked to resolve two issues: (1) whether the partition inter

vivos by Flavio Zaragoza Cano of his properties, which include Lots 871 and 943, is
valid; and (2) whether the validity of the Deed of Sale and consequently, the Transfer
Certificate of Title over Lot 943 registered in the name of the petitioners, can be a valid
subject matter of the entire proceeding for the delivery of inheritance share.
On the first issue. It is the main contention of the petitioner that the adjudication of
Lots 943 and 871 in favor of private respondent, as her inheritance share, has no legal
basis since there is no will nor any document that will support the transfer.
Both the trial court and the public respondent found that during the lifetime of Flavio,
he already partitioned and distributed his properties among his three children, excepting
private respondent, through deeds of sale. A deed of sale was not executed in favor of
private respondent because she had become an American citizen and the Constitution
prohibited a sale in her favor. Petitioner admitted Lots 871 and 943 were inheritance
shares of the private respondent. These are factual determinations of the Court of
Appeals, based on documentary and testimonial evidence. As a rule, we are bound by
findings of facts of the Court of Appeals.[12] Was the partition done during the lifetime of
Flavio Zaragoza Cano valid? We think so. It is basic in the law of succession that a
partition inter vivos may be done for as long as legitimes are not prejudiced. Art. 1080
of the Civil Code is clear on this.[13] The legitime of compulsory heirs is determined after
collation, as provided for in Article 1061:

Every compulsory heir, who succeeds with other compulsory heirs, must bring into the
mass of the estate any property or right which he may have received from the decedent,
during the lifetime of the latter, by way of donation, or any other gratuitous title in order
that it may be computed in the determination of the legitime of each heir, and in the
account of the partition.

Unfortunately, collation can not be done in this case where the original petition for
delivery of inheritance share only impleaded one of the other compulsory heirs. The
petition must therefore be dismissed without prejudice to the institution of a new
proceeding where all the indispensable parties are present for the rightful determination
of their respective legitime and if the legitimes were prejudiced by the partitioning inter
vivos.
 We now come to the second issue. Private respondent, in submitting her petition for
the delivery of inheritance share, was in effect questioning the validity of the deed of
sale covering Lot 943 in favor of petitioner and consequently, the Transfer Certificate of
Title issued in the latter's name. Although the trial court, as an obiter, made a finding of
validity of the conveyance of Lot 943 in favor of petitioners, since according to it, private
respondent did not question the genuineness of the signature of the deceased,
nevertheless, when the case was elevated to the Court of Appeals, the latter declared
the sale to be fictitious because of finding of marked differences in the signature of
Flavio in the Deed of Sale vis--vis signatures found in earlier documents. Could this be
done? The petition is a collateral attack. It is not allowed by Sec. 48 of the Presidential
Decree No. 1529, otherwise known as the Property Registration Decree, which provides:

Sec. 48. Certificate not subject to collateral attack. - A certificate of title shall not be
subject to collateral attack. It can not be altered, modified, or cancelled except in a
direct proceeding in accordance with law.

We have reiterated this rule in the case of Halili vs. Court of Industrial Relations,
[14]
 citing the earlier cases of Constantino vs. Espiritu[15] and Co vs. Court of Appeals.
[16]
 In Halili, we held that a certificate of title accumulates in one document a precise and
correct statement of the exact status of the fee held by its owner. The certificate, in the
absence of fraud, is the evidence of title and shows exactly the real interest of its
owner. The title once registered, with very few exceptions, should not thereafter be
impugned, altered, changed, modified, enlarged or diminished, except in some direct
proceeding permitted by law.Otherwise, all security in registered titles would be
lost. In Constantino, the Court decided that the certificate, in the absence of fraud, is
the evidence of title and shows exactly the real interest of its owner. The title once
registered, with very few exceptions, should not thereafter be impugned, altered,
changed, modified, enlarged or diminished, except in some direct proceeding permitted
by law. Otherwise all security in registered titles would be lost. And in Co, we stated that
a Torrens title cannot be collaterally attacked. The issue on the validity of title, i.e.,
whether or not it was fraudulently issued, can only be raised in an action expressly
instituted for that purpose.
ACCORDINGLY, judgment is hereby rendered GRANTING the instant petition for
review. The decision of the Court of Appeals dated March 27, 1992 in CA-G.R. CV No.
12587, entitled Alberta Zaragoza-Morgan vs. Spouses Florentino Zaragoza and Erlinda
Enriquez-Zaragoza is VACATED and SET ASIDE. The complaint for delivery of inheritance
share in the Regional Trial Court, for failure to implead indispensable parties, is also
DISMISSED without prejudice to the institution of the proper proceedings. No
pronouncement as to costs.
G.R. No. 138842               October 18, 2000

NATIVIDAD P. NAZARENO, MAXIMINO P. NAZARENO, JR., petitioners, 

vs.
COURT OF APPEALS, ESTATE OF MAXIMINO A. NAZARENO, SR., ROMEO P.
NAZARENO and ELIZA NAZARENO, respondents.

DECISION

MENDOZA, J.:

This is a petition for review on certiorari of the decision1 of the Court of Appeals in CA-GR
CV No. 39441 dated May 29, 1998 affirming with modifications the decision of the
Regional Trial Court, Branch 107, Quezon City, in an action for annulment of sale and
damages.

The facts are as follows:

Maximino Nazareno, Sr. and Aurea Poblete were husband and wife. Aurea died on April
15, 1970, while Maximino, Sr. died on December 18, 1980. They had five children,
namely, Natividad, Romeo, Jose, Pacifico, and Maximino, Jr. Natividad and Maximino, Jr.
are the petitioners in this case, while the estate of Maximino, Sr., Romeo, and his wife
Eliza Nazareno are the respondents.

During their marriage, Maximino Nazareno, Sr. and Aurea Poblete acquired properties in
Quezon City and in the Province of Cavite. It is the ownership of some of these
properties that is in question in this case.

It appears that after the death of Maximino, Sr., Romeo filed an intestate case in the
Court of First Instance of Cavite, Branch XV, where the case was docketed as Sp. Proc.
No. NC-28. Upon the reorganization of the courts in 1983, the case was transferred to
the Regional Trial Court of Naic, Cavite. Romeo was appointed administrator of his
father’s estate.

In the course of the intestate proceedings, Romeo discovered that his parents had
executed several deeds of sale conveying a number of real properties in favor of his
sister, Natividad. One of the deeds involved six lots in Quezon City which were allegedly
sold by Maximino, Sr., with the consent of Aurea, to Natividad on January 29, 1970 for
the total amount of ₱47,800.00. The Deed of Absolute Sale reads as follows:

DEED OF ABSOLUTE SALE

KNOW ALL MEN BY THESE PRESENTS:

I, MAXIMINO A. NAZARENO, Filipino, married to Aurea Poblete-Nazareno, of legal age

and a resident of the Mun. of Naic, Prov. of Cavite, Philippines,

-WITNESSETH-

That I am the absolute registered owner of six (6) parcels of land with the
improvements thereon situated in Quezon City, Philippines, which parcels of land are
herewith described and bounded as follows, to wit:

"TRANS. CERT. OF TITLE NO. 140946"

"A parcel of land (Lot 3-B of the subdivision plan Psd-47404, being a portion of Lot 3,
Block D-3 described on plan Bsd-10642, G.L.R.O. Record No.) situated in the Quirino
District, Quezon City. Bounded on the N., along line 1-2 by Lot 15, Block D-3 of plan Bsd
- 10642; along line 2-3 by Lot 4, Block D-3 of plan Bsd-10642; along line 3-4 by Aurora
Boulevard (Road Lot-1, Bsd-10642); and along line 4-1 by Lot 3-D of the subdivision
plan. Beginning at a point marked "1" on plan, being S.29 deg. 26’E., 1156.22 m. from
B.L.L.M. 9, Quezon City,

thence N. 79 deg. 53’E., 12.50 m. to point 2;

thence S. 10 deg. 07’E., 40.00 m. to point 3;

thence S. 79 deg. 53’W., 12.50 m. to point 4;

thence N. 10 deg. 07’W., 40.00 m. to the point

of beginning; containing an area of FIVE HUNDRED (500) SQUARE METERS. All points
referred to are indicated on the plan and are marked on the ground as follows: points
"1" and "4" by P.L.S. Cyl. Conc. Mons. bearings true; date of the original survey, April 8-
July 15, 1920 and that of the subdivision survey, March 25, 1956."

"TRANS. CERT. OF TITLE NO. 132019"

"A parcel of land (Lot 3, Block 93 of the subdivision plan Psd-57970 being a portion of
Lot 6, Pcs-4786, G.L.R.O. Rec. No. 917) situated in Quirino District Quezon City.
Bounded on the NW., along line 1-2, by Lot 1, Block 93; on the NE., along line 2-3, by
Road Lot 101; on the SE., along line 3-4, by Road Lot 100; on the SW., along line 4-1,
by Lot 4, Block 93; all of the subdivision plan. Beginning at point marked "1" on plan,
being S. 65 deg. 40’ 3339.92 m. from B.L.L.M. No. 1, Marikina, Rizal;

thence N. 23 deg. 28 min. E., 11.70 m. to point "2";

thence S. 66 deg. 32 min. E., 18.00 m. to point "3";

thence S. 23 deg. 28 min. W., 11.70 m. to point "4";

thence N. 66 deg. 32. min. W., 18.00 m. to the point

of beginning; containing an area of TWO HUNDRED TEN SQUARE METERS AND SIXTY
SQUARE DECIMETERS (210.60). All points referred to are indicated on the plan and are
marked on the ground by B.L. Cyl. Conc. Mons. 15 x 60 cm.; bearings true; date of the
original survey, Nov. 10, 1920 and Jan. 31-March 31, 1924 and that of the subdivision
survey, February 1 to September 30, 1954. Date approved - March 9, 1962."

"TRANS. CERT. OF TITLE NO. 118885"

"A parcel of land (Lot No. 10, of the consolidation and subdivision plan Pcs-988, being a
portion of the consolidated Lot No. 26, Block No. 6, Psd-127, and Lots Nos. 27-A and 27-
B, Psd-14901, G.L.R.O. Record No. 917), situated in the District of Cubao, Quezon City,
Island of Luzon. Bounded on the NE., by Lot No. 4 of the consolidation and subdivision
plan; on the SE., by Lot No. 11 of the consolidation and subdivision plan; on the SW., by
Lot No. 3 of the consolidation and subdivision plan; and on the NW., by Lot No. 9 of the
consolidation and subdivision plan. Beginning at a point marked "1" on the plan, being
S. 7 deg. 26’W., 4269.90 m. more or less from B.L.L.M. No. 1, Mp. of Mariquina;

thence S. 25 deg. 00’E., 12.00 m. to point "2";

thence S. 64 deg. 59’W., 29.99 m. to point "3";

thence N. 25 deg. 00’W., 12.00 m to point "4";

thence N. 64 deg. 59’E., 29.99 m. to the point of

beginning; containing an area of THREE HUNDRED SIXTY SQUARE METERS (360), more
or less. All points referred to are indicated on the plan and on the ground are marked by
P.L.S. Conc. Mons. 15 x 60 cm.; bearings true; declination 0 deg. 50’E., date of the
original survey, April 8 to July 15, 1920, and that of the consolidation and subdivision
survey, April 24 to 26, 1941."

"TRANS. CERT. OF TITLE NO. 118886"

"A parcel of land (Lot No. 11, of the consolidation and subdivision plan Pcs-988, being a
portion of the consolidated Lot No. 26, Block No. 6, Psd-127, and Lots Nos. 27-A and 27-
B, Psd-14901, G.L.R.O. Record No. 917), situated in the District of Cubao, Quezon City,
Island of Luzon. Bounded on the NE., by Lot No. 4 of the consolidation and subdivision
plan; on the SE., by Lot No. 12 of the consolidation and subdivision plan; on the SW., by
Lot No. 3 of the consolidation and subdivision plan; on the NW., by Lot No. 10 of the
consolidation and subdivision plan. Beginning at a point marked "1" on plan, being S. 79
deg. 07’W., 4264.00 m. more or less from B.L.L.M. No. 1, Mp. of Mariquina;

thence S. 64 deg. 59’W., 29.99 m. to point "2";

thence N. 25 deg. 00’W., 12.00 m. to point "3";

thence N. 64 deg. 59’E., 29.99 m. to point "4";

thence S. 26 deg. 00’E., 12.00 m. to the point of

beginning; containing an area of THREE HUNDRED SIXTY SQUARE METERS (360), more
or less. All points referred to are indicated on the plan and on the ground, are marked
by P.L.S. Conc. Mons. 15 x 60 cm.; bearings true; declination 0 deg. 50’E.; date of the
original survey, April 8 to July 15, 1920, and that of the consolidation and subdivision
survey, April 24 to 26, 1941."

"A parcel of land (Lot No. 13 of the consolidation and subdivision plan Pcs-988, being a
portion of the consolidated Lot No. 26, Block No. 6, Psd-127, and Lots Nos. 27-A and 27-
B, Psd-14901, G.L.R.O. Record No. 917), situated in the District of Cubao, Quezon City,
Island of Luzon. Bounded on the NE., by Lot No. 4 of the consolidation and subdivision
plan; on the SE., by Lot No. 14, of the consolidation; and subdivision plan; on the SW.,
by Lot No. 3 of the consolidation and subdivision plan; and on the NW., by Lot No. 12, of
the consolidation and subdivision plan. Beginning at the point marked "1" on plan, being
S.78 deg. 48’W., 4258.20 m. more or less from B.L.L.M. No. 1, Mp. of Mariquina;

thence S. 64 deg. 58’W., 30.00 m. to point "2";

thence N. 25 deg. 00’W., 12.00 m. to point "3";

thence N. 64 deg. 59’E., 29.99 m. to point "4";

thence S.25 deg. 00’E., 12.00 m. to point of

beginning; containing an area of THREE HUNDRED SIXTY SQUARE METERS (360, more
or less. All points referred to are indicated on the plan and on the ground are marked by
P.L.S. Conc. Mons. 15 x 60 cm.; bearings true; declination 0 deg. 50’E., date of the
original survey, April 8 to July 15, 1920, and that of the consolidation and subdivision
survey, April 24 to 26, 1941."

"A parcel of land (Lot No. 14, of the consolidation and subdivision plan Pcs-988, being a
portion of the consolidated Lot No. 26, Block No. 6, Psd-127, and Lots Nos. 27-A and 27-
B, Psd-14901, G.L.R.O. Record No. 917), situated in the District of Cubao, Quezon City,
Island of Luzon. Bounded on the NE., by Lot No. 4 of the consolidation and subdivision
plan; on the SE., by Lot No. 15, of the consolidation and subdivision plan; on the SW.,
by Lot No. 3 of the consolidation and subdivision plan; and on the NW., by Lot No. 13 of
the consolidation and subdivision plan. Beginning at the point marked "1" on plan, being
S.78 deg. 48’W., 4258.20 m. more or less from B.L.L.M. No. 1, Mp. of Mariquina;

thence S. 25 deg. 00’E., 12.00 m. to point "2";

thence S. 65 deg. 00’W., 30.00 m. to point "3";

thence S. 65 deg. 00’W., 12.00 m. to point "4";

thence N.64 deg. 58’E., 30.00 m. to the point of

beginning; containing an area of THREE HUNDRED SIXTY SQUARE METERS (360), more
or less. All points referred to are indicated on the plan and on the ground are marked by
P.L.S. Conc. Mons. 15 x 60 cm.; bearings true; declination 0 deg. 50’E., date of the
original survey, April 8 to July 15, 1920, and that of the consolidation and subdivision
survey, April 24 to 26, 1941."

That for and in consideration of the sum of FORTY THREE THOUSAND PESOS
(P43,000.00) PHILIPPINE CURRENCY, to me in hand paid by NATIVIDAD P. NAZARENO,
Filipino, single, of legal age and a resident of the Mun. of Naic, Prov. of Cavite,
Philippines, the receipt whereof is acknowledged to my entire satisfaction, I do hereby
CEDE, SELL, TRANSFER, CONVEY and ASSIGN unto the said Natividad P. Nazareno, her
heirs, administrators and assigns, all my title, rights, interests and participations to the
abovedescribed parcels of land with the improvements thereon, with the exception
of LOT NO. 11 COVERED BY T.C.T. NO. 118886, free of any and all liens and
encumbrances; and

That for and in consideration of the sum of FOUR THOUSAND EIGHT HUNDRED PESOS
(P4,800.00) PHILIPPINE CURRENCY, to me in hand paid by NATIVIDAD P. NAZARENO,
Filipino, single, of legal age and a resident of the Mun. of Naic, Prov. of Cavite,
Philippines, the receipt whereof is acknowledged to my entire satisfaction, I do hereby
CEDE, SELL, TRANSFER, CONVEY and ASSIGN unto the said Natividad P. Nazareno, her
heirs, administrators and assigns, all my title, rights, interests and participations in and
to Lot No. 11 covered by T.C.T. No. 118886 above-described, free of any and all liens
and encumbrances, with the understanding that the title to be issued in relation hereto
shall be separate and distinct from the title to be issued in connection with Lots Nos. 13
and 14, although covered by the same title.

IN WITNESS WHEREOF, I have hereunto signed this deed of absolute sale in the City of
Manila, Philippines, this 29th day of January, 1970.2

By virtue of this deed, transfer certificates of title were issued to Natividad, to wit: TCT
No. 162738 (Lot 3-B),3 TCT No. 162739 (Lot 3),4 TCT No. 162735 (Lot 10),5 TCT No.
162736 (Lot 11),6 and TCT No. 162737 (Lots 13 and 14),7 all of the Register of Deeds of
Quezon City.

Among the lots covered by the above Deed of Sale is Lot 3-B which is registered under
TCT No. 140946. This lot had been occupied by Romeo, his wife Eliza, and by Maximino,
Jr. since 1969. Unknown to Romeo, Natividad sold Lot 3-B on July 31, 1982 to
Maximino, Jr.,8 for which reason the latter was issued TCT No. 293701 by the Register of
Deeds of Quezon City.9

When Romeo found out about the sale to Maximino, Jr., he and his wife Eliza locked
Maximino, Jr. out of the house. On August 4, 1983, Maximino, Jr. brought an action for
recovery of possession and damages with prayer for writs of preliminary injunction and
mandatory injunction with the Regional Trial Court of Quezon City. On December 12,
1986, the trial court ruled in favor of Maximino, Jr. In CA-G.R. CV No. 12932, the Court
of Appeals affirmed the decision of the trial court.10

On June 15, 1988, Romeo in turn filed, on behalf of the estate of Maximino, Sr., the
present case for annulment of sale with damages against Natividad and Maximino, Jr.
The case was filed in the Regional Trial Court of Quezon City, where it was docketed as
Civil Case No. 88-58.11 Romeo sought the declaration of nullity of the sale made on
January 29, 1970 to Natividad and that made on July 31, 1982 to Maximino, Jr. on the
ground that both sales were void for lack of consideration.
On March 1, 1990, Natividad and Maximino, Jr. filed a third-party complaint against the
spouses Romeo and Eliza.12They alleged that Lot 3, which was included in the Deed of
Absolute Sale of January 29, 1970 to Natividad, had been surreptitiously appropriated by
Romeo by securing for himself a new title (TCT No. 277968) in his name.13They alleged
that Lot 3 is being leased by the spouses Romeo and Eliza to third persons. They
therefore sought the annulment of the transfer to Romeo and the cancellation of his
title, the eviction of Romeo and his wife Eliza and all persons claiming rights from Lot 3,
and the payment of damages.

The issues having been joined, the case was set for trial. Romeo presented evidence to
show that Maximino and Aurea Nazareno never intended to sell the six lots to Natividad
and that Natividad was only to hold the said lots in trust for her siblings. He presented
the Deed of Partition and Distribution dated June 28, 1962 executed by Maximino Sr.
and Aurea and duly signed by all of their children, except Jose, who was then abroad
and was represented by their mother, Aurea. By virtue of this deed, the nine lots subject
of this Deed of Partition were assigned by raffle as follows:

1. Romeo - Lot 25-L (642 m2)

2. Natividad - Lots 23 (312 m2) and 24 (379 m2)

3. Maximino, Jr. - Lots 6 (338 m2) and 7 (338 m2)

4. Pacifico - Lots 13 (360 m2) and 14 (360 m2)

5. Jose - Lots 10 (360 m2) and 11 (360 m2)

Romeo received the title to Lot 25-L under his name,14 while Maximino, Jr. received Lots
6 and 7 through a Deed of Sale dated August 16, 1966 for the amount of
₱9,500.00.15 Pacifico and Jose’s shares were allegedly given to Natividad, who agreed to
give Lots 10 and 11 to Jose, in the event the latter came back from abroad. Natividad’s
share, on the other hand, was sold to third persons16 because she allegedly did not like
the location of the two lots. But, Romeo said, the money realized from the sale was
given to Natividad.

Romeo also testified that Lot 3-B was bought for him by his father, while Lot 3 was sold
to him for ₱7,000.00 by his parents on July 4, 1969.17 However, he admitted that a
document was executed by his parents transferring six properties in Quezon City, i.e.,
Lots 3, 3-B, 10, 11, 13, and 14, to Natividad.

Romeo further testified that, although the deeds of sale executed by his parents in their
favor stated that the sale was for a consideration, they never really paid any amount for
the supposed sale. The transfer was made in this manner in order to avoid the payment
of inheritance taxes.18 Romeo denied stealing Lot 3 from his sister but instead claimed
that the title to said lot was given to him by Natividad in 1981 after their father died.

Natividad and Maximino, Jr. claimed that the Deed of Partition and Distribution executed
in 1962 was not really carried out. Instead, in December of 1969, their parents offered
to sell to them the six lots in Quezon City, i.e., Lots 3, 3-B, 10, 11, 13 and 14. However,
it was only Natividad who bought the six properties because she was the only one
financially able to do so. Natividad said she sold Lots 13 and 14 to Ros-Alva Marketing
Corp.19 and Lot 3-B to Maximino, Jr. for ₱175,000.00.20 Natividad admitted that Romeo
and the latter’s wife were occupying Lot 3-B at that time and that she did not tell the
latter about the sale she had made to Maximino, Jr.

Natividad said that she had the title to Lot 3 but it somehow got lost. She could not get
an original copy of the said title because the records of the Registrar of Deeds had been
destroyed by fire. She claimed she was surprised to learn that Romeo was able to obtain
a title to Lot 3 in his name.
Natividad insisted that she paid the amount stated in the Deed of Absolute Sale dated
January 29, 1970. She alleged that their parents had sold these properties to their
children instead of merely giving the same to them in order to impose on them the value
of hardwork.

Natividad accused Romeo of filing this case to harass her after Romeo lost in the action
for recovery of possession (Civil Case No. Q-39018) which had been brought against him
by Maximino, Jr. It appears that before the case filed by Romeo could be decided, the
Court of Appeals rendered a decision in CA-GR CV No. 12932 affirming the trial court’s
decision in favor of Maximino, Jr.

On August 10, 1992, the trial court rendered a decision, the dispositive portion of which
states:

WHEREFORE, judgment is hereby rendered declaring the nullity of the Deed of Sale
dated January 29, 1970. Except as to Lots 3, 3-B, 13 and 14 which had passed on to
third persons, the defendant Natividad shall hold the rest in trust for Jose Nazareno to
whom the same had been adjudicated. The Register of Deeds of Quezon City is directed
to annotate this judgment on Transfer Certificate of Titles Nos. 162735 and 162736 as a
lien in the titles of Natividad P. Nazareno.

The defendants’ counterclaim is dismissed. Likewise, the third-party complaint is

dismissed.

The defendants are hereby directed to pay to the plaintiff jointly and severally the sum
of ₱30,000 as and for attorney’s fees. Likewise, the third-party plaintiff is directed to pay
the third-party defendant’s attorney’s fees of ₱20,000.

All other claims by one party against the other are dismissed.

SO ORDERED.21

Natividad and Maximino, Jr. filed a motion for reconsideration. As a result, on October
14, 1992 the trial court modified its decision as follows:

WHEREFORE, the plaintiff’s Partial Motion for Reconsideration is hereby granted. The
judgment dated August 10, 1992 is hereby amended, such that the first paragraph of its
dispositive portion is correspondingly modified to read as follows:

"WHEREFORE, judgment is hereby rendered declaring the nullity of the Deeds of Sale
dated January 29, 1970 and July 31, 1982.

"Except as to Lots 3, 13 and 14 which had passed on to third person, the defendant
Natividad shall hold the rest OF THE PROPERTIES COVERED BY THE DEED OF SALE
DATED JANUARY 29, 1970 (LOTS 10 and 11) in trust for Jose Nazareno to whom the
same had been adjudicated.

"The Register of Deeds of Quezon City is directed to annotate this judgment on Transfer
Certificates of Title No. 162735 and 162736 as a lien on the titles of Natividad P.
Nazareno.

"LIKEWISE, THE SAID REGISTER OF DEEDS IS DIRECTED TO CANCEL TCT NO. 293701
(formerly 162705) OVER LOT 3-B AND RESTORE TCT NO. 140946 IN THE NAME OF
MAXIMINO NAZARENO SR. AND AUREA POBLETE."22

On appeal to the Court of Appeals, the decision of the trial court was modified in the
sense that titles to Lot 3 (in the name of Romeo Nazareno) and Lot 3-B (in the name of
Maximino Nazareno, Jr.), as well as to Lots 10 and 11 were cancelled and ordered
restored to the estate of Maximino Nazareno, Sr. The dispositive portion of the decision
dated May 29, 1998 reads:
WHEREFORE, the appeal is GRANTED. The decision and the order in question are
modified as follows:

1. The Deed of Absolute Sale dated 29 January 1970 and the Deed of Absolute
Sale dated 31 July 1982 are hereby declared null and void;

2. Except as to Lots 13 and 14 ownership of which has passed on to third persons,

it is hereby declared that Lots 3, 3-B, 10 and 11 shall form part of the estate of
the deceased Maximino Nazareno, Sr.;

3. The Register of Deeds of Quezon City is hereby ordered to restore TCT No.
140946 (covering Lot 3-B), TCT No. 132019 (covering Lot 3), TCT No. 118885
(covering Lot 10), and TCT No. 118886 (covering Lot 11).23

Petitioners filed a motion for reconsideration but it was denied in a resolution dated May
27, 1999. Hence this petition.

Petitioners raise the following issues:

1. WHETHER OR NOT THE UNCORROBORATED TESTIMONY OF PRIVATE

RESPONDENT ROMEO P. NAZARENO CAN DESTROY THE FULL FAITH AND CREDIT
ACCORDED TO NOTARIZED DOCUMENTS LIKE THE DEED OF ABSOLUTE SALE
DATED JANUARY 29, 1970 (EXH. 1) EXECUTED BY THE DECEASED SPOUSES
MAXIMINO A. NAZARENO, SR. AND AUREA POBLETE IN FAVOR OF PETITIONER
NATIVIDAD P. NAZARENO.

2. WHETHER OR NOT THE RESPONDENT COURT GROSSLY MISAPPRECIATED THE

FACTS OF THE CASE WITH RESPECT TO THE VALIDITY OF THE SAID DEED OF
ABSOLUTE SALE DATED JANUARY 29, 1970 (EXH. 1) IN THE LIGHT OF THE
FOLLOWING:

A) THE DOCUMENTARY EVIDENCE, ALL OF WHICH ARE NOTARIZED,

EXECUTED BY THE DECEASED SPOUSES DURING THEIR LIFETIME
INVOLVING SOME OF THEIR CONJUGAL PROPERTIES.

B) THE EXECUTION OF AN EXTRA-JUDICIAL PARTITION WITH WAIVER OF

RIGHTS AND CONFIRMATION OF SALE DATED MAY 24, 1975 (EXH. 14A) OF
THE ESTATE OF AUREA POBLETE BY THE DECEASED MAXIMINO A.
NAZARENO, SR. AND THEIR CHILDREN INVOLVING THE ONLY REMAINING
ESTATE OF AUREA POBLETE THUS IMPLIEDLY ADMITTING THE VALIDITY OF
PREVIOUS DISPOSITIONS MADE BY SAID DECEASED SPOUSES ON THEIR
CONJUGAL PROPERTIES, HALF OF WHICH WOULD HAVE BECOME A PART OF
AUREA POBLETE’S ESTATE UPON HER DEMISE.

C) THE ADMISSION MADE BY MAXIMINO A. NAZARENO, SR. IN HIS

TESTIMONY IN OPEN COURT ON AUGUST 13, 1980 DURING HIS LIFETIME
IN CIVIL CASE NO. NC-712 (EXH. 81, 81B) THAT HE HAD SOLD CERTAIN
PROPERTIES IN FAVOR OF NATIVIDAD P. NAZARENO THUS BELYING THE
CLAIM OF ROMEO P. NAZARENO THAT THE DEED OF ABSOLUTE SALE
DATED JANUARY 29, 1970 IS ONE AMONG THE DOCUMENTS EXECUTED BY
THE DECEASED SPOUSES TO BE WITHOUT CONSIDERATION.

D) THE ADMISSIONS MADE BY ROMEO P. NAZARENO HIMSELF CONTAINED

IN A FINAL DECISION OF THE RESPONDENT COURT IN CA-GR CV NO. 12932
DATED AUGUST 31, 1992 AND AN ANNEX APPEARING IN HIS ANSWER TO
THE COMPLAINT IN CIVIL CASE NO. Q-39018 (EXH. 11-B) INVOLVING LOT
3B, ONE OF THE PROPERTIES IN QUESTION THAT THE SAID PROPERTY IS
OWNED BY PETITIONER NATIVIDAD P. NAZARENO.

E) THE PARTIAL PROJECT OF PARTITION DATED MAY 24, 1995 WHICH WAS
APPROVED BY THE INTESTATE COURT IN SP. PROC. NO. NC-28 AND
 EXECUTED IN ACCORDANCE WITH THE LATTER COURT’S FINAL ORDER
DATED JULY 9, 1991 DETERMINING WHICH WERE THE REMAINING
PROPERTIES OF THE ESTATE.

3. WHETHER OR NOT THE DEED OF ABSOLUTE SALE DATED JANUARY 29, 1970
EXECUTED BY THE DECEASED SPOUSES MAXIMINO A. NAZARENO, SR. AND
AUREA POBLETE DURING THEIR LIFETIME INVOLVING THEIR CONJUGAL
PROPERTIES IS AN INDIVISIBLE CONTRACT? AND IF SO WHETHER OR NOT UPON
THEIR DEATH, THE ESTATE OF MAXIMINO A. NAZARENO, SR. ALONE CAN SEEK
THE ANNULMENT OF SAID SALE?

4. WHETHER OR NOT THE SALE OF LOT 3 UNDER THE DEED OF ABSOLUTE SALE
DATED JANUARY 29, 1970 IN FAVOR OF PETITIONER NATIVIDAD P. NAZARENO,
IS VALID CONSIDERING THAT AS PER THE ORDER OF THE LOWER COURT DATED
NOVEMBER 21, 1990. ROMEO NAZARENO ADMITTED THAT HE DID NOT PAY THE
CONSIDERATION STATED IN THE DEED OF ABSOLUTE SALE DATED JULY 4, 1969
EXECUTED BY THE DECEASED SPOUSES IN HIS FAVOR (EXH. M-2).

5. WHETHER OR NOT AS A CONSEQUENCE, THE TITLE ISSUED IN THE NAME OF

ROMEO P. NAZARENO, TCT NO. 277968 (EXH. M) SHOULD BE CANCELLED AND
DECLARED NULL AND VOID AND A NEW ONE ISSUED IN FAVOR OF NATIVIDAD P.
NAZARENO PURSUANT TO THE DEED OF ABSOLUTE SALE EXECUTED IN THE
LATTER’S FAVOR ON JANUARY 29, 1970 BY THE DECEASED SPOUSES.24

We find the petition to be without merit.

First. Petitioners argue that the lone testimony of Romeo is insufficient to overcome the
presumption of validity accorded to a notarized document.

To begin with, the findings of fact of the Court of Appeals are conclusive on the parties
and carry even more weight when these coincide with the factual findings of the trial
court. This Court will not weigh the evidence all over again unless there is a showing
that the findings of the lower court are totally devoid of support or are clearly erroneous
so as to constitute serious abuse of discretion.25 The lone testimony of a witness, if
credible, is sufficient. In this case, the testimony of Romeo that no consideration was
ever paid for the sale of the six lots to Natividad was found to be credible both by the
trial court and by the Court of Appeals and it has not been successfully rebutted by
petitioners. We, therefore, have no reason to overturn the findings by the two courts
giving credence to his testimony.

The fact that the deed of sale was notarized is not a guarantee of the validity of its
contents. As held in Suntay v. Court of Appeals:26

Though the notarization of the deed of sale in question vests in its favor the presumption
of regularity, it is not the intention nor the function of the notary public to validate and
make binding an instrument never, in the first place, intended to have any binding legal
effect upon the parties thereto. The intention of the parties still and always is the
primary consideration in determining the true nature of a contract.

Second. Petitioners make capital of the fact that in C.A.-G.R. CV No. 12932, which was
declared final by this Court in G.R. No. 107684, the Court of Appeals upheld the right of
Maximino, Jr. to recover possession of Lot 3-B. In that case, the Court of Appeals held:

As shown in the preceding disquisition, Natividad P. Nazareno acquired the property in

dispute by purchase in 1970. She was issued Transfer Certificate of Title No. 162738 of
the Registry of Deeds of Quezon City. When her parents died, her mother Aurea Poblete-
Nazareno in 1970 and her father Maximino A. Nazareno, Sr. in 1980, Natividad P.
Nazareno had long been the exclusive owner of the property in question. There was no
way therefore that the aforesaid property could belong to the estate of the spouses
Maximino Nazareno, Sr. and Aurea Poblete. The mere fact that Romeo P. Nazareno
included the same property in an inventory of the properties of the deceased Maximino
A. Nazareno, Sr. will not adversely affect the ownership of the said realty. Appellant
Romeo P. Nazareno’s suspicion that his parents had entrusted all their assets under the
care and in the name of Natividad P. Nazareno, their eldest living sister who was still
single, to be divided upon their demise to all the compulsory heirs, has not progressed
beyond mere speculation. His barefaced allegation on the point not only is without any
corroboration but is even belied by documentary evidence. The deed of absolute sale
(Exhibit "B"), being a public document (Rule 132, Secs. 19 and 23, Revised Rules on
Evidence), is entitled to great weight; to contradict the same, there must be evidence
that is clear, convincing and more than merely preponderant (Yturralde vs. Aganon, 28
SCRA 407; Favor vs. Court of Appeals, 194 SCRA 308). Defendants-appellants’ own
conduct disproves their claim of co-ownership over the property in question. Being
themselves the owner of a ten-unit apartment building along Stanford St., Cubao
Quezon City, defendants-appellants, in a letter of demand to vacate addressed to their
tenants (Exhibits "P", "P-1" and "P-2") in said apartment, admitted that the house and
lot located at No. 979 Aurora Blvd., Quezon City where they were residing did not belong
to them. Also, when they applied for a permit to repair the subject property in 1977,
they stated that the property belonged to and was registered in the name of Natividad P.
Nazareno. Among the documents submitted to support their application for a building
permit was a copy of TCT No. 162738 of the Registry of Deeds of Quezon City in the
name of Natividad Nazareno (Exhibit "O" and submarkings; tsn March 15, 1985, pp. 4-
5).27

To be sure, that case was for recovery of possession based on ownership of Lot 3-B. The
parties in that case were Maximino, Jr., as plaintiff, and the spouses Romeo and Eliza, as
defendants. On the other hand, the parties in the present case for annulment of sale are
the estate of Maximino, Sr., as plaintiff, and Natividad and Maximino, Jr., as defendants.
Romeo and Eliza were named third-party defendants after a third-party complaint was
filed by Natividad and Maximino, Jr. As already stated, however, this third-party
complaint concerned Lot 3, and not Lot 3-B.

The estate of a deceased person is a juridical entity that has a personality of its
own.28 Though Romeo represented at one time the estate of Maximino, Sr., the latter has
a separate and distinct personality from the former. Hence, the judgment in CA-GR CV
No. 12932 regarding the ownership of Maximino, Jr. over Lot 3-B binds Romeo and Eliza
only, and not the estate of Maximino, Sr., which also has a right to recover properties
which were wrongfully disposed.

Furthermore, Natividad’s title was clearly not an issue in the first case. In other words,
the title to the other five lots subject of the present deed of sale was not in issue in that
case. If the first case resolved anything, it was the ownership of Maximino, Jr. over Lot
3-B alone.

Third. Petitioners allege that, as shown by several deeds of sale executed by Maximino,
Sr. and Aurea during their lifetime, the intention to dispose of their real properties is
clear. Consequently, they argue that the Deed of Sale of January 29, 1970 should also
be deemed valid.

This is a non-sequitur. The fact that other properties had allegedly been sold by the
spouses Maximino, Sr. and Aurea does not necessarily show that the Deed of Sale made
on January 29, 1970 is valid.

Romeo does not dispute that their parents had executed deeds of sale. The question,
however, is whether these sales were made for a consideration. The trial court and the
Court of Appeals found that the Nazareno spouses transferred their properties to their
children by fictitious sales in order to avoid the payment of inheritance taxes.

Indeed, it was found both by the trial court and by the Court of Appeals that Natividad
had no means to pay for the six lots subject of the Deed of Sale.

All these convince the Court that Natividad had no means to pay for all the lots she
purportedly purchased from her parents. What is more, Romeo’s admission that he did
not pay for the transfer to him of lots 3 and 25-L despite the considerations stated in the
deed of sale is a declaration against interest and must ring with resounding truth. The
question is, why should Natividad be treated any differently, i.e., with consideration for
the sale to her, when she is admittedly the closest to her parents and the one staying
with them and managing their affairs? It just seems without reason. Anyway, the Court
is convinced that the questioned Deed of Sale dated January 29, 1970 (Exh. "A" or "1")
is simulated for lack of consideration, and therefore ineffective and void.29

In affirming this ruling, the Court of Appeals said:

Facts and circumstances indicate badges of a simulated sale which make the Deed of
Absolute Sale dated 29 January 1970 void and of no effect. In the case of Suntay vs.
Court of Appeals (251 SCRA 430 [1995]), the Supreme Court held that badges of
simulation make a deed of sale null and void since parties thereto enter into a
transaction to which they did not intend to be legally bound.

It appears that it was the practice in the Nazareno family to make simulated transfers of
ownership of real properties to their children in order to avoid the payment of
inheritance taxes. Per the testimony of Romeo, he acquired Lot 25-L from his parents
through a fictitious or simulated sale wherein no consideration was paid by him. He even
truthfully admitted that the sale of Lot 3 to him on 04 July 1969 (Deed of Absolute Sale,
Records, Vol. II, p. 453) likewise had no consideration. This document was signed by the
spouses Max, Sr. and Aurea as vendors while defendant-appellant Natividad signed as
witness.30

Fourth. Petitioners argue further:

The Deed of Absolute Sale dated January 29, 1970 is an indivisible contract founded on
an indivisible obligation. As such, it being indivisible, it can not be annulled by only one
of them. And since this suit was filed only by the estate of Maximino A. Nazareno, Sr.
without including the estate of Aurea Poblete, the present suit must fail. The estate of
Maximino A. Nazareno, Sr. can not cause its annulment while its validity is sustained by
the estate of Aurea Poblete.31

An obligation is indivisible when it cannot be validly performed in parts, whatever may

be the nature of the thing which is the object thereof. The indivisibility refers to the
prestation and not to the object thereof.32 In the present case, the Deed of Sale of
January 29, 1970 supposedly conveyed the six lots to Natividad. The obligation is clearly
indivisible because the performance of the contract cannot be done in parts, otherwise
the value of what is transferred is diminished. Petitioners are therefore mistaken in
basing the indivisibility of a contract on the number of obligors.

In any case, if petitioners’ only point is that the estate of Maximino, Sr. alone cannot
contest the validity of the Deed of Sale because the estate of Aurea has not yet been
settled, the argument would nonetheless be without merit. The validity of the contract
can be questioned by anyone affected by it.33 A void contract is inexistent from the
beginning. Hence, even if the estate of Maximino, Sr. alone contests the validity of the
sale, the outcome of the suit will bind the estate of Aurea as if no sale took place at all.

Fifth. As to the third-party complaint concerning Lot 3, we find that this has been passed
upon by the trial court and the Court of Appeals. As Romeo admitted, no consideration
was paid by him to his parents for the Deed of Sale. Therefore, the sale was void for
having been simulated. Natividad never acquired ownership over the property because
the Deed of Sale in her favor is also void for being without consideration and title to Lot
3 cannot be issued in her name.

Nonetheless, it cannot be denied that Maximino, Sr. intended to give the six Quezon City
lots to Natividad. As Romeo testified, their parents executed the Deed of Sale in favor of
Natividad because the latter was the only "female and the only unmarried member of
the family."34 She was thus entrusted with the real properties in behalf of her siblings. As
she herself admitted, she intended to convey Lots 10 and 11 to Jose in the event the
latter returned from abroad. There was thus an implied trust constituted in her
favor.1âwphi1 Art. 1449 of the Civil Code states:

There is also an implied trust when a donation is made to a person but it appears that
although the legal estate is transmitted to the donee, he nevertheless is either to have
no beneficial interest or only a part thereof.

There being an implied trust, the lots in question are therefore subject to collation in
accordance with Art. 1061 which states:

Every compulsory heir, who succeeds with other compulsory heirs, must bring into the
mass of the estate any property or right which he may have received from the decedent,
during the lifetime of the latter, by way of donation, or any other gratuitous title, in
order that it may be computed in the determination of the legitime of each heir, and in
the account of the partition.

As held by the trial court, the sale of Lots 13 and 14 to Ros-Alva Marketing, Corp. on
April 20, 197935 will have to be upheld for Ros-Alva Marketing is an innocent purchaser
for value which relied on the title of Natividad. The rule is settled that "every person
dealing with registered land may safely rely on the correctness of the certificate of title
issued therefor and the law will in no way oblige him to go behind the certificate to
determine the condition of the property."36 WHEREFORE, the decision of the Court of
Appeals is AFFIRMED.
G.R. No. 114151 September 17, 1998

MAURICIA ALEJANDRINO, petitioner, 
vs.
THE HONORABLE COURT OF APPEALS, HON. BENIGNO G. GAVIOLA, RTC-9,
CEBU CITY, and LICERIO P. NIQUE, respondents.

ROMERO, J.:

Questioned in this petition for review on certiorari is the Decision 1 of the Court of
Appeals which ruled that the trial court, in an action for quieting of title, did not act in
excess of jurisdiction when it issued an order for the segregation of property, after the
finality of its decision.

The facts show that the late spouses Jacinto Alejandrino and Enrica Labunos left their six
children named Marcelino, Gregorio, Ciriaco, Mauricia, Laurencia and Abundio a 219-
square-meter lot in Mambaling, Cebu City identified as Lot No. 2798 and covered by
Transfer Certificate of Title No. 19658. Upon the demise of the Alejandrino spouses, the
property should have been divided among their children with each child having a share
of 36.50 square meters. However, the estate of the Alejandrino spouses was not settled
in accordance with the procedure outlined in the Rules of Court.

Petitioner Mauricia (one of the children) allegedly purchased 12.17 square meters of
Gregorio's share, 36.50 square meters of Ciriaco's share and 12.17 square meters of
Abundio's share thereby giving her a total area of 97.43 square meters, including her
own share of 36.50 square meters. It turned out, however, that a third party named
Licerio Nique, the private respondent in this case, also purchased portions of the
property, to wit: 36.50 square meters from Laurencia, 36.50 square meters from
Gregorio "through Laurencia," 12.17 square meters from Abundio also "through
Laurencia" and 36.50 square meters from Marcelino or a total area of Laurencia" and
36.50 square meters from Marcelino or a total area of 121.67 square meters of the
Alejandrino property. 2

However, Laurencia (the alleged seller of most of the 121.67 square meters of the
property) later questioned the sale in an action for quieting of title and damages against
private respondent Nique. It was docketed as Civil Case No. CEB-7038 in the Regional
Trial Court of Cebu City, Branch 9 presided by Judge Benigno G. Gaviola. In due course,
the lower court rendered a decision on November 27, 1990 disposing of the case as
follows:

WHEREFORE, the Court hereby renders judgment in favor of defendant and

against plaintiff, dismissing the complaint filed by plaintiff against defendant,
and on the Counterclaim and prayer of defendant in its Answer, the Court
hereby declares defendant as the owner in fee simple of the share of plaintiff
Laurencia Alejandrino and the shares of Marcelino, Gregorio and Abundio, all
surnamed Alejandrino, of the parcel of land known as Lot No. 2798 and
covered by Transfer Certificate of Title No. 19658 which 4 shares totals an
area of 146 square meters more or less; and the Court further Orders
plaintiff to:

1. Vacate the premises subject of the complaint and surrender

the property to defendant to the extent of the 4 shares
aforementioned;

2. Pay the defendant the amount of P15,000.00 as litigation and

necessary expenses; the sum of P10,000.00 as reimbursement
 for attorney's fees; the sum of P10,000.00 as moral damages
and P10,000.00 as exemplary damages;

3. Plus costs.

SO ORDERED. 3

Laurencia appealed the decision to the Court of Appeals under CA-G.R. CV No. 33433
but later withdrew the same. 4 On April 13, 1992, the Court of Appeals considered the
appeal withdrawn in accordance with Rule 50 of the Rules of Court. 5

Meanwhile, herein petitioner Mauricia Alejandrino filed on May 5, 1992 before the
Regional Trial Court of Cebu City, Branch VII, a complaint for redemption and recovery
of properties with damages against private respondent Nique that was docketed as Civil
Case No. CEB-11673. Adelino B. Sitoy, Laurencia's counsel in Civil Case No. CEB-7038,
filed Civil Case No. CEB-11673 for petitioner Mauricia.

The amended complaint in the latter case dated May 17, 1992 alleged that private
respondent Nique never notified petitioner Mauricia of the purchase of 121.67 square
meters of the undivided Lot No. 2798 nor did he give petitioner Mauricia the preemptive
right to buy the area as a co-owner of the same lot. As such co-owner, petitioner
Mauricia manifested her willingness to deposit with the court the amount of P29,777.78,
the acquisition cost of the portion purchased by private respondent Nique. Petitioner
Mauricia also alleged that she demanded from private respondent the area of around
24.34 square meters that the latter had "unduly, baselessly and maliciously claimed as
his own but which, as part of Lot No. 2798, actually belongs to her." The amended
complaint prayed that petitioner Mauricia be allowed to redeem the area of 121.67
square meters under the redemption price of P29,777.78 and that private respondent
Nique be ordered to execute the necessary documents for the redemption and the
eventual transfer of certificate of title to her. The amended complaint further prayed for
the return to petitioner Mauricia of the 24.34-square-meter portion of the lot and for
damages amounting to P115,000 and attorney's fees of P30,000.

On August 2, 1993, the lower court granted the motion to admit the amended complaint
and forthwith ordered the defendant therein to file an amended answer.

In Civil Case No. CEB-7038 in the meantime, private respondent filed a motion for the
segregation of the 146-square-meter portion of the property that had been declared by
the trial court as his own by virtue of purchase. On May 6, 1993, the trial court issued
an order the pertinent portions of which read as follows:

ORDER

For resolution is a "Motion to Order Segregation of 146 Square Meters In Lot

No. 2798" dated January 15, 1993 filed by defendant and the "Opposition"
thereto dated February 2, 1992 by plaintiff. Movant-defendant also filed a
rejoinder dated February 15, 1993 to the Opposition.

After going over the allegations in the motion, the opposition thereto and the
rejoinder as well as the records of the case, particularly the decision
rendered by this Court and the Order dated October 28, 1992, denying the
motion for reconsideration filed by plaintiffs and allowing the issuance of a
writ of execution, the Court is inclined to Grant the instant motion.

x x x           x x x          x x x

In addition thereto, the Court makes the following observation:

1. Plaintiff (oppositor) has a total share of 146 square meters.

This is admitted by her in her complaint (par. 4 thereof). In the
decision rendered by this Court, this share now belongs to
 defendant movant by way of sale. The decision of this Court has
long become final.

2. The total area of the land is 219 sq. meters (par. 2 of

complaint), thus, the share of Mauricia Alejandrino is only 73
square meters.

3. As early as June 10, 1983, Mauricia Alejandrino and Laurencia

Alejandrino had entered into an "Extrajudicial Settlement of
Estate" whereby they agreed to divide the land subject of this
case with Laurencia Alejandrino owning 146 square meters in
the frontage and Mauricia Alejandrino owning 75 square meters
in the back portion (Exh. '16', Extrajudicial Settlement of Estate,
par. 1) (emphasis supplied), and that the parties assure each
other and their successor in interest that a right of way of two
meters is granted to each party by the other permanently (Exh.
'16', par. 2). This partition is signed by the parties and their
witnesses. Although not notarized, it is certainly valid as
between the parties, Maurecia (sic) Alejandrino, being an
immediate party, may not renege on this.

4. Since the share of defendant Licerio P. Nique is specifically

known to be 146 square meters, and that its location shall be on
the "frontage" of the property while the 73 square meters of
Maurecia (sic) Alejandrino shall be at the back portion, then, the
Court cannot see its way clear, why the 146 sq. meters share of
defendant may not be segregated.

5. The contention by oppositor that the "segregation of

defendant's share of 146 sq. meters from Lot No. 2798 was not
decreed in the judgment" is a rather narrow way of looking at
the judgment. Paragraph 1 of the dispositive portion of the
judgment by this Court, Orders plaintiff to "vacate the premises
subject of the complaint and surrender the property to defendant
to the extent of the 4 shares aforementioned." The 4 shares of
Laurencia Alejandrino of 146 sq. meters can be segregated
because Laurencia and Maurecia had already executed an
extrajudicial partition indicating where their respective shares
shall be located (Exh. '16'). To deny the segregation is to make
the decision of this Court just about valueless is not altogether
useless. The matter of allowing the segregation should be read
into the decision.

The bottomline is still that plaintiff Laurencia, despite the fact that the
decision of this Court had long become final; and despite the fact that she
even withdraw (sic) her appeal, she still is enjoying the fruits of the property
to the exclusion of the rightful owner.

WHEREFORE, the Court hereby Grants the motion. The defendant Licerio
Nique may proceed to segregate his 2146 (sic) sq. meters from Lot No. 2798
covered by TCT. No. 19658, by having the same surveyed by a competent
Geodetic Engineer, at the expense of movant-defendant.

SO ORDERED. 6

Petitioner Mauricia questioned this order of the lower court in a petition for certiorari and
prohibition with prayer for the issuance of a writ of preliminary injunction filed before the
Court of Appeals. In due course, the Court of Appeals dismissed the petition in a
Decision promulgated on August 25, 1993.
The Court of Appeals stated that, in issuing the questioned order of May 6, 1993, the
respondent court was merely performing its job of seeing to it that "execution of a final
judgment must conform to that decreed in the dispositive part of the decision." It
ratiocinated thus:

. . . . In ordering the segregation of the 146 square meters, respondent

Judge correctly referred to the text of the decision to ascertain which portion
of the land covered by TCT No. 19658 was actually sold by Laurencia
Alejandrino (sister of herein petitioner Mauricia) to private respondent
Nique. The respondent Judge did not err in relying upon Exhibit '16', the
Deed of Extrajudicial Settlement, dated June 10, 1983, mentioned in page 3
of the Decision. Pertinent portion of Exhibit '6' reads:

NOW, THEREFORE, the above-named parties-heirs hereby stipulates (sic),

declare and agree as follows:

1. That the parties have agreed to divide the parcel of land with Laurencia
Alejandrino owning 146 square meters in the frontage and Mauricia
Alejandrino 73 square meters in the back portions;

2. That the parties mutually and reciprocally assure each other and their
successor of interest (sic) that a right of way of two meters is granted to
each party to the other permanently. (emphasis supplied, Annex '1',
Comment, p. 65, Rollo).

duly signed by herein petitioner and witnessed by private respondent Nique.

It readily reveals that when Laurencia subsequently sold her shares to herein
private respondent, per the Deed of Absolute Sale dated October 29, 1986
(Exhs. 'B' and '10'), the parties must have referred to the 146 square meters
in the frontage described in said document, Exhibit '16'. Laurencia had no
authority to sell more, or, less, than that agreed upon in the extrajudicial
settlement between her and herein petitioner Mauricia. Insofar as the latter
is concerned, she is estopped from claiming that said extrajudicial
settlement was a fatally defective instrument because it was not notarized
nor published. What is important is that private respondent personally knew
about Laurencia and Mauricia's agreement because he was a witness to said
agreement and he relied upon it when he purchased the 146 square meters
from Laurencia.

It cannot be validly claimed by petitioner that she was deprived of her

property without due process of law considering that private respondent is
merely segregating the portion of the land actually sold to him by Laurencia
Alejandrino and it does not affect the 73 square meters that properly pertain
to petitioner.

Moreover, the Supreme Court has ruled that where there is ambiguity
caused by an omission or mistake in the dispositive portion of a decision the
court may clarify such ambiguity by an amendment even after the judgment
had become final, and for this purpose it may resort to the pleadings filed by
the parties, the court's finding of facts and conclusions of law as expressed
in the body of the decision (Republic Surety and Insurance Co., Inc., et al.,
vs. Intermediate Appellate Court, et al., 152 SCRA 309). The assailed order,
in effect, clarifies the exact location of the 146 square meters pursuant to
Exhibit '16'. Respondent court did not act in excess of its jurisdiction. Hence,
writs of certiorari and prohibition do not lie in this case. 7

Petitioner Mauricia filed a motion for the reconsideration of the Court of Appeals'
decision. However, on February 15, 1994, the Court of Appeals denied the same for lack
of merit "there being no new ground or compelling reason that justifies a
reconsideration" of its Decision. 8
In the instant petition for review on certiorari, petitioner assails the decision of the Court
of Appeals, contending that the lower court acted beyond its jurisdiction in ordering the
segregation of the property bought by private respondent as the same was not decreed
in its judgment, which had long become final and executory. Petitioner argues
thatpartition of the property cannot be effected because private respondent is also a
defendant in Civil Case No. CEB-11673. She asserts that Exhibit 16, the extrajudicial
settlement of estate referred to in the questioned order of the lower court, was not
discussed in the decision of the lower court and even if it were, she could not be bound
thereby considering that she was not a party litigant in Civil Case No. CEB-7038. She
questions the validity of the deed of extrajudicial settlement because it was not
notarized or published.

In his comment on the petition, private respondent alleges that although petitioner was
not a party litigant in Civil Case No. CEB-7038, she is estopped from questioning the
decision in that case and filing the instant petition because she had "knowledge of the
existence of said case" where res judicata had set in. He adds that the instant petition
was filed in violation of Circular No. 28-91 on forum shopping "in that the Petitioner in
the instant petition whose counsel is also the counsel of plaintiff-appellant Laurencia
Alejandrino in CA-G.R. CV No. . . ., had filed a civil action — Civil Case No. CEB-
11673 . . . for "REDEMPTION & RECOVERY OF PROPERTIES WITH DAMAGES", which is
presently pending before Branch 7 of the Regional Trial Court of Cebu City." He asserts
that the lower court did not exceed its jurisdiction and/or commit grave abuse of
discretion in granting his motion for segregation of the 146 square meters of the land
involved that rightfully belonged to him in accordance with the decision of the lower
court. He charges counsel for petitioner with exhibiting "unethical conduct and practice"
in appearing as counsel for petitioner in Civil Case No. CEB-11673 after he had appeared
for complainant Laurencia in CA-G.R. CV No. 33433 or Civil Case No. CEB-7038.

Under the circumstances of this case, the ultimate issue that needs determination is
whether or not as an heir of the Alejandrino property, Laurencia may validly sell specific
portions thereof to a third party.

Art. 1078 of the Civil Code provides that where there are two or more heirs, the whole
estate of the decedent is, before partition, owned in common by such heirs, subject to
the payment of the debts of the deceased. Under a co-ownership, the ownership of an
undivided thing or right belongs to different persons. 9 Each co-owner of property which
is held pro indiviso exercises his rights over the whole property and may use and enjoy
the same with no other limitation than that he shall not injure the interests of his co-
owners. The underlying rationale is that until a division is made, the respective share of
each cannot be determined and every co-owner exercises, together with his co-
participants, joint ownership over the pro indiviso property, in addition to his use and
enjoyment of the same. 10

Although the right of an heir over the property of the decedent is inchoate as long as the
estate has not been fully settled and partitioned, 11 the law allows a co-owner to
exercise rights of ownership over such inchoate right. Thus, the Civil Code provides:

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 involved. But the effect of the alienation or the
mortgage, with respect to the co-owners, shall be limited to the portion
which may be allotted to him in the division upon the termination of the co-
ownership.

With respect to properties shared in common by virtue of inheritance, alienation of a pro

indiviso portion thereof is specifically governed by Article 1088 that provides:

Art. 1088. Should any of the heirs sell his hereditary rights to a stranger
before the partition, any or all of the co-heirs may be subrogated to the
rights of the purchaser by reimbursing him for the price of the sale, provided
 they do so within the period of one month from the time they were notified
in writing of the sale by the vendor.

In the instant case, Laurencia was within her hereditary rights in selling her pro
indiviso share in Lot No. 2798. However, because the property had not yet been
partitioned in accordance with the Rules of Court, no particular portion of the property
could be identified as yet and delineated as the object of the sale. Thus, interpreting
Article 493 of the Civil Code providing that an alienation of a co-owned property "shall
be limited to the portion which may be allotted to (the seller) in the division upon the
termination of the co-ownership, the Court said:

. . . (p)ursuant to this law, a co-owner has the right to alienate his pro-indiviso share in

the co-owned property even without the consent of the other co-owners. Nevertheless,
as a mere part owner, he cannot alienate the shares of the other co-owners. The
prohibition is premised on the elementary rule that "no one can give what he does not
have" (Nemo dat quod non habet). Thus, we held in Bailon-Casilao vs. Court of Appeals
(G.R. No. 78178, April 15, 1988, 160 SCRA 738, 745), viz:

. . . since a co-owner is entitled to sell his undivided share, a sale of the

entire property by one co-owner without the consent of the other co-owners
is not null and void. However, only the rights of the co-owner-seller are
transferred, thereby making the buyer a co-owner of the property.

The proper action in cases like this is not for the nullification of the sale or
for the recovery of possession of the thing owned in common from the third
person who substituted the co-owner or co-owners who alienated their
shares, but the DIVISION of the common property of the co-owners who
possessed and administered it. 2

The legality of Laurencia's alienation of portions of the estate of the Alejandrino spouses
was settled in Civil Case No. CEB-7038. The decision in that case had become final and
executory with Laurencia's withdrawal of her appeal. When private respondent filed a
motion for the segregation of the portions of the property that were adjudged in his
favor, private respondent was in effect calling for the partition of the property. However,
under the law, partition of the estate of a decedent may only be effected by (1) the heirs
themselves extrajudicially, (2) by the court in an ordinary action for partition, or in the
course of administration proceedings, (3) by the testator himself, and (4) by the third
person designated by the testator. 13

The trial court may not, therefore, order partition of an estate in an action for quieting of
title. As there is no pending administration proceedings, the property of the Alejandrino
spouses can only be partitioned by the heirs themselves in an extrajudicial settlement of
estate. However, evidence on the extrajudicial settlement of estate was offered before
the trial court and it became the basis for the order for segregation of the property sold
to private respondent. Petitioner Mauricia does not deny the fact of the execution of the
deed of extrajudicial settlement of the estate. She only questions its validity on account
of the absence of notarization of the document and the non-publication thereof.

On extrajudicial settlement of estate, Section 1 of Rule 74 of the Rules of Court

provides:

If the decedent left no will and no debts and the heirs are all of age, or the
minors are represented by their judicial or legal representatives duly
authorized for the purpose, the parties may, without securing letters of
administration, divide the estate among themselves as they see fit by means
of a public instrument filed in the office of the register of deeds, and should
they disagree, they may do so in an ordinary action for partition. . . . .

The fact of the extrajudicial settlement or administration shall be published

in a newspaper of general circulation in the manner provided in the next
 succeeding section; but no extrajudicial settlement shall be binding upon any
person who has not participated therein or had no notice thereof.

Notarization of the deed of extrajudicial settlement has the effect of making it a

public document 14 that can bind third parties. However, this formal requirement
appears to be superseded by the substantive provision of the Civil Code that
states:

Art. 1082. Every act which is intended to put an end to indivision among co-
heirs and legatees or devisees is deemed to be a partition, although it should
purport to be a sale, an exchange, a compromise, or any other transaction.

By this provision, it appears that when a co-owner sells his inchoate right in the co-
ownership, he expresses his intention to "put an end to indivision among (his) co-heirs."
Partition among co-owners may thus be evidenced by the overt act of a co-owner of
renouncing his right over the property regardless of the form it takes. In effect,
Laurencia expressed her intention to terminate the co-owner by selling her share to
private respondent.

Moreover, the execution of the deed of extrajudicial settlement of the estate reflected
the intention of both Laurencia and petitioner Mauricia to physically divide the property.
Both of them had acquired the shares of their brothers and therefore it was only the two
of them that needed to settle the estate. The fact that the document was not notarized
is no hindrance to its effectivity as regards the two of them. The partition of inherited
property need not be embodied in a public document. In this regard, Tolentino
subscribes to that opinion when he states as follows:

. . . . We believe, however, that the public instrument is not essential to the

validity of the partition. This is not one of those contracts in which form is of
the essence. The public instrument is necessary only for the registration of
the contract, but not for its validity. The validity of an oral contract among
the heirs, terminating the co-ownership, has been recognized by the
Supreme Court in a decision . . . (where) that tribunal said: "An agreement
among the heirs that a certain lot should be sold and its proceeds paid to
one of them is a valid oral contract, and the same has the force of law
between the parties from and after the original assent thereto, and no one of
them may withdraw or oppose its execution without the consent of all".

In a still later case, the Supreme Court held that "partition among heirs or
renunciation of an inheritance by some of them is not exactly a conveyance
for the reason that it does not involve transfer of property from one to the
other, but rather a confirmation or ratification of title or right to property by
the heir renouncing in favor of another heir accepting and receiving the
inheritance." Hence, the court concluded, "it is competent for the heirs of an
estate to enter into an oral agreement for distribution of the estate among
themselves." 15

The deed of extrajudicial settlement executed by Mauricia and Laurencia evidence their
intention to partition the property. It delineates what portion of the property belongs to
each other. That it was not notarized is immaterial in view of Mauricia's admission that
she did execute the deed of extrajudicial settlement. Neither is the fact that the trial
court only mentioned the existence of such document in its decision in Civil Case No.
CEB-7028. That document was formally offered in evidence and the court is deemed to
have duly considered 16 it in deciding the case. the case. The court has in its favor the
presumption of regularity of the performance of its task that has not been rebutted by
petitioner Mauricia. Neither may the fact that the other heirs of the Alejandrino spouses,
named Marcelino, Gregorio, Ciriaco and Abundio did not participate in the extrajudicial
settlement of estate affect its validity. In her amended complaint in Civil Case No. CEB-
11673, petitioner Mauricia herself admitted having acquired by purchase the rights over
the shares of her brothers.
On the part of Laurencia, the court found that she had transmitted her rights over
portions she had acquired from her brothers to private respondent Nique. The sale was
made after the execution of the deed of extrajudicial settlement of the estate that
private respondent himself witnessed. The extrajudicial settlement of estate having
constituted a partition of the property, Laurencia validly transferred ownership over the
specific front portion of the property with an area of 146 square meters.

The trial court, therefore, did not abuse its discretion in issuing the order for the
segregation of the property. In so doing, it was merely reiterating the partition of the
property by petitioner Mauricia and her sister Laurencia that was embodied in the deed
of extrajudicial settlement of estate. The order may likewise be deemed as a clarification
of its decision that had become final and executory. Such clarification was needed lest
proper execution of the decision be rendered futile.

The Court finds no merit in the issue of forum shopping raised by private respondent.
Forum shopping exists where the elements of litis pendentia are present or where a final
judgment in one case will amount to res judicata in the other. 17 Because the judgment
in Civil Case No. CEB-7028 is already final and executory, the existence of res judicata is
determinative of whether or not petitioner is guilty of forum shopping. For the principle
of res judicata to apply, the following must be present: (1) a decision on the merits; (2)
by a court of competent jurisdiction; (3) the decision is final; and (4) the two actions
involve identical parties, subject matter and causes of action. 18 The fourth element is
not present in this case. The parties are not identical because petitioner was not
impleaded in Civil Case No. CEB-7028. While the subject matter may be the same
property, of the Alejandrino spouses, the causes of action are different. Civil. Case No.
CEB-7028 is an action for quieting of title and damages while Civil Case No. CEB-11673
is for redemption and recovery of properties.

It appears moreover, that private respondent's argument on forum shopping is anchored

on the fact that counsel for both plaintiffs in those two cases is one and the same,
thereby implying that the same counsel merely wanted to prevail in the second case
after having failed to do so in the first. The records show, however, that Laurencia
executed an affidavit 19 consenting to the appearance of her counsel in any case that
petitioner Mauricia might file against private respondent. She affirmed in that affidavit
that she could be included even as a defendant in any case that petitioner Mauricia
would file because she "fully agree(d)" with whatever cause of action Mauricia would
have against private respondent. Such a statement can hardly constitute a proper basis
for a finding of forum shopping, much less evidence of misconduct on the part of
counsel. As noted earlier, the two cases have different causes of action and the two
plaintiffs who would have conflicting claims under the facts of the case actually
presented a united stand against private respondent. If there is any charge that could be
leveled against counsel, it is his lack of thoroughness in pursuing the action for quieting
of title. As counsel for plaintiff therein, he could have impleaded petitioner Mauricia
knowing fully well her interest in the property involved in order to avoid multiplicity of
suits. However, such an omission is not a sufficient ground for administrative sanction.
WHEREFORE, the instant petition for review on certiorari is hereby DENIED for lack of
merit. Costs against petitioner.
G.R. No. L-29541 January 27,1989

CARLOS GABILA, plaintiff-appellant, 
vs.
PABLO PEREZ, RAMON PEREZ & MERCEDES PEREZ, defendants-appellees.

Isidra M. Ampig for plaintiff-appellant.

Castillo Law Offices for defendants-appellees.

GRIÑO-AQUINO,  J.:

This is an appeal from a decision of the Court of First Instance of Davao dated January
21, 1961 dismissing plaintiff-appellant's complaint, which the Court of Appeals certified
to this Court because only a question of law is involved.

On September 16, 1948, in the City of Davao, defendants-appellees Pablo, Ramon and
Mercedes, all surnamed Perez, executed in favor of plaintiff-appellant Carlos Gabila, a
Deed of Sale of a parcel of land registered in the name of their deceased father Mariano
Perez under Transfer Certificate of Title No. 899 of the Registry of Deeds of Davao,
which they inherited upon his demise. The deed of Sale (Exh. A) reads:

KNOW ALL MEN BY THESE PRESENTS:

This CONTRACT, made and executed in the place and date mentioned
hereinbelow by and between PABLO PEREZ, married; RAMON PEREZ,
married, Filipina citizen, and MERCEDES PEREZ, married, Filipino, all of legal
age, and all residents of Bunawan, Davao City, Philippines, hereinafter
referred to as the VENDORS, and CARLOS S. GABILA, also of legal age,
married to Leonarda P. Gabila and a resident of Ponciano St., Davao City,
Philippines, hereinafter referred to as the VENDEE, witnesseth:

WHEREAS, the VENDORS are the owners of one parcel of agricultural

land situated in Bunawan, City of Davao, Philippines, with all the
improvements, which is more particularly bounded and described as follows:

A parcel of land (Lot No. 603 of the cadastral survey of Davao, Cadastral
Case No. 1, G.L.R.O. Cadastral Record No. 317), situated in the municipality
of Davao. Bounded on the NW and NE, by Lot No. 511; on the SE, by the
Licanan River and Lot No. 602; and on the W, by Lot No. 502 and the
Bunawan River, containing an area of eighty-one thousand nine hundred and
three square meters (81,903), more or less.

their ownership thereto being evidenced by transfer Certificate of Title No.

899 of the Office of the Register of Deeds of Davao, issued in the name of
the deceased, MARIANO PEREZ, the father of the VENDORS, who died on
October 11, 1942 and the herein vendors inherited said land from their
deceased father, being the legitimate children;

WHEREAS, the VENDEE has agreed to purchase the above- described

property and the VENDORS have agreed to sell the same to the VENDEE,
subject to the terms and conditions hereinbelow specified;

NOW, THEREFORE, for and in consideration of the sum of TWO THOUSAND

FIVE HUNDRED PESOS (P2,500.00) Philippine Currency, to be paid in the
manner hereinbelow specified, the VENDORS hereby sell, transfer and
convey unto the said VENDEE, his heirs, executors, administrators and
assigns, the above-described one parcel of land, together with the buildings
 and improvements thereon, belonging to the VENDORS, the aforementioned
sum of P2,500.00 shall be paid in the manner as follows:

a) P l,500.00 Philippine Currency, upon the signing of this contract;

b) The balance of P1,000.00, Philippine Currency, to be paid in ten (10)

monthly installments of ONE HUNDRED PESOS (P100.00) each the first
installment to become due and payable on October 14, 1948, and the
succeeding monthly installments to be paid on the same date every month
thereafter until the total amount is fully paid.

It is hereby agreed, covenanted and stipulated by and between the parties

hereto that the Vendors will execute immediately an Extra-Judicial Partition
of all the properties of their deceased father, and pay the corresponding
estate and inheritance taxes so that the above-described title could be
cancelled and in its stead a new transfer Certificate of title be issued in favor
of the Vendee.

It is finally agreed, covenanted and stipulated that immediately upon the

execution of this document, the VENDEE takes immediate possession of the
property sold and will harvest the improvements inside of this land.

IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
this 16th day of September, 1948 at Davao City, Philippines. (Italics ours.)
(p. 1, Folder of Exhibits.)

The Deed of Sale was duly signed and ratified before Notary Public Isidro Bastida of
Davao City on the same date, September 16, 1958, and possession of the land was
immediately delivered to the vendee. The monthly installments of the price of the sale
were completely paid in due time. However, the vendors took no steps to comply with
their promise to execute an extrajudicial partition of their father's properties so that his
title to the land in question can be transferred in their names and from them, to the
vendee Gabila.

So, on August 28, 1958, Gabila filed this action praying that the defendants be ordered:

1) To execute an extra-judicial partition of all the properties of their

deceased father or otherwise settle his estate and pay the corresponding
estate and inheritance taxes, and execute the requisite instruments for the
registration and transfer of the title to him; and

2) To pay him Pl,000 as attorney's fees and expenses of the suit, plus costs.

The defendants alleged in their Answer that the deed of sale was intended merely to
guarantee a loan of P2,500 contracted by one of the defendants; that Mercedes Perez,
one of the vendors, was a minor when the deed of sale was made; that the deed of sale
was not approved by the Secretary of Agriculture; and, that the consideration of P2,500
was unconscionable.

In Reply, the plaintiff alleged that at the time of the execution of the deed of sale,
Mercedes Perez stated that she was of age, and plaintiff had no reason to doubt that
statement. But, assuming that she was under age at the time, she ratified the sale by
her failure to repudiate it in due time; that the allegation that the deed was only a
guarantee for a P2,500 loan was not true because a part of the purchase price was paid
to the defendants in ten (10) monthly installments; that the price agreed upon in 1948
was fair and reasonable; and, that the approval of the sale by the Secretary of
Agriculture and Natural Resource was not necessary.

After several continuances, the case was set for trial on November 12, 1960. Neither
defendants nor their counsel appeared despite due notice. For that reason, the lower
court allowed the plaintiff to adduce evidence ex partebefore a commissioner.
On January 21, 1961, the trial court rendered the assailed decision, dismissing the
complaint. It held that the defendants could not be ordered to execute an extrajudicial
partition of all the properties of their deceased father because the properties to be
partitioned are not Identified in the complaint, and, the defendants can no longer
partition the land described in TCT No. 899, because it has been sold to the plaintiff. The
court held that the extrajudicial partition of the property should have been done at the
time of the sale, in the same instrument (Record on Appeal, pp. 20-21).

The appeal is meritorious. This action is not one for specific performance of the sale of
the property to the appellant, for the sale had been consummated by the payment of the
price to the vendors-appellees as stipulated in the deed, and by the delivery of the
peaceful possession of the land to the plaintiff-vendee. What the plaintiff seeks merely is
the transfer of the title of the land in his name.

It is indubitable that the appellant, as vendee of the land, has a right to receive, and the
appellees the corresponding obligation to transfer to him, not only the possession and
enjoyment of the land but also the certificate of title. The trial court recognized that
right of the appellant, but it professed to be helpless to enforce it. In dismissing his
complaint and, in effect, denying him a remedy, the trial court forgot a maxim which is
as old as the law itself. Ubi jus ibi remedium. Where there is a right, there is a remedy
(Ballentine's Law Dictionary, 1948 Ed., p. 1307).

The defendants-appellees, as the only legal heirs of their father, the deceased Mariano
Perez, became the owners of the property in question upon his demise. The rights to the
succession were transmitted to them from the moment of his death (Art. 77, Civil Code).

Their sale to the appellant of the property described in TCT No. 899, which they
inherited from their father put an end to their co-ownership over it (Art. 1082 Civil
Code). Consequently there is no further need for them to partition it, the purpose of
partition being to separate, divide, and assign a thing held in common among those to
whom it may belong (Art. 1079, Civil Code). The trial court correctly observed that the
defendants-appellees may no longer partition the land in question because they had
already sold it.

A careful examination of the deed of sale (Exh. A) reveals that it also serves the purpose
of an affidavit of adjudication of the lot in question to the defendants-appellees as heirs
of the former owner Mariano Perez. Their declaration therein that the registered owner
of the land described in TCT No. 899 Mariano Perez, who died on October 11, 1942, is
the father of the vendors, that "the vendors inherited said land from their deceased
father, being the legitimate children" and that "the Vendors are the owners" of said land
(Exh. A) is, in effect, an adjudication of the land to themselves. Such adjudication
renders the stipulation in the deed of sale that "the Vendors will execute immediately an
Extrajudicial Partition of all the properties of their deceased father" (Exhibit A-1),
superfluous and unnecessary. It may be overlooked or deemed not written at all.

All that needs to be done now is to register on the TCT No. 899 of the late Mariano Perez
the deed of sale (Exh. A) which may also be treated as an affidavit of adjudication of the
land to the vendors in order that their father's title may be cancelled and a new one can
be issued to their vendee, Carlos Gabila.

WHEREFORE, the appealed decision is hereby set aside. The defendants-appellees, they
have not done so yet, are ordered to surrender and/or deliver TCT No. 899 to the
plaintiff-appellant in order that the latter may present it to the Register of Deeds of
Davao for cancellation upon the registration of the Deed of Sale dated September 16,
1948 made in his favor by the appellees. The Register of Deeds of Davao shall
thereupon cancel said TCT No. 899 of the late Mariano Perez and issue a new title in the
name of the plaintiff-appellant Carlos Gabila, subject to a lien in favor of any deprived
heirs under Rule 74 of the Rules of Court. The defendants-appellees are ordered to pay
the estate and inheritance taxes, if any, and they should present proof of such payment
to the Register of Deeds within sixty (60) days after the finality of this decision.
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.

Roberto M. Sarenas for petitioner.

Jose B. Guyo for private 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.

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 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 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.
G.R. No. L-68282 November 8, 1990

RAQUEL CHAVEZ, GERARDO GIMENEZ and MANUELA BUENAVISTA VDA. DE

CHAVEZ, petitioners, 
vs.
HON. INTERMEDIATE APPELLATE COURT (4th Civil Cases Division), ANTONIO
CHAVEZ, ROSARIO CHAVEZ and CONCEPCION CHAVEZ, respondents.

Edmundo A. Narra for petitioners.

Jose L. Lapak for respondents.

GRIÑO-AQUINO, J.:

This is a petition for review on certiorari of the decision dated March 26, 1984 of the
Intermediate Appellate Court in AC-G.R. No. CV-64708 which (1) annulled the sale made
by Manuela Buenavista of her property in favor of the spouses Raquel Chavez and
Gerardo Gimenez (Exh. 2) and the subsequent sale by said spouses of the same
property to Pepito Ferrer, and (2) declared that the earlier deeds of sale (Exhs. A, B, C
and D) signed by Manuela and her children constituted a valid partition of the land,
subject to her lifetime usufruct. The Court of Appeals thereby reversed the decision
dated December 21, 1971 of the Court of First Instance of Camarines Norte, Branch 1.

The land in question is the paraphernal property of petitioner Manuel Buenavista

(defendant in Civil Case No. 1934 of the Court of First Instance of Camarines Norte) who
had six (6) children, named Antonio, Rosario, Concepcion, Raquel, Presentacion and
Floserpina. The first three were the plaintiffs and the last three, with their mother, were
the defendants in Civil Case No. 1934.

On July 11, 1958, Presentacion Chavez, with the conformity of her mother, Manuela
Buenavista, executed a deed of sale whereby she sold her 1/6 undivided share of the
land in question to her sister, Concepcion Chavez, for P 450.

Two years later, on May 2, 1960, Floserpina Chavez, with the conformity of her mother,
also sold her 1/6 undivided share of the same land to her sister, Concepcion, for the
same price of P450. On May 19, 1960, Raquel, with the conformity of her mother,
likewise sold her undivided 1/6 share of the same property to Concepcion Chavez for
P600. Having acquired the shares of Presentacion, Floserpina and Raquel, Concepcion
thereby became the owner of a total undivided 4/6 share of the land in question with
Antonio and Rosario as owners of the remaining 2/6 shares.

In all the documents, the following stipulation appears:

Na ang nasabing lupa o pag-aari ay ipinamana na sa amin ng aming ina, ang

nasabing Manuela Buenavista, kung kaya ito ay hatiin naming anim (6) na
mga magkakapatid, bagama't hindi pa namin naisasagawa ang paghihiwatig
o partition; ako bilang isa sa anim na magkakapatid ay may karapatan sa
isang ikaanim (1/6) na bahagi ng nasabing lupa, gayon pa man ang
kasunduan sa nasabing pagkamana namin ay samantalang nabubuhay pa
ang aming ina, siya ang magkakandili at makikinabang sa nasabing pag-
aari. (p. 14, Rollo.)

meaning that the owner, Manuela Buenavista, had assigned or distributed to her
children, in equal pro-indiviso shares, her paraphernal property situated at Sitio Langas,
Barrio Calangcawan Norte, Vinzons, Camarines Norte, with an area of 4.1163 hectares
more or less under Tax Declaration No. 9303 and assessed at P1,630.00. The owner,
however, reserved for herself the possession of the land and the enjoyment of the fruits
during her lifetime.
Despite the transfers or assignments her children had executed with her conformity ten
years earlier, Manuela Buenavista, on August 27, 1968, signed a "Bilihang Patuluyan ng
Lupa" of the entire property in favor of her daughter, Raquel Chavez, and her husband,
Gerardo Jimenez. On October 7, 1968, Antonio, Rosario and Concepcion filed Civil Case
No. 1934 against their mother Manuela and their sister Raquel. Thereupon, Manuela sold
the entire property to Pepito Ferrer, on February 4, 1969 (Exh. F) with right to
repurchase. Ferrer was later sued as an additional defendant in Civil Case No. 1934.

After the trial, judgment was rendered by the trial court dismissing the complaint,
dissolving the preliminary injunction it had previously issued, and ordering the plaintiffs
to pay the costs. The court did not award damages.

The plaintiffs, Antonio, Rosario and Concepcion, appealed to the Court of Appeals (CA-
G.R. No. 64708-R).

On March 26, 1984, the Court of Appeals reversed the trial court. The dispositive portion
of its decision reads:

WHEREFORE, we reverse and set aside the appealed decision and render
another one declaring the deeds of sale in favor of Raquel Chavez and
Gerardo Jimenez (Exh. 2) and the sale in favor of defendant-appellee Pepito
Ferrer as null and void ab initio, and declaring further that the documents
(Exhs. A, B, C and D) are evidence of a valid partition of the land in question
by and between Manuela Buenavista and her children, subject to her right of
usufruct during her lifetime, without pronouncement as to damages and
costs. (p. 17, Rollo.)

On April 5, 1984, the petitioners filed a motion for reconsideration alleging among
others:

3. That the late Manuela Buenavista Vda. de Chavez, one of the defendants-
appellees, was found lately to have executed during her lifetime a LAST
WILL AND TESTAMENT ... and there is now a pending petition for probate of
said last will and testament before the Municipal Trial Court of Vinzons,
Camarines Norte;

x x x           x x x          x x x

6. In the case at bar, even granting that the late Manuela Buenavista's
execution of the documents referred to as Exhibits A, B, C and D are valid,
nevertheless its validity ceases from the time that she executed the Last Will
and Testament . . . because the execution of the Last Will invalidates the
former act of the said Manuela Buenavista;

7. That the Last will and Testament . . . which his now pending probate in
the Municipal Trial Court of Vinzons, Camarines Norte, will finally affect the
property — hence, there is a ground for this motion for reconsideration
and/or to suspend the decision-pending final outcome of the probate of the
last will and testament of the late Manuela Buenavista. (pp. 88-89, Rollo.)

Private respondents opposed the Motion for Reconsideration asserting that the
partition inter vivos which had been implemented long before the execution of the said
Last Will and Testament could not be revoked by the later instrument; that the supposed
Last Will and Testament was executed on December 11, 1969, more than one year after
the filing of the complaint for annulment on October 9, 1968, when said Manuela
Buenavista was already senile and not of disposing mind; that while Manuela Buenavista
was able to sign with her own hand the several Deeds of Sale, the supposed Last Will
and Testament bears her thumbmark only; that Manuela Buenavista had no more
property to dispose of by will on December 11, 1969, when she supposedly executed her
Last Will and Testament.
On June 28, 1984, the Appellate Court denied the Motion for Reconsideration.

In their petition for review of the decision of the Court of Appeals, the petitioners allege:

(l) That the Intermediate Appellate Court (now Court of Appeals) erred in
declaring valid the deeds of sale (Exhs. A, B, C and D) as a partition by an
act inter vivos considering that examining the said exhibits will reveal that it
is not a testament amounting to a will of Manuela Buenavista;

(2) That the Intermediate Appellate Court erred in ruling against Article
1347 of the New Civil Code. (p. 126, Rollo.)

We find those contentions not well-taken.

Article 1080 of the New Civil Code allows a person to make a partition of his estate
either by an act inter vivos or by will and such partition shall be respected insofar as it
does not prejudice the legitimate of the compulsory heirs. While the law prohibits
contracts upon future inheritance, the partition by the parent, as provided in Art. 1080,
is a case expressly authorized by law (Art. 1347, par. 2, Civil Code of the Phil. by
Padilla, 1987 Edition, p. 744.) Art. 1080 of the Civil Code clearly gives a person two
options in making a partition of his estate; either by an act inter vivos or by WILL. When
a person makes a partition by will, it is imperative that such partition must be executed
in accordance with the provisions of the law on wills; however, when a person makes the
partition of his estate by an act inter vivos, such partition may even be oral or written,
and need not be in the form of a will, provided that the partition does not prejudice the
legitime of compulsory heirs.

In numerous cases it has been held or stated that parol partitions may be
sustained on the ground of estoppel of the parties to assert the rights of a
tenant in common as to parts of land divided by parol partition as to which
possession in severalty was taken and acts of individual ownership were
exercised. And a court of equity will recognize the agreement and decree it
to be valid and effectual for the purpose of concluding the right of the
parties as between each other to hold their respective parts in severalty.

A parol partition may also be sustained on the ground that the parties
thereto have acquiesced in and ratified the partition by taking possession in
severalty, exercising acts of ownership with respect thereto, or otherwise
recognizing the existence of the partition. (Hernandez vs. Andal, et al., 78
Phil. 196, 203.)

In the instant case, the respondent appellate court declared the Deeds of Sale executed
by Presentacion, Floserfina and Raquel, all surnamed Chavez (Exhs. A, B, and C) in favor
of Concepcion Chavez as evidence of a valid partition of the land in question by and
between Manuela Buenavista and her children as she not only gave her authority thereto
but also signed the sales. The Deeds of Sale (Exhs. A, B, and C) are not contracts
entered into with respect to feature inheritance but a contract perfected and
consummated during the lifetime of Manuela Buenavista who signed the same and gave
her consent thereto. Such partition inter vivos, executed by the property owner herself,
is valid.

.... As the defendants freely participated in the partition, they are now
estopped from denying and repudiating the consequences of their own
voluntary acts. It is a general principle of law that no one may be permitted
to disavow and go back upon his own acts, or to proceed contrary thereto.
(Joaquin vs. Mitsumine 34 Phil. 858.)

Where a piece of land has been included in a partition, and there is no

allegation that the inclusion was effected through improper means or without
the petitioner's knowledge, the partition barred any further litigation on said
title and operated to bring the property under the control and jurisdiction of
 the court for proper disposition according to the tenor of the partition... They
cannot attack the partition collaterally ... (Ralla vs. Judge Untalan, 172 SCRA
858, 865, citing the case of Torres vs. Encarnacion and De Borja, No. L-
4681, July 31, 1951, 89 Phil. 678.)

As well argued by counsel for the respondents in their memorandum, it would be unjust
and inequitable to allow Manuela Buenavista Vda. de Chavez to revoke the sales she
herself authorized as well as the sale she herself executed in favor of her son only to
execute a simulated sale in favor of her daughter Raquel who had already profited from
the sale she made of the property she had received in the partition inter vivos; it would
run counter to the doctrine that "no person should be allowed to unjustly enrich herself
at the expense of another."

WHEREFORE, finding no reversible error in the decision of the Court of Appeals in AC-
G.R. No. CV-64708, the same is affirmed in toto. The petition for review is dismissed for
lack of merit, with costs against the petitioners.
G.R. No. L-17818           January 25, 1967

TIRSO T. REYES, as guardian of the minors Azucena Flordelis and Tirso, Jr., all
surnamed Reyes y Barretto,plaintiffs-appellants, 
vs.
LUCIA MILAGROS BARRETTO-DATU, defendant-appellee.

Recto Law Office for plaintiff-appealant.

Deogracias T. Reyes and Associates for defendant-appellee.

REYES, J.B.L., J.:

Direct appeal from a judgment of the Court of First Instance of Bulacan, in its Civil Case
No. 1084, dismissing the complaint of appellant Tirso T. Reyes and ordering the same to
deliver to the defendant-appellee, Lucia Milagros Barretto-Datu, the properties receivea
by his deceasea wife under the terms of the will of the late Bibiano Barretto, consisting
of lots in Manila, Rizal, Pampanga and Bulacan, valued at more than P200,000.

The decision appealed from sets the antecedents of the case to be as follows:

"This is an action to recover one-half share in the fishpond, located in the barrio of
San Roque, Hagonoy, Bulacan, covered by Transfer Certificate of Title No. T-13734
of the Land Records of this Province, being the share of plaintiff's wards as minor
heirs of the deceased Salud Barretto, widow of plaintiff Tirso Reyes, guardian of
said minors."

It appears that Bibiano Barretto was married to Maria Gerardo. During their lifetime they
acquired a vast estate, consisting of real properties in Manila, Pampanga, and Bulacan,
covered by Transfer Certificates of Title Nos. 41423, 22443, 8858, 32989, 31046,
27285, 6277, 6500, 2057, 6501, 2991, 57403 and 12507/T-337.

When Bibiano Barretto died on February 18, 1936, in the City of Manila, he left his share
of these properties in a will Salud Barretto, mother of plaintiff's wards, and Lucia
Milagros Barretto and a small portion as legacies to his two sisters Rosa Barretto and
Felisa Barretto and his nephew anä nieces® The usufruct oæ the fishponä situateä iî
barrio Saî Roque¬ Hagonoy, Bulacan, above-mentioned, however, was reserved for his
widow, Maria Gerardo® Iî the meantime¬ Maria Gerardo was appointeä administratrix.
By virtue thereof, she prepared a project of partition, which was signed by her in her
own behalf and as guardian of the minor Milagros Barretto. Said project of partition was
approved by the Court of First Instance of Manila on November 22, 1939. The
distribution of the estate and the delivery of the shares of the heirs followed forthwith.
As a consequence, Salud Barretto took immediate possession of her share and secured
the cancellation of the original certificates of title and the issuance of new titles in her
own name.

Everything went well since then. Nobody was heard to complain of any irregularity in the
distribution of the said estate until the widow, Maria Gerardo died on March 5, 1948.
Upon her death, it was discovered that she had executed two wills, in the first of which,
she instituted Salud and Milagros, both surnamed Barretto, as her heirs; and, in the
second, she revoked the same and left all her properties in favor of Milagros Barretto
alone. Thus, the later will was allowed and the first rejected. In rejecting the first will
presented by Tirso Reyes, as guardian of the children of Salud Barretto, the lower court
held that Salud was not the daughter of the decedent Maria Gerardo by her husband
Bibiano Barretto. This ruling was appealed to the Supreme Court, which affirmed the
same.1

Having thus lost this fight for a share in the estate of Maria Gerardo, as a legitimate heir
of Maria Gerardo, plaintiff now falls back upon the remnant of the estate of the deceased
Bibiano Barretto, which was given in usufruct to his widow Maria Gerardo. Hence, this
action for the recovery of one-half portion, thereof.
This action afforded the defendant an opportunity to set up her right of ownership, not
only of the fishpond under litigation, but of all the other properties willed and delivered
to Salud Barretto, for being a spurious heir, and not entitled to any share in the estate
of Bibiano Barretto, thereby directly attacking the validity, not only of the project of
partition, but of the decision of the court based thereon as well.

The defendant contends that the Project of Partition from which Salud acquired the
fishpond in question is void ab initio and Salud Barretto did not acquire any valid title
thereto, and that the court did not acquire any jurisdiction of the person of the
defendant, who was then a minor.'

Finding for the defendant (now appellee), Milagros Barretto, the lower court declared the
project of partition submitted in the proceedings for the settlement of the estate of
Bibiano Barretto (Civil Case No. 49629 of the Court of First Instance of Manila) to be null
and void ab initio (not merely voidable) because the distributee, Salud Barretto,
predecessor of plaintiffs (now appellants), was not a daughter of the spouses Bibiano
Barretto and Maria Gerardo. The nullity of the project of partition was decreed on the
basis of Article 1081 of the Civil Code of 1889 (then in force) providing as follows: .

A partition in which a person was believed to be an heir, without being so, has
been included, shall be null and void.

The court a quo further rejected the contention advanced by plaintiffs that since Bibiano
Barretto was free to dispose of one-third (1/3) of his estate under the old Civil Code, his
will was valid in favor of Salud Barretto (nee Lim Boco) to the extent, at least, of such
free part. And it concluded that, as defendant Milagros was the only true heir of Bibiano
Barretto, she was entitled to recover from Salud, and from the latter's children and
successors, all the Properties received by her from Bibiano's estate, in view of the
provisions of Article 1456 of the new Civil Code of the Philippines establishing that
property acquired by fraud or mistake is held by its acquirer in implied trust for the real
owner. Hence, as stated at the beginning of this opinion, the Court a quo not only
dismissed the plaintiffs' complaint but ordered them to return the properties received
under the project of partition previously mentioned as prayed for in defendant Milagros
Barretto's counterclaim. However, it denied defendant's prayer for damages. Hence, this
appeal interposed by both plaintiffs and defendant.

Plaintiffs-appellants correctly point out that Article 1081 of the old Civil Code has been
misapplied to the present case by the court below. The reason is obvious: Salud Barretto
admittedly had been instituted heir in the late Bibiano Barretto's last will and testament
together with defendant Milagros; hence, the partition had between them could not be
one such had with a party who was believed to be an heir without really being one, and
was not null and void under said article. The legal precept (Article 1081) does not speak
of children, or descendants, but of heirs(without distinction between forced, voluntary or
intestate ones), and the fact that Salud happened not to be a daughter of the testator
does not preclude her being one of the heirs expressly named in his testament; for
Bibiano Barretto was at liberty to assign the free portion of his estate to whomsoever he
chose. While the share (½) assigned to Salud impinged on the legitime of Milagros,
Salud did not for that reason cease to be a testamentary heir of Bibiano Barretto.

Nor does the fact that Milagros was allotted in her father's will a share smaller than her
legitime invalidate the institution of Salud as heir, since there was here no preterition, or
total ommission of a forced heir. For this reason, Neri vs. Akutin, 72 Phil. 322, invoked
by appellee, is not at all applicable, that case involving an instance of preterition or
omission of children of the testator's former marriage.

Appellee contends that the partition in question was void as a compromise on the civil
status of Salud in violation of Article 1814 of the old Civil Code. This view is erroneous,
since a compromise presupposes the settlement of a controversy through mutual
concessions of the parties (Civil Code of 1889, Article 1809; Civil Code of the Philippines,
Art. 2028); and the condition of Salud as daughter of the testator Bibiano Barretto,
while untrue, was at no time disputed during the settlement of the estate of the
testator. There can be no compromise over issues not in dispute. And while a
compromise over civil status is prohibited, the law nowhere forbids a settlement by the
parties over the share that should correspond to a claimant to the estate.

At any rate, independently of a project of partition which, as its own name implies, is
merely a proposal for distribution of the estate, that the court may accept or reject, it is
the court alone that makes the distribution of the estate and determines the persons
entitled thereto and the parts to which each is entitled (Camia vs. Reyes, 63 Phil. 629,
643; Act 190, Section 750; Rule 90, Rules of 1940; Rule 91, Revised Rules of Court),
and it is that judicial decree of distribution, once final, that vests title in the distributees.
If the decree was erroneous or not in conformity with law or the testament, the same
should have been corrected by opportune appeal; but once it had become final, its
binding effect is like that of any other judgment in rem, unless properly set aside for
lack of jurisdiction or fraud.

It is thus apparent that where a court has validly issued a decree of distribution of the
estate, and the same has become final, the validity or invalidity of the project of
partition becomes irrelevant.

It is, however, argued for the appellee that since the court's distribution of the estate of
the late Bibiano Barretto was predicated on the project of partition executed by Salud
Barretto and the widow, Maria Gerardo (who signed for herself and as guardian of the
minor Milagros Barretto), and since no evidence was taken of the filiation of the heirs,
nor were any findings of fact or law made, the decree of distribution can have no greater
validity than that of the basic partition, and must stand or fall with it, being in the nature
of a judgment by consent, based on a compromise. Saminiada vs. Mata, 92 Phil. 426, is
invoked in support of the proposition. That case is authority for the proposition that a
judgment by compromise may be set aside on the ground of mistake or fraud, upon
petition filed in due time, where petition for "relief was filed before the compromise
agreement a proceeding, was consummated" (cas. cit. at p. 436). In the case before us,
however, the agreement of partition was not only ratified by the court's decree of
distribution, but actually consummated, so much so that the titles in the name of the
deceased were cancelled, and new certificates issued in favor of the heirs, long before
the decree was attacked. Hence, Saminiada vs. Mata does not apply.

Moreover, the defendant-appellee's argument would be plausible if it were shown that

the sole basis for the decree of distribution was the project of partition. But, in fact,
even without it, the distribution could stand, since it was in conformity with the probated
will of Bibiano Barretto, against the provisions whereof no objection had been made. In
fact it was the court's duty to do so. Act 190, section 640, in force in 1939, provided: .

SEC. 640. 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 Philippine Islands. 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 these Islands belonging to persons who are
inhabitants of another state or country. (Emphasis supplied)

That defendant Milagros Barretto was a minor at the time the probate court distributed
the estate of her father in 1939 does not imply that the said court was without
jurisdiction to enter the decree of distribution. Passing upon a like issue, this Court ruled
in Ramos vs. Ortuzar, 89 Phil. Reports, pp. 741 and 742:

If we are to assume that Richard Hill and Marvin Hill did not formally intervene,
still they would be concluded by the result of the proceedings, not only as to their
civil status but as the distribution of the estate as well. As this Court has held in
Manolo vs. Paredes, 47 Phil. 938, "The proceeding for probate is one in rem (40
Cyc., 1265) and the court acquires jurisdiction over all persons interested, through
the publication of the notice prescribed by section 630 C.P.C.; and any order that
 any be entered therein is binding against all of them." (See also in re Estate of
Johnson, 39 Phil. 156.) "A final order of distribution of the estate of a deceased
person vests the title to the land of the estate in the distributees". (Santos vs.
Roman Catholic Bishop of Nueva Caceres, 45 Phil. 895.) There is no reason why,
by analogy, these salutary doctrines should not apply to intestate proceedings.

The only instance that we can think of in which a party interested in a probate
proceeding may have a final liquidation set aside is when he is left out by reason
of circumstances beyond his control or through mistake or inadvertence not
imputable to negligence. Even then, the better practice to secure relief is
reopening of the same case by proper motion within the reglementary period,
instead of an independent action the effect of which, if successful, would be, as in
the instant case, for another court or judge to throw out a decision or order
already final and executed and reshuffle properties long ago distributed and
disposed of.

It is well to observe, at this juncture, as this Court expressly declared in Reyes vs.
Barretto Datu, 94 Phil. 446 (Am'd Rec. Appeal, pp. 156, 157), that:

... It is argued that Lucia Milagros Barretto was a minor when she signed the
partition, and that Maria Gerardo was not her judicially appointed guardian. The
claim is not true. Maria Gerardo signed as guardian of the minor. (Secs. 3 and 5,
Rule 97, Rules of Court.) The mere statement in the project of partion that the
guardianship proceedings of the minor Lucia Milagros Barretto are pending in the
court, does not mean that the guardian had not yet been appointed; it meant that
the guardianship proceedings had not yet been terminated, and as a guardianship
proceedings begin with the appointment of a guardian, Maria Gerardo must have
been already appointed when she signed the project of partition. There is,
therefore, no irregularity or defect or error in the project of partition, apparent on
the record of the testate proceedings, which shows that Maria Gerardo had no
power or authority to sign the project of partition as guardian of the minor Lucia
Milagros Barretto, and, consequently, no ground for the contention that the order
approving the project of partition is absolutely null and void and may be attacked
collaterally in these proceedings.

So that it is now incontestable that appellee Milagros Barretto was not only made a party
by publication but actually appeared and participated in the proceedings through her
guardian: she, therefore, can not escape the jurisdiction of the Manila Court of First
Instance which settled her father's estate.

Defendant-appellee further pleads that as her mother and guardian (Maria Gerardo)
could not have ignored that the distributee Salud was not her child, the act of said
widow in agreeing to the oft-cited partition and distribution was a fraud on appellees
rights and entitles her to relief. In the first place, there is no evidence that when the
estate of Bibiano Barretto was judicially settled and distributed appellants' predecessor,
Salud Lim Boco Barretto to, knew that she was not Bibiano's child: so that if fraud was
committed, it was the widow, Maria Gerardo, who was solely responsible, and neither
Salud nor her minor children, appellants herein, can be held liable therefor. In the
second placegranting that there was such fraud, relief therefrom can only be obtained
within 4 years from its discovery, and the record shows that this period had elapsed long
ago.

Because at the time of the distribution Milagros Barretto was only 16 years old (Exhibit
24), she became of age five years later, in 1944. On that year, her cause of action
accrued to contest on the ground of fraud the court decree distributing her father's
estate and the four-year period of limitation started to run, to expire in 1948 (Section
43, Act. 190). In fact, conceding that Milagros only became aware of the true facts in
1946 (Appellee's Brief, p. 27), her action still became extinct in 1950. Clearly, therefore,
the action was already barred when in August 31, 1956 she filed her counterclaim in this
case contesting the decree of distribution of Bibiano Barretto's estate.
In order to evade the statute of limitations, Milagros Barretto introduced evidence that
appellant Tirso Reyes had induced her to delay filing action by verbally promising to
reconvey the properties received by his deceased wife, Salud. There is no reliable
evidence of the alleged promise, which rests exclusively on the oral assertions of
Milagros herself and her counsel. In fact, the trial court made no mention of such
promise in the decision under appeal. Even more: granting arguendo that the promise
was made, the same can not bind the wards, the minor children of Salud, who are the
real parties in interest. An abdicative waiver of rights by a guardian, being an act of
disposition, and not of administration, can not bind his wards, being null and void as to
them unless duly authorized by the proper court (Ledesma Hermanos vs. Castro, 55
Phil. 136, 142).

In resume, we hold (1) that the partition had between Salud and Milagros Barretto in
the proceedings for the settlement of the estate of Bibiano Barretto duly approved by
the Court of First Instance of Manila in 1939, in its Civil Case No. 49629, is not void for
being contrary to either Article 1081 or 1814 of the, Civil Code of 1889; (2) that
Milagros Barretto's action to contest said partition and decree of distribution is barred by
the statute of limitations; and (3) that her claim that plaintiff-appellant guardian is a
possessor in bad faith and should account for the fruits received from the properties
inherited by Salud Barretto (nee Lim Boco) is legally untenable. It follows that the
plaintiffs' action for partition of the fishpond described in the complaint should have
been given due course.

Wherefore, the decision of the Court of First Instance of Bulacan now under appeal is
reversed and set aside in so far as it orders plaintiff-appellant to reconvey to appellee
Milagros Barretto Datu the properties enumeracted in said decision, and the same is
affirmed in so far as it denies any right of said appellee to accounting. Let the records be
returned to the court of origin, with instructions to proceed with the action for partition
of the fishpond (Lot No. 4, Plan Psu-4709), covered by TCT No. T-13734 of the Office of
the Register of Deeds of Bulacan, and for the accounting of the fruits thereof, as prayed
for in the complaint No costs.
G.R. No. 80821             February 21, 1991

GREGORIO FAVOR, petitioner, 
vs.
THE HONORABLE COURT OF APPEALS, PRUDENCIO FAVOR HEIRS: EUFEMIO
FAVOR and AGUSTIN FAVOR, respondents.

Leo Diocos for petitioner.

Saludario O. Sonjaco for private respondents.

CRUZ, J.:

It is sad when brother is pitted against brother in a bitter controversy over property left
them by a common forebear. The ancestor must be turning in his grave to see that the
bonds of blood that used to unite his children have turned into a rope of sand.

The deceased father in this case was Regino Favor, who left three sons and several
parcels of land in his name. Before the property could be divided among the three
brothers, one of them died with neither wife nor children. Only the surviving brothers,
Gregorio and Prudencio (or Florencio), are involved in this litigation.

The dispute arose in 1972 when Gregorio filed a complaint in the Court of First Instance
of Negros Oriental against his older brother Prudencio for partition of the following
properties they had inherited from their father:

(a) A parcel of land, Lot No. 5288 of Dumaguete Cadastre, situated at Barrio
Cantil-i, covered by O.C.T. No. 3266-A of the land records of Dumaguete City, with
Tax Declaration No. 8-11, and assessed at P250.00; (Exh. B)

(b) A parcel of land, Lot No. 5272 of Dumaguete Cadastre, situated at Barrio
Cantil-i covered by O.C.T. No. 598 of the land records of Dumaguete City, with Tax
Declaration No. 8-12, and assessed at P1,270.00;

(c) A parcel of land, Lot No. 4114 of Bacong Cadastre, situated at Barrio Balayag-
Manok, covered by O.C.T. No. G.V. 7291 of the land records of Negros Oriental,
with Tax Declaration No. 1857, and assessed at P200.00;

(d) A parcel of land, situated at Barrio Bongbong, Valencia, Negros Oriental,

covered by Tax Declaration No. 8851 and assessed at P30.00 with the following
boundaries:

N — Leon W 40.00 meters;

E — Eusebio Favor 30.00 meters;

S — Procopio Abong 40.00 meters;

W — Procopio Abong 30.00 meters;

containing an area of 1,200 square meters, more or less; and

(e) A parcel of land, situated at Barrio Bong-ao, Valencia, Negros Oriental, covered
by Tax Declaration No. 3639 and assessed at P110.00 square meters, more or
less.

Florencio's reaction was to move to dismiss the complaint for lack of a cause of action.
He contended that the properties mentioned in the complaint had already been
partitioned under a Compromise Agreement concluded between Gregorio and him on
October 4, 1948, and acknowledged before the justice of the peace of Luzuriaga, Negros
Oriental.

The Compromise Agreement was reproduced in the motion as follows:

That, whereas, we are the true and absolute owners of certain parcels of land
situated in the Municipalities of Bacong, Luzuriaga and Dumaguete, Negros
Oriental, which parcels of land we have inherited from our deceased father, Regino
Favor;

That, whereas, we have voluntarily agreed to divide the aforesaid real property
between ourselves with terms and conditions more specifically stated hereunder;

Now, therefore, for and in consideration of the above premises, we have

covenanted and agreed, and by these presents do hereby covenant and agree:

First, that the parcel of land situated in the Municipality of Bacong, Negros
Oriental, which had been subsequently divided and surveyed shall remain our
property in accordance with the Cadastral Survey of Bacong Negros Oriental;

Second –– That Prudencio Favor shall become the exclusive owner of that parcel of
land situated on the boundary between Dumaguete and Luzuriaga, and which
parcel of land is covered by a Free Patent under Original Certificate of Title
Numbered 19443 in the Office of the Register of Deeds in and for the Province of
Negros Oriental, and also of that certain parcel of land situated in Barrio Bong-
Bong, Municipality of Luzuriaga, Negros Oriental. . . .

Third –– That Gregorio Favor shall become the exclusive owner of that certain
parcel of land situated in Barvio Cantil-i, Dumaguete City, Negros Oriental, under a
certificate of Torrens Title in the name of our deceased brother, Hilario Favor; and

Fourth, that upon the signing of this agreement, Prudencio Favor shall pay to
Gregorio Favor the sum of One Hundred Fifty Pesos (P150.00) Philippine Currency.

The motion to dismiss was denied, and Prudencio reiterated the same defense in his
answer. Gregorio filed an amended complaint in which he prayed, in addition to the
partition, for the invalidation of the Compromise Agreement on the ground of fraud and
mistake.

At the trial, Gregorio testified that the greater portion of his father's properties were in
the possession of Prudencio, who was occupying 16,794 square meters as against the
3,789 square meters left to him. He also assailed the Compromise Agreement, claiming
that he had signed it under the mistaken impression that it was a mortgage receipt for
P150.00 and not a partition. He alleged that he could not read or speak English and that
he was defrauded into signing the document by the defendant.

For his part, Prudencio narrated under oath that after the death of their father and later
of their brother Hilario, he and Gregorio verbally partitioned their inheritance, but in
1948 Gregorio asked for a new partition. He refused. Gregorio then filed a complaint
against him which was, however, withdrawn after they signed the Compromise
Agreement. He insisted that the agreement was a valid and binding document that
justified the dismissal of the new complaint.

(On November 20, 1983, while the case was pending, Prudencio died and was
substituted by his legal heirs, Eufemio and Agustin Favor, the herein private
respondents.)

On January 6, 1984, Judge Pedro Gabaton of the Regional Trial Court of Dumaguete,
rendered judgment declaring the Compromise Agreement null and void, ordering
partition of the disputed properties, and awarding the plaintiff damages and attorney's
fees. On appeal, this decision was reversed by the Court of Appeals,1 which held the
Compromise Agreement to be valid and binding and ordered the dismissal of the
complaint.

In this petition for review on certiorari under Rule 45 of the Rules of Court, the
respondent court is faulted for upholding the Compromise Agreement and not applying
the pertinent provisions of the Civil Code sustaining the right of the petitioner as co-
owner to the partition of the properties in dispute.

(Gregorio died on April 14,1988, and is hereby substituted as petitioners herein by his
wife, Melodia, and their children, Jesus, Calixto, Fernando, Leonardo, Cirilo, Gregorio
and Lope.)

We must observe at the outset that although denominated a Compromise Agreement,

the document in question is deemed a deed of partition under Article 1082 of the Civil
Code, which categorically provides as follows:

Every act which is intended to put an end to in division among co-heirs and
legatees or devisees is deemed to be a partition, although it should purport to be a
sale, an exchange, a compromise, or any other transaction.

As for its validity, we agree with the respondent court that the Compromise Agreement
must be upheld, the challenge to it not having been substantiated. A public instrument
enjoys the presumption of validity that has not been overcome by the petitioner in this
case with the full, clear and convincing evidence we have consistently required in similar
cases.2 The document appears to have been duly notarized, and by the then justice of
the peace, and ex officio notary public, of the town where it was executed. Although it
was written in English –– and precisely because of this –– we can suppose that its
contents were sufficiently explained to the parties thereto, who both claimed to be
illeterate That claim is believable in Prudencio, who declared he was a farmer and
merely affixed his thumbmark to the document, but it is not as credible with respect to
Gregorio, who actually signed the agreement.

Gregorio was in fact a businessman and even ran for the position of barangay
captain,3 for which the ability to read and write is prescribed as an indispensable
qualification. It is worth noting that he also signed his complaint of February 15, 1972,
and its verification as well,4 but in the petition he filed with this Court — after the
respondent court had found that he was literate — he merely affixed his thumbmark to
the verification. If his purpose was to convince us that he really could not write, he has
not succeeded.

To prove defect or lack of consent, the evidence must also be strong and not merely
preponderant.5 Gregorio's claim that he was tricked by his brother into signing the
Compromise Agreement, which he believed was only a mortgage receipt, is not
convincing enough for us. If any one was more likely to be deceived, it was not Gregorio
but the farmer Prudencio, who was less experienced than his brother in business
matters and court litigations. It was Gregorio and not Prudencio who filed the first
complaint that led to the execution of the Compromise Agreement and also the second
complaint which is the subject of the present petition.

But while upholding the Compromise Agreement, we must also find that the complaint
for partition should not have been entirely dismissed by the respondent court. The
reason is that there are still certain properties of Regino Favor that have not been
distributed between the brothers, as a close examination of the Compromise Agreement
will reveal. Thus:

1. The first parcel of land mentioned in the complaint, Lot 5288, covered by O.C.T.
3266-A, is the same lot mentioned in the third provision of the Compromise
Agreement "that certain parcel of land situated at Barrio Cantil-i, Dumaguete,
Negros Oriental under certificate of title in the name of our deceased brother
Hilario Favor . . ." and is adjudicated to Gregorio Favor.
 2. The second parcel of land mentioned in the complaint, Lot 5272, covered by
O.C.T. 598 in the name of Prudencio Favor, is the first lot mentioned in the second
provision of the Compromise Agreement "that parcel of land situated on the
boundary between Dumaguete and Luzuriaga and which parcel of land is covered
by a Free Patent under original certificate of title 19443 in the Office of the
Register of Deeds in and for the province of Negros Oriental . . . ." and is
adjudicated to Prudencio Favor.

3. The third parcel of land mentioned in the complaint, Lot 4114, covered by
O.C.T. O.V. 7291, is the same lot mentioned in the first provision of the
Compromise Agreement, "the parcel of land situated in the municipality of Bacong,
Negros Oriental, which had been subsequently divided and surveyed shall remain
our property . . . .

4. The fourth parcel of land mentioned in the complaint, the lot at Barrio
Bongbong, Valencia, Negros Oriental, is the same lot mentioned in the second
provision of the Compromise Agreement as "that certain parcel of land situated at
Barrio Bongbong, Luzuriaga (now Valencia), Negros Oriental" is adjudicated to
Prudencio Favor.

5. The fifth parcel of land mentioned in the complaint, the lot at Barrio Bongao,
Valencia, Negros Oriental is not mentioned in the Compromise Agreement.

There still remain two parcels of land that have not yet been partitioned, to wit, Lot
4114, which by agreement of the brothers "shall remain our property," and the lot at
Barrio Bongao, which was not included in the Compromise Agreement as found by both
the trial and the respondent courts. Partition of these lots is mandatory under Article
494 of the Civil Code, which provides as follows:

No co-owner shall be obliged to remain in the co-ownership. Each co-owner may

demand at any time the partition of the thing owned in common, insofar as his
share is concerned.

Nevertheless, an agreement to keep the thing undivided for a certain period of

time, not exceeding ten years, shall be valid.1âwphi1 This term may be extended
by a new agreement.

x x x           x x x          x x x

Article 1083 bolsters the above rule by declaring that:

Every co-heir has a right to demand the division of the estate unless the testator
should have expressly forbidden its partition, in which case the period of in
division shall not exceed twenty years as provided in Article 494. . . .

No such prohibition was made by Regino Favor, who died intestate. And as the
Compromise Agreement was entered into in 1948, the provision therein for the co-
ownership of Lot 4114 is deemed to have expired in 1958, no extension thereof having
been established. Hence, these two lots must now be the subject of a separate partition
conformably to the prayer in the complaint.

We affirm the decision of the respondent court insofar as it upholds the Compromise
Agreement partitioning three of the parcels of land mentioned therein. We must modify
it, however, insofar as it dismisses the complaint with regard to the other properties
inherited from Regino Favor which have not been partitioned so far.

WHEREFORE, Civil Case No. 5391 is remanded to the Regional Trial Court of Negros
Oriental, Branch 41, for the partition, in accordance with Rule 69 of the Rules of Court,
of the parcels of land mentioned in Paragraph 2, sub-paragraphs (c) and (e) of the
complaint. The rest of the challenged decision is AFFIRMED, with costs to be shared by
the petitioner and the private respondents.
G.R. No. L-26855 April 17, 1989

FRANCISCO GARCIA, PAZ GARCIA, and MARIA GARCIA, petitioners, 

vs.
JOSE CALALIMAN, PACIENCIA TRABADILLO & HON. COURT OF APPEALS, Third
Division, respondents.

Jose Gaton for petitioners.

Ricardo Q. Castro for respondents.

PARAS,  J.:

This is a petition for review on certiorari of the decision * of the Court of Appeals in CA-
G.R. No. 22179-R, promulgated on August 31, 1966, reversing the decision of the Court
of First Instance of Iloilo ** in Civil Case No. 3489, and rendering a new one dismissing
the complaint of petitioner herein, the dispositive portion of which reads as follows:

WHEREFORE, the judgment appealed from is hereby reversed and another

entered, dismissing plaintiff's complaint. No pronouncement as to costs. (p.
29 Rollo)

The facts of the case are as follows:

On February 11, 1946, one Gelacio Garcia died intestate, leaving a parcel of
unregistered land about 372 sq. meters, situated in the Municipality of Tubungan,
Province of Iloilo (Exhibits, p. 19). On his death the property was inherited by his
nephews, nieces, grandnephews who are the descendants of his late brothers, Pedro,
Simeon, Buenaventura and Marcos (TSN, Sept. 6,1956, p. 3).

On December 3, 1954, the heirs, Juanita Bertomo, Joaquin Garcia, Porfirio Garcia,
Dioscoro Garcia, Flora Garcia, Consolacion Garcia, Remedios Garcia, Trinidad Garcia,
Baltazar Garcia signed a document entitled, "Extra-judicial Partition and Deed of Sale"
(Exhibits, p. 19). The parcel of land subject of the document was described as follows:

A parcel of residential land, about 372 square meters, lst class, Identified as
Assessor's Lot No. 107, Block No. 8, bounded on the north by Paz and
Federal Streets; on the south by Tabaosares and Antonia Tacalinar; on the
East by Piedad Street; and on the West by Paz Street. This parcel of land
has no concrete monuments to indicate its boundaries but there are dikes,
stones and temporary fences used as landmarks and boundary signals. This
parcel of land is covered by Tax Declaration No. 1149, S. of 1947, in the
name of Gelacio Garcia, and its assessed value of P110.00. (p. 19, Exhibits)

The last paragraph of the same document states:

That for and in consideration of the sum of FIVE HUNDRED PESOS

(P500.00), Philippine Currency, to us in hand paid by the spouses, JOSE
CALALIMAN, and PACIENCIA TRABADILLO, all of legal age, Filipinos and
residents of the municipality of Tubungan, province of Iloilo, Philippines,
receipt of which we hereby acknowledged and confessed to our entire
satisfaction, do by these presents, cede, sell, convey and transfer the above-
described parcel of land unto the said spouses, Jose Calaliman and Paciencia
Trabadillo, their heirs, successors and assigns free from all liens and
encumbrances whatever. (p. 19, Exhibits)

The document was inscribed in the Register of Deeds of Iloilo on February 24,1955,
Inscription No. 20814, Page 270, Vol. 64 (Exhibits, p. 20).
On December 17, 1954 another group of heirs, Rosario Garcia, Margarita Garcia, Dolores
Rufino, Resurreccion Tagarao, Serafin Tagarao, Buenaventura Tagarao, Fortunata Garcia
and Simeon Garcia, all residents of Isabela, Negros Occidental, also sold to the spouses
Jose Calaliman and Paciencia Trabadillo through their attorney-in-fact, Juanito Bertomo,
their shares, rights, interest and participation in the same parcel of land. The Deed of
Sale was registered in the Register of Deeds of Iloilo also on December 22, 1954,
Inscription No. 20640, p. 88, Vol. 64 (Exhibits, p. 2122).

On May 7, 1955 the heirs Francisco Garcia, Paz Garcia, and Maria Garcia, petitioners
herein, filed against the spouses Jose Calaliman and Paciencia Trabadillo, private
respondents herein, Civil Case No. 3489 with the Court of First Instance of Iloilo, for
legal redemption of the 3/4 portion of the parcel of land inherited by the heirs from the
late Gelacio Garcia, which portion was sold by their co-heirs to the defendants. In the
complaint (Record on Appeal, p. 4) plaintiffs alleged, among others:

5. That, plaintiffs' co-owners had never offered for sale their interest and
shares over the said land to the plaintiffs prior to the sale in favor of the
defendants, nor given notice of such intention on their part; and that, no
notice in writing has been given by said co-owners to the plaintiffs of the
said sale, such that, plaintiffs came to learn of it only from other source;

6. That, plaintiffs would have purchased the interest and shares of their co-
owners had the latter offered the same to them prior to the sale thereof to
the defendants; and that, within 30 days after learning of the sale made to
the defendants under annexes 'A', 'B' and 'B-l', plaintiffs made repeated offer
to the defendants to allow them to redeem said interest and shares acquired
by the defendants in accordance with the right granted to the plaintiffs by
law in such a case, offering a reasonable price thereof of P300 taking into
consideration the fact that the defendants had acquired only 3/4 of the land
of 372 square meters more or less, in area with assessed value of P110 and
a fair market value of 372 at Pl per square meter, the price actually
obtaining in the locality at the time of the sale thereof under Annexes 'A', 'B'
and 'B-l'; however, the defendants refused and have until the present
refused to grant redemption thereof giving no reason why other than
challenging the plaintiffs to bring their case in court:

7. That, the circumstances surrounding the transaction between the

defendants and plaintiffs' co-owners, the vendors, were such that
defendants could not have actually paid nor the vendors actually received
the total price of P800 as stipulated in the deeds Annexes 'A', 'B' and 'B-l'
while the said price fixed is grossly excessive and highly exaggerated and
prohibitive for evidently ulterior motive:

8. That, the land herein described is an ancestral property and plaintiffs have
actually a house standing thereon and having lived thereon ever since, such
that, the defendants' refusal to allow redemption thereof has caused the
plaintiffs mental torture, worry and anxiety, forcing them to litigate and
retain services of counsel, therefore, plaintiffs demand against the
defendants P500 for moral damage, P500 for exemplary damage, P300 for
attorney's fees, aside from actual expenses incurred; and, furthermore, P5
monthly as reasonable value of defendants' occupation of a portion of the
premises counting from the filing of this complaint.

They prayed that the trial court render judgment:

1. Declaring the plaintiffs to be entitled to redeem from the defendants for

the price of P300 or for such reasonable price as may be determined by this
Honorable Court the interest and shares over the land described in this
complaint of plaintiffs' co-owners, Joaquin, Porfirio, Flora, Dioscoro,
Consolacion, Remedios, Trinidad, Baltazar, Rosario, Margarita, Dolores,
Fortunata and Simon, all surnamed Garcia, and Resurreccion, Serafin and
 Buenaventura, all surnamed Tagarao, sold by them to the defendants under
the deeds of sale Annexes 'A', 'B' and 'B-l' of this complaint; and ordering
the defendants to execute the proper instrument of reconveyance or
redemption thereof in favor of the plaintiffs; and, ordering them to vacate
the premises;

2. Condemning the defendants to pay to the plaintiffs P500 for moral

damage; P500 for exemplary damage; P300 for attorney's fees and actual
expenses incurred; P5 monthly from the filing of this complaint as
reasonable value of defendants' occupation of a portion of the land; the
costs of this action; and, for such other relief and remedy as may be legal,
just and equitable."

On the other hand, the defendants, private respondents herein, alleged in their answer
the following special affirmative defenses (Record on Appeal, p. 14):

1. That plaintiffs have no cause of action against the herein defendants;

2. That due notices in writing have been sent to plaintiff Francisco Garcia at
his residence at 2875 Felix Huertas St., Sta. Cruz, Manila, sometime last
June 1953, in which plaintiff Francisco Garcia was informed of his co-owners
signified intention to sell their shares, and likewise, the other plaintiffs Paz
and Maria Garcia were personally notified of the same hence, for that
reason, they are now barred to claim legal redemption of the land in
question, having filed their belated claim too late."

The trial court rendered judgment on September 12, 1957 in favor of the plaintiffs
(Record on Appeal, p. 15), the dispositive portion of which reads as follows:

WHEREFORE, judgment is hereby rendered:

(a) Sentencing the defendants to resell the property to the plaintiffs for
P800.00 which is the total consideration of the two deeds of sale Exhibits A
and B;

(b) In the event that the defendants fail to execute the deed of resale within
ten days from the date this decision becomes final, the Clerk of Court is
hereby ordered to execute the corresponding deed pursuant to the
provisions of Section 10 of Rule 39 of the Rules of Court;

(c) Without pronouncement as to costs.

On October 14, 1957 plaintiffs filed their notice of Appeal predicated on "(a) failure of
the Court to adjudge the real or reasonable price of the sale or otherwise the
redemption value thereof; (b) failure of the Court to adjudge damages including
attorney's fees in favor of the plaintiffs and the costs." (Record on Appeal, p. 18).

Defendants filed their own notice of appeal on October 15, 1957 (Record on Appeal, p.
19).

On appeal the Court of Appeals in a decision promulgated on August 31, 1966 reversed
the decision of the trial court and rendered another one dismissing plaintiff's complaint
with no pronouncement as to costs (Rollo, p. 22).

The instant petition for review by certiorari was filed with the Court on December 12,
1966 (Rollo, p. 11). The Court at first dismissed the petition in a resolution dated
December 22, 1966, for insufficient supporting papers (Rollo, p. 35) but reconsidered
the said Resolution of Dismissal later in a Resolution dated February 8, 1967 (Rollo, p.
97) as prayed for in a motion for reconsideration filed by petitioners on February 1,
1967 (Rollo, p. 38). The same Resolution of February 8, 1967 gave due course to the
petition.
The Brief for the Petitioners was filed on June 9,1967 (Rollo, p. 106); the Brief for the
Respondents was received in the Court on August 31, 1967 (Rollo, p. 119).

Petitioners having manifested they would not file reply brief on September 14,1967
(Rollo, p. 122) the Court considered the case submitted for decision, in a Resolution
dated September 21, 1967 (Rollo, p. 124).

Petitioners assign the following errors:

I. THE HONORABLE COURT OF APPEALS ERRED IN DECLARING THAT THE

30-DAY PERIOD PRESCRIBED IN ARTICLE 1088 OF THE NEW CIVIL CODE
FOR A CO-HEIR TO EXERCISE HIS RIGHT OF LEGAL REDEMPTION, HAD
ALREADY ELAPSED WHEN THE HEREIN PLAINTIFFS FILED THE ACTION ON
MAY 7,1955.

II. THE HONORABLE COURT OF APPEALS ERRED IN DECLARING THAT THERE

WAS NO OFFER TO REIMBURSE THE DEFENDANTS FOR THE PORTION OF
THE LAND IN QUESTION SOLD TO THEM BY THE CO-HEIRS OF THE
PLAINTIFFS.

III. THE HONORABLE COURT OF APPEALS ERRED IN REVERSING THE

JUDGMENT OF THE LOWER COURT, AND IN NOT ADJUDGING DAMAGES,
ATTORNEY'S FEES AND COSTS IN FAVOR OF THE PLAINTIFFS.

(Brief for the Petitioners, p. 1)

There is no question that the provision of law applicable in the instant case is Art. 1088
of the New Civil Code (Art. 1067, Old Civil Code) as the matter concerns heirs and
inheritance not yet distributed (Wenceslao v. Calimon, 46 Phil. 906 [1923]). Art. 1088
states:

Article 1088. Should any of the heirs sell his hereditary rights to a stranger
before the partition, any or all of the co-heirs may be subrogated to the
rights of the purchaser by reimbursing him for the price of the sale, provided
they do so within the period of one month from the time they were notified
in writing of the sale by the vendor.

The main issue is whether or not petitioners took all the necessary steps to effectuate
their exercise of the right of legal redemption within the period fixed by Art. 1088 of the
Civil Code.

It is undisputed that no notification in writing was ever received by petitioners about the
sale of the hereditary interest of some of their co-heirs in the parcel of land they
inherited from the late Gelacio Garcia, although in a letter dated June 23, 1953
petitioner Francisco Garcia wrote one of his co- heirs, Joaquin Garcia, who is an uncle of
petitioners, proposing to buy the hereditary interests of his co-heirs in their
unpartitioned inheritance, (Exhibit, p. 3). Although said petitioner asked that his letter
be answered "in order that I will know the results of what I have requested you,"
(Exhibit, p. 14) there is no proof that he was favored with one.

Petitioners came to know that their co-heirs were selling the property on December 3,
1954 when one of the heirs, Juanito Bertomo, asked Petitioner Paz Garcia to sign a
document prepared in the Municipality of Tubungan because the land they inherited was
going to be sold to private respondent, Jose Calaliman (TSN, September 6, 1957, p. 60).
The document mentioned by petitioner Paz Garcia could be no other than the one
entitled "Extra-Judicial Partition and Deed of Sale" dated December 3, 1954 as it is in
this document that the name of Paz Garcia, Maria Garcia and Amado Garcia appear
unsigned by them (Exhibits, p. 19).

It is not known whether the other heirs whose names appear in the document had
already signed the document at the time Paz Garcia was approached by Juanito
Bertomo. Paz Garcia, however, testified that she immediately informed her brother
Francisco that Juanita Bertomo wanted to sell the land to Jose Calaliman (TSN,
September 6,1957, p. 62). On December 26, 1954 he wrote respondents giving them
notice of his desire to exercise the right of legal redemption and that he will resort to
court action if denied the right (Exhibits, p. 8). The respondents received the letter on
January 13, 1955 but petitioner Francisco Garcia did not get any answer from them.
Neither did respondents show him a copy of the document of sale nor inform him about
the price they paid for the sale when he went home to Tubungan from Manila sometime
in March 1955 and went to see the respondent spouse about the matter on March
24,1955 (TSN, September 6,1957, p. 18).

Because of the refusal of respondent Jose Calaliman to show him the document of sale
or reveal to him the price paid for the parcel of land, petitioner Francisco Garcia went to
the Office of the Register of Deeds on the same date, March 24,1955 and there found
two documents of sale regarding the same parcel of land (TSN, Ibid, p. 19).

Petitioners filed the case for legal redemption with the trial court on May 7, 1955.
Respondents claim that the 30-day period prescribed in Article 1088 of the New Civil
Code for petitioners to exercise the right to legal redemption had already elapsed at that
time and that the requirement of Article 1088 of the New Civil Code that notice would be
in writing is deemed satisfied because written notice would be superfluous, the purpose
of the law having been fully served when petitioner Francisco Garcia went to the Office
of the Register of Deeds and saw for himself, read and understood the contents of the
deeds of sale (Brief for respondents, p. 6).

The issue has been squarely settled in the case of Castillo v. Samonte, where this Court
observed:

Both the letter and spirit of the new Civil Code argue against any attempt to
widen the scope of the notice specified in Article 1088 by including therein
any other kind of notice, such as verbal or by registration. If the intention of
the law had been to include verbal notice or any other means of information
as sufficient to give the effect of this notice, then there would have been no
necessity or reasons to specify in Article 1088 of the New Civil Code that the
said notice be made in writing for, under the old law, a verbal notice or
information was sufficient (106 Phil. 1023 [1960]).

In the above-quoted decision the Court did not consider the registration of the deed of
sale with the Register of Deeds sufficient notice, most specially because the property
involved was unregistered land, as in the instant case. The Court took note of the fact
that the registration of the deed of sale as sufficient notice of a sale under the provision
of Section 51 of Act No. 496 applies only to registered lands and has no application
whatsoever to a case where the property involved is, admittedly, unregistered land.

Consistent with aforesaid ruling, in the interpretation of a related provision (Article 1623
of the New Civil Code) this Court had stressed that written notice is indispensable, actual
knowledge of the sale acquired in some other manners by the redemptioner,
notwithstanding. He or she is still entitled to written notice, as exacted by the Code, to
remove all uncertainty as to the sale, its terms and its validity, and to quiet any doubt
that the alienation is not definitive. The law not having provided for any alternative, the
method of notifications remains exclusive, though the Code does not prescribe any
particular form of written notice nor any distinctive method for written notification of
redemption (Conejero et al. v. Court of Appeals et al., 16 SCRA 775 [1966]; Etcuban v.
Court of Appeals, 148 SCRA 507 [1987]; Cabrera v. Villanueva, G.R. No. 75069, April
15,1988).

Petitioners fault the appellate court in not awarding them damages, attorney's fees and
costs. After finding in favor of respondent spouses and against petitioners herein it is
untenable for petitioners to expect that the appellate court would award damages and
attorney's fees and costs. However as already discussed, petitioners have not lost their
right to redeem, for in the absence of a written notification of the sale by the vendors,
the 30-day period has not even begun to run. Petitioners clearly can claim attorney's
fees for bad faith on the part of respondents, first, for refusing redemption, and secondly
for declaring the entire land as theirs, although they knew some heirs had not sold their
shares.

PREMISES CONSIDERED, the decision of the Court of Appeals is REVERSED and the
decision of the trial court is REINSTATED with the modification that petitioners be
awarded damages, attorney's fees and costs in the amount prayed for.
G.R. No. 101522 May 28, 1993

LEONARDO MARIANO, AVELINA TIGUE, LAZARO MARIANO, MERCEDES SAN

PEDRO, DIONISIA M. AQUINO, and JOSE N.T. AQUINO, petitioners, 
vs.
HON. COURT OF APPEALS, (Sixteenth Division), GRACE GOSIENGFIAO, assisted
by her husband GERMAN GALCOS; ESTER GOSIENGFIAO, assisted by her
husband AMADOR BITONA; FRANCISCO GOSIENGFIAO, JR., NORMA
GOSIENGFIAO, and PINKY ROSE GUENO, respondents.

The Baristers Law Office for petitioners.

Simeon T. Agustin for private respondents.

NOCON, J.:

Before Us is a petition foe review of the decision, dated May 13, 1991 of the Court of
Appeals in CA-G.R. CV No. 13122, entitled Grace Gosiengfiao, et al. v. Leonardo
Mariano v. Amparo Gosiengfiao  1 raising as issue the distinction between Article
10882 and Article 16203 of the Civil Code.

The Court of Appeals summarized the facts as follows:

It appears on record that the decedent Francisco Gosiengfiao is the

registered owner of a residential lot located at Ugac Sur, Tuguegarao,
Cagayan, particularly described as follows, to wit:

"The eastern portion of Lot 1351, Tuguegarao Cadastre, and

after its segregation now designated as Lot 1351-A, Plan PSD-
67391, with an area of 1,1346 square meters."

and covered by Transfer Certificate of Title No. T-2416 recorded in the

Register of Deeds of Cagayan.

The lot in question was mortgaged by the decedent to the Rural Bank of
Tuguegarao (designated as Mortgagee bank, for brevity) on several
occasions before the last, being on March 9, 1956 and 29, 1958.

On August 15, 1958, Francisco Gosiengfiao died intestate survived by his

heirs, namely: Third-Party Defendants: wife Antonia and Children Amparo,
Carlos, Severino and herein plaintiffs-appellants Grace, Emma, Ester,
Francisco, Jr., Norma, Lina (represented by daughter Pinky Rose), and
Jacinto.

The loan being unpaid, the lot in dispute was foreclosed by the mortgagee
bank and in the foreclosure sale held on December 27, 1963, the same was
awarded to the mortgagee bank as the highest bidder.

On February 7, 1964, third-party defendant Amparo Gosiengfiao-Ibarra

redeemed the property by paying the amount of P1,347.89 and the balance
of P423.35 was paid on December 28, 1964 to the mortgagee bank.

On September 10, 1965, Antonia Gosiengfiao on her behalf and that of her
minor children Emma, Lina, Norma together with Carlos and Severino
executed a "Deed of Assignment of the Right of Redemption" in favor of
Amparo G. Ibarra appearing in the notarial register of Pedro (Laggui) as Doc.
No. 257, Page No. 6, Book No. 8, Series of 1965.
 On August 15, 1966, Amparo Gosiengfiao sold the entire property to
defendant Leonardo Mariano who subsequently established residence on the
lot subject of this controversy. It appears in the Deed of Sale dated August
15, 1966 that Amparo, Antonia, Carlos and Severino were signatories
thereto.

Sometime in 1982, plaintiff-appellant Grace Gosiengfiao learned of the sale

of said property by the third-party defendants. She went to the Barangay
Captain and asked for a confrontation with defendants Leonardo and Avelina
Mariano to present her claim to said property.

On November 27, 1982, no settlement having been reached by the parties,

the Barangay captain issued a certificate to file action.

On December 8, 1982, defendant Leonardo Mariano sold the same property

to his children Lazaro F. Mariano and Dionicia M. Aquino as evidenced by a
Deed of Sale notarized by Hilarion L. Aquino as Doc. No. 143, Page No. 19,
Book No. V, Series of 1982.

On December 21, 1982, plaintiffs Grace Gosiengfiao, et al. filed a complaint

for "recovery of possession and legal redemption with damages" against
defendants Leonardo and Avelina Mariano. Plaintiffs alleged in their
complaint that as co-heirs and co-owners of the lot in question, they have
the right to recover their respective shares in the same, and property as
they did not sell the same, and the right of redemption with regard to the
shares of other co-owners sold to the defendants.

Defendants in their answer alleged that the plaintiffs has (sic) no cause of
action against them as the money used to redeem lot in question was solely
from the personal funds of third-party defendant Amparo Gosiengfiao-Ibarra,
who consequently became the sole owner of the said property and thus
validly sold the entire property to the defendants, and the fact that
defendants had already sold the said property to the children, Lazaro
Mariano and Dionicia M. Aquino. Defendants further contend that even
granting that the plaintiffs are co-owners with the third-party defendants,
their right of redemption had already been barred by the Statute of
Limitations under Article 1144 of the Civil Code, if not by laches.4

After trial on the merits, the Regional Trial Court of Cagayan, Branch I, rendered a
decision dated September 16, 1986, dismissing the complaint and stating that
respondents have no right of ownership or possession over the lot in question. The trial
court further said that when the subject property foreclosed and sold at public auction,
the rights of the heirs were reduced to a mere right of redemption. And when Amparo G.
Ibarra redeemed the lot from the Rural Bank on her own behalf and with her own money
she became the sole owner of the property. Respondents' having failed to redeem the
property from the bank or from Amparo G. Ibarra, lost whatever rights the might have
on the property.5

The Court of Appeals in its questioned decision reversed and set aside the ruling of the
trial court and declared herein respondents as co-owners of the property in the question.
The Court of Appeals said:

The whole controversy in the case at bar revolves on the question of

"whether or not a co-owner who redeems the whole property with her own
personal funds becomes the sole owner of said property and terminates the
existing state of co-ownership."

Admittedly, as the property in question was mortgaged by the decedent, a

co-ownership existed among the heirs during the period given by law to
redeem the foreclosed property. Redemption of the whole property by a co-
owner does not vest in him sole ownership over said property but will inure
 to the benefit of all co-owners. In other words, it will not end to the existing
state of co-ownership. Redemption is not a mode of terminating a co-
ownership.

xxx xxx xxx

In the case at bar, it is undisputed and supported by records, that third-

party defendant Amparo G. Ibarra redeemed the propety in dispute within
the one year redemption period. Her redemption of the property, even
granting that the money used was from her own personal funds did not
make her the exclusive owner of the mortgaged property owned in common
but inured to the benefit of all co-owners. It would have been otherwise if
third-party defendant Amparo G. Ibarra purchased the said property from
the mortgagee bank (highest, bidder in the foreclosure sale) after the
redemption period had already expired and after the mortgagee bank had
consolidated it title in which case there would no longer be any co-ownership
to speak of .6

The decision of the Court of Appeals is supported by a long line of case law which states
that a redemption by a co-owner within the period prescribed by law inures to the
benefit of all the other co-owners.7

The main argument of petitioners in the case at bar is that the Court of Appeals
incorrectly applied Article 1620 of the Civil Code, instead of Article 1088 of the same
code which governs legal redemption by co-heirs since the lot in question, which forms
part of the intestate estate of the late Francisco Gosiengfiao, was never the subject of
partition or distribution among the heirs, thus, private respondents and third-party
defendants had not ceased to be co-heirs.

On that premise, petitioners further contend that the right of legal redemption was not
timely exercised by the private respondents, since Article 1088 prescribes that the same
must be done within the period of one month from the time they were notified in writing
of the sale by the vendor.

According to Tolentino, the fine distinction between Article 1088 and Article 1620 is that
when the sale consists of an interest in some particular property or properties of the
inheritance, the right redemption that arises in favor of the other co-heirs is that
recognized in Article 1620. On the other hand, if the sale is the hereditary right itself,
fully or in part, in the abstract sense, without specifying any particular object, the right
recognized in Article 1088 exists.8

Petitioners allege that upon the facts and circumstances of the present case,
respondents failed to exercise their right of legal redemption during the period provided
by law, citing as authority the case of Conejero, et al., v. Court of Appeals, et
al.9 wherein the Court adopted the principle that the giving of a copy of a deed is
equivalent to the notice as required by law in legal redemption.

We do not dispute the principle laid down in the Conejero case. However, the facts in the
said case are not four square with the facts of the present case.
In Conejero, redemptioner Enrique Conejero was shown and given a copy of the deed of
sale of the subject property. The Court in that case stated that the furnishing of a copy
of the deed was equivalent to the giving of a written notice required by law. 11

The records of the present petition, however, show no written notice of the sale being
given whatsoever to private respondents. Although, petitioners allege that sometime on
October 31, 1982 private respondent, Grace Gosiengfiao was given a copy of the
questioned deed of sale and shown a copy of the document at the Office of the Barangay
Captain sometime November 18, 1982, this was not supported by the evidence
presented. On the contrary, respondent, Grace Gosiengfiao, in her testimony, declared
as follows:
 Q. When you went back to the residence of Atty. Pedro Laggui
were you able to see him?

A. Yes, I did.

Q. When you saw him, what did you tell?

A. I asked him about the Deed of Sale which Mrs. Aquino had
told me and he also showed me a Deed of Sale. I went over the
Deed of Sale and I asked Atty. Laggui about this and he
mentioned here about the names of the legal heirs. I asked why
my name is not included and I was never informed in writing
because I would like to claim and he told me to better consult
my own attorney.

Q. And did you go?

A. Yes, I did.

Q. What kind of copy or document is that?

A. It is a deed of sale signed by my mother, sister Amparo and

my brothers.

Q. If shown to you the copy of the Deed of Sale will you be able
to identify it?

A. Yes, sir.11

Thereafter, Grace Gosiengfiao explicitly stated that she was never given a copy of the
said Deed of Sale.

Q. Where did Don Mariano, Dr. Mariano and you see each other?

A. In the house of Brgy. Captain Antonio Bassig.

Q. What transpired in the house of the Brgy. Captain when you

saw each other there?

A. Brgy. Captain Bassig informed my intention of claiming the lot

and I also informed him about the Deed of Sale that was not
signed by me since it is mine it is already sold and I was
informed in writing about it. I am a legal heir and I have also the
right to claim.

Q. And what was the reply of Don Mariano and Dr. Mariano to
the information given to them by Brgy. Captain Bassig regarding
your claim?

A. He insisted that the lot is already his because of the Deed of

Sale. I asked for the exact copy so that I could show to him that
I did not sign and he said he does not have a copy. 12

The above testimony was never refuted by Dr. Mariano who was present before Brgy.
Captain Bassig.

The requirement of a written notice has long been settled as early as in the case
of Castillo v. Samonte,13 where this Court quoted the ruling in Hernaez v. Hernaez, 32
Phil., 214, thus:
 Both the letter and spirit of the New Civil Code argue against any attempt to
widen the scope of the notice specified in Article 1088 by including therein
any other kind of notice, such as verbal or by registration. If the intention of
the law had been to include verbal notice or any other means of information
as sufficient to give the effect of this notice, then there would have been no
necessity or reasons to specify in Article 1088 of the New Civil Code that the
said notice be made in writing for, under the old law, a verbal notice or
information was sufficient. 14

Moreover, petitioners themselves adopted in their argument respondents' allegation In

their complaint that sometime on October, 1982 they sought the redemption of the
property from spouses Leonardo Mariano and Avelina Tigue, by tendering the repurchase
money of P12,000.00, which the spouses rejected.15 Consequently, private respondents
exercised their right of redemption at the first opportunity they have by tendering the
repurchase price to petitioners. The complaint they filed, before the Barangay Captain
and then to the Regional Trial Court was necessary to assert their rights. As we learned
in the case of Castillo, supra:

It would seem clear from the above that the reimbursement to the purchaser
within the period of one month from the notice in writing is a requisite or
condition precedent to the exercise of the right of legal redemption; the
bringing of an action in court is the remedy to enforce that right in case the
purchaser refuses the redemption. The first must be done within the month-
period; the second within the prescriptive period provided in the Statute of
Limitation. 16

The ruling in Castillo v. Samonte; supra, was reiterated in the case of Garcia

v. Calaliman, where We also discussed the reason for the requirement of the written
notice. We said:

Consistent with aforesaid ruling, in the interpretation of a related provision

(Article 1623 of the New Civil Code) this Court had stressed that written
notice is indispensable, actual knowledge of the sale acquired in some other
manners by the redemptioner, notwithstanding. He or she is still entitled to
written notice, as exacted by the code to remove all uncertainty as to the
sale, its terms and its validity, and to quiet and doubt that the alienation is
not definitive. The law not having provided for any alternative, the method
of notifications remains exclusive, though the Code does not prescribe any
particular form of written notice nor any distinctive method written
notification of redemption (Conejero et al. v. Court of Appeals et al., 16
SCRA 775 [1966]; Etcuban v. Court of Appeals, 148 SCRA 507 [1987];
Cabrera v. Villanueva, G.R. No. 75069, April 15, 1988).17 (Emphasis ours)

We likewise do not find merit in petitioners' position that private respondents could not
have validly effected redemption due to their failure to consign in court the full
redemption price after tender thereof was rejected by the petitioners. Consignation is
not necessary, because the tender of payment was not made to discharge an obligation,
but to enforce or exercise a right. It has been previously held that consignation is not
required to preserve the right of repurchase as a mere tender of payment is enough on
time as a basis for an action to compel the vendee a retroto resell the property; no
subsequent consignation was necessary to entitle private respondents to such
reconveyance. 18

Premises considered, respondents have not lost their right to redeem, for in the absence
of a written notification of the sale by the vendors, the 30-day period has not even
begun to run.

WHEREFORE, the decision of the Court of Appeals is hereby AFFIRMED. Cost against
petitioners.
G.R. No. 108580 December 29, 1998

CLARITA P. HERMOSO and VICTORIA P. HERMOSO, petitioners, 

vs.
COURT OF APPEALS, SPOUSES CEFERINO C. PALAGANAS, AZUCENA R.
PALAGANAS and DR. AMANDA C. PALAGANAS, respondents.

MARTINEZ, J.:

This petition seeks the review of the decision dated July 24, 1992 1 of the Court of
Appeals which reversed the decision dated February 15, 1990 of the Regional
Trial Court of Bulacan in an action for legal redemption instituted by the
petitioners against the private respondents. The motion for reconsideration of
petitioners was likewise denied by the respondent court in its resolution dated
December 22, 1992. 2

There is not much dispute about the background facts, thus we quote with
favor the factual antecedents as summarized by the Court of Appeals, to wit:

Emilio Hermoso, now deceased, and plaintiff Clarita Hermoso, were

husband and wife whose union was blessed with the following
children: Rogelio, Victoria (another plaintiff-appellee), Agustinito
and Danilo Ciriaco, all surnamed Hermoso (the latter two being third
party defendants-appellees). Emilio Hermoso died on June 22, 1957,
leaving as his surviving heirs, his wife Clarita, and the four above-
named children. Among the properties left by Emilio Hermoso is an
undivided one-third portion of a parcel of land, the whole of which
consisting of 7,842 square meters, more or less, is now covered by
OCT No. 0-1054 (M) issued in 1983, situated at Calvario,
Meycauayan, Bulacan.

The property was originally owned by Agrifina Francia and the

ownership thereof was transmitted upon her death to her three (3)
children, to wit: Isidro, Consolacion, and Emilio (herein appellees'
predecessor-in-interest) in the proportion of one-third (1/3) each.
Consolacion Hermoso, married to Manuel Cruz, later bought the one-
third (1/3) undivided share of her brother, Isidro Hermoso. Thus, as
indicated in OCT No. 0-1054 (M), Consolacion Hermoso owns two-
thirds (2/3) thereof and the remaining one-third (1/3) is in the
name of the Heirs of Emilio Hermoso [Exhibit 'A'].

On May 29, 1974, the Heirs of Emilio Hermoso executed a duly

notarized ["Agreement" Exh. "1-A"], the pertinent portion of which
reads, as follows:

2. That it is hereby agreed that for the convenience of all

parties the following shall be observed in the partition of
the above-mentioned properties; that the share of
CLARITA P. CARIN shall in all cases be adjacent to the
properties adjudicated to CONSOLACION HERMOSO CRUZ;
then following by the shares pertaining to DANILO
CIRIACO HERMOSO, VICTORINA P. HERMOSO, ROGELIO P.
HERMOSO and AGUSTINITO P. HERMOSO,
respectively, except in the partition of the parcel of land
situated in Calvario, Meycauayan, Bulacan, which is the
subject of the DEED OF EXCHANGE above-mentioned, in
which case the share pertaining to CLARITA P. CARIN
shall be adjacent to the stonewall that segregates the
 share of CONSOLACION HERMOSO CRUZ, then followed by
the shares pertaining to ROGELIO P. HERMOSO, DANILO
CIRIANO HERMOSO, VICTORINA P. HERMOSO, and
AGUSTINITO P. HERMOSO, at the extreme end,
respectively. [Emphasis and underscoring Ours].

Sometime in July, 1979, third party defendants-appellees Agustinito

Hermoso and Danilo Hermoso ('Hermoso brothers' for brevity)
offered to sell their respective shares to the land in dispute to one
Benjamin Palaganas, brother of appellees Ceferino Palaganas and
Amanda Palaganas, who are old family acquaintances of the
Hermosos since the lifetime of their late landlord, Don Marcos
Hermoso.

Upon being shown a copy of the duly notarized "Agreement" [Exh.

"1-A"], Ben Palaganas, together with the Hermoso brothers,
approached Atty. Ireneo E. Guardiano concerning the preparation of
a contract of sale, with the latter noting that the shares offered for
sale are separated by the share of Victoria Hermoso; hence, it would
be more feasible for Danilo Ciriaco to execute a deed of exchange
with his sister, Victoria [TSN, 29 October 1986, p. 8]. A "Deed if
Exchange" [Exh. "11"] was thereafter drawn and signed by Danilo
Ciriaco Hermoso but the same was not however signed by Victoria
Hermoso.

Nonetheless, this transaction did not materialize for the reasons that
Clarita Carin subsequently offered to redeem the shares sold by her
children by returning the amount already received by her son,
Agustinito. By reason of their good relations and it appearing that
the sale was made without the knowledge and consent of Clarita
Carin, Ben Palaganas accepted the offer without suspiration.

In the month of October of the same year, Agustinito, then

reviewing for the Bar Examinations, and Danilo, in dire need of
money, for the second time offered to sell their respective shares to
Ben Palaganas who acted for and in behalf of his brother, Dr.
Ceferino Palaganas, and sister, Dr. Amanda Palaganas (Palaganases,
for brevity), this time giving assurance that their mother (Clarita
Carin) had already consented to the transaction and that they could
convince their sister, Victoria, to finally agree to an exchange of
shares with Danilo. Elated with this development, the Palaganases
even offered a higher price [P500,000.00] for the sale.

Thus, with these assurances, the parties executed on January 30,

1980 a duly notarized "Deed of Absolute Sale Over Two Undivided
Shares To A Parcel of Land" (Annex "B", Plaintiffs-Appellees; Exhibit
2, Appellants) with the Hermoso brothers receiving P300,000.00
upon the execution of the contract, P100,000.00 to be paid upon the
eviction of the squatters/tenants thereon, and the balance of
P100,000.00 to be paid upon the issuance of title in the name of the
vendees.

Upon the commencement of the present action (October 8, 1984),

the Hermoso brothers have already received a total amount of
P401,500.00 with the last condition — transfer of title — not having
been yet fulfilled.

Contrary to the assurances made by the Hermoso brothers,

plaintiffs-appellees allegedly came to have known of the transaction
only sometime between May, 1983 and January, 1984 (Complaint,
par. 8 in relation to TSN, 21 Nov. 1984, p. 32, Victoria Hermoso).
 Thereafter, plaintiffs-appellees allegedly made arrangements to
negotiate for the redemption of the shares sold by the Hermoso
brothers. This time however, the Palaganases were not so open to
the idea of the offered repurchase for the value of the property in
dispute had considerably increased and that they have already set
foothold on said property by reason of their investments and the
plans made for its development. Furthermore, they relied upon the
assurances made by the Hermoso brothers that the transaction is
known to Clarita Carin and Victoria Hermoso. 3

Consequently, considering the adamant refusal of the private respondents to

resell the disputed lots, petitioners on October 8, 1984 filed a complaint for
legal redemption before the Regional Trial Court of Bulacan, Branch 7, Malolos,
with prayer for the issuance of a writ of preliminary injunction to enjoin
defendants third-party plaintiffs from proceeding with the construction of the
building thereon. The trial court issued the writ prayed for. After trial on the
merits, the court a quo issued its decision dated February 15, 1990, the
dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered in favor of the plaintiffs

and against the defendants and third-party defendants as follows:

1. Ordering the defendants to allow the redemption of the

shares sold to them by their vendors, the third party
defendants herein, and upon payment of the amount of
Four Hundred One Thousand Five Hundred (P401,500.00)
Pesos, to surrender the possession of the portion of the
land covered by OCT No. 0-1054 (N), together with
whatever improvement they have constructed on the
property, to the plaintiffs;

2. Ordering the defendants to pay the plaintiffs, the

amount of Twenty Thousand (P20,000.00) Pesos by way
of actual damages to cover the transportation expenses of
the plaintiffs from Cebu to Malolos and back and also
attorney's fees in the amount of Fifteen Thousand
(P15,000.00) Pesos which plaintiffs have paid or are
bound to pay their counsel;

3. Ordering the third party defendants to pay the

defendants, damages by way of legal interest in the
amount computed at the rate of twelve (12%) percent of
the P401,500.00 which shall commence from the date of
the filing of the complaint on October 8, 1984 until the
said amount of P401,500.00 shall have been completely
paid to the defendants by the said plaintiffs.

Costs against the defendants. 4

On appeal, the issues were simplified by the respondent court as follows:

1. Whether or not the property in dispute is still co-owned

or has actually been partitioned thereby terminating the
co-ownership;

2. If otherwise, whether or not the plaintiffs-appellees

could still exercise the rights of redemption.

The respondent court disagreed with the findings of the trial court and was of
the view "that laws and jurisprudence favor the appellants, hence we reverse."
The dispositive portion of the appellate court's decision reads:
 WHEREFORE, premises considered, the judgment appealed from is
hereby REVERSED, and a new one is entered dismissing the
Complaint and ordering Third-Party Defendants to pay on the Third
Party Complaint, the Third Party Plaintiffs the amount of P10,000.00
by way of attorney's fees.

The parties shall bear their respective costs. 5

In this petition for review, Clarita P. Hermoso, now Clarita Carin after her
remarriage, and her daughter Victoria P. Hermoso, raise the following grounds:

I.

THE RESPONDENT COURT ERRED IN NOT AGREEING WITH THE

HOLDING OF THE TRIAL COURT THAT THE AGREEMENT, MARKED AS
EXHIBIT "1-A," IS NOT A DEED OF PARTITION BUT IS A MERE
SCHEME AS TO HOW TO PARTITION THE PROPERTY IN QUESTION
WHICH IS TEMPORARY IN CHARACTER AND SUBJECT TO CHANGE AT
ANY TIME AND IS NULL AND VOID AS FAR AS PETITIONER VICTORIA
P. HERMOSO IS CONCERNED BECAUSE SHE WAS STILL A MINOR
WHEN SAID AGREEMENT WAS EXECUTED AND HER CO-PETITIONER
CLARITA P. HERMOSO HAD NO AUTHORITY TO SIGN SAID
AGREEMENT IN HER BEHALF;

II.

THE RESPONDENT COURT ERRED IN NOT HOLDING THAT THE

PROPERTY IN QUESTION WAS STILL UNDIVIDED AND WAS STILL
UNDER CO-OWNERSHIP DESPITE THE EXECUTION OF THE
AGREEMENT MARKED AS EXHIBIT "1-A" BECAUSE CONSOLACION
HERMOSO, CO-OWNER OF 2/3 OF SAID PROPERTY, WAS NOT A
PARTY TO SAID AGREEMENT;

III.

THE RESPONDENT COURT ERRED IN COUNTING THE DATE WHEN THE

RIGHT OF REDEMPTION SHOULD BE EXERCISED FROM THE TIME THE
PETITIONERS MADE A FORMAL OFFER TO REDEEM INSTEAD OF
FROM THE TIME THE PETITIONERS STARTED NEGOTIATING FOR THE
REDEMPTION OF THE TWO UNDIVIDED SHARES AFTER THEY WERE
CERTAIN THAT SAID UNDIVIDED SHARES WERE SOLD TO THE
PRIVATE RESPONDENTS. 6

The trial and appellate courts disagreed as to the interpretation to be given to

the agreements and contracts and to the notice of sale involved in this case.

In the trial court, petitioners posited the theory that the disputed land is still
under co-ownership. On the basis of the same documentary evidence, the
private respondents contend that what the two brothers sold was already
definite since partition had already been effected.

The first two (2) grounds for this petition refer to the nature of the land sold to
the respondents. The question is: Was it still under co-ownership or had it
already been partitioned and divided among the co-owners?

In finding that the parcel of land covered and described in OCT No. O-1054 (M)
had not been divided or partitioned among the co-owners, the trial court said:

In fact, there is no division yet between the spouses, Manuel Cruz

and Consolacion Hermoso Cruz on one hand and the Heirs of Emilio
Hermoso on the other. This fact of co-ownership is easily discernible
in the title itself which has not yet been cancelled, and therefore still
subsisting.

Therefore, it is ordered by the Court that said land be

registered in accordance with the provisions of the Land
Registration Act, as amended, in the name of said
spouses. Manuel C. Cruz and Consolacion Hermoso; and
heirs of Emilio Hermoso, namely: Clarita Pajo, Victoria
Hermoso, Rogelio Hermoso, Agustinito Hermoso, and
Danilo Hermoso as their exclusive property, —

The documents relating to the shares of the third party defendants

readily show this fact of co-ownership. Thus, in the untitled
instrument introduced by the defendants marked as Exhibit 3 which
is an agreement to sell purportedly bearing the date October 10,
1979 signed by the Hermoso brothers, Agustinito and Danilo and
stating how the P500,000.00 consideration of the sale shall be paid,
what was referred to have been sold were the shares, rights and
interests over the land of the said vendors. This document states,
among others:

That we have agreed to transfer and convey  unto spouses

Dr. Ceferino C. Palaganas and Azucena R. Palaganas, both
of legal age, Filipinos and with residence and postal
address at Bañga. Meycauayan, Bulacan all our shares,
rights and interests over the aboved escribed parcel of
land free from all liens and encumbrances under the
following terms and conditions . . . Cf. Exhibit 3, def.,
emphasis supplied.

The document signed by the two brothers on January 30, 1980 was
obviously prepared at the instances of Ben Palagas. Acknowledged
before Notary Public Irineo Guardiano whose advise was sought by
Ben Palaganas, its title is immediately revealing, as it is titled "Deed
of Absolute Sale Over Two Undivided Shares to a Parcel of Land" Cf.
Exhibit C. pl., Exhibit 2, def., underlining supplied. It is also stated in
this document that what was sold by the Hermoso brothers were
"shares, rights and interests over the above-described parcel of
land" (which obviously refers to the land in question).

It is significant to note that in the deed of sale marked as Exhibit 2,

defendant, the area of the shares of the vendors, the Hermoso
brothers were not specified. What was mentioned on the matter of
area is that of the whole parcel which is 7,829 square meters. If
there was a partition or separation of the portions of the whole land
assigned to the owners named in the title, the parcels conveyed
could have been described with their specified metes and bounds.

There was no subdivision plan presented by the defendants. In fact,

there was none as yet executed by a duly licensed geodetic engineer
on that registered land. Ben Palaganas who was then dealing with
the Hermoso brothers, the named vendors in the document, is a
highly educated man. As he had testified, he is an accountant by
profession and he had served as head of a department of the Central
Bank until his retirement from the government. In the opinion of this
court, he knew all along that what he or his principals were buying
at the time were the undivided shares, participation and interests of
the vendors to the land. His claim later in court that the shares of
the vendors could already be identified and segregated is difficult to
believe. If his claim were true, Ben Palaganas with his experience
and educational background could have easily managed to executed
 the proper document as a basis of an ultimate issuance of title in the
name of the vendees. The document which he relied upon which is
Exhibit 1-A as the basis for his conclusion that the Hermoso brothers
were selling definite parcels of land is belied by the recitals of the
documents he himself introduced to the court, viz. Exhibits 2 and 3.
The document, Exhibit 1-A, if at all, could at best be considered as a
scheme how the land could be divided in the future among the heirs
of Emilio Hermoso. Temporary in nature and subject to the
conformity of the 2 sets of co-owners to the land, the spouses
Manuel Cruz and Consolacion Hermoso Cruz had not participated in
its execution. As it was, there was no sound basis for Ben Palaganas
or his principals to have assumed that Exhibit 1-A could be enforced
against the spouses Manuel Cruz and Consolacion Cruz and other
third persons. 7

In overturning the aforequoted opinion of the trial court, the respondent court
said that:

In ascertaining whether the community still subsists, or that it had

already been extinguished by partition among the co-owners, it is
not a mandatory requirement that the property co-owned had been
determined with unmistakable definiteness and clarity, as where the
property has been given a technical description after proper geodetic
survey; it is only required that the shares are properly determinable
and the proper arrangements thereof identifiable, as when nothing
is left for the co-owners to do but to actually occupy the portion
pertaining to their share without any dispute arising over the extent
of their respective shares and the respective position of the parcels
they are entitled to occupy.

Although OCT No. 0-1054 (M) reveals on its face the existence of co-
ownership between Consolacion Hermoso-Cruz and the Heirs of
Emilio Hermoso, the fact that the shares are separated by
a stonewall (Cf. Exh. 1-A) unmistakably reveals the determinate or
determinable character of the property described under said
certificate of title.

The court a quo subscribed to the theory that Exhibit 1-A is merely a

"scheme [of] how the land could be divided in the future among the
heirs of Emilio Hermoso." (g.v., Decision, p. 5) Be that as it may,
there is nothing more left to be done but the actual subdivision of
the properly by a duly licensed geodetic engineer prior to the actual
titling of their respective shares. The corresponding shares of each
of the heirs of Emilio Hermoso is not in dispute — one-fifth each; and
their proper respective arrangements, one after another, had
likewise been included under Exhibit 1-A. 8

We agree with the trial court's findings that the records show co-ownership of
undivided property instead of definite portions of land having been assigned
and separately owned by each of the co-owners.

It should be stressed that it was Ben Palaganas, the vendee, who prepared the
Deed of Sale. The private respondents never had a hand in the preparation of
the document, even if the purchase was made in their behalf. The document
states that it is a "Deed of Absolute Sale Over Two Undivided Shares to a Parcel
of Land." 9 Ben Palaganas who prepared the deed of sale, knew and intended
that the transaction was over "Two Undivided Shares" of land. After all, as
observed by the trial court, Ben Palaganas was an accountant and was, prior to
retirement from government service, the head of a department in the Central
Bank. Again, we quote the trial court on this point, thus:
 In the opinion of this court, he knew all along that what he or his
principals were buying at the time were the undivided shares,
participation and interests of the vendors to the land. His claim later
in court that the shares of the vendors could already be identified
and segregated is difficult to believe. If his claim were true, Ben
Palaganas with his experience and educational background could
have easily managed to execute the proper document as a basis of
an ultimate issuance of title in the name of the vendees. The
document which he relied upon which is Exhibit 1-A as the basis for
his conclusion that the Hermoso brothers were selling definite
parcels of land is belied by the recitals of the documents he himself
introduced to the court, viz., Exhibits 2 and 3. 10

Ben Palaganas' understanding and interpretation must necessarily prevail over

that of the private respondents' who were not present during the transaction
and whose claims are colored by self-interest. In fact, the same document
refers to the brothers as co-owners of undivided shares in the disputed
property. 11

It is plain from the deed of sale of two undivided shares that the absence of a
clear partition among the heirs of Emilio Hermoso complemented the similar
absence of a division of properties between the heirs and their aunt
Consolacion Hermoso Cruz. Two of the heirs were selling shares of undivided
property which in turn was also an undivided portion of a much larger
undivided inheritance.

The alleged documents of exchange presented by the respondents to show a

partition with Consolacion would, to our mind, fall under the same category as
the "1994 Agreement" among the heirs of Emilio Hermoso, as we shall
hereinafter discuss.

The allegation about Consolacion having segregated and having given her 2/3
share of the inheritance viz-a-viz the 1/3 share of the heirs of Emilio Hermoso
is belied by the letter sent by husband Manuel Cruz in August 1981 to the
Register of Deeds of Bulacan which intimated his desire to buy the property of
his co-owners in his capacity as such. 12 The spouses Cruz wanted to buy
properties which they heard had been alienated by their co-owners.

The absence of a deed of partition between Consolacion on the one hand, and
the heirs of Emilio on the other, is bolstered by the fact that the registered
ownership is that of the original owner over the entire property.

The deed of sale executed by the Hermoso brothers on January 30, 1980,
referred to undivided shares. Prior to the execution of this document, the
Hermoso brothers were parties to a non-notarized certification dated October
10, 1979, 13 acknowledging the receipt of P25,000.00 from the respondents,
and wherein they were described as co-owners with the petitioners. 14

The second paragraph of the certification states that "We have agreed to sell,
transfer and convey unto the spouses Dr. Ceferino C. Palaganas and Azucena R.
Palaganas. . . all our shares, rights and interests over the above-described
parcel of land . . . ." 15 Note that the vendors who have described themselves as
"co-owners" agreed merely to sell their shares, rights and interests over the
land. They were not "selling" but were "agreeing to sell." They did not sell a
specific portion of land but sold "shares, rights and interests." It is to be
further noted that as late as 1979 and 1980, Ben Palaganas and the Hermoso
brothers, the parties to the deeds of sale, were in complete agreement that
there was a co-ownership.

The basis for the opinion of the respondent court that the co-ownership had
been terminated and the property was subdivided is the document dated May
24, 1974 denominated "Agreement," executed by the heirs of Emilio Hermoso.
The pertinent portion of the agreement, which has been earlier cited and for
emphasis, is reproduced hereunder runs as follows:

2. That it is hereby agreed that for the convenience of all parties the
following shall be observed in the partition of the above-mentioned
properties: that the share of CLARITA P. CARIN shall in all cases be
adjacent to the properties adjudicated to CONSOLACION HERMOSO
CRUZ; then followed by the shares pertaining to DANILO CIRIACO
HERMOSO, VICTORINA P. HERMOSO, ROGELIO P. HERMOSO and
AGUSTINITO P. HERMOSO, respectively, except in the partition of
the parcel of land situated in Calvario, Meycauayan, Bulacan, which
is the subject of the DEED OF EXCHANGE above-mentioned, in which
case the share pertaining to CLARITA P. CARIN shall be adjacent to
the stonewall  that segregates the share of CONSOLACION HERMOSO
CRUZ, then followed by the shares pertaining to ROGELIO P.
HERMOSO, DANILO CIRIACO HERMOSO, VICTORINIA P. HERMOSO,
and AGUSTINITO P. HERMOSO, at the extreme end, respectively.

We agree with the trial court that this Agreement was merely a scheme as to
how the land would be subdivided in the future among the heirs. The owner of
two-thirds (2/3) of the property, Consolacion Hermoso, was not a party to the
agreement. As a majority owner of the undivided property, she could have
demanded and insisted on getting the particular portions which the respondent
court ruled had already been segregated in favor of the two vendors-brothers.
The agreement among the heirs of Emilio Hermoso as to shares following one
another in a specific order cannot be binding on the co-owner who owns 2/3 of
the entire parcel but who was not a signatory or party to the document.

The reference to a stonewall separating the shares of Consolacion Hermoso

Cruz from the share of Clarita Carin and the use thereof as reference point
should not be taken to mean that thereby a partition was effected among the
heirs. The statement of the Heirs of Emilio Hermoso that the 2/3 portion of the
co-owner in relation to the heirs of Emilio shall be adjacent to that of Clarita
Carin followed by the shares of Rogelio, Danilo, Victorina and Agustinito is a
statement of a desire on how the land should be subdivided. It cannot be said
that it is a kind of division or partition of property which clearly terminates co-
ownership. The statement of Agustinito of an assignment of shares cited by the
respondent court was more of an expression on how a future partition should
be effected. In fact, the word "positions" was used in addition to shares.

The documents evidencing the deed of sale are more authoritative in

determining the existence of co-ownership. The May 29, 1974 "Agreement"
could not have been a partition or division of co-owned properties because five
and six years later, as can be gleaned from the October 10, 1979 certification
and from the January 13, 1980 Deed of Sale Over Two Undivided Shares To A
Parcel of Land, both Ben Palaganas who prepared the documents as vendee,
and the brothers Agustinito and Danilo who signed as vendors, were definite
about the property being under co-ownership. As late as August, 1981, Manuel
Cruz, the husband of Consolacion, described the parties as "co-owners."

The private respondents, to buttress their stance that the standards of concrete
determinability and identifiability have been met in the case at bar, cited the
case of De la Cruz v. Cruz. 16 We have read the case, regrettably the standards
are not present. In De la Cruz, the northern half of the property was assigned
to the plaintiff and the southern half to the defendant. In which case, such a
division is concrete and definite, which is not so in this case. Here, the majority
co-owner, Consolacion Hermoso, was not even consulted and the mention of
names following one another was apparently only a statement of who are the
co-owners-heirs. It was not a formal division or partition of the bigger property
still to be validly partitioned with Consolacion, owner of two-thirds (2/3) and
later, among the co-heirs who owned the remaining one-third (1/3). It is only
a statement of a future action to be taken. We, therefore, rule that the lot in
question is still undivided property owned in common by the co-heirs.

The second issue herein refers to the timeliness of exercising the right of legal
redemption. The petitioners question the respondent court's ruling that the
right had already prescribed when they exercised legal redemption.

The law apropos to this case is Article 1623 of the Civil Code, which provides:

Art. 1623. The right of legal pre-emption or redemption shall not be

exercised except within thirty days from the notice in writing by the
prospective vendor, or by the vendor, as the case may be. The deed
of sale shall not be recorded in the Registry of Property, unless
accompanied by an affidavit of the vendor that he has given written
notice thereof to all possible redemptioners.

The right of redemption of co-owners excludes that of adjoining

owners.

An identical provision governing co-heirs is found in Article 1088 of the Civil

Code, quoted hereunder:

Art. 1088. Should any of the heirs sell his hereditary rights to a
stranger before the partition, any or all of the co-heirs may be
subrogated to the rights of the purchaser by reimbursing him for the
price of the sale, provided they do so within the period of one month
from the time they were notified in writing of the sale by the vendor.

It is to be noted that Article 1623 stresses the need for notice in writing in
three other species of legal redemption namely: (1) redemption in a case
where the share of all the other co-owners or any of them are sold to a third
person; 17 (2) redemption by owners of adjoining lands when a piece of rural
land not exceeding one hectare in area is alienated; 18 and (3) redemption by
owners of adjoining lands in the sale of a piece of an urban land so small and
so situated that the portion thereof cannot be used for any practical purpose
within a reasonable time, having been bought merely for speculation. 19

In all the above-cited provisions of law, the interpretation thereof always tilts
in favor of the redemptioner and against the vendee. The purpose is to reduce
the number of participants until the community is terminated, being a
hindrance to the development and better administration of the
property. 20 Thus, we agree with the trial court when it said:

The purpose of Article 1067 (of the old Civil Code, now Article 1088
of the present Civil Code) is to keep strangers to the family out of a
joint ownership, if, as is often the case, the presence of outsiders be
undesirable and the other heir or heirs be willing and in a position to
repurchase the share sold (De Jesus vs. Manglapus, 81 Phil 144).
While there should no question that an heir may dispose his right
before partition (Rivero vs. Serrano (CA) 46 O.G. 642; Wenceslao vs.
Calimon, 46 Phil. 906. Hernaez vs Hernaez, 32 Phil. 214), a co-heir
would have had to pay only the price for which the vendee acquired
it (Hernaez vs. Hernaez,
Ibid.) 21

It is a one-way street. It is always in favor of the redemptioner since he can

compel the vendee to sell to him but he cannot be compelled by the vendee to
buy the alienated property.
In this case, the land has not been validly partitioned between Consolacion
Hermoso, who owns 2/3 and the heirs of Emilio Hermoso who 1/3 regardless
of the sentiments of Consolacion on the land in dispute may later have been.
There has been no subsequent distribution among the co-heirs of their specific
shares. But even granting that the heirs divided the properties owned in
common in the May 29, 1974 Agreement, the right of legal redemption under
Article 1620 of the Code, would still subsist in their capacity as co-owners. For,
it a co-owner has offered to redeem the land within the period fixed by law, he
has complied with the law. He may bring the action to enforce the redemption
after every offer has been rejected. This is exactly the situation in this case.

The respondent court found that the petitioners already had notice of the sale
in January 1984. Considering that the letter, 22 coursed through Atty. Sandico,
offering to redeem the property was made only in September 1984, the
appellate court was of the view that the action to enforce redemption had
prescribed. A perusal of the record, however, shows that after Ben Palaganas
had confirmed the transaction, the petitioners confronted the two brothers who
were compelled to admit they have sold their shares. The vendor-brothers
never took the initiative of informing their co-heirs in writing that they have
alienated their shares. As found by the trial court, the petitioners immediately
started negotiations with Ben Palaganas to redeem the alienated share. At this
time, the payment for the shares had not yet been completed neither by Ben
Palaganas nor by the private respondents.

The observation of the trial court on this issue is enlightening, thus:

It is evident from the evidence in the record that the vendors, i.e.,

the Hermoso brothers, Agustinito and Danilo had not notified in
writing or even verbally their co-heirs which include the plaintiffs
herein before or during the execution of the sale of their shares to
Ben Palaganas or the defendants. The transaction of these two
brothers had with Ben Palaganas was kept out of the knowledge of
their mother and sister, the plaintiffs herein. Their need for funds
must have been urgent and it was obvious that their mother if
advised what they intended to do with the land could have objected
to it. This reaction from the plaintiffs was easily expected because
when Agustinito Hermoso sold his share to Ben Palaganas in July
1979, the same was aborted by the plaintiff, Clarita Carin. On this
regard, Agustinito Hermoso, one of the two third party defendants
testified:

Q — Did you inform your mother and sister about the sale
of these properties?

A — During that time?

Q — Yes.

A — I did not.

x x x           x x x          x x x

ATTY. GARCIA:

Q — Do you know when, for the first time, did your mother
and your sister came to know of this sale?

A — Personally, I do not know when they came upon that

knowledge.

(TSN, 5-22-86, pp. 10-11).

 ATTY. HERMOSO:

Q — Did you ever consult your mother or your sister of

your desire to sell the property?

A — No, sir.

Q — Why not?

A — Because I personally believe that what we were

selling then were but our right to the said property.

Q — How about your brother Danilo Hermoso, did he

inform your mother and sister about the sale of the
property?

x x x           x x x          x x x

A — Danilo Hermoso, my brother, told me that he did not

inform our mother and our sister about his desire to sell
his share on the property.

(TSN, 5-21-87, pp. 12-13 & 15).

ATTY. OSORIO:

Q — How about the second sale which included the share

of your brother?

A — No, we did not inform our mother regarding our

desire to sell our respective properties, sir.

Art. 1088 of the Civil Code is applicable in the instant case. But
whether it is under this article or Article 1623 of same Code, the
period of 30 days has not began to run.

When the plaintiffs had become certain after Ben Palaganas had
confirmed the transaction that there was such a sale covering the
shares of the third party defendants (tsn, 6-19-86, pp. 20-21)
sometime in 1984, the vendors had to admit to the herein plaintiffs
the fact of sale. Plaintiffs immediately started negotiations with Ben
Palaganas to redeem the shares sold by the vendors. Ben Palaganas
or the defendants after all, had not completely paid the whole
consideration of the sale by that time. Ben Palaganas did not want to
give money anymore to the vendors as the amounts already paid had
amounted to P401,500.00 (see footnote of Ben Palaganas in Exhibit
10). The several payments made to the vendors are evidenced by
Exhibits 3, 4, 5, 6, 7, 8, 9 and 10. Ben Palaganas acting for himself or
for the defendants refused the offer of the plaintiffs to redeem the
land, claiming that the rights to the land of his principals to the
vendors' shares to the land was already established. The formal
demand to redeem was sent by the plaintiffs through counsel to the
defendants (Exhibit B, p. 203, record). Still the defendants did not
respond accordingly. They had instead constructed a building within
the land covered by the title and in a place therein, relying on the
temporary scheme of partition marked as Exhibit 1-a. To the
plaintiffs, there was no other recourse except to go to court. And
they did by filing this complaint on October 4, 1984 with the court. 23

Ben Palaganas confirmed the offer to redeem. When questioned why the
private respondents agreed to the return of the sold shares in 1979 but refused
to do so in 1980, this witness waxed sentimental and gave a lengthy narration
of the debt of gratitude his family owed to the Hermoso family. Ben Palaganas
related that the patriarch Marcos Hermoso allowed the Palaganas clan to build
their house on his land and to stay there for 27 years without paying rent. And,
when three sons and one daughter of the Palaganases were in medical school,
and the family ran out of funds, Marcos Hermoso extended financial assistance
without interest and payable only when the Palaganases could afford to pay.
Out of respect for the Hermoso family, Ben Palaganas related, the private
respondents agreed to the cancellation of the 1979 sale. However, in 1984
when the offer to redeem the share sold in 1980 was made, the Palaganas clan
no longer wanted to resell the property. Considering that over the intervening
years, they had paid on a piecemeal basis the amount of P400,000.00 to the
two brothers and out of "self-respect" refused to agree to the redemption. But
since the property purchased had already increased in value not only "self-
respect" but apparently self-interest had entered the picture.

It was error for the respondent court to rule that the right of the petitioner to
redeem the alienated share had long prescribed. This finding fails to take into
account that the period of legal redemption is not a prescriptive period. It is a
condition precedent to the exercise of the right of redemption. It is a period set
by law to restrict the right of the person exercising the right of legal
redemption. 24 It is not one of prescription.

The written notice required by Article 1623 of the Civil Code was enacted to
remove all doubts and uncertainty that the alienation may not be
definite. 25 The co-owners must know with certainty the circumstances of the
sale by his co-owners and the terms and the validity of the alienation. Only
after said knowledge is the co-owner required to exercise the right of
redemption given to him by law.

While the law requires that the notice must be in writing, it does not state any
particular form thereof, so long as the reasons for a written notice are present.
The records of the case show that the sale of the brothers' share was
deliberately hidden from the petitioners. For sometime after the sale, the
petitioners were ignorant about its execution. When they somehow heard
rumors about it, they had to take one step after another to find out if the
information was true.

It is to be noted that in the case at bar, not only were the petitioners
intentionally kept in the dark for several years but even after knowledge of the
act of the two brothers, they still had difficulty in ascertaining and confirming
its veracity. Far from giving the notice required by law or giving information on
the history and details of the sale, Agustinito and Danilo gave the petitioners
the run-around until the brothers were practically forced to admit it and the
petitioners immediately went to see Ben Palaganas. In their dialogue with Ben
Palaganas, petitioners offered to redeem the property, but this time, unlike the
first, the offer was rejected.

When the petitioners offered to redeem within the period fixed by law, they
complied with the condition precedent to the exercise of their right. The filing
of an action to enforce the redemption is not the determining point in time. In
Conejero, supra, this Court ruled that a consignation of the tendered price is
not necessary as long as a valid tender is present. 26 However, the offer to
redeem is indispensable. Considering the indignation and the wrath of the
petitioners directed at the two brothers for their acts of alienating an undivided
portion of the property, despite the earlier redemption of the sale sold in 1979,
there can be no question about the willingness and capability of the petitioners
to buy back the shares sold in 1980.

In applying Article 1623 of the Civil Code on the exercise of legal redemption to
certain facts, the interpretation must be in favor of justice and equity. 27 This
Court explained — ". . . . We test a law by its result. A law should not be
interpreted so as not to cause an injustice . . . . There are laws which are
generally valid but may seem arbitrary when applied in a particular case
because of its peculiar circumstances. We are not bound to apply them in
slavish obedience to their language."

Whether it is the vendees who will prevail as in the Alonzo doctrine, or the
redemptioners as in this case, the righting of justice is the key to the resolution
of the issues.

The standards and conditions of legal redemption provided under Article 1623
of the Civil Code have not been met in this petition. Furthermore, there is the
fact that justice and equity, as the law provides, are also on the side of the
petitioners. As we said, the righting of an injustice is the key to the resolution
of this case and thus would be the end result of our decision.

The two brothers, Agustinito and Danilo Hermoso, were still students when
they sold their shares in their inheritance. In 1979, Agustinito was already a
graduating student of law. According to the trial court, it was "sometime in
October of that year, he and his younger brother Danilo separately needed cash
which there could not easily secure from their mother, Clarita Carin, one of the
plaintiffs herein." 28 However, if they were strapped of cash, considering that
their allowances were insufficient for their needs, they could have pleaded with
their mother for additional funds instead of selling the still undivided property
without her knowledge and against her known will. They knew that their
mother was against the very idea of selling a portion of the undivided property
considering that Consolacion Hermoso cancelled the prior sale made by them in
July 1979 by redeeming the property. From the records, one gets the
impression that the two brothers, Agustinito and Danilo, were irresponsible
and self-centered, failing to consider the wishes of their mother.

Ben Palaganas, who represented the respondents in a transaction, admitted a

debt of gratitude to the Hermoso family. Yet, apparently he took advantage of
the situation. Through several years he doled out funds in installments to the
two brothers in partial payment of the disputed property until the indebtedness
had reached an amount that Agustinito and Danilo had no other recourse but to
sell their inheritance and practically compelled them to execute the deed of
sale in dispute.

Again, we reiterate the salient fact that Clarita Carin, their mother, and Victoria
Hermoso, their sister, were kept in the dark about the sale. Considering the
factual background of this case, the honorable and expected step for the
Palaganas was to inform the petitioners about the action taken by Agustinito
and Danilo. Instead, as the record reveals the parties to the sale concealed the
transaction from petitioners for four (4) years. It was only after hearing
rumors about the sale when petitioners started to investigate and search for
evidence to confirm their hear say acknowledge about the transaction. Even
then, the two brothers and the Palaganases gave them a hard time.

The Palaganas clan knew all along the strong feelings of the petitioners against
the alienation of share in the still undivided property. This was their second
attempt to buy the property. As a matter of fact, they knew that in 1979 when
the land was first sold, the petitioners immediately took steps to cancel the
sale upon discovery thereof. In 1980, the private respondents and Ben
Palaganas still did exactly what the petitioners vigorously opposed and did not
want to happen. They also hid the sale from the petitioners until confronted
with facts that they could no longer hide or deny. The impressions of the trial
judge is worth quoting hereunder thus:

It is obvious that the acts of Ben Palaganas or his principals would

be considered as done in bad faith. Ben Palaganas should not be
 allowed to say that he had relied merely on the impressions given by
the vendors, the Hermoso brothers. Aside from what was obvious in
the documents executed by the Hermoso brothers, he should have
inquire nor verified said impressions made by the vendors from the
plaintiffs or any of the co-owners to the property. The evidence in
the record shows that it was their intense desire to own a property
in the place where the land is located because of the business
potentials thereat stated herein above. They did not exercise the
diligence of a good father of a family because they did not want to,
what with their experience with the first transaction affecting the
share of the third party defendant, Agustinito Hermoso which took
place only in July, 1979 a few months earlier to the transaction in
question. 29

There can be no doubt that the Palaganas clan were in bad faith at the time
they bought the disputed property from the Hermoso brothers. We cannot thus
close our eyes to the injustice which would befall the petitioners considering
that this is not the first time that they have expressed their desire to redeem
the property sold by the Hermoso brothers. Under the circumstances, it is just
and equitable to rule in favor of the exercise of legal redemption.

WHEREFORE, the assailed decision of the Court of Appeals should be, as it is

hereby, REVERSED and SET ASIDE. The decision of the Regional Trial Court
dated February 15, 1990 is hereby REINSTATED.
 GRACE GOSIENGFIAO GUILLEN, deceased EMMA G. R. No.
GOSIENGFIAO GALAOS, represented by her daughter 159755
EMELYN GALAOS-MELARION, deceased FRANCISCO  
GOSIENGFIAO, JR., represented Present:
by his widow EDELWISA
GOSIENGFIAO, JACINTOGOSIENGFIAO, and absenteesE QUISUMBING
STER GOSIENGFIAO BITONIO, NORMA J.,
GOSIENGFIAO, and PINKY BUENO PEDROSO, Chairperson,
*
represented by their attorney-in- YNARES-
factJACINTO GOSIENGFIAO, SANTIAGO,
**
Petitioners, CHICO-
  NAZARIO,
***
  LEONAR
-      versus - DO-DE
  CASTRO,
  and
THE COURT OF APPEALS, HON. JIMMY HENRY F. BRION, JJ
LUCZON, JR., in his capacity as Presiding Judge of the .
Regional Trial Court, Branch I, Tuguegarao, Cagayan,  
LEONARDO  
MARIANO, AVELINA TIGUE, LAZARO MARIANO, Promulgat
MERCEDES SAN PEDRO, DIONISIA M. AQUINO, and ed:
JOSE N.T. AQUINO,  
Respondents. June 18,
2009
 

x-------------------------------------------------------------------------------
--------- x
 

DECISION
 
BRION, J.:

 
At issue in this petition is the timeliness of the exercise of the right of legal
redemption that this Court has recognized in a final and executory decision.
 
The petitioners, heirs of Francisco Gosiengfiao (petitioner-heirs), assail in this Rule
45 petition for review on certiorari the January 17, 2003 decision and September 9,
2003 resolution of the Court of Appeals (CA) in CA-G.R. CV No. 63093.[1] The assailed CA
decision ruled that the thirty-day period for the exercise of the right of legal redemption
should be counted, not from the notice of sale by the vendor but, from the finality of the
judgment of this Court.
 
BACKGROUND FACTS
 
I. G.R. No. 101522 - Mariano v. Court of Appeals
  
The previous case where we recognized the petitioner-heirs right of legal
redemption is Mariano v. CA.[2] To quote, by way of background, the factual antecedents
that Mariano recognized:
 
It appears on record that the decedent Francisco Gosiengfiao is the
registered owner of a residential lot located at Ugac Sur, Tuguegarao,
Cagayan, particularly described as follows, to wit:
 
The eastern portion of Lot 1351, Tuguegarao Cadastre, and after
its segregation now designated as Lot 1351-A, Plan PSD-67391,
with an area of 1,346 square meters.
 
and covered by Transfer Certificate of Title (TCT) No. T-2416 recorded in the
Register of Deeds of Cagayan.
 
The lot in question was mortgaged by the decedent to the Rural Bank
of Tuguegarao (designated as mortgagee bank, for brevity) on several
occasions before the last, being on March 9, 1956 and January 29, 1958.
 
On August 15, 1958, Francisco Gosiengfiao died intestate survived by
his heirs, namely: Third-Party Defendants: wife Antonia and Children
Amparo, Carlos, Severino and herein plaintiffs-appellants Grace, Emma,
Ester, Francisco, Jr., Norma, Lina (represented by daughter Pinky Rose),
and Jacinto.
 
The loan being unpaid, the lot in dispute was foreclosed by the
mortgagee bank, and in the foreclosure sale held on December 27, 1963,
the same was awarded to the mortgagee bank as the highest bidder.
 
On February 7, 1964, third-party defendant Amparo Gosiengfiao-
Ibarra redeemed the property by paying the amount of P1,347.89 and the
balance of P423.35 was paid on December 28, 1964 to the mortgagee bank.
 
On September 10, 1965, Antonia Gosiengfiao on her behalf and that of
her minor children Emma, Lina, Norma, together with Carlos and Severino,
executed a Deed of Assignment of the Right of Redemption in favor of
Amparo G. Ibarra appearing in the notarial register of Pedro (Laggui) as
Doc. No. 257, Page No. 6, Book No. 8, Series of 1965.
 
On August 15, 1966, Amparo Gosiengfiao sold the entire property to
defendant Leonardo Mariano who subsequently established residence on the
lot subject of this controversy. It appears in the Deed of Sale dated August
15, 1966 that Amparo, Antonia, Carlos and Severino were signatories
thereto.
 
Sometime in 1982, plaintiff-appellant Grace Gosiengfiao learned of the
sale of said property by the third-party defendants. She went to the
Barangay Captain and asked for a confrontation with defendants Leonardo
and Avelina Mariano to present her claim to the said property.
 
On November 27, 1982, no settlement having been reached by the
parties, the Barangay Captain issued a certificate to file action.

On December 8, 1982, defendant Leonardo Mariano sold the same property

to his children Lazaro F. Mariano and Dionicia M. Aquino as evidenced by a
Deed of Sale notarized by Hilarion L. Aquino as Doc. No. 143, Page No. 19,
Book No. V, Series of 1982.
  
On December 21, 1982, plaintiffs Grace Gosiengfiao, et al. [herein
petitioner-heirs] filed a complaint for recovery of possession and legal
redemption with damages against defendants Leonardo and Avelina Mariano
[herein respondent-buyers]. Plaintiffs alleged in their complaint that as co-
heirs and co-owners of the lot in question, they have the right to recover
their respective shares in the said property as they did not sell the same,
and the right of redemption with regard to the shares of other co-owners
sold to the defendants.
 
Defendants in their answer alleged that the plaintiffs has [sic] no cause
of action against them as the money used to redeem the lot in question was
solely from the personal funds of third-party defendant Amparo Gosiengfiao-
Ibarra, who consequently became the sole owner of the said property and
thus validly sold the entire property to the defendants, and the fact that
defendants had already sold the said property to their children, Lazaro
Mariano and Dionicia M. Aquino. Defendants further contend that even
granting that the plaintiffs are co-owners with the third-party defendants,
their right of redemption had already been barred by the Statute of
Limitations under Article 1144 of the Civil Code, if not by laches.
 
On September 16, 1986, the trial court dismissed the complaint before it, as only
Amparo redeemed the property from the bank using her money and solely in her behalf
so that the petitioner-heirs had lost all their rights to the property. [3] The trial court
explained that what Gosiengfiaos heirs inherited from him was only the right to redeem
the property, as it was then already owned by the bank. By redeeming the property
herself, Amparo became the sole owner of the property, and the lot ceased to be a part
of Gosiengfiaos estate.
 
On May 13, 1991, the CA reversed the trial courts decision, declaring the
petitioner-heirs co-owners of the property who may redeem the portions sold to the
respondent-buyers. The CA denied the respondent-buyers motion for reconsideration;
[4]
 thus, they came to this Court to question the CAs rulings.
 
Our Decision, promulgated on May 28, 1993, affirmed the appellate court decision.
[5]
 It stated in its penultimate paragraph and in its dispositive portion that:
 
Premises considered, respondents have not lost their right to redeem,
for in the absence of a written notification of the sale by the vendors, the 30-
day period has not begun to run.
 
WHEREFORE, the decision of the Court of Appeals is hereby AFFIRMED.
Costs against petitioners.
 
Aside from this express declaration, the Court explained that, as the property was
mortgaged by the decedent, co-ownership existed among his heirs during the period
given by law to redeem the foreclosed property. Redemption of the whole property by
co-owner Amparo did not vest in her the sole ownership over the property, as the
redemption inured to the benefit of all co-owners; redemption will not put an end to co-
ownership, as it is not a mode of terminating a co-ownership. The Court also
distinguished[6] between Articles 1088[7] and 1620[8] of the Civil Code and ruled as
inapplicable the doctrine that the giving of a copy of the deed of sale to the co-heirs as
equivalent to a notice.[9] On July 12, 1993, this Court denied the respondent-buyers
motion for reconsideration. The entry of judgment was made on August 2, 1993.
II.                              Execution of the  Mariano  Decision
(G.R. No. 101522) By the  Lower Court
 
a. The Incidents
 
On April 26, 1994, the petitioner-heirs, as winning parties, filed a motion for the
execution of our Decision in G.R. No. 101522, which motion the trial courtgranted
on May 11, 1994.[10] The next day, the clerk of court issued a writ of execution and a
notice to vacate.[11] The respondent-buyers moved for a reconsideration of the May 11,
1994 order and prayed for the nullification of the notice to vacate, arguing that the
dispositive portion of the decision to be executed merely declared and recognized the
petitioner-heirs as co-owners of the lot and did not authorize the sheriff to remove their
houses from the land. They argued they can remain in possession of the property as co-
owners because the judgment did not divest them of possession.[12] The sheriff later
informed the trial court that copies of the notice to vacate and the writ of execution were
served on, but were not signed by, the respondent-buyers. After the expiration of the
45-day period to vacate, the sheriff went back to check if the respondent-buyers had
complied. They had not.
 
On March 31, 1995, the petitioner-heirs filed a notice of redemption with the court
of origin, duly served on the respondent-buyers, for the shares of Amparo, Antonia,
Carlos, and Severino, and tendered the redemption price of P53,760.[13] On April 18,
1995, the sheriff issued a certificate of redemption after the first and second buyers
refused to sign the notice and accept the tender, and after the aggrieved heirs deposited
the redemption money with the court.[14] On the same date, the sheriff issued a return of
service informing the court that on March 31, 1995, the redemption money was
tendered to, but was not accepted by, Engr. Jose Aquino who received, but did not sign,
the notice of redemption.[15]
 
From 1994 to 1995, the respondent-buyers filed four motions: a motion for
reconsideration of the May 11, 1994 order granting the motion for the issuance of a writ
of execution;[16] a motion to ascertain the redemptive shares of third-party defendants;
[17]
 a motion to declare the petitioner-heirs to have lost their right of legal redemption;
[18]
 and a motion to expunge from the records the petitioner-heirs notice of redemption.
[19]

 
b. The Judge Beltran Rulings
 
On December 4, 1995, the trial court, through Judge Orlando Beltran,[20]issued an
order (1) recalling the writ of execution for incorrectly quoting the dispositive portion of
the CA decision and nullifying the notice to vacate; (2) denying the motion to ascertain
third-party defendants shares, as Amparos redemption inured to the benefit of her co-
heirs, thus, each of the 10 heirs has 1/10 equal share of the lot; (3) denying the third
motion as no written notice of the sale has been served on the petitioner-heirs by the
vendor or by the vendee; and (4) denying the last motion for lack of legal and factual
basis.[21] The trial court thereafter denied the respondent-buyers motion for
reconsideration that followed.[22]
 
On May 30, 1996, the court denied their motion to nullify the certificate of
redemption and cancellation of the certificate at the back of TCT No. T-2416; the
respondent-buyers moved to reconsider this denial on July 9, 1996.[23]
 
On June 11, 1996, the respondent-buyers filed an omnibus motion for
reconsideration, arguing that the December 4, 1995 order is contrary to law,
jurisprudence, and the decisions of the CA and this Court on this case.[24]
 
On July 15, 1996, the respondent-buyers again filed a motion for
reconsideration of the May 30, 1996 order denying their motion to nullify the
certificate of redemption and to order its cancellation at the back of TCT No. T-2416,
which move the petitioner-heirs opposed. They argued that the decision of this Court
was not self-executing, and the sheriff had no power to do anything without a court
sanction. They also argued that it was untrue that the basis of the April 18,
1995certificate of redemption was the May 31, 1991 decision of the CA, as affirmed by
this Court, because the certificate was inexistent when those decisions were
promulgated.
 
 
c. The Judge Luczon Rulings
 
On September 26, 1997, the trial court, through Judge Jimmy Henry F. Luczon,
Jr.,[25] issued an order granting the respondent-buyers omnibus motion for
reconsideration of the December 4, 1995 order, declaring the petitioner-heirs to have
lost their right of redemption, and nullifying the notice and the certificate of redemption.
[26]
 Noting the absence of a written notice of sale or manifestation received by the
petitioner-heirs, the trial court deemed as notice of sale this Courts decision which
became final and executory on August 2, 1993. The trial court considered September 1,
1993 as the last day of the redemption period, and, consequently, declared that the
notice and the certificate of redemption were filed late.
 
The trial court denied the petitioner-heirs motion for reconsideration of the
September 26, 1997 order, ruling that the introduction of the deed of sale as the parties
evidence in the trial and higher courts was sufficient to give the petitioner-heirs written
notice of the sale; and that the Civil Code does not require any particular form of written
notice or distinctive method for written notification of redemption.
 
III. The Assailed Court of Appeals Decision
 
The petitioner-heirs thereupon went to the CA on a petition for certiorari to
question the lower courts orders. (They had earlier filed an Appeal Ad Cautelam which
the CA consolidated with the petition for certiorari.)[27] As grounds, they cited the lower
courts lack of jurisdiction since the motions ruled upon were really initiatory pleadings
based on causes of action independent of, although related to, Civil Case No. 3129, and
that no certificate of non-forum shopping was attached, nor any docket fees paid. They
also claimed that the respondent-buyers motion was a prohibited second motion for
reconsideration that the lower court could not rule upon, and one that was filed beyond
the 15-day period of appeal.[28] Finally, they faulted the lower court for ignoring the law
of the case, as established in Mariano.
 
The respondent-buyers questioned the petition on technicalities, but focused on
the issue of whether the final and executory decision of this Court in Mariano was
effectively a written notice of sale to the heirs; they continued to maintain that the
redemption period should run from the finality of our Decision, and, thus, had already
lapsed.
The CA followed the respondent-buyers lead and likewise focused on the effect of
our Decision on the petitioner-heirs redemption of the disputed co-owned property.To
quote the appellate court:
 
The pivot of inquiry here is: whether or not the final and executory
Decision of the Supreme Court constitutes written notice to plaintiffs-
appellants [herein petitioner-heirs].
 
xxx
 
 It is undisputed that the Highest Magistrates Decision in G.R. 101522 had
become final and executory on 02 August 1993 and that it was only on 26
April 1994 or after the lapse of more than eight (8) months from the finality
of the said Decision that plaintiffs-appellants filed a Motion for Execution.
 
The Entry of Judgment of G.R. 101522 states as follows, thus:
 
This is to certify that on May 26, 1993 a decision rendered in
the above-entitled case was filed in this Office, the dispositive
portion of which reads as follows:
Premises considered, respondents have not lost their
right to redeem, for in the absence of a written certification of
the sale by the vendors, the 30-day period has not even begun
to run.
 
WHEREFORE, the decision of the Court of Appeals is hereby
AFFIRMED. Costs against the petitioners.
 
SO ORDERED.
 
and that the same has, on August 2, 1993 become final and
executory and is hereby recorded in the book of Entries of
Judgment.
 
As it is an established procedure in court that when an entry of
judgment was issued, it means that the contending parties were already
properly notified of the same either through the parties themselves or
through their respective counsels.
 
Thus, the very existence of the Supreme Courts Entry of Judgment
negates plaintiffs-appellants claim that no notice of what [sic] nature was
received by them insofar as G.R. 101522 was concerned.
 
Concomitantly, the Court concurs with the argument of respondents-
appellees [herein respondent-buyers] that the thirty (30) days grace period
within which to redeem the contested property should be counted from 02
August 1993.
 
As they failed to redeem the same in accordance with the instruction of
the High Court, plaintiffs-appellants lost all the rights and privileges granted
to them by the Supreme Court in G.R. 101522.
 
From the foregoing facts, it is clear that plaintiffs-appellants had slept
from their rights and their failure to exercise the same within the period
allowed by the High Court is deemed a waiver on their part.
 
All told, the Court holds and so rules that the court a quo erred not in
reversing itself.
 
 
To summarize, the appellate court ruled that (1) because an entry of judgment had been
made, the Mariano Decision is deemed to have been served on the petitioner-heirs; (2)
based on this premise, the appellate court held that the 30-day redemption period
should run from August 2, 1993 (the date of the entry of judgment); and (3) for the
petitioner-heirs failure to redeem within that period, they lost all the rights and privileges
granted to them by the Supreme Court in G.R. No. 101522.
 THE PETITION
 
Faced with the CAs ruling and the denial of their motion for reconsideration, the
petitioner-heirs filed the present petition with this Court. They argue in this petition and
in their memorandum that the January 17, 2003 decision of the CA is erroneous for the
reasons outlined below.
 
First. They clarify that their theory that the Decision of this Court is not the written
notice required by law was not anchored on lack of notice of that decision, but on Article
1623 of the Civil Code: the written notice should be given by the vendor, not by this
Court by virtue of a final decision. The CA erred and abused its discretion in concluding
that they lost their right of redemption under this Courts Decision because the start of
the redemption period is not reckoned from the date of the finality of that decision; the
Decision is not the source of their right to redeem.
 
Second. They posit a redemption period is not a prescriptive period, and the lower
courts erred in considering the 30-day period as an extinctive prescriptive period
because legal redemption under Article 1623 does not prescribe. The period has not
even begun to run. Their use of the services of the sheriff to exercise their right of
redemption through a motion for execution was approved by this Court as a method of
redemption.
 
In their Comment, the respondent-buyers stress that the main issue in this petition
is whether the petitioner-heirs right of legal redemption, as recognized in G.R. No.
101522, had been lost. The non-reviewable findings of facts of the trial and appellate
courts that plaintiffs exercised their right of redemption late, and that the decision in
G.R. No. 101522 had already become final, bind this Court.
 
In their Reply to Comment, the petitioner-heirs argue that the 30-day redemption
period under Article 1623 cannot be reckoned from the date of finality of this Courts
Decision in G.R. No. 101522 because it is not and cannot be a notice in writing by the
vendor; this Court is not the vendor and a written notice by the vendor is mandatory for
the 30-day redemption period to run. The Decision negates the notion that it serves as a
notice, because it clearly states that the period of redemption had not begun to
run. Having previously exercised the right of redemption, the execution was nothing
more than the implementation of what had been the final ruling of this Court.
 In their memorandum, the respondent-buyers maintain that the petitioner-heirs
time-barred right to redeem the property was not cured by the notice of redemption and
by their late tender of the redemption money; since the petitioner-heirs were exercising
their right of legal redemption by virtue of the Decisions of this Court and the CA, it was
incumbent upon them to effectuate the steps of redemption seasonably.The belated
notice of redemption and tender of payment of redemption price were not bona fide, as
they were not made within the required period.
 
THE COURTS RULING
 
The parties positions all focus, and rightly so, on the main issue: when did the
30-day period to redeem the subject property start? This is a question of law, not
of fact, as the respondent-buyers erroneously claim; thus, the lower courts findings
cannot bind this Court.
 
The appellate court unfortunately failed to appreciate
the breadth and significance of this issue, simply ruling on the case based on the
implications of an entry of judgment. Because of this myopic view, it completely missed
the thrust and substance of the Mariano Decision.
 
We grant the petition and hold pursuant to the Mariano Decision and
based on the subsequent pleaded developments that the petitioner-heirs have
effectively exercised their right of redemption and are now the owners of the
redeemed property pursuant to the Sheriffs Certificate of Redemption.
 
A significant aspect of Mariano that the CA failed to appreciate is our confirmation
of the ruling that a written notice must be served by the vendor.[29] We ruled as follows:
 
The requirement of a written notice has long been settled as early as
in the case of Castillo v. Samonte (106 Phil. 1023 [1960]) where this Court
quoted the ruling in Hernaez v. Hernaez (32 Phil. 214), thus:
 
Both the letter and spirit of the New Civil Code argue against
any attempt to widen the scope of the notice specified in Article
1088 by including therein any other kind of notice, such as
verbal or by registration. If the intention of the law had been to
include verbal notice or any other means of information as
sufficient to give the effect of this notice, then there would have
been no necessity or reasons to specify in Article 1088 of the
New Civil Code that the said notice be made in writing for, under
the old law, a verbal notice or information was sufficient.
 
xxx
 
 The ruling in Castillo v. Samonte, supra, was reiterated in the case
of Garcia v. Calaliman (G.R. No. 26855, April 17, 1989, 172 SCRA 201)
where We also discussed the reason for the requirement of the written
notice. We said:
 
Consistent with aforesaid ruling, in the interpretation of a
related provision (Article 1623 of the New Civil Code) this Court
had stressed that written notice is indispensable, actual
knowledge of the sale acquired in some other manners by the
redemptioner, notwithstanding. He or she is still entitled to
written notice, as exacted by the code to remove all uncertainty
as to the sale, its terms and its validity, and to quiet any doubt
that the alienation is not definitive. The law not having provided
for any alternative, the method of notifications remains
exclusive, though the Code does not prescribe any particular
form of written notice nor any distinctive method for written
notification of redemption (Conejero et al. v. Court of Appeals et
al., 16 SCRA 775 [1966]; Etcuban v. Court of Appeals, 148
SCRA 507 [1987]; Cabrera v. Villanueva, G.R. No. 75069, April
15, 1988).
 
We also made the factual finding that:
 
The records of the present petition, however, show no written notice of
the sale being given whatsoever to private respondents [petitioner-heirs].
Although, petitioners allege that sometime on October 31, 1982 private
respondent, Grace Gosiengfiao was given a copy of the questioned deed of
sale and shown a copy of the document at the Office of the Barangay
Captain sometime November 18, 1982, this was not supported by the
evidence presented. x x x
 
From these premises, we ruled that [P]etitioner-heirs have not lost their right to
redeem, for in the absence of a written notification of the sale by the vendors, the 30-
day period has not even begun to run. These premises and conclusion leave no doubt
about the thrust of Mariano: The right of the petitioner-heirs to exercise their
right of legal redemption exists, and the running of the period for its exercise
has not even been triggered because they have not been notified in writing of
the fact of sale. This is what our Decision held, as the penultimate paragraph and the
dispositive portion clearly state. This is the law of the case that should guide all other
proceedings on the case, particularly its execution.[30] For the Luczon ruling and the CA
to miss or misinterpret the clear ruling in Mariano the Decision subject of the execution
is a gross and patent legal error that cannot but lead to the reversal of their decisions.
 
In light of this conclusion, we see no need to discuss the other presented
issues.We hold that the computation of the 30-day period to exercise the legal right of
redemption did not start to run from the finality of the Mariano Decision, and that the
petitioner-heirs seasonably filed, via a writ of execution, their notice of redemption,
although they applied for the issuance of the writ some eight (8) months after the
finality of the Decision. In seeking the execution of a final and executory decision of this
Court, what controls is Section 11, Rule 51,[31] in relation to Section 2, Rule 56,[32] of the
Rules of Court. Before the trial court executing the decision, Section 6, Rule 39,[33] on
the question of timeliness of the execution, governs. Eight (8) months after the finality
of the judgment to be executed is still a seasonable time for execution by motion
pursuant to this provision. The writ, notice of redemption, and the tender of payment
were all duly served, so that it was legally in order for the Sheriff to issue a Certificate of
Redemption when the respondent-buyers failed to comply with the writ and to accept
the notice and the tender of payment.
 
WHEREFORE, in light of the foregoing, we hereby GRANT the petition and,
accordingly, REVERSE and SET ASIDE the January 17, 2003 decision and September 9,
2003 resolution of the Court of Appeals in CA-G.R. CV No. 63093. The petitioner-heirs
exercise of their right of redemption of co-heirs Amparo G. Ibarra, Antonio C.
Gosiengfiao, Carlos Gosiengfiao, and Severino Gosiengfiaos shares over Lot 1351-A, Plan
Psd-67391, covered by Transfer Certificate of Title No. T-2416, and located in Ugac Sur,
Tuguegarao, Cagayan, in view of their March 31, 1995 Notice of Redemption and the
April 18, 1995 Certificate of Redemption issued by the Sheriff of the Regional Trial Court,
Branch IV, Tuguegarao, Cagayan, is hereby declared VALID and LEGAL. Costs against
the respondents. SO ORDERED.
G.R. No. L-29759 May 18, 1989

NATIVIDAD DEL ROSARIO VDA. DE ALBERTO, in her individual capacity and as

judicial guardian of the minors ANTONIO ALBERTO, JR. and LOURDES
ALBERTO, petitioners, 
vs.
THE HON. COURT OF APPEALS and ANTONIO J. ALBERTO, JR., assisted by his
mother as his natural guardian, ANDREA JONGCO, respondents.

Tañada, Carreon & Tañada for petitioners.

BIDIN, J.:

This is a petition for review on certiorari of the August 31, 1968 Decision of the Court of
Appeals in CA-G.R. No. 34750-R'* entitled "Antonio J. Alberto, Jr., thru his mother as his
natural guardian, Andrea Jongco, plaintiff-appellant, vs. Natividad del Rosario Vda. de
Alberto, in her individual capacity and as judicial guardian of the minors, Lourdes
Alberto and Antonio Alberto, Jr., defendants-appellees", reversing the August 10, 1964.
Decision of the then Court of First Instance of Manila.

The case originated from a complaint for acknowledgment and partition filed on
September 8, 1960 with the then Court of First Instance of Manila by the herein private
respondent, a minor, 18 years of age, assisted by his mother, Andrea Jongco, as his
natural guardian, against the herein petitioners (Record on Appeal, pp. 2-8). In the said
Complaint, private respondent alleged, in substance, that in 1941 his alleged father,
Antonio C. Alberto, and his mother, Andrea Jongco, lived together as husband and wife
and as a result of which, he was born on September 10, 1942; that during the time that
his alleged father and mother lived together as husband and wife and up to the time of
his birth, both were single and had no legal impediment to marry each other; that after
his birth, his father and mother continued living together as husband and wife, his father
supporting them and introducing him to the public as his natural child; that even the
family of his father recognized him as such; that on or about the year 1944, his father
and mother separated, and subsequently, his father married herein petitioner Natividad
del Rosario; that as a result of the marriage, two (2) children were born herein
petitioners Lourdes Alberto and Antonio Alberto, Jr.; that although his father was
separated from his mother, he continued to support him and recognized him as his own
child; that on July 3, 1949, his father died, and without notice to him, petitioner
Natividad del Rosario Vda. de Alberto, on July 17, 1949, instituted before the then Court
of First Instance of Manila an intestate proceedings for the estate of his deceased father,
docketed therein as Special Proceedings No. 9092; that in the said intestate
proceedings, petitioners deliberately omitted him as one of the heirs and for this reason
they succeeded in having the properties of his deceased father adjudicated and
partitioned among themselves; that the said intestate proceedings were terminated on
November 9, 1953; that his father left properties valued at P74,963.81, and accordingly,
as a natural child of his father, he is entitles to at least P18,000.00; and that he had
absolutely no previous knowledge of the intestate proceedings and came to know about
it only recently and thereupon made a demand from the petitioners who refused to give
him his share. Accordingly, he prays that the petitioners be ordered to acknowledge him
as the natural child of Antonio C. Alberto; that his one-fourth share be turned over to
him; and that petitioners be sentenced to pay him the sum of P5,000.00 as attorney's
fee and the cost of suit (Record on Appeals, pp. 2-9).

On September 21, 1960, petitioners filed a Motion to Dismiss on the grounds that (1)
the cause of action is barred by prior judgment; and (2) that the cause of action is also
barred by the statute of limitation (Ibid, pp. 9-19). To this motion, private respondents
filed an opposition on October 22, 1960 (Ibid, pp. 20-58).
On November 11, 1960, the trial court issued an Order denying the Motion to Dismiss
(Ibid, pp. 97-98).

On November 18, 1964, petitioners filed their Answer to the Complaint (Ibid, pp. 98-
102).

On November 23, 1964, private respondent filed his Answer to Defendants' counterclaim
(Ibid, pp. 102-104). On August 10, 1964, the trial court rendered a decision in favor of
the petitioners (Ibid, pp. 104- 123). The dispositive portion of the Decision reads:

Considering all the foregoing, the Court orders the dismissal of the complaint
without pronouncement as to the costs. The counterclaim is also dismissed.

SO ORDERED.

Private respondent, not satisfied with the decision, appealed to respondent Court, and in
a Decision promulgated on August 31, 1968 (Ibid, pp. 61-75), respondent Court
reversed the decision of the trial court. The dispositive portion of the said Decision,
reads:

Wherefore, the decision appealed from is hereby reversed and set aside and
another rendered declaring plaintiff Antonio J. Alberto, Jr., an acknowledged
Natural Child of the deceased Antonio C. Alberto; declaring said plaintiff the
owner pro indiviso of one-fifth (1/5) of the hereditary estate of Antonio C.
Alberto; and ordering the defendants to deliver to plaintiff Antonio J. Alberto,
Jr., his one-fifth (1/5) share in said estate, subject to the usufructuary rights
of defendants Natividad del Rosario Vda. de Alberto pursuant to Articles 834
of the Old Civil Code, and to pay the costs of suit.

SO ORDERED.

On September 24, 1968, petitioners filed a Motion for Reconsideration, but the same
was denied in a Resolution dated October 14, 1968 (Rollo, p. 77). Hence, the instant
petition.

This Court, in a resolution dated November 27,1968, resolved to give due course to the
petition (Rollo, p. 91).

Petitioners assigned the following errors:

THE HONORABLE COURT OF APPEALS ERRED IN NOT HOLDING THAT THE COURT OF
FIRST INSTANCE OF MANILA (TRIAL COURT) HAD NO JURISDICTION TO TAKE
COGNIZANCE OF THE INSTANT CASE.

II

ASSUMING, ARGUENDO, THAT THE TRIAL COURT HAD JURISDICTION TO TAKE

COGNIZANCE OF THE INSTANT CASE, THE HONORABLE COURT OF APPEALS ERRED IN
HOLDING THAT RESPONDENT ALBERTO JR.'S CAUSE OF ACTION WAS NOT BARRED BY
PRIOR JUDGMENT.

III

ASSUMING, ARGUENDO, THAT THE TRIAL COURT HAD JURISDICTION TO TAKE

COGNIZANCE OF THE INSTANT CASE, THE HONORABLE COURT OF APPEALS ERRED IN
HOLDING THAT RESPONDENT ALBERTO JR.'S CAUSE OF ACTION HAD NOT YET
PRESCRIBED.

IV
ASSUMING, ARGUENDO, THAT THE TRIAL COURT HAD JURISDICTION TO TAKE
COGNIZANCE OF THE INSTANT CASE, THE HONORABLE COURT OF APPEALS ERRED IN
NOT HOLDING THAT RESPONDENT ALBERTO, JR., IN NOT BRINGING THE INSTANT
ACTION FOR AN UNREASONABLE LENGTH OF TIME, WAS GUILTY OF LACHES.

ASSUMING, ARGUENDO, THAT THE TRIAL COURT HAD JURISDICTION TO TAKE

COGNIZANCE OF THE INSTANT CASE, THE HONORABLE COURT OF APPEALS GROSSLY
ERRED IN REVERSING THE FINDINGS OF THE TRIAL COURT BY BASING ITS JUDGMENT
ON A MISAPPREHENSION OF FACTS, GIVING CREDENCE TO THE TESTIMONIES OF
ANDREA JONGCO AND OTHER WITNESSES OF RESPONDENT ALBERTO, JR., DESPITE
THE SERIOUS CONTRADICTIONS, INCONSISTENCIES AND IMPROBABILITIES IN THEIR
TESTIMONIES AS FOUND BY THE TRIAL COURT AND CATEGORICALLY STATED IN ITS
DECISION.

VI

ASSUMING, ARGUENDO, THAT THE TRIAL COURT HAD JURISDICTION TO TAKE

COGNIZANCE OF THE INSTANT CASE, THE HONORABLE COURT OF APPEALS
COMMITTED A GROSS ERROR OF LAW AND A GRAVE ABUSE OF DISCRETION WHEN IT
ARBITRARILY AND CAPRICIOUSLY DISREGARDED PETITIONERS' EVIDENCE.

VII

ASSUMING, ARGUENDO, THAT THE TRIAL COURT HAD JURISDICTION TO TAKE

COGNIZANCE OF THE INSTANT CASE, THE HONORABLE COURT OF APPEALS ERRED IN
HOLDING THAT RESPONDENT ALBERTO, JR., WAS AN ACKNOWLEDGED NATURAL CHILD
OF THE DECEASED ALBERTO AND IN DECLARING HIM OWNER PRO-INDIVISO OF ONE-
FIFTH OF THE HEREDITARY ESTATE OF THE DECEASED.

I.

It is the contention of petitioners that inasmuch as the instant case was filed on
September 8, 1960, almost five (5) years after the enactment of R.A. No. 1401 —
creating the Juvenile and Domestic Relations Court, the questions of paternity and
acknowledgment fall beyond the jurisdictional pale of the Court of First Instance of
Manila and instead comes within the exclusive original jurisdiction of the Juvenile and
Domestic Relations Court. While petitioners admitted that this objection to lack of
jurisdiction by the Court of First Instance of Manila over the subject matter of the
present action had not been raised either in the said court or in the Court of Appeals and
is brought to this Court for resolution for the first time on appeal, they contend that a
party may object to the jurisdiction of the court over the subject matter of the action at
any stage of the proceedings, even for the first time on appeal since lack of jurisdiction
of the court over the subject matter cannot be waived. Such contention is untenable.

This Court has already ruled that the question of jurisdiction not raised in the trial court
cannot be raised on appeal (Dalman vs. City Court of Dipolog City, Branch II, 134 SCRA
243 [1985]). Besides, a party who had voluntarily participated in the trial, like the
herein petitioners, cannot later on raise the issue of the court's lack of jurisdiction
(Philippine National Bank vs. Intermediate Appellate Court, 143 SCRA 299 [1986];
Royales vs. Intermediate Appellate Court, 143 SCRA 470 [1984]; Tijam vs.
Sibonghanoy, 23 SCRA 29 [1968]). Moreover, there are no more Juvenile and Domestic
Relations Courts today. Under Batas Pambansa Blg. 129, the functions of the Juvenile
and Domestic Relations Court have been transferred to the Regional Trial Courts
(Divinagracia vs. Bellosillo, 143 SCRA 356 [1986]).

II.

Petitioners alleged that the intestate proceedings for the settlement of estate of the
deceased Antonio C. Alberto (Special Proceedings No. 9092) had already been
terminated on November 9, 1953 by the order of distribution directing the delivery of
the residue of the estate to the persons entitled thereto and that in said proceedings the
court also declared who are the heirs of the deceased. Consequently, the instant case
which seeks to secure the recognition of Antonio J. Alberto, Jr. as an acknowledged
natural child of the deceased in order to establish his rights to the inheritance is already
barred by prior judgment (Petitioners' Brief, p. 47) despite private respondent's
insistence that he had no knowledge or notice of the intestate proceedings of his alleged
natural father (Record on Appeal, p. 21).

Petitioners' submission is impressed with merit.

This Court has invariably ruled that insolvency proceedings and settlement of a
decedent's estate are both proceedings in rem which are binding against the whole
world. All persons having interest in the subject matter involved, whether they were
notified or not, are equally bound (Philippine Savings Bank vs. Lantin, 124 SCRA 483
[1983]). The court acquires jurisdiction over all persons interested, through the
publication of the notice prescribed ... and any order that may be entered therein is
binding against all of them (Ramon vs. Ortuzar, 89 Phil. 741 [1951] citing in re Estate of
Johnson, 39 Phil. 156). It was ruled further that a final order of distribution of the estate
of a deceased person vests the title to the land of the estate in the distributees; and that
the only instance where a party interested in a probate proceeding may have a final
liquidation set aside is when he is left out by reason of circumstances beyond his control
or through mistake or inadvertence not imputable to negligence. Even then, the better
practice to secure relief is reopening of the same case by proper motion within the
reglementary period, instead of an independent action, the effect of which, if successful,
would be, as in the instant case, for another court or judge to throw out a decision or
order already final and executed and reshuffle properties long ago distributed and
disposed of (Ramon vs. Ortuzar, supra; Santos vs. Roman Catholic Bishop of Nueva
Caceres 45 Phil. 895).

III.

As to the issue of prescription, the Civil Code of the Philippines clearly provides:

Art. 1100. The action for rescission on account of lesion shall prescribe after
four years from the time the partition was made.

Intestate proceedings were terminated as alleged in the complaint itself on November 9,

1953 so that said four years prescriptive period expired on November 9,1957. Hence,
the present action filed on September 8, 1960 and which has for one of its objects the
rescission of the agreement of partition among the petitioners, as approved by the
intestate court, is already barred by prescription.

That an action for rescission is also the proper action in case of an alleged preterition of
a compulsory heir by reason of alleged bad faith or fraud of the other persons
interested, which is what the complaint in this case alleges in substance, is indicated in
Article 1104 of the Civil Code as follows:

Art. 1104. A partition made with preterition of any of the compulsory heirs
shall not be rescinded, unless it be proved that there was bad faith or fraud
on the part of the other persons interested; ...

It has also been ruled by this Court that the four years period provided in Article 1100 of
the Civil Code (formerly Art. 1076 of the old Civil Code) should commence to run from
the approval of the agreement of partition by the Court (Samson vs. Araneta, 60 Phil.
27, 36). Thus, in the case at bar, it is evident that the action to rescind the Agreement
of Partition which was approved by the Court on November 9, 1953, had already
prescribed when respondent filed the complaint in the case at bar on September 8,
1960.
While as a general rule the action for partition among co-owners does not prescribe so
long as the co-ownership is expressly or impliedly recognized (Art. 494, Civil Code),
petitioners herein had never recognized respondent as a co-owner or co-heir either
expressly or impliedly. Consequently, the rule on non-prescription of action for partition
of property owned in common (Art. 494) does not apply to the case at bar.

Moreover, private respondent cannot claim exemption from the effects of prescription on
the plea of minority under the New Civil Code which provides:

Art. 1108. Prescription, both acquisitive and extinctive, runs against: (1)
Minors and other incapacitated persons who have parents, guardians or
other legal representatives:

xxxxxxxxx

Respondent Alberto, Jr. who has a living parent, his mother, Andrea Jongco, who in fact
filed the complaint in the case at bar for him, falls squarely under the above-cited
provision.

Granting arguendo that respondent is a natural child of the deceased Antonio Alberto,
Sr., the action for recognition of natural child may be brought only during the lifetime of
the presumed parent. And if the presumed father or mother died during the minority of
the child, the latter may file the action within four (4) years from the attainment of
majority (Art. 285 [1]). However, if the minor has a guardian as in this case,
prescription runs against him even during minority (Wenzel etc., et al. vs. Surigao
Consolidated Mining, Inc., 108 Phil. 530 [1960]). In such case, the action for recognition
must be instituted within four (4) years after the death of the natural father
(Magallanes, et al. vs. Court of Appeals, et al., 95 Phil. 795 [1954]). Antonio C. Alberto,
Sr., the alleged father, died on July 3, 1949. The complaint for acknowledgment and
partition was filed eleven (11) years later, on September 8, 1960. Hence, prescription
had set in.

Neither can it be claimed that the present action is in substance one for recovery of
property in order to avoid the consequences of prescription, for as correctly stated by
the petitioners, to be entitled to the recovery of the property from the estate, Alberto,
Jr. must first rescind the partition and distribution approved by the intestate
proceedings, otherwise, the recovery of any property from the petitioners is not
possible. Be that as it may, such partition can no longer be rescinded having been
already barred by the Statute of Limitations.

Furthermore, even granting that Article 1104 of the Civil Code does not apply and there
is an injury to the rights of plaintiff, tills action would still not prosper under Articles
1146 and 1149 of the same Code which provide that the action must be brought within
four and five years, respectively, from the time the right of action accrues.

IV

Petitioners' claim of laches is likewise tenable. The trial court in its findings clearly and
unmistakably declared that respondent Alberto, Jr. is guilty of laches as follows:

About 1944, Andrea Jongco said she learned of Antonio Alberto's marriage to
Natividad del Rosario. Yet, she took no steps to protect the interests of her
child, Antonio, although she was already confronted with the incontrovertible
proof of Antonio's infidelity and the hallowness of his promises.

It might be that Andrea Jongco was then relying on Antonio Alberto's not
denying that Alberto, Jr. was his child, if such was the case. If this was so,
however, how can we explain her inaction even after the death of Antonio
Alberto in 1949, or until September 8, 1960, when she filed this action,
Andrea kept silent, took no action to have her child recognized as the son of
 the alleged father. Her laches, as well as the inherent improbabilities in her
testimony rendered it unworthy of belief.

... It is evident that the plaintiff's case is adversely affected by his long delay
in bringing this action. 'Undue delay in the separate enforcement of a right is
strongly persuasive of lack of merit in this claim, since it is human nature for
a person to assert his rights most strongly when they are threatened or
invaded. (Buenaventura vs. David, 37 Phil. 435-440). (Record on Appeal,
pp. 108-109).

This Court has consistently declared that laches is the failure or neglect, for an
unreasonable and unexplained length of time, to do that which by exercising due
diligence, could or should have been done earlier. The negligence or omission to assert a
right within a reasonable time, warrants a presumption that the party entitled to assert
it either has abandoned it or declined to assert it (Corro vs. Lising, 137 SCRA 541
[1985]; Tendo vs. Zamacoma, 138 SCRA 78 [1985]; De Castro vs. Tan, 129 SCRA 85
[1984]; Medija vs. Patcho, 132 SCRA 540 [1984]; Burgos, Sr. vs. Chief of Staff, Armed
Forces of the Phil., 133 SCRA 800 [1984]; Gumonpin vs. CA, 120 SCRA 687 [1983]).

As pointed out by the trial court, there appears to be no explanation for the surprising
delay in the filing of the complaint in the case at bar except perhaps, the fact that during
the lifetime of the deceased Antonio Alberto, private respondents were receiving support
until the latter died in 1949; but thereafter, they allowed more than ten years to elapse
or until September 8, 1960 before they filed the present action to assert their rights
despite Andrea Jongco's allegation that they stopped receiving support after Alberto,
Sr.'s death.

On the other hand, there is merit in petitioners' allegations that such delay is prejudicial
to them. Private respondents could have filed the action in 1944 when Andrea Jongco
learned of the marriage of the deceased with petitioner Natividad del Rosario instead of
waiting for 16 years when the supposed father's lips had been sealed by death and
possible witnesses like Antonio Alberto, Sr.'s mother had become too old to give
coherent testimony.

On this point, the Supreme Court ruled:

The assertion of doubtful claims, after long delay, cannot be favored by the
courts. Time inevitably tends to obliterate occurrences from the memory of
witnesses, and even where the recollection appears to be entirely clear, the
true clue to the solution of a case may be hopelessly lost. These
considerations constitute one of the pillars of the doctrine long familiar in
equity jurisprudence to the effect that laches or unreasonable delay on the
part of a plaintiff in seeking to enforce a right is not only persuasive of a
want of merit but may, according to the circumstances, be destructive of the
right itself. Vigilantibus non dormientibus equites subvenit (Buenaventura
vs. David, 37 Phil. 435, reiterated in Edralin vs. Edralin, 1 SCRA 227
[1961]).

The other explanation might have been the minority of Antonio Alberto, Jr. at the time of
his supposed father's death. But such explanation as discussed earlier is unavailing even
in case of prescription under Article 1108 of the Civil Code where minority does not stop
the running of the prescriptive period for minors who have parents, guardians or legal
representatives.

Thus, it is well established that "The law serves those who are vigilant and diligent and
not those who sleep when the law requires them to act (Cui and Joven vs. Henson, 51
Phil. 606, 610; Bacolod-Murcia Milling Co. vs. Villaluz, Sept. 29, 1951, 90 Phil. 154)."
The law does not encourage laches, indifference, negligence or ignorance. On the
contrary, for a party to deserve the considerations of the courts, he... must show that he
is not guilty of any of the aforesaid failings (Samson vs. Yateo, August 28,1958; 104
PMI. 378).
V.

Finally on the merits of this case, petitioners would have this Court review and reverse
the conclusions of fact of the Court of Appeals. As a general rule, this is a function this
Court does not undertake. The established principle is that the factual findings of the
Court of Appeals are final and may not be reviewed on appeal to this Court; except: (1)
when the conclusion is grounded entirely on speculation, surmises and conjectures; (2)
when the inference is manifestly mistaken, absurd and impossible; (3) where there is
grave abuse of discretion; (4) when the judgment is based on a misapprehension of
facts; (5) when the Court in making its findings went beyond the issues of the case, and
the same are contrary to the admissions of both the apellant and the appellee; (6) when
the findings of the Appellate Court are contrary to those of the trial court; (7) when the
findings are without citation of specific evidence on which they are based (Manlapaz vs.
C.A., 147 SCRA 238-239 [1987]; Guita vs. C.A., 139 SCRA 576 [1985]; Sacay vs.
Sandiganbayan, 147 SCRA 593 [1986]).

It is readily evident that this case falls within one of the recognized exceptions to the
rule, specifically that the findings of the Appellate Court are contrary to those of the trial
court.

At the trial, the lower court in evaluating the evidence presented by the complainants is
of the view that the testimony alone of Andrea Jongco is sufficient to totally discredit not
only her testimony but also her entire case. Aside from being inherently improbable and
the merit of her claim being adversely affected by her testimony and her long delay in
bringing action, her testimony is contradicted by the testimonies of Jose, Zoilo and Pilar
who are brothers and sister of the deceased Antonio Alberto and who have no pecuniary
interest whatsoever in the outcome of the controversy. They testified that during the
period Andrea Jongco claimed that Antonio Alberto, Sr. lived with her, the deceased in
fact lived with his mother and brothers at the family residence except for his brief stint
with the army (Decision, Civil Case No. 44164; Record on appeal, pp. 111-112).

More than that, the trial court found among others, that Andrea Jongco has had five
children (aside from her son Antonio) with four different men. The assumption,
therefore, is that she lived with at least four different men without being married to any
of them. Thus, the trial court aptly ruled that his propensity to promiscuous relationship
with different men, render it unjust to state with definiteness that any particular person
is the father of any one of her children." (Ibid, p. 121).

Other witnesses are Eufracia Cailan who allegedly took care of Antonio, the father, since
the latter was a child and then of Antonio, the alleged son, and Encarnacion Peralta, an
alleged former lessor of Andrea Jongco and Antonio Alberto. Their testimonies were,
however, found by the trial court to be inherently improbable, inconsistent with human
experience and deliberately invented to conform with the testimony of Andrea Jongco
(Ibid, pp. 109-117).

On the other hand, the Court of Appeals in its decision gave more credence to the
testimonies of Eufracia Cailan and Encarnacion Peralta and declared that their
testimonies have sufficiently established the fact that Antonio J. Alberto, Jr. is the son of
the late Antonio C. Alberto and Andrea Jongco which finds further proof in the birth
certificate and the baptismal certificate of Alberto, Jr. (Rollo, pp. 6-11).

In this connection, it must be stated that in the case of Reyes vs. Court of Appeals, 135
SCRA 439 (1985), this Court, citing the cases of Bercilles vs. GSIS, 128 SCRA
53; People vs. Villeza, 127 SCRA 349; Cid vs. Burnaman, 24 SCRA 434; Vudaurrazaga
vs. C.A., 91 Phil. 492; and Capistrano vs. Gabino, 8 Phil. 135, ruled that a birth
certificate not signed by the alleged father therein indicated, like in the instant case, is
not competent evidence of paternity.

In casting doubt upon the credibility of petitioner Natividad's testimony, the Court of
Appeals pointed out her serious inconsistency on material points such as her claim that
she was married to the deceased in 1941 and her later admission in the answer that
they were married in 1944.

The record shows, however, that both admissions were correct, the first marriage was a
secret civil marriage celebrated in Pililla, Rizal while the second was a religious
ratification of the former. The lack of marriage certificate as evidence was also
considered by the Court of Appeals as an impairment of credibility despite a certification
to the effect that all pre-war records in the Municipality of Pililla, Rizal were destroyed
during the last war. Said Appellate Court is of the view that if they did plan to marry
secretly at that time, they could have chosen a city or municipality near Manila and that
Pililla must have been chosen as the place of the supposed marriage so that petitioners
could have an apparent good reason for the non-presentation of the marriage certificate.

As aptly argued by the petitioners, such conclusion is purely conjectural. Besides

petitioners' reasons for the choice of that place, the celebration of the marriage was
positively confirmed by Damaso Herrera, one of the sponsors thereof.

In any event, it is a fundamental rule that conclusions and findings of fact by the trial
court are entitled to great weight on appeal and should not be disturbed unless for
strong and cogent reasons because the trial court is in a better position to examine real
evidence, as well as to observe the demeanor of the witnesses while testifying in the
case (People vs. Pimentel, 147 SCRA 29, 30 [19871; People vs. Grefiel, 125 SCRA 108
[1983]; Chase vs. Buencamino, 136 SCRA 381 [1985]; People vs. Fernandez, 124 SCRA
248 (1983]; Olangco vs. C.F.I. of Misamis Oriental, 121 SCRA 338 [1983]; Minuchechi
vs. C.A., 129 SCRA 479 [1984]).

After a careful review of the records and the evidence presented by the contending
parties, no cogent reasons could be found to justify the reversal of the findings of the
trial court.

In view of the foregoing, there appears to be no need to discuss the last two
assignments of errors.

WHEREFORE, the assailed decision of the Court of Appeals is hereby Reversed and the

decision of the trial court is Reinstated. No costs.
 G.R. No. L-43482 July 28, 1937

SERAFIN SANSON, Plaintiff-Appellant, vs. ISABEL ARANETA, ALFREDO SANSON,

and EVA SANSON, Defendants-Appellees.

William E. Greenbaum for appellant.

Ganzon and Orozo and Araneta, Zaragoza and Araneta for appellees.

DIAZ, J.: chanrobles virtual law library

The plaintiff brought this action on August 23, 1932, for the rescission of the agreement
of partition entered into by him and the defendant on June 10, 1927, to terminate the
testamentary proceedings of the deceased Roque Sanson, civil case No. 1055 of the
Court of first Instance of Iloilo.chanroblesvirtualawlibrary chanrobles virtual law library

The plaintiff and the defendant Alfredo Sanson and Eva Sanson, the latter married to
Antonio Yusay, are brother and sister, all of them being children of the deceased Roque
Sanson and the defendant Isabel Araneta.chanroblesvirtualawlibrary chanrobles virtual
law library

After due hearing, the court decided the case in favor of the plaintiff, ordering, as a
consequence thereof, the rescission of the agreement of portion in question by reason of
lesion exceeding the fourth part suffered by him. This decision was later affirmed by this
court to which the case had been brought, on appeal taken therefrom by the defendant
(G. R. No. 39697). 1 chanrobles virtual law library

In the decision, the defendant Isabel Araneta was ordered among other things, to file
within thirty days a complete inventory of all the real and personal properties, furniture,
jewelry, credits and actions left by the deceased Roque Sanson, together with the
respective value thereof and to present within said period a project of partition of said
properties among the heirs. Inasmuch as the defendant had failed to present the
inventory of property and the project of partition required of her, the ones presented by
her on December 3, 1934, not having been satisfactory to the plaintiff, the latter, on
January 3, 1935, asked for the appointment of a receiver to take charge of the custody
and administration of the properties in question, which was granted by the court on the
21st of said months and year. Sabas Gustilo, the plaintiff's father-in-law was appointed.
After the receiver had entered upon the performance of his duties, he encountered many
difficulties in discharging them due to the defendants' refusal to turn over to him the
properties which formed part of the estate left by the deceased Roque Sanson. On
February 12, 1935, the court, upon motion of the plaintiff, ordered the defendants to
turn over the properties in question to the receiver within the period of four days.
Inasmuch as the defendants did not comply with this order, the defendant Isabel
Araneta having confined herself to presenting, on the 14th of said month and year, an
amended but incomplete inventory of the properties left by the deceased Roque Sanson,
the receiver, Sabas Gustilo, on February 18, 1935, petitioned that they be required to
appear before the court to show cause, if any, why they should not be punished for
contempt of court, for disobedience of an order thereof. Before his petition could be
acted upon, the receiver filed another on February 27, 1935, praying the court this time
to expressly order the appearance of the defendant Alfredo Sanson to show cause, if
any, why he should not be declared guilty of contempt of court, for having ordered his
tenants and farms not to turn over to him the fruits of the lands in their possession. The
court, acting upon the receiver's last petition, ordered the defendant Alfredo Sanson to
appear before it on March 4, 1935, to be heard in connection therewith. However, before
the day set for said defendant's appearance arrived that is on February 28, 1935, the
court issued another order appointing the provincial sheriff of Iloilo as judicial receiver in
substitution of Sabas Gustilo in view of the difficulties which the latter was encountering
in the discharge of his duties as such receiver. Sabas Gustilo asked for the
reconsideration of this last order but the court, instead of directly deciding his motion,
one way or another issued the order of March 15, 1935, ( a) denying said motion for
reconsideration; ( b) considering the incident relative to the appointment of a receiver
as terminated; ( c) approving the amended inventory filed by the defendant Isabel
Araneta on February 14, 1935, and ( d) ordering the parties to submit on April 1, 1935,
the names of persons qualified for appointment as commissioners to proceed with the
partition of the properties stated in the inventory. The plaintiff appealed from both this
last order and that of February 28, 1935, appointing the provincial sheriff of Iloilo as
judicial receiver in lieu of Sabas Gustilo, attributing to the lower court the seven alleged
errors assigned by him in his brief.chanroblesvirtualawlibrary chanrobles virtual law
library

The plaintiff contends by means of the first two errors assigned by him, that the lower
court erred in appointing the provincial sheriff of Iloilo as judicial receiver in lieu of
Sabas Gustilo, and in setting aside without any hearing the appointment of said Sabas
Gustilo.chanroblesvirtualawlibrary chanrobles virtual law library

By means of the 3d, 4th, 5th and 6th assignment of error, the plaintiff contends that the
lower court erred (1) In approving the amended inventory presented by the defendant
Isabel Araneta on February 14, 1935, without taking into account: ( a) that property
exclusively belonging to the deceased Roque Sanson has been stated therein as conjugal
partnership property of said deceased and the defendant; ( b) that several parcels of
land subject to partition, being conjugal partnership property of said spouses, have been
omitted therefrom; ( c) that the jewelry referred to in Exhibit M and N has likewise been
omitted therefrom; and ( d) that the inventory in question fails to state not only the
proceeds of the sale of lands belonging to the conjugal partnership of the deceased and
the defendant Isabel Araneta, which were sold by the latter and her codefendants, but
also the fruits of the lands actually in the possession of the three; (2) in failing to order
the defendant Isabel Araneta to again amend the inventory presented by her on
February 14, 1935, for the purpose of including therein all other properties of the
deceased Roque Sanson, subject to partition; and (3) in failing to order the defendants
to bring to collation a part of the properties turned over to them as
inheritance.chanroblesvirtualawlibrary chanrobles virtual law library

By means of the 7th error, the plaintiff contends that the court erred in failing to order
the sale at public auction of all the properties left by the deceased Roque Sanson to
facilitate the partition thereof among the heirs, notwithstanding the fact that it had been
so agreed upon by all the interested parties.chanroblesvirtualawlibrarychanrobles virtual
law library

The first two errors attributed to the court are unfounded Under sections 173 and 174 of
the Code of Civil Procedure, the appointment of a receiver lies within the sound
discretion of the court, it not being a matter of strict right to ask for and obtain it, nor an
imperative duty to grant it when it is sought (Sanson vs. Barrios, 63 Phil, 198). It
follows from the foregoing that the judge who has made the appointment may very well
set aside, as was done by the respondent judge, when in his opinion it is not justified by
the facts and circumstances of the case. The respondent judge, in acting as he did, was
undoubtedly guided by the consideration that the properties sought to be placed in the
hands of a receiver were already in the possession of the defendants and the plaintiff
himself; that it would be of no benefit to them to place the properties, in the hands of a
receiver inasmuch as in case of lesion, there is the remedy of collation provided for by
the Civil Code; that the greater part of said properties consists in real estate which
cannot be easily lost; and that the parties could very well protect their respective rights
by merely recording in the registry of deed of notice of lis pendens, in accordance with
the provisions of section 401 of the Code of Civil
Procedure.chanroblesvirtualawlibrary chanrobles virtual law library

As to the 3d, 4th, 5th and 6th errors. The record shows that the respondent judge really
erred in approving the amended inventory presented by the defendant Isabel Araneta on
February 14, 1935, because he failed to take into consideration: (1) That said defendant
stated therein that the land appearing in the record as lot No. 1525 is conjugal property
belonging to her and the deceased Roque Sanson, when it is very clear, according to
Exhibit F. No. 1, that it exclusively belongs to the deceased Roque Sanson, so much so
that it is stated in the original certificate of title No, 2538, covering it, that it belongs to
Roque Sanson, married to Isabel Araneta: (2) that lots Nos. 3, 4, 5, 6, 7, 13, 14, 21, 25,
26, 30, 32, 36 and 38 of plan II-12490, more particularly described in original certificate
of title No. 28970 issued in the name of Isabel Araneta and her children Alfredo Sanson,
Serafin Sanson and Eva Sanson, who are the same parties litigant, have not been stated
in said inventory; since, although it is alleged in Exhibit F, page 10, that said original
certificate of title was later cancelled and substituted by transfer certificate of title No.
8044 issued in the name of Isabel Araneta and Eva Sanson, by order of the court it does
not mean that the plaintiff and the defendant Alfredo Sanson have lost their right to
participate in said properties, it being admitted by the litigants that they constitute part
of the conjugal partnership property of the defendant Isabel Araneta and of the
deceased Roque Sanson. Furthermore, the alleged transfer of the lots in question made
by the defendant Isabel Araneta in favor of Eugenio Badilla, is neither evidenced by any
document nor authorized by the court, and it appears from Exhibit F that a notice of lis
pendens affecting them was recorded in the registry of deed from the beginning; (3)
that lots Nos. 22, 23 and 27 described in original certificate of title No. 28970 and in
transfer certificate of title No. 8044 have been stated in the inventory as properties
subject to partition, when it appears from Exhibit E that they had been sold for the sum
of P30,000 to Delfin Mahinay on December 16, 1933, and it does not conclusively appear
that such sale has been rescinded for failure of Mahinay to pay the stipulated price. Said
price, which must be in the possession of the defendant Isabel Araneta, must at least be
stated in the inventory to be distributed among the litigants; (4) that lot No. 461,
described in transfer certificate of title No. 8157, has been stated in the inventory as
sold to Herminio Maravilla for the sum of P12,000 and therefore not subject to partition,
when such transfer was declared fictitious and null and void by the lower court in a
judgment rendered in this same case on March 3, 1933, and in a judgment rendered by
this court in case G. R. No. 39697. Said land should be included in the inventory: (5)that
the lands referred to in tax declarations Nos. 3849, 3850 and 3851 (Exhibits A, B and
C), have not been stated in the inventory, since the only mention made of them therein
is that they are in the possession of Alfredo Sanson, having been allotted to him in the
partition, but this is no reason for not including them because, as the agreement of
partition by virtue of which Alfredo Sanson took possession said properties was
rescinded, they should necessarily be included in the inventory so that they may be
taken into account when the partition is carried out; (6) that neither have the lands
referred to in tax declarations Nos. 3434, 3740 and 3743 been stated in the inventory,
the only mention made therein of the land referred to in the first declaration being that
it was stated in the original inventory presented on December 3, 1934, which cannot
now be taken into consideration because it was substituted by the amended one of
February 14, 1935; (7) that the sum of P3,000 representing the selling price of the two
parcel of land described in Exhibit U, has not been stated in the inventory as assets
subject to partition; (8) that neither have the 17 parcel of land situated in the
municipality of Banate of the provincial of Iloilo, valued at P9,000, which constitute part
of the conjugal partnership property of the deceased Roque Sanson and the defendant
Isabel Araneta, been stated in the inventory, the only mention made thereof in said
inventory being that they were sold by the defendant Isabel Araneta to one Victoriano
Arroyo for the sum of P4,500 on May 21, 1924; and while it is true that said sale was
made, it has not been authorized by the court and is therefore null and void; (9) that
neither has proceeds of the sale of several parcels of land sold by the defendant Isabel
Araneta to Evaristo Cuenca, amounting to P6.000 been stated in the inventory, which
amount should be included in the inventory because it forms part of the asset subject to
portion; (10) that neither have the various sums amounting to P12,500 admitted by the
defendant Isabel Araneta to have been collected by her from Domingo Arcosa as rents of
certain lands belonging to the deceased Roque Sanson (t. s. n. pages 341, 342), been
stated in the inventory; and (11) that neither have the income and fruits of the lands
which are in the possession of the parties litigant by virtue of the rescinded agreement
of partition, been stated in the inventory. At least the products and fruits of said
properties, received by each of the parties from the time they were notified of the
judgment rescinding their agreement of portion, should be stated in the inventory for
purposes of the collation which will be made in due time, it being clear that those
derived prior thereto should not be included therein, because fruits received by
possessors in good faith become their own until their good faith ceases (article 451, in
connection with article 433 of the Civil Code), and the parties were, theretofore
possessors in good faith.chanroblesvirtualawlibrary chanrobles virtual law library

The plaintiff contends that the jewelry referred to in Exhibit M, N, O, P, and R should
have been and should even now also be included in the inventory. This court has
reviewed the evidence relative to this question and is of the opinion that the
explanations given by the defendant Isabel Araneta are entirely satisfactory. Between
the plaintiff's averment and that of said defendant, this court chooses to believe the
latter's because her explanation are convincing. Many of the jewels in question, as those
indicated by Nos. 1, 4, 9, 10, 14, 15, 16, 17 and 18 in Exhibit, 21, 22, 23, 25, 26, 28,
30, 31, 32, 34, 36 and 38 in Exhibit N, the necklace and the rings described in Exhibit O,
the crown, the necklace and the bracelets described in Exhibit P, and the jewels
described in Exhibit R, do not belong to her. Others as, those indicated by Nos. 3, 7, 11,
12, 13 and 19 in Exhibit M, 20 27 and 37 in Exhibit N, the bracelet described in Exhibit
O, and the bird-shaped necklace, the bracelet without diamonds and the bracelet with a
diamond cluster described in Exhibit P, exclusively belong to her. The rest, some of
which have already been distributed among the heirs, belonging to her conjugal
partnership (Nos. 2, 5, 6 and 8 of Exhibit M, 24, 29, 33 and 35 of Exhibit N, and the
three solitaire rings and the ring with a diamond cluster described in Exhibit
P).chanroblesvirtualawlibrary chanrobles virtual law library

With respect to the last error attributed to the lower courts it should be said that, taking
into consideration the circumstance to be stated hereinafter, the agreement entered into
by the parties, allegedly approved by said court on February 25, 1935, to sell all the
properties left by the deceased Roque Sanson at public auction for the purpose of
distributing the proceeds thereof among themselves, is not of the nature of a
compromise having a binding force under the provisions of the Civil Code (article
1809 et seq. of the Civil Code). The lower court, in issuing the appealed order of March
15, 1935, failed to order the sale of said properties, as agreed upon by the parties, for
the purpose of facilitating the distribution thereof, which proves that the court revoked
the approval thereof given by it on February 25th of said year. On the other hand, the
partition of the properties left by the deceased Roque Sanson may be made without
necessity of selling them at public auction; and to so sell them would be to openly
disregard the orders of the deceased contained in his probated
will.chanroblesvirtualawlibrary chanrobles virtual law library

In view of all the foregoing, the order appealed from is modified by affirming it in so far
as it appointments of the receivers Sabas Gustilo and the provincial sheriff of Iloilo, and
reversing it in so far as it approves the amended inventory of February 14, 1935,
presented by the defendant Isabel Araneta; and said defendant is ordered to present,
within the period of thirty days, a new inventory of all the properties left by the
deceased, whether or not they be in her possession or in that of the other litigants,
stating therein the respondent values thereof and their income and fruits from the time
each and every one of said litigants, including the defendant herself, was notified of the
judgment rescinding said agreement of partition. Said properties are those stated in the
aforesaid amended inventory of February 14, 1935, which were not the subject matter
of an opposition upheld by the court, plus those omitted therefrom which are no other
than the ones expressly enumerated in this decision. It is ordered, furthermore that as
soon as the required inventory is presented, and unless said defendant and the other
litigants present a project of partition satisfactory to everybody, the lower court should
proceed with the appointment of partition commissioners, in accordance with the
provisions relative thereto contained in Act No. 190; and when said partition takes place,
the necessary collations and compensations should be made in order that it may be the
most equitable and just possible, in conformity with the provisions of the will of the
deceased Roque Sanson. Let the costs be taxed against the appellees. So ordered.

Villa-Real, Abad Santos, Imperial, Laurel and Concepcion, JJ., concur.

RESOLUTION

September 8, 1937
 DIAZ, J.: chanrobles virtual law library

The defendants and appellees have filed in two separate pleadings a motion for
reconsideration of the decision rendered in this case, alleging: (1) That there is no
evidence of record to the effect that Delfin Mahinay has paid to the defendant and
appellee Isabel Araneta the sum of P30,000 for parcels 22, 23 and 27 described in
original certificate of title No. 28970 and in transfer certificate of title No. 8044; (2) that
neither is there evidence in support of the court's conclusion that the parcels of land
described in tax declarations Nos. 3849, 3850, 3851, 3740 and 3743 were not included
in the amended inventory presented by the defendant-appellee Isabel Araneta; (3) that
neither is there evidence in support of the court's finding that Isabel Araneta did not sell
the 17 parcels of land situated in the municipality of Banate, Province of Iloilo, to
Victorians Arroyo, for the sum of P4,500, and that at all events, what should be done is
to order the inclusion of the P4,500 in the inventory to form part of the assets subject to
partition; (4) that while the new partition ordered by the court not carried out the heirs
are entitled to continue in the possession of the lands turned over to them and,
consequently to receive the fruits thereof, invoking therefor the provision of article 1077
of the Civil Code; and (5) that the court should order the deduction of the sum of
P19,463, advanced by the defendant and appellee Isabel Araneta while she was
administratrix of the testate estate of the deceased Roque Sanson, from the various
sums which ought to be included in the inventory to be prepared by virtue of the
decision rendered in the case.

1. The first allegation of the defendants is contradicted by Exhibit E, which is a certified

copy of a notarial certificate the validity of which has never been questioned. Said
document shows that on December 16, 1933, the defendants and appellees Isabel
Araneta and Eva Sanson, and the latter's husband named Antonio Yusay, sold parcel 22,
23 and 27 described in plan II-12490 and in transfer certificate of title No. 8044, to
Delfin Mahinay for the sum of P30,000 which they admitted to have received as follows:
P21,112.40 upon the execution of said document, and the assumption by said Delfin
Mahinay of the obligation to pay to the Philippine National Bank a certain loan in the sum
of P8,887.60, for which said properties were mortgaged. Consequently, the contention
that this court should not have declared that the price thereof had been paid because,
according to Isabel Araneta's testimony, she received only about P4,000 from Mahinay
(t. s. n., page 303), is unfounded. Isabel Araneta as one of the makers of the notarial
deed of transfer could not and cannot impugn it except under the circumstances
prescribed in section 285 of Act No. 190, which are certainly not those which were
present herein (Weidmanvs. Macasero, G. R. No. 24505, December 28, 1925, not
reported). The fact that, subsequent to the promulgation of the decision of this court,
Alfredo Sanson agreed with the purchaser Mahinay to rescind the contract of sale Exhibit
E, according to Annex I of the motion for reconsideration, cannot alter said decision,
much less set aside said contract. Neither can Annex I nor the document and promissory
notes attached to said motion for reconsideration as Annex B, C, D, E, F, G and H be
taken into consideration, because neither are they new evidence which may be admitted
with the formalities required by law, nor have they been previously admitted as such,
nor is the first one (Annex 1) subscribed by all the parties who executed the deed of sale
sought to be affected thereby, that is Exhibit E. They apparently have all the earmarks
of having been intentionally prepared solely to support the motion for reconsideration. It
was well settled in the decision that the sum of P30,000, and not parcels 22, 23 and 27,
should have been and should be stated in the inventory to be subject to
partition.chanroblesvirtualawlibrarychanrobles virtual law library

2. As to the second proposition of the defendant and appellees, it should be stated that,
with the exception of their allegations contained on pages 20 and 21 of their brief to the
effect that the lands described in tax declarations Nos. 3434, 3740 and 3743 have been
consolidated to form the parcel described in tax declaration No. 3844, there is nothing of
record to prove such fact. What the evidence clearly shows is that said lands and those
described in tax declarations Nos. 3849, 3850 and 3851 belonged to the conjugal
partnership of the deceased Roque Sanson and Isabel Araneta. Such being the fact,
there is no doubt that they should be included in the new inventory to be presented in
accordance with the decision, inasmuch as the contract by virtue of which Alfredo
Sanson took possession thereof has been
rescinded.chanroblesvirtualawlibrary chanrobles virtual law library

3. The third proposition is untenable. If the 17 parcels in question were not sold, it is
just that they be included in the new inventory in order to form part of Roque Sanson's
hereditary estate subject to partition. The alleged proceeds of their sale (P4,500) should
not be stated in the inventory in lieu thereof, because said amount is less by one-half
than the value given by the same defendant Isabel Araneta in the inventory submitted
by her to the court while she was administratrix of the testate estate of Roque Sanso,
and because to do so would be equivalent to sanctioning an act which could not have
been approved by the court.chanroblesvirtualawlibrarychanrobles virtual law library

4. With respect to the fourth proposition, it should be stated that, as the agreement of
partition under consideration was declared rescinded by this court, the parties were
bound to return the properties which were the subject matter of the partition, with all
their fruits and income or the equivalent thereof in money (article 1295, Civil Code), in
conformity with the provisions of articles 451, and 430 to 436 of said Code, from the
date of the rescission.chanroblesvirtualawlibrary chanrobles virtual law library

5. As to the last proposition, this court holds that the matter referred to therein is a
question that must be submitted to the consideration of the lower court, which will be
the one to determine how and to what extent the set-offs will have to be made when it
orders the partition of the properties subject thereto.

For all the foregoing consideration, this court decides to deny as it hereby denies the
defendant's motion for reconsideration. So ordered.
G.R. No. 128102             March 7, 2000

AZNAR BROTHERS REALTY COMPANY, petitioner, 

vs.
COURT OF APPEALS, LUIS AYING, DEMETRIO SIDA, FELOMINO AUGUSTO,
FEDERICO ABING, and ROMEO AUGUSTO, respondents.

DAVIDE, JR., C.J.:

This is a petition for review on certiorari under Rule 45 of the Revised Rules of Court
seeking to reverse and set aside the 26 March 1996 Decision1 of the Court of Appeals
declaring the private respondents the rightful possessors de facto of the subject lot and
permanently enjoining Sheriff Juan Gato or his representative from effecting the
demolition of private respondents' houses.

Culled from the evidence proffered by petitioner Aznar Brothers Realty Co. (hereafter
AZNAR), it appears that Lot No. 4399 containing an area of 34,325 square meters
located at Brgy. Mactan, Lapu-Lapu City, was acquired by AZNAR from the heirs of
Crisanta Maloloy-on by virtue of an Extrajudicial Partition of Real Estate with Deed of
Absolute Sale dated 3 March 1964. This deed was registered with the Register of Deeds
of Lapu-Lapu City on 6 March 1964 as shown on the face thereof. After the sale,
petitioner AZNAR declared this property under its name for taxation purposes and
regularly paid the taxes thereon. Herein private respondents were allegedly allowed to
occupy portions of Lot No. 4399 by mere tolerance provided that they leave the land in
the event that the company would use the property for its purposes. Later, AZNAR
entered into a joint venture with Sta. Lucia Realty Development Corporation for the
development of the subject lot into a multi-million peso housing subdivision and beach
resort. When its demands for the private respondents to vacate the land failed, AZNAR
filed with the Municipal Trial Court (MTCC) of Lapu-Lapu City a case for unlawful detainer
and damages, which was docketed as Civil Case No. R-1027.

On the other hand, the private respondents alleged that they are the successors and
descendants of the eight children of the late Crisanta Maloloy-on, whose names appear
as the registered owners in the Original Certificate of Title No. RC-2856. They had been
residing and occupying the subject portion of the land in the concept of owner since the
time of their parents and grandparents, except for Teodorica Andales who was not a
resident in said premises. Private respondents claimed that the Extrajudicial Partition of
Real Estate with Deed of Absolute Sale is void ab initio for being simulated and
fraudulent, and they came to know of the fraud only when AZNAR entered into the land
in the last quarter of 1991 and destroyed its vegetation. They then filed with the
Regional Trial Court (RTC) of Lapu-Lapu City a complaint seeking to declare the subject
document null and void. This case was docketed as Civil Case No. 2930-L.

On 1 February 1994, the MTCC rendered a decision ordering the private respondents to
(a) vacate the land in question upon the finality of the judgment; and (b) pay P8,000 as
attorney's fees and P2,000 as litigation expenses, plus costs.2

The MTCC delved into the issue of ownership in order to resolve the issue of possession.
It found that petitioner AZNAR acquired ownership of Lot No. 4399 by virtue of the
Extrajudicial Partition of Real Estate with Deed of Absolute Sale executed by the Heirs of
Crisanta Maloloy-on on 3 March 1964, which was registered with the Register of Deeds
of Lapu-Lapu City on 6 March 1964 as appearing on the face thereof. Private
respondents' allegation that two of the signatories were not heirs of the registered
owners; that some of the signatories were already dead at the date of the execution of
the deed; and that many heirs were not parties to the extrajudicial partition is a form of
a negative pregnant, which had the effect of admitting that the vendors, except those
mentioned in the specific denial, were heirs and had the legal right to sell the subject
land to petitioner. The fact that some or most heirs had not signed the deed did not
make the document null and void ab initio but only annullable, unless the action had
already prescribed. Since the private respondents occupied the land merely by
tolerance, they could be judicially ejected therefrom. That the Deed has not been
annotated on OCT RO-2856 is of no moment, since said title was reconstituted only on
25 August 1988, while the subject Deed was executed on 3 March 1964. Lastly, the
reconstituted title has not as yet been transferred to a purchaser for value.

Aggrieved by the decision of the MTCC, private respondents appealed to the RTC.

During the pendency of the appeal, or on 8 March 1994, the RTC, upon Aznar's ex
parte motion, issued an order granting the issuance of a writ of execution pursuant to
Section 8, Rule 70 of the Revised Rules of Court in view of the failure of private
respondents to put up a supersedeas bond. A week later, a writ of execution was issued.
The sheriff then served upon private respondents the said writ of execution together
with a notice to vacate. On 11 April 1994, the sheriff padlocked their houses, but later in
the day, private respondents re-entered their houses. Thus, on 6 May 1994, AZNAR filed
an omnibus motion for the issuance of a writ of demolition, which private respondents
opposed. This motion was set for hearing three times, but the parties opted to submit a
consolidated memorandum and agreed to submit the same for resolution.3

On 22 July 1994, the RTC affirmed the decision of the MTCC and ordered the issuance of
a writ of demolition directing the sheriff to demolish private respondents' houses and
other improvements which might be found on the subject premises. 4

On 29 July 1994, a writ of demolition was issued, and notices of demolition were served
upon private respondents. Per Sheriff's Report,5 private respondents' houses were
demolished on 3 August 1994, except for two houses which were moved outside the
premises in question upon the plea of the owners thereof.

On appeal by the private respondents, the Court of Appeals reversed and set aside the
decision of the RTC; declared the private respondents as the rightful possessors de
facto of the land in question; and permanently enjoined Sheriff Juan Gato or whoever
was acting in his stead from effectuating the demolition of the houses of the private
respondents.

In arriving at its challenged decision, the Court of Appeals noted that at the time AZNAR
entered the property, the private respondents had already been in possession thereof
peacefully, continuously, adversely and notoriously since time immemorial. There was
no evidence that petitioner was ever in possession of the property. Its claim of
ownership was based only on an Extrajudicial Partition with Deed of Absolute Sale, which
private respondents, however, claimed to be null and void for being simulated and
fraudulently obtained. The Court of Appeals further held that where not all the known
heirs had participated in the extrajudicial agreement of partition, the instrument would
be null and void and therefore could not be registered.6 Moreover, AZNAR was estopped
to assert ownership of the property in question, since it had admitted in a pleading in
the reconstitution proceedings that the property had never been conveyed by the
decreed owners. Additionally, from 1988 up to the filing of the ejectment case on 4
August 1993, AZNAR never registered the extrajudicial partition despite opportunities to
do so. Its allegation that private respondents occupied the property by mere tolerance
was not proved. Pursuant to the ruling in Vda. de Legazpi v. Avendano, 7 the fact that
the right of the private respondents was so seriously placed in issue and the execution of
the decision in the ejectment case would have meant demolition of private respondents'
houses constituted an equitable reason to suspend the enforcement of the writ of
execution and order of demolition.

AZNAR then elevated the case to this Court, via this petition for review on certiorari,
contending that respondent Court of Appeals erred in

1. . . . reversing the judgments of the Municipal Trial Court and the Regional Trial
Court of Lapu-Lapu City despite the finality of the judgments and the full
implementation thereof;
 2. . . . invoking lack of prior physical possession over the land in question by the
petitioner as one ground in its Decision sought to be reviewed;

3. . . . holding that the Extrajudicial Partition with Deed of Absolute Sale was null
and void;

4. . . . holding that petitioner was in estoppel in pais when it made the allegation
that the property was not sold or encumbered in its petition for reconstitution of
title;

5. . . . applying the ruling in the case of Vda. de Legazpi vs. Avendano (79 SCRA
135 [1977]).

We shall jointly discuss the first and fifth assigned errors for being interrelated with each
other.

In its first assigned error, petitioner argues that the decision of the MTCC of Lapu-Lapu
City had become final and immediately executory in view of the undisputed failure of the
private respondents to post a supersedeas bond as required by Section 8, Rule 70 of the
Revised Rules of Court.

We do not agree. Since the private respondents had seasonably filed an appeal with the
RTC of Lapu-Lapu City, the judgment of the MTCC of Lapu-Lapu City did not become
final. And for reasons hereunder stated, the perfection of the appeal was enough to stay
the execution of the MTCC decision.

Under the former Section 8, Rule 70 of the Rules of Court,8 if the judgment of the
municipal trial court in an ejectment case is adverse to the defendant, execution shall
issue immediately. To stay the immediate execution of the judgment, the defendant
must (1) perfect his appeal; (2) file a supersedeas bond to answer for the rents,
damages, and costs accruing down to the time of the judgment appealed from; and (3)
periodically deposit the rentals falling due during the pendency of the appeal. 9

As a rule, the filing of a supersedeas bond is mandatory and if not filed, the plaintiff is
entitled as a matter of right to the immediate execution of the judgment. An exception is
where the trial court did not make any findings with respect to any amount in arrears,
damages or costs against the defendant, 10 in which case no bond is necessary to stay
the execution of the judgment. Thus, in Once v. Gonzales, 11 this Court ruled that the
order of execution premised on the failure to file a supersedeas bond was groundless
and void because no such bond was necessary there being no back rentals adjudged in
the appealed judgment.

Similarly, in the instant case, there was no need for the private respondents to file a
supersedeas bond because the judgment of the MTCC did not award rentals in arrears or
damages. The attorney's fees of P8,000 and the litigation expenses of P2,000 awarded
in favor of the petitioner need not be covered by a bond, as these are not the damages
contemplated in Section 8 of Rule 70 of the Rules of Court. The damages referred to
therein are the reasonable compensation for the use and occupation of the property
which are generally measured by its fair rental value and cannot refer to other damages
which are foreign to the enjoyment or material possession of the property. 12 Neither
were the private respondents obliged to deposit the rentals falling due during the
pendency of the appeal in order to secure a stay of execution because the appealed
judgment did not fix the reasonable rental or compensation for the use of the
premises. 13 Hence, it was error for the RTC to order the execution of the judgment of
the MTCC.

At any rate, pursuant to Section 21 of the Revised Rules of Summary Procedure, the
decision of the RTC affirming the decision of the MTCC has become immediately
executory, without prejudice to the appeal before the Court of Appeals. The said Section
repealed Section 10 of the Rules of Court allowing during the pendency of the appeal
with the Court of Appeals a stay of execution of the RTC judgment with respect to the
restoration of possession where the defendant makes a periodic deposit of rentals. Thus,
immediate execution of the judgment becomes a ministerial duty of the court. No new
writ of execution was, however, issued. Nevertheless, the writ of demolition thereafter
issued was sufficient to constitute a writ of execution, as it substantially complied with
the form and contents of a writ of execution as provided for under Section 8 of Rule 39
of the Rules of Court. Moreover, private respondents were duly notified and heard on the
omnibus motion for the issuance of the writ of demolition and were given five days to
remove their houses. 14

Invoking Legaspi v. Avendaño, 15 the Court of Appeals held that there was an equitable

reason to suspend the enforcement of the writ of execution and order of demolition until
after the final determination of the civil case for the nullification of the Extrajudicial
Partition with Deed of Absolute Sale.

In Legaspi, this Court held:

Where the action . . . is one of illegal detainer . . . and the right of the plaintiff to
recover the premises is seriously placed in issue in a proper judicial proceeding, it
is more equitable and just and less productive of confusion and disturbance of
physical possession, with all its concomitant inconvenience and expense [f]or the
court in which the issue of legal possession, whether involving ownership or not, is
brought to restrain, should a petition for preliminary injunction be filed with it, the
effects of any order or decision in the unlawful detainer case in order to await the
final judgment in the more substantive case involving legal possession or
ownership.

In the instant case, private respondents' petition for review with prayer for the
immediate issuance of a temporary restraining order (TRO) or preliminary injunction was
mailed on 2 August 1994 but was received by the Court of Appeals only on 30 August
1994. Meanwhile, on 3 August 1994, the writ of demolition was implemented, resulting
in the demolition of private respondents' houses. Hence, any relevant issue arising from
the issuance or enforcement of the writ had been rendered moot and academic.
Injunction would not lie anymore, as the acts sought to have been enjoined had already
become a fait accompli or an accomplished or consummated act.

Now on the applicability to unlawful detainer cases of the requirement of prior physical
possession of the disputed property. Contrary to the ruling of the Court of Appeals, prior
physical possession by the plaintiff of the subject property is not an indispensable
requirement in unlawful detainer cases, although it is indispensable in an action for
forcible entry. 16 The lack of prior physical possession on the part of AZNAR is therefore
of no moment, as its cause of action in the unlawful detainer case is precisely to
terminate private respondents' possession of the property in question. 17

We now come to the issue of the validity of the Extrajudicial Partition with Deed of
Absolute Sale.

In an action for ejectment, the only issue involved is possession de facto. However,
when the issue of possession cannot be decided without resolving the issue of
ownership, the court may receive evidence upon the question of title to the property but
solely for the purpose of determining the issue of possession. 18

In the instant case, private respondents have set up the defense of ownership and
questioned the title of AZNAR to the subject lot, alleging that the Extrajudicial Partition
with Deed of Absolute Sale upon which petitioner bases its title is null and void for being
simulated and fraudulently made.

First, private respondents claim that not all the known heirs of Crisanta Maloloy-on
participated in the extrajudicial partition, and that two persons who participated and
were made parties thereto were not heirs of Crisanta. This claim, even if true, would not
warrant rescission of the deed. Under Article 1104 of the Civil Code, "[a] partition made
with preterition of any of the compulsory heirs shall not be rescinded, unless it be
proved that there was bad faith or fraud on the part of the persons interested; but the
latter shall be proportionately obliged to pay to the person omitted the share which
belongs to him." In the present case, no evidence of bad faith or fraud is extant from the
records. As to the two parties to the deed who were allegedly not heirs, Article 1105 is
in point; it provides: "A partition which includes a person believed to be an heir, but who
is not, shall be void only with respect to such person." In other words, the participation
of non-heirs does not render the partition void in its entirety but only to the extent
corresponding to them.

Private respondents also allege that some of the persons who were made parties to the
deed were already dead, while others were still minors. Moreover, the names of some
parties thereto were misspelled, and others who knew how to read and write their
names were made to appear to have affixed only their thumbmark in the questioned
document. Likewise, the signatures of those who were made parties were forged.

The foregoing are bare allegations with no leg to stand on. No birth or death certificates
were presented before the MTCC to support the allegations that some of the parties to
the deed were minors and others were already dead at the time of the execution of the
deed. What private respondents adduced as evidence was merely a family tree, which
was at most self-serving. It was only when the case was on appeal with the RTC that the
private respondents presented as Annex "B" of their Memorandum and Appeal Brief a
photocopy of the certificate of death of Francisco Aying, 19 son of Crisanta Maloloy-on,
who reportedly died on 7 March 1963. This certificate was allegedly issued on 17
January 1992 by the Parish Priest of Virgen de Regla Parish, Lapu-Lapu City. The fact
remains, however, that this photocopy was not certified to be a true copy.

It is worthy to note that the Extrajudicial Partition with Deed of Absolute Sale is a
notarized document.1âwphi1 As such, it has in its favor the presumption of regularity,
and it carries the evidentiary weight conferred upon it with respect to its due
execution. 20 It is admissible in evidence without further proof of authenticity 21 and is
entitled to full faith and credit upon its face. 22 He who denies its due execution has the
burden of proving that contrary to the recital in the Acknowledgment he never appeared
before the notary public and acknowledged the deed to be his voluntary act. 23It must
also be stressed that whoever alleges forgery has the burden of proving the same.
Forgery cannot be presumed but should be proved by clear and convincing
evidence. 24 Private respondents failed to discharge this burden of proof; hence, the
presumption in favor of the questioned deed stands.

Private respondents contend that there was violation of the Notarial Law because the
lawyer who prepared and notarized the document was AZNAR's representative in the
execution of the said document. Under Section 22 of the Spanish Notarial Law of 1889, a
notary public could not authenticate a contract which contained provisions in his favor or
to which any of the parties interested is a relative of his within the fourth civil degree or
second degree of affinity; otherwise, pursuant to Section 28 thereof, the document
would not have any effect. This rule on notarial disqualification no longer holds true with
the enactment of Act No. 496, which repealed the Spanish Notarial Law. 25Under the
Notarial Law in force at the time of the notarization of the questioned deed, Chapter 11
of the Revised Administrative Code, only those who had been convicted of any crime
involving moral turpitude were disqualified to notarize documents. Thus, a
representative of a person in whose favor a contract was executed was not necessarily
so disqualified. Besides, there is no proof that Atty. Ramon Igaña was a representative
of petitioner in 1964; what appears on record is that he was the Chief of the petitioner's
Legal Department in 1993. Additionally, this alleged violation of the Notarial Law was
raised only now.

Anent the non-annotation of the Extrajudicial Partition with Deed of Absolute Sale in the
reconstituted Original Certificate of Title No. RO-2856, the same does not render the
deed legally defective. It must be borne in mind that the act of registering a document is
never necessary to give the conveyance legal effect as between the parties 26and the
vendor's heirs. As between the parties to a sale, registration is not indispensable to
make it valid and effective. The peculiar force of a title is exhibited only when the
purchaser has sold to innocent third parties the land described in the conveyance. The
purpose of registration is merely to notify and protect the interests of strangers to a
given transaction, who may be ignorant thereof, and the non-registration of the deed
evidencing said transaction does not relieve the parties thereto of their obligations
thereunder. 27 Here, no right of innocent third persons or subsequent transferees of the
subject lot is involved; thus, the conveyance executed in favor of AZNAR by private
respondents and their predecessors is valid and binding upon them, and is equally
binding and effective against their heirs. 28

The principle that registration is the operative act that gives validity to the transfer or
creates a lien upon the land "refers to cases involving conflicting rights over registered
property and those of innocent transferees who relied on the clean title of the
properties." 29 This principle has no bearing on the present case, as no subsequent
transfer of the subject lot to other persons has been made either by private respondents
or their predecessors-in-interest. 30

By and large, it appears on the face of the Extrajudicial Partition with Deed of Absolute
Sale that the same was registered on 6 March 1964. The registration was under Act No.
3344 on unregistered lands allegedly because at the time, no title was existing in the
files of the Register of Deeds of Lapu-Lapu City, as it was allegedly lost during the last
world war. It was only on 8 August 1988 that the title was reconstituted at the instance
of the petitioner.

As to the fourth assigned error, we do not agree with the Court of Appeals and the
private respondents that petitioner is in estoppel to assert ownership over the subject
property because of petitioner's own allegation in the petition for reconstitution, to wit:

That certificates of title were issued thereto but were lost during the last world
war. That the same were not conveyed much less offered as a collateral for any
debt contracted or delivered for the security of payment of any obligation in favor
of any person or lending institution.

The words "the same" in the second sentence of the afore-quoted paragraph clearly
refers to the certificates of title. This means that the certificates of title, not necessarily
the subject lot, were not conveyed or offered as a collateral but were lost during the last
world war. Indeed, as petitioner contends, it would be very absurd and self-defeating
construction if we were to interpret the above-quoted allegation in the manner that the
Court of Appeals and the private respondents did, for how could petitioner, who is
claiming ownership over the subject property, logically allege that the property was not
sold to it?

It bears repeating that petitioner's claim of possession over the subject lot is anchored
on its claim of ownership on the basis of the Extrajudicial Partition with Deed of Absolute
Sale. Our ruling on the issue of the validity of the questioned deed is solely for the
purpose of resolving the issue of possession and is to be regarded merely as provisional,
without prejudice, however, to the final determination of the issue in the other case for
the annulment or cancellation of the Extrajudicial Partition with Deed of Absolute Sale.

WHEREFORE, the petition is GRANTED. The challenged decision of public respondent

Court of Appeals in CA-G.R. SP No. 35060 is hereby REVERSED, and the decision of the
Regional Trial Court, Branch 27, Lapu-Lapu City, is REINSTATED.
G.R. No. L-30455 September 30, 1982

MARIA LANDAYAN, et al., petitioners, 

vs.
HON. ANGEL BACANI, et al., respondents.

Anastacio E. Caoayan for petitioners.

Felipe V. Avenojar for respondents.

VASQUEZ, J.:

In his lifetime, Teodoro Abenojar owned several parcels of land located in Urdaneta,
Pangasinan, and a house and lot in Manila. The said properties were all covered by
Torrens Titles in his name. He died intestate in Urdaneta, on March 20, 1948.

On February 3, 1949, private respondents Maxima Andrada, the surviving spouse of

Teodoro Abenojar, and Severino Abenojar, executed a public document, entitled "Extra-
Judicial Agreement of Partition" whereby they adjudicated between themselves the
properties left by Teodoro Abenojar. Severino Abenojar represented himself in said
document as "the only forced heir and descendant" of the late Teodoro Abenojar.

On March 6, 1968, petitioners herein filed a complaint in the Court of First Instance of
Pangasinan presided over by the respondent Judge seeking a judicial declaration that
they are legal heirs of the deceased Teodoro Abenojar, and that private respondents be
ordered to surrender the ownership and possession of some of the properties that they
acquired under the deed of extra-judicial settlement corresponding to the shares of the
petitioners and that the said deed of extra- judicial settlement and the subsequent deed
of donation executed in favor of private respondents, spouses Liberata Abenojar and
Jose Serrano, in consequence thereof be declared nun and void.

In their complaint, petitioners Maria, Segundo, Marcial and Lucio, all surnamed
LANDAYAN (the rest of the petitioners being their respective spouses), alleged that they
are the legitimate children of Guillerma Abenojar, then already deceased, who was the
only child of Teodoro Abenojar with his first wife named Florencia Bautista; and that
while Teodoro Abenojar contracted a second marriage with Antera Mandap and a third
with private respondent Maxima Andrada, he did not have any offspring in any of the
said second and third marriages. They aver that private respondent Severino Abenojar is
an illegitimate son of Guillerma Abenojar. They accordingly pray that they be declared as
among the legal heirs of the deceased Teodoro Abenojar entitled to share in his estate.

Private respondents, on the other hand, have alleged in their pleadings that Teodoro
Abenojar married only once, and that was with private respondent Maxima Andrada.
They claimed that private respondent Severino Abenojar is an acknowledged natural
child of Teodoro Abenojar with Florencia Bautista. They disclaimed the allegation of the
petitioners that their mother Guillerma Abenojar was a legitimate daughter of Teodoro
Abenojar and Florencia Bautista, the truth being allegedly that Guillerma Abenojar, the
mother of the Landayans, was Teodoro Abenojar's spurious child with Antera Mandap
who was then married to another man.

As their affirmative and special defense, the private respondents alleged that the action
of the petitioners had already prescribed, the same having been filed more than 18
years after the execution of the documents that they seek to annul.

After a preliminary hearing on said affirmative defense, the respondent Judge issued an
Order sustaining the contention that the action is barred by prescription and dismissing
the case as a consequence thereof.
The finding that prescription had set in was rationalized on two main considerations,
namely; (1) the action for the annulment of the deed of extra-judicial partition and the
deed of donation is based on fraud, the prescriptive period of which is four years from
the discovery of the fraud, such discovery being presumed to have taken place upon the
registration of the documents in the Office of the Registry of Deeds and the issuance of
new titles in the names of the transferees which, in this case, had occurred on
November 21, 1951; and (2) the deed of extra-judicial partition is not an inexistent and
void contract the action for the declaration of which does not prescribe, the said
document being at most a voidable contract, subject to the operation of the statute of
limitations.

We find the dismissal of the action filed by the petitioners to be precipitious and
erroneous. Although the principles relied upon by the respondent Judge are legally
correct, he had unqualifiedly assumed the extra-judicial partition to be merely a voidable
contract and not a void one. This question may not be resolved by determining alone the
ground for the annulment of the contract. It requires an inquiry into the legal status of
private respondent Severino Abenojar, particularly as to whether he may be considered
as a "legal heir" of Teodoro Abenojar and as such entitled to participate in an extra-
judicial partition of the estate of said deceased. This is a most material point on which
the parties have asserted conflicting claims. Understandably so, inasmuch as the
question of whether the question document is void or merely voidable depends largely
on such determination.

As stated above, petitioners contend that Severino Abenojar is not a legal heir of
Teodoro Abenojar, he being only an acknowledged natural child of Guillerma Abenojar,
the mother of petitioners, whom they claim to be the sole legitimate daughter in first
marriage of Teodoro Abenojar. If this claim is correct, Severino Abenojar has no rights of
legal succession from Teodoro Abenojar in view of the express provision of Article 992 of
the Civil Code, which reads as follows:

ART. 992. 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 right of Severino Abenojar to be considered a legal heir of Teodoro Abenojar

depends on the truth of his allegations that he is not an illegitimate child of Guillerma
Abenojar, but an acknowledged natural child of Teodoro Abenojar. On this assumption,
his right to inherit from Teodoro Abenojar is recognized by law (Art. 998, Civil Code). He
even claims that he is the sole legal heir of Teodoro Abenojar inasmuch as the
petitioners Landayans, who are admittedly the children of the deceased Guillerma
Abenojar, have no legal successional rights from Teodoro Abenojar, their mother being a
spurious child of Teodoro Abenojar.

Should the petitioners be able to substantiate their contention that Severino Abenojar is
an illegitimate son of Guillerma Abenojar, he is not a legal heir of Teodoro Abenojar. The
right of representation is denied by law to an illegitimate child who is disqualified to
inherit ab intestato from the legitimate children and relatives of Ms father. (Art. 992,
Civil Code). On this supposition, the subject deed of extra- judicial partition is one that
included a person who is not an heir of the descendant whose estate is being
partitioned. Such a deed is governed by Article 1105 of the Civil Code, reading as
follows:

Art. 1105. A partition which includes a person believed to be an heir, but

who is not, shall be void only with respect to such person.

It could be gathered from the pleadings filed by the petitioners that they do not seek the
nullification of the entire deed of extra-judicial partition but only insofar as the same
deprived them of their shares in the inheritance from the estate of Teodoro Abenojar;
Should it be proved, therefore, that Severino Abenojar is, indeed, not a legal heir of
Teodoro Abenojar, the portion of the deed of extra-judicial partition adjudicating certain
properties of Teodoro Abenojar in his favor shall be deemed inexistent and void from the
beginning in accordance with Articles 1409, par. (7) and 1105 of the Civil Code. By the
express provision of Article 1410 of the Civil Code, the action to seek a declaration of the
nullity of the same does not prescribe.

WHEREFORE, the Order appealed from is hereby REVERSED and SET ASIDE. The
respondent Judge is ordered to try the case on the merits and render the corresponding
judgment thereon. The private respondents shall pay the costs.