You are on page 1of 131

G.R. No.

L-56340 June 24, 1983


SPOUSES ALVARO PASTOR, JR. and MA. ELENA ACHAVAL DE PASTOR, petitioners,
vs.
THE COURT OF APPEALS, JUAN Y. REYES, JUDGE OF BRANCH I, COURT OF FIRST INSTANCE OF CEBU and
LEWELLYN BARLITO QUEMADA, respondents.
Pelaez, Pelaez, & Pelaez Law Office for petitioners.
Ceniza, Rama & Associates for private respondents.

PLANA, J.:
I. FACTS:
This is a case of hereditary succession.
Alvaro Pastor, Sr. (PASTOR, SR.), a Spanish subject, died in Cebu City on June 5, 1966, survived by his Spanish wife
Sofia Bossio (who also died on October 21, 1966), their two legitimate children Alvaro Pastor, Jr. (PASTOR, JR.) and Sofia
Pastor de Midgely (SOFIA), and an illegitimate child, not natural, by the name of Lewellyn Barlito Quemada QUEMADA
PASTOR, JR. is a Philippine citizen, having been naturalized in 1936. SOFIA is a Spanish subject. QUEMADA is a Filipino
by his mother's citizenship.
On November 13, 1970, QUEMADA filed a petition for the probate and allowance of an alleged holographic will of
PASTOR, SR. with the Court of First Instance of Cebu, Branch I (PROBATE COURT), docketed as SP No. 3128-R. The
will contained only one testamentary disposition: a legacy in favor of QUEMADA consisting of 30% of PASTOR, SR.'s
42% share in the operation by Atlas Consolidated Mining and Development Corporation (ATLAS) of some mining claims in
Pina-Barot, Cebu.
On November 21, 1970, the PROBATE COURT, upon motion of QUEMADA and after an ex parte hearing, appointed him
special administrator of the entire estate of PASTOR, SR., whether or not covered or affected by the holographic will. He
assumed office as such on December 4, 1970 after filing a bond of P 5,000.00.
On December 7, 1970, QUEMADA as special administrator, instituted against PASTOR, JR. and his wife an action for
reconveyance of alleged properties of the estate, which included the properties subject of the legacy and which were in
the names of the spouses PASTOR, JR. and his wife, Maria Elena Achaval de Pastor, who claimed to be the owners
thereof in their own rights, and not by inheritance. The action, docketed as Civil Case No. 274-R, was filed with the Court
of First Instance of Cebu, Branch IX.
On February 2, 1971, PASTOR, JR. and his sister SOFIA filed their opposition to the petition for probate and the order
appointing QUEMADA as special administrator.
On December 5, 1972, the PROBATE COURT issued an order allowing the will to probate. Appealed to the Court of
Appeals in CA-G.R. No. 52961- R, the order was affirmed in a decision dated May 9, 1977. On petition for review, the
Supreme Court in G.R. No. L-46645 dismissed the petition in a minute resolution dated November 1, 1977 and remanded
the same to the PROBATE COURT after denying reconsideration on January 11, 1978.
For two years after remand of the case to the PROBATE COURT, QUEMADA filed pleading after pleading asking for
payment of his legacy and seizure of the properties subject of said legacy. PASTOR, JR. and SOFIA opposed these
pleadings on the ground of pendency of the reconveyance suit with another branch of the Cebu Court of First Instance. All
pleadings remained unacted upon by the PROBATE COURT.
On March 5, 1980, the PROBATE COURT set the hearing on the intrinsic validity of the will for March 25, 1980, but upon
objection of PASTOR, JR. and SOFIA on the e ground of pendency of the reconveyance suit, no hearing was held on
March 25. Instead, the PROBATE COURT required the parties to submit their respective position papers as to how much
inheritance QUEMADA was entitled to receive under the wig. Pursuant thereto, PASTOR. JR. and SOFIA submitted their
Memorandum of authorities dated April 10, which in effect showed that determination of how much QUEMADA should
receive was still premature. QUEMADA submitted his Position paper dated April 20, 1980. ATLAS, upon order of the
Court, submitted a sworn statement of royalties paid to the Pastor Group of tsn from June 1966 (when Pastor, Sr. died) to
February 1980. The statement revealed that of the mining claims being operated by ATLAS, 60% pertained to the Pastor
Group distributed as follows:

1. A. Pastor, Jr. ...................................40.5%


2. E. Pelaez, Sr. ...................................15.0%
3. B. Quemada .......................................4.5%
On August 20, 1980, while the reconveyance suit was still being litigated in Branch IX of the Court of First Instance of
Cebu, the PROBATE COURT issued the now assailed Order of Execution and Garnishment, resolving the question of
ownership of the royalties payable by ATLAS and ruling in effect that the legacy to QUEMADA was not inofficious. [There
was absolutely no statement or claim in the Order that the Probate Order of December 5, 1972 had previously resolved
the issue of ownership of the mining rights of royalties thereon, nor the intrinsic validity of the holographic will.]
The order of August 20, 1980 found that as per the holographic will and a written acknowledgment of PASTOR, JR. dated
June 17, 1962, of the above 60% interest in the mining claims belonging to the Pastor Group, 42% belonged to PASTOR,
SR. and only 33% belonged to PASTOR, JR. The remaining 25% belonged to E. Pelaez, also of the Pastor Group. The
PROBATE COURT thus directed ATLAS to remit directly to QUEMADA the 42% royalties due decedent's estate, of which
QUEMADA was authorized to retain 75% for himself as legatee and to deposit 25% with a reputable banking institution for
payment of the estate taxes and other obligations of the estate. The 33% share of PASTOR, JR. and/or his assignees was
ordered garnished to answer for the accumulated legacy of QUEMADA from the time of PASTOR, SR.'s death, which
amounted to over two million pesos.
The order being "immediately executory", QUEMADA succeeded in obtaining a Writ of Execution and Garnishment on
September 4, 1980, and in serving the same on ATLAS on the same day. Notified of the Order on September 6, 1980, the
oppositors sought reconsideration thereof on the same date primarily on the ground that the PROBATE COURT gravely
abused its discretion when it resolved the question of ownership of the royalties and ordered the payment of QUEMADA's
legacy after prematurely passing upon the intrinsic validity of the will. In the meantime, the PROBATE COURT ordered
suspension of payment of all royalties due PASTOR, JR. and/or his assignees until after resolution of oppositors' motion
for reconsideration.
Before the Motion for Reconsideration could be resolved, however, PASTOR, JR., this time joined by his wife Ma. ELENA
ACHAVAL DE PASTOR, filed with the Court of Appeals a Petition for certiorari and Prohibition with a prayer for writ of
preliminary injunction (CA-G.R. No. SP- 11373-R). They assailed the Order dated August 20, 1980 and the writ of
execution and garnishment issued pursuant thereto. The petition was denied on November 18, 1980 on the grounds (1)
that its filing was premature because the Motion for Reconsideration of the questioned Order was still pending
determination by the PROBATE COURT; and (2) that although "the rule that a motion for reconsideration is prerequisite
for an action for certiorari is never an absolute rule," the Order assailed is "legally valid. "
On December 9, 1980, PASTOR, JR. and his wife moved for reconsideration of the Court of Appeal's decision of
November 18, 1980, calling the attention of the appellate court to another order of the Probate Court dated November 11,
1980 (i.e., while their petition for certiorari was pending decision in the appellate court), by which the oppositors' motion for
reconsideration of the Probate Court's Order of August 20, 1980 was denied. [The November 11 Order declared that the
questions of intrinsic validity of the will and of ownership over the mining claims (not the royalties alone) had been finally
adjudicated by the final and executory Order of December 5, 1972, as affirmed by the Court of Appeals and the Supreme
Court, thereby rendering moot and academic the suit for reconveyance then pending in the Court of First Instance of
Cebu, Branch IX. It clarified that only the 33% share of PASTOR, JR. in the royalties (less than 7.5% share which he had
assigned to QUEMADA before PASTOR, SR. died) was to be garnished and that as regards PASTOR, SR.'s 42% share,
what was ordered was just the transfer of its possession to the custody of the PROBATE COURT through the special
administrator. Further, the Order granted QUEMADA 6% interest on his unpaid legacy from August 1980 until fully paid.]
Nonetheless, the Court of Appeals denied reconsideration.
Hence, this Petition for Review by certiorari with prayer for a writ of pre y injunction, assailing the decision of the Court of
Appeals dated November 18, 1980 as well as the orders of the Probate Court dated August 20, 1980, November 11, 1980
and December 17, 1980, Med by petitioners on March 26, 1981, followed by a Supplemental Petition with Urgent Prayer
for Restraining Order.
In April 1981, the Court (First Division) issued a writ of preliminary injunction, the lifting of which was denied in the
Resolution of the same Division dated October 18, 1982, although the bond of petitioners was increased from P50,000.00
to P100,000.00.
Between December 21, 1981 and October 12, 1982, private respondent filed seven successive motions for early
resolution. Five of these motions expressly prayed for the resolution of the question as to whether or not the petition
should be given due course.

On October 18, 1982, the Court (First Division) adopted a resolution stating that "the petition in fact and in effect was
given due course when this case was heard on the merits on September 7, (should be October 21, 1981) and concise
memoranda in amplification of their oral arguments on the merits of the case were filed by the parties pursuant to the
resolution of October 21, 1981 . . . " and denied in a resolution dated December 13, 1982, private respondent's "Omnibus
motion to set aside resolution dated October 18, 1982 and to submit the matter of due course to the present membership
of the Division; and to reassign the case to another ponente."
Upon Motion for Reconsideration of the October 18, 1982 and December 13, 1982 Resolutions, the Court en banc
resolved to CONFIRM the questioned resolutions insofar as hey resolved that the petition in fact and in effect had been
given due course.
II. ISSUES:
Assailed by the petitioners in these proceedings is the validity of the Order of execution and garnishment dated August 20,
1980 as well as the Orders subsequently issued allegedly to implement the Probate Order of December 5, 1972, to wit:
the Order of November 11, 1980 declaring that the Probate Order of 1972 indeed resolved the issues of ownership and
intrinsic validity of the will, and reiterating the Order of Execution dated August 20, 1980; and the Order of December 17,
1980 reducing to P2,251,516.74 the amount payable to QUEMADA representing the royalties he should have received
from the death of PASTOR, SR. in 1966 up to February 1980.
The Probate Order itself, insofar as it merely allowed the holographic will in probate, is not questioned. But petitioners
denounce the Probate Court for having acted beyond its jurisdiction or with grave abuse of discretion when it issued the
assailed Orders. Their argument runs this way: Before the provisions of the holographic win can be implemented, the
questions of ownership of the mining properties and the intrinsic validity of the holographic will must first be resolved with
finality. Now, contrary to the position taken by the Probate Court in 1980 i.e., almost eight years after the probate of the
will in 1972 the Probate Order did not resolve the two said issues. Therefore, the Probate Order could not have
resolved and actually did not decide QUEMADA's entitlement to the legacy. This being so, the Orders for the payment of
the legacy in alleged implementation of the Probate Order of 1972 are unwarranted for lack of basis.
Closely related to the foregoing is the issue raised by QUEMADA The Probate Order of 1972 having become final and
executory, how can its implementation (payment of legacy) be restrained? Of course, the question assumes that
QUEMADA's entitlement to the legacy was finally adjudged in the Probate Order.
On the merits, therefore, the basic issue is whether the Probate Order of December 5, 1972 resolved with finality the
questions of ownership and intrinsic validity. A negative finding will necessarily render moot and academic the other issues
raised by the parties, such as the jurisdiction of the Probate Court to conclusively resolve title to property, and the
constitutionality and repercussions of a ruling that the mining properties in dispute, although in the name of PASTOR, JR.
and his wife, really belonged to the decedent despite the latter's constitutional disqualification as an alien.
On the procedural aspect, placed in issue is the propriety of certiorari as a means to assail the validity of the order of
execution and the implementing writ.
III. DISCUSSION:
1. Issue of Ownership
(a) In a special proceeding for the probate of a will, the issue by and large is restricted to the extrinsic validity of the will,
i.e., whether the testator, being of sound mind, freely executed the will in accordance with the formalities prescribed by
law. (Rules of Court, Rule 75, Section 1; Rule 76, Section 9.) As a rule, the question of ownership is an extraneous matter
which the Probate Court cannot resolve with finality. Thus, for the purpose of determining whether a certain property
should or should not be included in the inventory of estate properties, the Probate Court may pass upon the title thereto,
but such determination is provisional, not conclusive, and is subject to the final decision in a separate action to resolve
title. [3 Moran, Comments on the Rules of Court (1980 ed.), p. 458; Valero Vda. de Rodriguez vs. Court of Appeals, 91
SCRA 540.]
(b) The rule is that execution of a judgment must conform to that decreed in the dispositive part of the decision.
(Philippine-American Insurance Co. vs. Honorable Flores, 97 SCRA 811.) However, in case of ambiguity or uncertainty,
the body of the decision may be scanned for guidance in construing the judgment. (Heirs of Presto vs. Galang, 78 SCRA
534; Fabular vs. Court of Appeals, 119 SCRA 329; Robles vs. Timario. 107 Phil. 809.)
The Order sought to be executed by the assailed Order of execution is the Probate Order of December 5, 1972 which
allegedly resolved the question of ownership of the disputed mining properties. The said Probate Order enumerated the
issues before the Probate Court, thus:

Unmistakably, there are three aspects in these proceedings: (1) the probate of the holographic will (2) the
intestate estate aspect; and (3) the administration proceedings for the purported estate of the decedent in
the Philippines.
In its broad and total perspective the whole proceedings are being impugned by the oppositors on
jurisdictional grounds, i.e., that the fact of the decedent's residence and existence of properties in the
Philippines have not been established.
Specifically placed in issue with respect to the probate proceedings are: (a) whether or not the
holographic will (Exhibit "J") has lost its efficacy as the last will and testament upon the death of Alvaro
Pastor, Sr. on June 5, 1966, in Cebu City, Philippines; (b) Whether or not the said will has been executed
with all the formalities required by law; and (c) Did the late presentation of the holographic will affect the
validity of the same?
Issues In the Administration Proceedings are as follows: (1) Was the ex- parte appointment of the
petitioner as special administrator valid and proper? (2) Is there any indispensable necessity for the
estate of the decedent to be placed under administration? (3) Whether or not petition is qualified to be a
special administrator of the estate; and (4) Whether or not the properties listed in the inventory (submitted
by the special administrator but not approved by the Probate Court) are to be excluded.
Then came what purports to be the dispositive portion:
Upon the foregoing premises, this Court rules on and resolves some of the problems and issues
presented in these proceedings, as follows:
(a) The Court has acquired jurisdiction over the probate proceedings as it hereby allows and approves
the so-called holographic will of testator Alvaro Pastor, Sr., executed on July 31, 1961 with respect to its
extrinsic validity, the same having been duly authenticated pursuant to the requisites or solemnities
prescribed by law. Let, therefore, a certificate of its allowance be prepared by the Branch Clerk of this
Court to be signed by this Presiding Judge, and attested by the seal of the Court, and thereafter attached
to the will, and the will and certificate filed and recorded by the clerk. Let attested copies of the will and of
the certificate of allowance thereof be sent to Atlas Consolidated Mining & Development Corporation,
Goodrich Bldg., Cebu City, and the Register of Deeds of Cebu or of Toledo City, as the case may be, for
recording.
(b) There was a delay in the granting of the letters testamentary or of administration for as a matter of
fact, no regular executor and/or administrator has been appointed up to this time and - the appointment of
a special administrator was, and still is, justified under the circumstances to take possession and charge
of the estate of the deceased in the Philippines (particularly in Cebu) until the problems causing the delay
are decided and the regular executor and/or administrator appointed.
(c) There is a necessity and propriety of a special administrator and later on an executor and/or
administrator in these proceedings, in spite of this Court's declaration that the oppositors are the forced
heirs and the petitioner is merely vested with the character of a voluntary heir to the extent of the bounty
given to him (under) the will insofar as the same will not prejudice the legitimes of the oppositor for the
following reasons:
1. To submit a complete inventory of the estate of the decedent-testator
Alvaro Pastor, Sr.
2. To administer and to continue to put to prolific utilization of the
properties of the decedent;
3. To keep and maintain the houses and other structures and belonging
to the estate, since the forced heirs are residing in Spain, and prepare
them for delivery to the heirs in good order after partition and when
directed by the Court, but only after the payment of estate and
inheritance taxes;
(d) Subject to the outcome of the suit for reconveyance of ownership and possession of real and personal
properties in Civil Case No. 274-T before Branch IX of the Court of First Instance of Cebu,the intestate
estate administration aspect must proceed, unless, however, it is duly proven by the oppositors that debts
of the decedent have already been paid, that there had been an extrajudicial partition or summary one
between the forced heirs, that the legacy to be given and delivered to the petitioner does not exceed the

free portion of the estate of the testator, that the respective shares of the forced heirs have been fairly
apportioned, distributed and delivered to the two forced heirs of Alvaro Pastor, Sr., after deducting the
property willed to the petitioner, and the estate and inheritance taxes have already been paid to the
Government thru the Bureau of Internal Revenue.
The suitability and propriety of allowing petitioner to remain as special administrator or administrator of
the other properties of the estate of the decedent, which properties are not directly or indirectly affected
by the provisions of the holographic will (such as bank deposits, land in Mactan etc.), will be resolved in
another order as separate incident, considering that this order should have been properly issued solely as
a resolution on the issue of whether or not to allow and approve the aforestated will. (Emphasis supplied.)
Nowhere in the dispositive portion is there a declaration of ownership of specific properties. On the contrary, it is manifest
therein that ownership was not resolved. For it confined itself to the question of extrinsic validity of the win, and the need
for and propriety of appointing a special administrator. Thus it allowed and approved the holographic win "with respect to
its extrinsic validity, the same having been duly authenticated pursuant to the requisites or solemnities prescribed by law."
It declared that the intestate estate administration aspect must proceed " subject to the outcome of the suit for
reconveyance of ownership and possession of real and personal properties in Civil Case 274-T before Branch IX of the
CFI of Cebu." [Parenthetically, although the statement refers only to the "intestate" aspect, it defies understanding how
ownership by the estate of some properties could be deemed finally resolved for purposes of testate administration, but
not so for intestate purposes. Can the estate be the owner of a property for testate but not for intestate purposes?] Then
again, the Probate Order (while indeed it does not direct the implementation of the legacy) conditionally stated that the
intestate administration aspect must proceed "unless . . . it is proven . . . that the legacy to be given and delivered to the
petitioner does not exceed the free portion of the estate of the testator," which clearly implies that the issue of impairment
of legitime (an aspect of intrinsic validity) was in fact not resolved. Finally, the Probate Order did not rule on the propriety
of allowing QUEMADA to remain as special administrator of estate properties not covered by the holographic will,
"considering that this (Probate) Order should have been properly issued solely as a resolution on the issue of whether or
not to allow and approve the aforestated will. "
(c) That the Probate Order did not resolve the question of ownership of the properties listed in the estate inventory was
appropriate, considering that the issue of ownership was the very subject of controversy in the reconveyance suit that was
still pending in Branch IX of the Court of First Instance of Cebu.
(d) What, therefore, the Court of Appeals and, in effect, the Supreme Court affirmed en toto when they reviewed the
Probable Order were only the matters properly adjudged in the said Order.
(e) In an attempt to justify the issuance of the Order of execution dated August 20, 1980, the Probate Court in its Order of
November 11, 1980 explained that the basis for its conclusion that the question of ownership had been formally resolved
by the Probate Order of 1972 are the findings in the latter Order that (1) during the lifetime of the decedent, he was
receiving royalties from ATLAS; (2) he had resided in the Philippines since pre-war days and was engaged in the mine
prospecting business since 1937 particularly in the City of Toledo; and (3) PASTOR, JR. was only acting as dummy for his
father because the latter was a Spaniard.
Based on the premises laid, the conclusion is obviously far-fetched.
(f) It was, therefore, error for the assailed implementing Orders to conclude that the Probate Order adjudged with finality
the question of ownership of the mining properties and royalties, and that, premised on this conclusion, the dispositive
portion of the said Probate Order directed the special administrator to pay the legacy in dispute.
2. Issue of Intrinsic Validity of the Holographic Will (a) When PASTOR, SR. died in 1966, he was survived by his wife, aside from his two legitimate children and one
illegitimate son. There is therefore a need to liquidate the conjugal partnership and set apart the share of PASTOR, SR.'s
wife in the conjugal partnership preparatory to the administration and liquidation of the estate of PASTOR, SR. which will
include, among others, the determination of the extent of the statutory usufructuary right of his wife until her death. * When
the disputed Probate order was issued on December 5, 1972, there had been no liquidation of the community properties
of PASTOR, SR. and his wife.
(b) So, also, as of the same date, there had been no prior definitive determination of the assets of the estate of PASTOR,
SR. There was an inventory of his properties presumably prepared by the special administrator, but it does not appear that
it was ever the subject of a hearing or that it was judicially approved. The reconveyance or recovery of properties allegedly
owned but not in the name of PASTOR, SR. was still being litigated in another court.
(c) There was no appropriate determination, much less payment, of the debts of the decedent and his estate. Indeed, it
was only in the Probate Order of December 5, 1972 where the Probate Court ordered that-

... a notice be issued and published pursuant to the provisions of Rule 86 of the Rules of Court, requiring
all persons having money claims against the decedent to file them in the office of the Branch Clerk of this
Court."
(d) Nor had the estate tax been determined and paid, or at least provided for, as of December 5, 1972.
(e) The net assets of the estate not having been determined, the legitime of the forced heirs in concrete figures could not
be ascertained.
(f) All the foregoing deficiencies considered, it was not possible to determine whether the legacy of QUEMADA - a fixed
share in a specific property rather than an aliquot part of the entire net estate of the deceased - would produce an
impairment of the legitime of the compulsory heirs.
(g) Finally, there actually was no determination of the intrinsic validity of the will in other respects. It was obviously for this
reason that as late as March 5, 1980 - more than 7 years after the Probate Order was issued the Probate Court scheduled
on March 25, 1980 a hearing on the intrinsic validity of the will.
3. Propriety of certiorari
Private respondent challenges the propriety of certiorari as a means to assail the validity of the disputed Order of
execution. He contends that the error, if any, is one of judgment, not jurisdiction, and properly correctible only by appeal,
not certiorari.
Under the circumstances of the case at bar, the challenge must be rejected. Grave abuse of discretion amounting to lack
of jurisdiction is much too evident in the actuations of the probate court to be overlooked or condoned.
(a) Without a final, authoritative adjudication of the issue as to what properties compose the estate of PASTOR, SR. in the
face of conflicting claims made by heirs and a non-heir (MA. ELENA ACHAVAL DE PASTOR) involving properties not in
the name of the decedent, and in the absence of a resolution on the intrinsic validity of the will here in question, there was
no basis for the Probate Court to hold in its Probate Order of 1972, which it did not, that private respondent is entitled to
the payment of the questioned legacy. Therefore, the Order of Execution of August 20, 1980 and the subsequent
implementing orders for the payment of QUEMADA's legacy, in alleged implementation of the dispositive part of the
Probate Order of December 5, 1972, must fall for lack of basis.
(b) The ordered payment of legacy would be violative of the rule requiring prior liquidation of the estate of the deceased,
i.e., the determination of the assets of the estate and payment of all debts and expenses, before apportionment and
distribution of the residue among the heirs and legatees. (Bernardo vs. Court of Appeals, 7 SCRA 367.)
(c) Neither has the estate tax been paid on the estate of PASTOR, SR. Payment therefore of the legacy to QUEMADA
would collide with the provision of the National Internal Revenue Code requiring payment of estate tax before delivery to
any beneficiary of his distributive share of the estate (Section 107 [c])
(d) The assailed order of execution was unauthorized, having been issued purportedly under Rule 88, Section 6 of the
Rules of Court which reads:
Sec. 6. Court to fix contributive shares where devisees, legatees, or heirs have been in possession.
Where devisees, legatees, or heirs have entered into possession of portions of the estate before
the debts and expenses have been settled and paid and have become liable to contribute for the payment
of such debts and expenses, the court having jurisdiction of the estate may, by order for that purpose,
after hearing, settle the amount of their several liabilities, and order how much and in what manner each
person shall contribute, and may issue execution as circumstances require.
The above provision clearly authorizes execution to enforce payment of debts of estate. A legacy is not a debt of the
estate; indeed, legatees are among those against whom execution is authorized to be issued.
... there is merit in the petitioners' contention that the probate court generally cannot issue a writ of
execution. It is not supposed to issue a writ of execution because its orders usually refer to the
adjudication of claims against the estate which the executor or administrator may satisfy without the
necessity of resorting to a writ of execution. The probate court, as such, does not render any judgment
enforceable by execution.
The circumstances that the Rules of Court expressly specifies that the probate court may issue execution
(a) to satisfy (debts of the estate out of) the contributive shares of devisees, legatees and heirs in
possession of the decedent's assets (Sec. 6. Rule 88), (b) to enforce payment of the expenses of partition

(Sec. 3, Rule 90), and (c) to satisfy the costs when a person is cited for examination in probate
proceedings (Sec. 13, Rule 142) may mean, under the rule of inclusion unius est exclusion alterius, that
those are the only instances when it can issue a writ of execution. (Vda. de Valera vs. Ofilada, 59 SCRA
96, 108.)
(d) It is within a court's competence to order the execution of a final judgment; but to order the execution of a final order
(which is not even meant to be executed) by reading into it terms that are not there and in utter disregard of existing rules
and law, is manifest grave abuse of discretion tantamount to lack of jurisdiction. Consequently, the rule that certiorari may
not be invoked to defeat the right of a prevailing party to the execution of a valid and final judgment, is inapplicable. For
when an order of execution is issued with grave abuse of discretion or is at variance with the judgment sought to be
enforced (PVTA vs. Honorable Gonzales, 92 SCRA 172), certiorari will lie to abate the order of execution.
(e) Aside from the propriety of resorting to certiorari to assail an order of execution which varies the terms of the judgment
sought to be executed or does not find support in the dispositive part of the latter, there are circumstances in the instant
case which justify the remedy applied for.
Petitioner MA. ELENA ACHAVAL DE PASTOR, wife of PASTOR, JR., is the holder in her own right of three mining claims
which are one of the objects of conflicting claims of ownership. She is not an heir of PASTOR, SR. and was not a party to
the probate proceedings. Therefore, she could not appeal from the Order of execution issued by the Probate Court. On
the other hand, after the issuance of the execution order, the urgency of the relief she and her co-petitioner husband seek
in the petition for certiorari states against requiring her to go through the cumbersome procedure of asking for leave to
intervene in the probate proceedings to enable her, if leave is granted, to appeal from the challenged order of execution
which has ordered the immediate transfer and/or garnishment of the royalties derived from mineral properties of which
she is the duly registered owner and/or grantee together with her husband. She could not have intervened before the
issuance of the assailed orders because she had no valid ground to intervene. The matter of ownership over the
properties subject of the execution was then still being litigated in another court in a reconveyance suit filed by the special
administrator of the estate of PASTOR, SR.
Likewise, at the time petitioner PASTOR, JR. Med the petition for certiorari with the Court of Appeals, appeal was not
available to him since his motion for reconsideration of the execution order was still pending resolution by the Probate
Court. But in the face of actual garnishment of their major source of income, petitioners could no longer wait for the
resolution of their motion for reconsideration. They needed prompt relief from the injurious effects of the execution order.
Under the circumstances, recourse to certiorari was the feasible remedy.
WHEREFORE, the decision of the Court of Appeals in CA G.R. No. SP-11373-R is reversed. The Order of execution
issued by the probate Court dated August 20, 1980, as well as all the Orders issued subsequent thereto in alleged
implementation of the Probate Order dated December 5, 1972, particularly the Orders dated November 11, 1980 and
December 17, 1980, are hereby set aside; and this case is remanded to the appropriate Regional Trial Court for proper
proceedings, subject to the judgment to be rendered in Civil Case No. 274-R.
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera Vasquez and Relova JJ., concur.
Gutierrez, J., took no part.

Footnotes
* Under the Civil Code, Art. 16, intestate and testamentary successions of an alien are regulated by his
national law "with respect to the order of succession and to the amount of successional rights and to the
intrinsic validity of testamentary provisions." The Civil Code of Spain Art. 834, provides for the
usufructuary right of the surviving spouse with respect to a portion of the decedent's estate; while Art.
1392 provides for conjugal partnership. Under the Rules of Court, Rule 73, Section 2: "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. "

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 sixtyseven. 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. Montaa, Sr., claiming to be the lawyer of
petitioner Felix Balanay, Jr. (his counsel of record was Atty. Cabreros), filed a motion dated September 25, 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 Montaa claimed to be the lawyer not only of the petitioner but also of
Felix Balanay, Sr., Beatriz B. Solamo, Carolina B. Manguiob and Emilia B. Pabaonon.
Montaa in his motion assailed the provision of the will which partitioned the conjugal assets or allegedly effected a
compromise of future legitimes. He prayed that the probate of the will be withdrawn and that the proceeding be
converted into an intestate proceeding. In another motion of the same date he asked that the corresponding notice
to creditors be issued.
Avelina B. Antonio and Delia B. Lanaban, through Atty. Jose B. Guyo, in their comments dated October 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. Montaa, assumed that the issuance of a notice to creditors was in
order since the parties had agreed on that point. It adopted the view of Attys. Montaa and Guyo that the will was
void. So, in its order of February 28, 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. Montaa had no
authority to withdraw the petition for the allowance of the will. Attached to the motion was a copy of a letter dated
March 27, 1974 addressed to Atty. Montaa and signed by Felix Balanay, Jr., Beatriz V. Solamo, Carolina B.
Manguiob and Emilia B. Pabaonon, wherein they terminated Montaa'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. Montaa's arguments.
The basic issue is whether the probate court erred in passing upon the intrinsic validity of the will, before ruling on
its allowance or formal validity, and in declaring it void.
We are of the opinion that in view of certain unusual provisions of the will, which are of dubious legality, and
because of the motion to withdraw the petition for probate (which the lower court assumed to have been filed with
the petitioner's authorization), the trial court acted correctly in passing upon the will's intrinsic validity even before its
formal validity had been established. The probate of a will might become an idle ceremony if on its face it appears to
be intrinsically void. Where practical considerations demand that the intrinsic validity of the will be passed upon,
even before it is probated, the court should meet the issue (Nuguid vs. Nuguid, 64 O.G. 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).
1wph1.t

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).
1wph1.t

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.
SO ORDERED.
Fernando (Chairman), Barredo, Antonio and Concepcion, Jr., JJ., concur.

Footnotes
* The pertinent provisions of the will are as follows:
"II. That I am the absolute owner of the southern half of the following conjugal properties which I
acquired during my married life with my husband, Felix Balanay, Sr., namely: (Here follows an
enumeration of nine lots).
1wph1.t

"III. I am the absolute owner of the following paraphernal properties which I inherited from my
deceased father, Cecilio Julian, namely: (Here follows a description of two lots).
"IV. It is my desire and I direct that in the interest of my family, my properties shall not be divided
among my heirs during the lifetime of my husband, Felix Balanay, Sr. but should be kept intact. The
respective legitimes of my husband and my children should be paid in cash out of the proceeds of
sale of the produce and rents derived from said properties.
"V. After the death of my husband, Felix Balanay, Sr., my properties shall be divided and distributed
in the manner as follows:" (Here follows a partition of the nine conjugal lots and the two paraphernal
lots. The testatrix divided among her six children not only her two paraphernal lots, one of which she
devised to Emilia Pabaonon and the other lot to Felix Balanay, Jr., but also the nine conjugal lots.
She did not restrict the partition to her one-half conjugal share but included her husband's one-half
share.).

G.R. No. L-23638

October 12, 1967

DIONISIO FERNANDEZ, EUSEBIO REYES and LUISA REYES, petitioners,


vs.
ISMAELA DIMAGIBA, respondent.
---------------------------------------G.R. No. L-23662

October 12, 1967

MARIANO REYES, CESAR REYES, LEONOR REYES and PACIENCIA REYES, petitioners,
vs.
ISMAELA DIMAGIBA, respondent.
Jose D. Villena for petitioners.
Antonio Barredo and Exequiel M. Zaballero for respondent.
REYES, J.B.L., Actg. C.J.:
The heirs intestate of the late Benedicta de los Reyes have petitioned for a review of the decision of the Court of
Appeals (in CA-G. R. No. 31221-R) affirming that of the Court of First Instance of Bulacan, in Special Proceeding
No. 831 of said Court, admitting to probate the alleged last will and testament of the deceased, and overruling the
opposition to the probate.
It appears from the record that on January 19, 1955, Ismaela Dimagiba, now respondent, submitted to the Court of
First Instance a petition for the probate of the purported will of the late Benedicta de los Reyes, executed on October
22, 1930, and annexed to the petition. The will instituted the petitioner as the sole heir of the estate of the deceased.
The petition was set for hearing, and in due time, Dionisio Fernandez, Eusebio Reyes and Luisa Reyes and one
month later, Mariano, Cesar, Leonor and Paciencia, all surnamed Reyes, all claiming to be heirs intestate of the
decedent, filed oppositions to the probate asked. Grounds advanced for the opposition were forgery, vices of
consent of the testatrix, estoppel by laches of the proponent and revocation of the will by two deeds of conveyance
of the major portion of the estate made by the testatrix in favor of the proponent in 1943 and 1944, but which
conveyances were finally set aside by this Supreme Court in a decision promulgated on August 3, 1954, in cases
G.R. Nos. L-5618 and L-5620 (unpublished).
After trial on the formulated issues, the Court of First Instance, by decision of June 20, 1958, found that the will was
genuine and properly executed; but deferred resolution on the questions of estoppel and revocation "until such time
when we shall pass upon the intrinsic validity of the provisions of the will or when the question of adjudication of the
properties is opportunely presented."
Oppositors Fernandez and Reyes petitioned for reconsideration, and/or new trial, insisting that the issues of
estoppel and revocation be considered and resolved; whereupon, on July 27, 1959, the Court overruled the claim
that proponent was in estoppel to ask for the probate of the will, but "reserving unto the parties the right to raise the
issue of implied revocation at the opportune time."
On January 11, 1960, the Court of First Instance appointed Ricardo Cruz as administrator for the sole purpose of
submitting an inventory of the estate, and this was done on February 9, 1960.
On February 27, 1962, after receiving further evidence on the issue whether the execution by the testatrix of deeds
of sale of the larger portion of her estate in favor of the testamentary heir, made in 1943 and 1944, subsequent to
the execution of her 1930 testament, had revoked the latter under Article 957(2) of the 1950 Civil Code (Art. 869 of
the Civil Code of 1889), the trial Court resolved against the oppositors and held the will of the late Benedicta de los
Reyes "unaffected and unrevoked by the deeds of sale." Whereupon, the oppositors elevated the case to the Court
of Appeals.
The appellate Court held that the decree of June 20, 1958, admitting the will to probate, had become final for lack of
opportune appeal; that the same was appealable independently of the issue of implied revocation; that contrary to
the claim of oppositors-appellants, there had been no legal revocation by the execution of the 1943 and 1944 deeds
of sale, because the latter had been made in favor of the legatee herself, and affirmed the decision of the Court of
First Instance.
Oppositors then appealed to this Court.
In this instance, both sets of oppositors-appellants pose three main issues: (a) whether or not the decree of the
Court of First Instance allowing the will to probate had become final for lack of appeal; (b) whether or not the order
of the Court of origin dated July 27, 1959, overruling the estoppel invoked by oppositors-appellants had likewise

become final; and (c) whether or not the 1930 will of Benedicta de los Reyes had been impliedly revoked by her
execution of deeds of conveyance in favor of the proponent on March 26, 1943 and April 3, 1944.
As to the first point, oppositors-appellants contend that the order allowing the will to probate should be considered
interlocutory, because it fails to resolve the issues of estoppel and revocation propounded in their opposition. We
agree with the Court of Appeals that the appellant's stand is untenable. 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. (Montaano
vs. Suesa, 14 Phil. 676; Mercado vs. Santos, 66 Phil. 215; Trillana vs. Crisostomo, 89 Phil. 710). As such, the
probate order is final and appealable; and it is so recognized by express provisions of Section 1 of Rule 109, that
specifically prescribes that "any interested person may appeal in special proceedings from an order or judgment . . .
where such order or judgment: (a) allows or disallows a will."
Appellants argue that they were entitled to await the trial Court's resolution on the other grounds of their opposition
before taking an appeal, as otherwise there would be a multiplicity of recourses to the higher Courts. This contention
is without weight, since Rule 109, section 1, expressly enumerates six different instances when appeal may be
taken in special proceedings.
There being no controversy that the probate decree of the Court below was not appealed on time, the same had
become final and conclusive. Hence, the appellate courts may no longer revoke said decree nor review the
evidence upon which it is made to rest. Thus, the appeal belatedly lodged against the decree was correctly
dismissed.
The alleged revocation implied from the execution of the deeds of conveyance in favor of the testamentary heir is
plainly irrelevant to and separate from the question of whether the testament was duly executed. For one, if the will
is not entitled to probate, or its probate is denied, all questions of revocation become superfluous in law, there is no
such will and hence there would be nothing to revoke. Then, again, the revocation invoked by the oppositorsappellants is not an express one, but merely implied from subsequent acts of the testatrix allegedly evidencing an
abandonment of the original intention to bequeath or devise the properties concerned. As such, the revocation
would not affect the will itself, but merely the particular devise or legacy. Only the total and absoluterevocation can
preclude probate of the revoked testament (Trillana vs. Crisostomo, supra.).
As to the issue of estoppel, we have already ruled in Guevara vs. Guevara, 98 Phil. 249, that the presentation and
probate of a will are requirements of public policy, being primarily designed to protect the testator's, expressed
wishes, which are entitled to respect as a consequence of the decedent's ownership and right of disposition within
legal limits. Evidence of it is the duty imposed on a custodian of a will to deliver the same to the Court, and the fine
and imprisonment prescribed for its violation (Revised Rule 75). It would be a non sequitur to allow public policy to
be evaded on the pretext of estoppel. Whether or not the order overruling the allegation of estoppel is still
appealable or not, the defense is patently unmeritorious and the Court of Appeals correctly so ruled.
The last issue, that of revocation, is predicated on paragraph 2 of Article 957 of the Civil Code of 1950 (Art. 869 of
the Code of 1889), which recites:
Art. 957. The legacy or devise shall be without effect:
(1) . . . .
(2) If the testator by any title or for any cause alienates the thing bequeathed or any part thereof, it being
understood that in the latter case the legacy or devise shall be without effect only with respect to the part
thus alienated. If after the alienation the thing should again belong to the testator, even if it be by reason of
nullity of the contract, the legacy or devise shall not thereafter be valid, unless the reacquisition shall have
been effected by virtue of the exercise of the right of repurchase;
xxx

xxx

xxx

It is well to note that, unlike in the French and Italian Codes, the basis of the quoted provision is a presumed change
of intention on the part of the testator. As pointed out by Manresa in his Commentaries on Article 869 of the Civil
Code (Vol. 6, 7th Ed., p. 743)
Este caso se funda en la presunta voluntad del testador. Si este, despues de legar, se desprende de la cosa
por titulo lucrativo u oneroso, hace desaparecer su derecho sobra ella, dando lugar a la presuncion de que
ha cambiado de voluntad, y no quiere que el legado se cumpla. Mas para que pueda presumirse esa
voluntad, es necesario que medien actos del testador que la indiquen. Si la perdida del derecho sobre la
cosa ha sido independiente de la voluntad del testador, el legado podraquedar sin efecto, mas no en virtud
del numero 2 del articulo 869, que exige siempre actos voluntarios de enajenacion por parte del mismo
testador.
As observed by the Court of Appeals, the existence of any such change or departure from the original intent of the
testatrix, expressed in her 1930 testament, is rendered doubtful by the circumstance that the subsequent alienations

in 1943 and 1944 were executed in favor of the legatee herself, appellee Dimagiba. In fact, as found by the Court of
Appeals in its decision annulling these conveyances (affirmed in that point by this Supreme Court in Reyes vs.
Court of Appeals and Dimagiba, L-5618 and L-5620, promulgated on July 31, 1954), "no consideration whatever
was paid by respondent Dimagiba" on account of the transfers, thereby rendering it even more doubtful whether in
conveying the property to her legatee, the testatrix merely intended to comply in advance with what she had
ordained in her testament, rather than an alteration or departure therefrom. 1Revocation being an exception, we
believe, with the Courts below, that in the circumstances of the particular case, Article 957 of the Civil Code of the
Philippines, does not apply to the case at bar.
Not only that, but even if it were applicable, the annulment of the conveyances would not necessarily result in the
revocation of the legacies, if we bear in mind that the findings made in the decision decreeing the annulment of the
subsequent 1943 and 1944 deeds of sale were also that
it was the moral influence, originating from their confidential relationship, which was the only cause for the
execution of Exhs. A and B (the 1943 and 1944 conveyances). (Decision, L-5618 and L-5620).
If the annulment was due to undue influence, as the quoted passage implies, then the transferor was not expressing
her own free will and intent in making the conveyances. Hence, it can not be concluded, either, that such
conveyances established a decision on her part to abandon the original legacy.
True it is that the legal provision quoted prescribes that the recovery of the alienated property "even if it be by
reason of the nullity of the contract" does not revive the legacy; but as pointed out by Scaevola (Codigo Civil, Vol.
XV, 4th Ed., pp. 324-325) the "nullity of the contract" can not be taken in an absolute sense. 2 Certainly, it could not
be maintained, for example, that if a testator's subsequent alienation were avoided because the testator was
mentally deranged at the time, the revocatory effect ordained by the article should still ensue. And the same thing
could be said if the alienation (posterior to the will) were avoided on account of physical or mental duress. Yet, an
alienation through undue influence in no way differs from one made through violence or intimidation. In either case,
the transferor is not expressing his real intent,3 and it can not be held that there was in fact an alienation that could
produce a revocation of the anterior bequest.
In view of the foregoing considerations, the appealed decision of the Court of Appeals is hereby affirmed. Costs
against appellants Reyes and Fernandez. So ordered.
Dizon, Makalintal, Zaldivar, Sanchez, Castro, Angeles and Fernando, JJ., concur.
Concepcion, C.J. and Bengzon, J.P., J., are on leave, took no part.

Footnotes
1

Scaevola (Codigo Civil, Vol. XV, 4th Ed., p. 378) aptly remarks:

"Cuando el testador, a sabiendas de la disposicion contenida en su ultima voluntad, enajena al legatario la


cosa legada, si bien esta sale del poder de aquel, va a parar al del legatario, acto que no puede
interpretarse como mudanza del a voluntad, puesto que transmits la cosa a la persona a la que deseaba
favoreer con ella. Por esta circunstancia y por la de no revocar el legado, mas bien parece que persiste en
su intencion de beneficiar al legatario, ya que no con la propia cosa, con el derecho que le concede el art.
878. Si al donar el testador al futuro legatario la cosa que le dejaba en el testamento, indica solo una
realizacion anticipada de la ultima voluntad, el venderia sin derogar la disposicion dellegado parece indicae
tambien que no ha habido idea modificadora de la intencion, sino que porsigue en la de favorecer al
instituido, y ya que no es posible conseguirlo con la cosa misma,se impone el verificarlo en la manera
determinada por el articulo, o sea mediante la entrega del precio."
"Deciamos anteriormente que necesitaba alguna explicacion la frase del num. 20.o del art. 869, "aunque
sea por la nulidad del contrato," para no apartarla de sus verdaderos y prudentes limites. Literalmente
entendida, autorizaria el que fuese revocado un legado por enajenacion que hubiese realizado el testador
con vicio en el consentimiento. Dice con razon eljurisconsulto frances Demante, "quese llegaria a
consecuencias contrariasa los principios mas elementales del Derecho y de la razon si, exagerandodicha
doctrina, se diese efecto revocatorio a una enajenacion nulapor vicio de consentimiento." Como una
voluntad impotente para transferirla propiedad podria tener la fuerza de revocar un legado? Si la
enajenacionlleva el vicio de violencia o de error, sera posible artibuir algun efectoa acto semejante? Es
logico deducir entonces que el testador se arrepintio, como dicen las partidas del otorgamento de la
manda?" (Scaevola, op. cit.)
2

Cf. Torres vs. Lopez, 48 Phil. 772; Coso vs. Deza, 42 Phil.

G.R. No. L-24742 October 26, 1973


ROSA CAYETANO CUENCO, petitioners,
vs.
THE HONORABLE COURT OF APPEALS, THIRD DIVISION, MANUEL CUENCO, LOURDES CUENCO,
CONCEPCION CUENCO MANGUERRA, CARMEN CUENCO, CONSUELO CUENCO REYES, and TERESITA
CUENCO GONZALEZ, respondents.
Ambrosio Padilla Law Office for petitioner.
Jalandoni and Jamir for respondents.

TEEHANKEE, J.:
Petition for certiorari to review the decision of respondent Court of Appeals in CA-G.R. No. 34104-R, promulgated
21 November 1964, and its subsequent Resolution promulgated 8 July 1964 denying petitioner's Motion for
Reconsideration.
The pertinent facts which gave rise to the herein petition follow:
On 25 February 1964 Senator Mariano Jesus Cuenco died at the Manila Doctors' Hospital, Manila. He was survived
by his widow, the herein petitioner, and their two (2) minor sons, Mariano Jesus, Jr. and Jesus Salvador, both
surnamed Cuenco, all residing at 69 Pi y Margal St., Sta. Mesa Heights, Quezon City, and by his children of the first
marriage, respondents herein, namely, Manuel Cuenco, Lourdes Cuenco, Concepcion Cuenco Manguera, Carmen
Cuenco, Consuelo Cuenco Reyes and Teresita Cuenco Gonzales, all of legal age and residing in Cebu.
On 5 March 1964, (the 9th day after the death of the late Senator) 1 respondent Lourdes Cuenco filed a Petition for
Letters of Administration with the court of first instance of Cebu (Sp. Proc. No. 2433-R), alleging among other things, that
the late senator died intestate in Manila on 25 February 1964; that he was a resident of Cebu at the time of his death; and
that he left real and personal properties in Cebu and Quezon City. On the same date, the Cebu court issued an order
setting the petition for hearing on 10 April 1964, directing that due notice be given to all the heirs and interested persons,
and ordering the requisite publication thereof at LA PRENSA, a newspaper of general circulation in the City and Province
of Cebu.
The aforesaid order, however, was later suspended and cancelled and a new and modified one released on 13
March 1964, in view of the fact that the petition was to be heard at Branch II instead of Branch I of the said Cebu
court. On the same date, a third order was further issued stating that respondent Lourdes Cuenco's petition for the
appointment of a special administrator dated 4 March 1964 was not yet ready for the consideration of the said court,
giving as reasons the following:
It will be premature for this Court to act thereon, it not having yet regularly acquired jurisdiction to try
this proceeding, the requisite publication of the notice of hearing not yet having been complied with.
Moreover, copies of the petition have not been served on all of the heirs specified in the basic
petition for the issuance of letters of administration. 2
In the meantime, or specifically on 12 March 1964, (a week after the filing of the Cebu petition) herein petitioner
Rosa Cayetano Cuenco filed a petition with the court of first instance of Rizal (Quezon City) for the probate of the
deceased's last will and testament and for the issuance of letters testamentary in her favor, as the surviving widow
and executrix in the said last will and testament. The said proceeding was docketed as Special Proceeding No. Q7898.
Having learned of the intestate proceeding in the Cebu court, petitioner Rosa Cayetano Cuenco filed in said Cebu
court an Opposition and Motion to Dismiss, dated 30 March 1964, as well as an Opposition to Petition for
Appointment of Special Administrator, dated 8 April 1964. On 10 April 1964, the Cebu court issued an order holding
in abeyance its resolution on petitioner's motion to dismiss "until after the Court of First Instance of Quezon City

shall have acted on the petition for probate of that document purporting to be the last will and testament of the
deceased Don Mariano Jesus Cuenco." 3 Such order of the Cebu court deferring to the probateproceedings in the
Quezon City court was neither excepted to nor sought by respondents to be reconsidered or set aside by the Cebu court
nor did they challenge the same by certiorari or prohibition proceedings in the appellate courts.
Instead, respondents filed in the Quezon City court an Opposition and Motion to Dismiss, dated 10 April
1964,opposing probate of the will and assailing the jurisdiction of the said Quezon City court to entertain petitioner's
petition for probate and for appointment as executrix in Sp. Proc. No. Q-7898 in view of the alleged exclusive
jurisdiction vested by her petition in the Cebu court in Sp. Proc. No. 2433-R. Said respondent prayed that Sp. Proc.
No. Q-7898 be dismissed for lack of jurisdiction and/or improper venue.
In its order of 11 April 1964, the Quezon City court denied the motion to dismiss, giving as a principal reason the
"precedence of probate proceeding over an intestate proceeding." 4 The said court further found in said order that
theresidence of the late senator at the time of his death was at No. 69 Pi y Margal, Sta. Mesa Heights, Quezon City. The
pertinent portion of said order follows:
On the question of residence of the decedent, paragraph 5 of the opposition and motion to dismiss
reads as follows: "that since the decedent Don Mariano Jesus Cuenco was a resident of the City of
Cebu at the time of his death, the aforesaid petition filed by Rosa Cayetano Cuenco on 12 March
1964 was not filed with the proper Court (wrong venue) in view of the provisions of Section 1 of Rule
73 of the New Rules of Court ...". From the aforequoted allegation, the Court is made to understand
that the oppositors do not mean to say that the decedent being a resident of Cebu City when he
died, the intestate proceedings in Cebu City should prevail over the probate proceedings in Quezon
City, because as stated above the probate of the will should take precedence, but that the probate
proceedings should be filed in the Cebu City Court of First Instance. If the last proposition is the
desire of the oppositors as understood by this Court, that could not also be entertained as proper
because paragraph 1 of the petition for the probate of the will indicates that Don Mariano Jesus
Cuenco at the time of his death was a resident of Quezon City at 69 Pi y Margal. Annex A (Last Will
and Testament of Mariano Jesus Cuenco) of the petition for probate of the will shows that the
decedent at the time when he executed his Last Will clearly stated that he is a resident of 69 Pi y
Margal, Sta. Mesa Heights, Quezon City, and also of the City of Cebu. He made the former as his
first choice and the latter as his second choice of residence." If a party has two residences, the one
will be deemed or presumed to his domicile which he himself selects or considers to be his home or
which appears to be the center of his affairs. The petitioner, in thus filing the instant petition before
this Court, follows the first choice of residence of the decedent and once this court acquires
jurisdiction of the probate proceeding it is to the exclusion of all others. 5
Respondent Lourdes Cuenco's motion for reconsideration of the Quezon City court's said order of 11 April 1964
asserting its exclusive jurisdiction over the probate proceeding as deferred to by the Cebu court was denied on 27
April 1964 and a second motion for reconsideration dated 20 May 1964 was likewise denied.
On 11 May 1964, pursuant to its earlier order of 11 April 1964, the hearing for probate of the last will of the decedent
was called three times at half-hour intervals, but notwithstanding due notification none of the oppositors appeared
and the Quezon City court proceeded at 9:00 a.m. with the hearing in their absence.
As per the order issued by it subsequently on 15 May 1964, the Quezon City court noted that respondentsoppositors had opposed probate under their opposition and motion to dismiss on the following grounds:
(a) That the will was not executed and attested as required by law;
(b) That the will was procured by undue and improper pressure and influence on the part of the
beneficiary or some other persons for his benefit;
(c) That the testator's signature was procured by fraud and/or that the testator acted by mistake and
did not intend that the instrument he signed should be his will at the time he affixed his signature
thereto. 6
The Quezon City court further noted that the requisite publication of the notice of the hearing had been duly
complied with and that all the heirs had been duly notified of the hearing, and after receiving the testimony of the
three instrumental witnesses to the decedent's last will, namely Atty. Florencio Albino, Dr. Guillermo A. Picache and
Dr. Jose P. Ojeda, and of the notary public, Atty. Braulio A. Arriola, Jr., who ratified the said last will, and the
documentary evidence (such as the decedent's residence certificates, income tax return, diplomatic passport, deed

of donation) all indicating that the decedent was a resident of 69 Pi y Margal St., Quezon City, as also affirmed by
him in his last will, the Quezon City court in its said order of 15 May 1964 admitted to probate the late senator's last
will and testament as having been "freely and voluntarily executed by the testator" and "with all formalities of the
law" and appointed petitioner-widow as executrix of his estate without bond "following the desire of the testator" in
his will as probated.
Instead of appealing from the Quezon City court's said order admitting the will to probate and naming petitionerwidow as executrix thereof, respondents filed a special civil action of certiorari and prohibition with preliminary
injunction with respondent Court of Appeals (docketed as case CA-G.R. No. 34104-R) to bar the Rizal court from
proceeding with case No. Q-7898.
On 21 November 1964, the Court of Appeals rendered a decision in favor of respondents (petitioners therein) and
against the herein petitioner, holding that:
Section 1, Rule 73, which fixes the venue in proceedings for the settlement of the estate of a
deceased person, covers both testate and intestate proceedings. Sp. Proc. 2433-R of the Cebu CFI
having been filed ahead, it is that court whose jurisdiction was first invoked and which first attached.
It is that court which can properly and exclusively pass upon the factual issues of (1) whether the
decedent left or did not leave a valid will, and (2) whether or not the decedent was a resident of
Cebu at the time of his death.
Considering therefore that the first proceeding was instituted in the Cebu CFI (Special Proceeding
2433-R), it follows that the said court must exercise jurisdiction to the exclusion of the Rizal CFI, in
which the petition for probate was filed by the respondent Rosa Cayetano Cuenco (Special
Proceeding Q-7898). The said respondent should assert her rights within the framework of the
proceeding in the Cebu CFI, instead of invoking the jurisdiction of another court.
The respondents try to make capital of the fact that on March 13, 1964, Judge Amador Gomez of the
Cebu CFI, acting in Sp. Proc. 2433-R, stated that the petition for appointment of special
administrator was "not yet ready for the consideration of the Court today. It would be premature for
this Court to act thereon, it not having yet regularly acquired jurisdiction to try this proceeding ... . " It
is sufficient to state in this connection that the said judge was certainly not referring to the court's
jurisdiction over the res, not to jurisdiction itself which is acquired from the moment a petition is filed,
but only to theexercise of jurisdiction in relation to the stage of the proceedings. At all events,
jurisdiction is conferred and determined by law and does not depend on the pronouncements of a
trial judge.
The dispositive part of respondent appellate court's judgment provided as follows:
ACCORDINGLY, the writ of prohibition will issue, commanding and directing the respondent Court of
First Instance of Rizal, Branch IX, Quezon City, and the respondent Judge Damaso B. Tengco to
refrain perpetually from proceeding and taking any action in Special Proceeding Q-7898 pending
before the said respondent court. All orders heretofore issued and actions heretofore taken by said
respondent court and respondent Judge, therein and connected therewith, are hereby annulled. The
writ of injunction heretofore issued is hereby made permanent. No pronouncement as to costs.
Petitioner's motion for reconsideration was denied in a resolution of respondent Court of Appeals, dated 8 July 1965;
hence the herein petition for review on certiorari.
The principal and decisive issue at bar is, theretofore, whether the appellate court erred in law in issuing the writ of
prohibition against the Quezon City court ordering it to refrain perpetually from proceeding with
the testateproceedings and annulling and setting aside all its orders and actions, particularly its admission to
probate of the decedent's last will and testament and appointing petitioner-widow as executrix thereof without bond
in compliance with the testator's express wish in his testament. This issue is tied up with the issue submitted to the
appellate court, to wit, whether the Quezon City court acted without jurisdiction or with grave abuse of discretion in
taking cognizance and assuming exclusive jurisdiction over the probate proceedings filed with it, in pursuance of the
Cebu court's order of 10 April 1964 expressly consenting in deference to the precedence of probate over intestate
proceedings that it (the Quezon City court) should first act "on the petition for probate of the document purporting to
be the last will and testament of the deceased Don Mariano Jesus Cuenco" - which order of the Cebu court
respondents never questioned nor challenged by prohibition or certiorari proceedings and thus enabled the Quezon
City court to proceed without any impediment or obstruction, once it denied respondent Lourdes Cuenco's motion to

dismiss the probate proceeding for alleged lack of jurisdiction or improper venue, toproceed with the hearing of the
petition and to admit the will to probate upon having been satisfied as to its due execution and authenticity.
The Court finds under the above-cited facts that the appellate court erred in law in issuing the writ of prohibition
against the Quezon City court from proceeding with the testate proceedings and annulling and setting aside all its
orders and actions, particularly its admission to probate of the deceased's last will and testament and appointing
petitioner-widow as executrix thereof without bond pursuant to the deceased testator's express wish, for the
following considerations:
1. The Judiciary Act 7 concededly confers original jurisdiction upon all Courts of First Instance over "all matter of probate,
both of testate and intestate estates." On the other hand, Rule 73, section of the Rules of Court lays down the rule of
venue, as the very caption of the Rule indicates, and in order to prevent conflict among the different courts which
otherwise may properly assume jurisdiction from doing so, the Rule specifies that "the court first taking cognizance of the
settlement of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other courts." The cited Rule
provides:
Section 1. Where estate of deceased persons settled. If the decedent is an inhabitant of the
Philippines at the time of his death, whether a citizen or an alien, his will shall be proved, or letters of
administration granted, and his estate settled, in the Court of First Instance in the Province in which
he resides at the time of his death, and if he is an inhabitant of a foreign country, the Court of First
Instance of the 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.
(Rule 73) 8
It is equally conceded that the residence of the deceased or the location of his estate is not an element of
jurisdiction over the subject matter but merely of venue. This was lucidly stated by the late Chief Justice Moran inSy
Oa vs. Co Ho 9 as follows:
We are not unaware of existing decisions to the effect that in probate cases the place of residence of
the deceased is regarded as a question of jurisdiction over the subject-matter. But we decline to
follow this view because of its mischievous consequences. For instance, a probate case has been
submitted in good faith to the Court of First Instance of a province where the deceased had not
resided. All the parties, however, including all the creditors, have submitted themselves to the
jurisdiction of the court and the case is therein completely finished except for a claim of a creditor
who also voluntarily filed it with said court but on appeal from an adverse decision raises for the first
time in this Court the question of jurisdiction of the trial court for lack of residence of the deceased in
the province. If we consider such question of residence as one affecting the jurisdiction of the trial
court over the subject-matter, the effect shall be that the whole proceedings including all
decisions on the different incidents which have arisen in court will have to be annulled and the same
case will have to be commenced anew before another court of the same rank in another province.
That this is ofmischievous effect in the prompt administration of justice is too obvious to require
comment. (Cf. Tanunchuan vs. Dy Buncio & Co., G.R. No. 48206, December 31, 1942) Furthermore,
section 600 of Act No. 190, 10 providing that the estate of a deceased person shall be settled in the
province where he had last resided, could not have been intended as defining the jurisdiction of the
probate court over the subject-matter, because such legal provision is contained in a law of procedure
dealing merely with procedural matters, and, as we have said time and again, procedure is one thing and
jurisdiction over the subject matter is another. (Attorney-General vs. Manila Railroad Company, 20 Phil.
523.) The law of jurisdiction Act No. 136, 11 Section 56, No. 5 confers upon Courts of First Instance
jurisdiction over all probate cases independently of the place of residence of the deceased. Since,
however, there are many courts of First Instance in the Philippines, the Law of Procedure, Act No. 190,
section 600, fixes the venue or the place where each case shall be brought. Thus, the place
of residence of the deceased is not an element of jurisdiction over the subject-matter but merely of venue.
And it is upon this ground that in the new Rules of Court the province where the estate of a deceased
person shall be settled is properly called "venue".
It should be noted that the Rule on venue does not state that the court with whom the estate or intestate petition
is first filed acquires exclusive jurisdiction.
The Rule precisely and deliberately provides that "the court first taking cognizance of the settlement of the estateof
a decedent, shall exercise jurisdiction to the exclusion of all other courts."

A fair reading of the Rule since it deals with venue and comity between courts of equal and co-ordinate
jurisdiction indicates that the court with whom the petition is first filed, must also first take cognizance of the
settlement of the estate in order to exercise jurisdiction over it to the exclusion of all other courts.
Conversely, such court, may upon learning that a petition for probate of the decedent's last will has been presented
in another court where the decedent obviously had his conjugal domicile and resided with his surviving widow and
their minor children, and that the allegation of the intestate petition before it stating that the decedent
died intestate may be actually false, may decline to take cognizance of the petition and hold the petition before it in
abeyance, and instead defer to the second court which has before it the petition for probate of the decedent's
alleged last will.
2. This exactly what the Cebu court did. Upon petitioner-widow's filing with it a motion to dismiss Lourdes' intestate
petition, it issued its order holding in abeyance its action on the dismissal motion and deferred to the Quezon City
court, awaiting its action on the petition for probate before that court. Implicit in the Cebu court's order was that if the
will was duly admitted to probate, by the Quezon City court, then it would definitely decline to take cognizance of
Lourdes' intestate petition which would thereby be shown to be false and improper, and leave the exercise of
jurisdiction to the Quezon City court, to the exclusion of all other courts. Likewise by its act of deference, the Cebu
court left it to the Quezon City court to resolve the question between the parties whether the decedent's residence at
the time of his death was in Quezon City where he had his conjugal domicile rather than in Cebu City as claimed by
respondents. The Cebu court thus indicated that it would decline to take cognizance of the intestate petition before it
and instead defer to the Quezon City court, unless the latter would make a negative finding as to
the probate petition and the residence of the decedent within its territory and venue.
3. Under these facts, the Cebu court could not be held to have acted without jurisdiction or with grave abuse of
jurisdiction in declining to take cognizance of the intestate petition and deferring to the Quezon City court.
Necessarily, neither could the Quezon City court be deemed to have acted without jurisdiction in taking cognizance
of and acting on the probate petition since under Rule 73, section 1, the Cebu court must first take cognizance over
the estate of the decedent and must exercise jurisdiction to exclude all other courts, which the Cebu court declined
to do. Furthermore, as is undisputed, said rule only lays down a rule of venue and the Quezon City court
indisputably had at least equal and coordinate jurisdiction over the estate.
Since the Quezon City court took cognizance over the probate petition before it and assumed jurisdiction over the
estate, with the consent and deference of the Cebu court, the Quezon City court should be left now, by the same
rule of venue of said Rule 73, to exercise jurisdiction to the exclusion of all other courts.
Under the facts of the case and where respondents submitted to the Quezon City court their opposition to probate of
the will, but failed to appear at the scheduled hearing despite due notice, the Quezon City court cannot be declared,
as the appellate court did, to have acted without jurisdiction in admitting to probate the decedent's will and
appointing petitioner-widow as executrix thereof in accordance with the testator's testamentary disposition.
4. The relatively recent case of Uriarte vs. Court of First Instance of Negros Occidental 12 with facts analogous to the
present case 13 is authority against respondent appellate court's questioned decision.
In said case, the Court upheld the doctrine of precedence of probate proceedings over intestate proceedings in this
wise:
It can not be denied that a special proceeding intended to effect the distribution of the estate of a
deceased person, whether in accordance with the law on intestate succession or in accordance with
his will, is a "probate matter" or a proceeding for the settlement of his estate. It is equally true,
however, that in accordance with settled jurisprudence in this jurisdiction, testate proceedings for the
settlement of the estate of a deceased person take precedence over intestate proceedings for the
same purpose. Thus it has been held repeatedly that, if in the course of intestate proceedings
pending before a court of first instance it is found that the decedent had left a last will, proceedings
for the probate of the latter should replace the intestate proceedings even if at that state an
administrator had already been appointed, the latter being required to render final account and turn
over the estate in his possession to the executor subsequently appointed. This however, is
understood to be without prejudice that should the alleged last will be rejected or is disapproved, the
proceeding shall continue as an intestacy. As already adverted to, this is a clear indication that
proceedings for the probate of a will enjoy priority over intestate proceedings. 14

The Court likewise therein upheld the jurisdiction of the second court, (in this case, the Quezon City court) although
opining that certain considerations therein "would seem to support the view that [therein respondent] should have
submitted said will for probate to the Negros Court, [in this case, the Cebu court] either in a separate special
proceeding or in an appropriate motion for said purpose filed in the already pending Special Proceeding No.
6344," 15 thus:
But the fact is that instead of the aforesaid will being presented for probate to the Negros Court, Juan Uriarte
Zamacona filed the petition for the purpose with the Manila Court. We can not accept petitioner's contention in this
regard that the latter court had no jurisdiction to consider said petition, albeit we say that it was not the proper
venue therefor.
It is well settled in this jurisdiction that wrong venue is merely a waivable procedural defect, and, in
the light of the circumstances obtaining in the instant case, we are of the opinion, and so hold, that
petitioner has waived the right to raise such objection or is precluded from doing so by laches. It is
enough to consider in this connection that petitioner knew of the existence of a will executed by Juan
Uriarte y Goite since December 19, 1961 when Higinio Uriarte filed his opposition to the initial
petition filed in Special Proceeding No. 6344; that petitioner likewise was served with notice of the
existence (presence) of the alleged last will in the Philippines and of the filing of the petition for its
probate with the Manila Court since August 28, 1962 when Juan Uriarte Zamacona filed a motion for
the dismissal of Special Proceeding No. 6344. All these notwithstanding, it was only on April 15,
1963 that he filed with the Manila Court in Special Proceeding No. 51396 an Omnibus motion asking
for leave to intervene and for the dismissal and annulment of all the proceedings had therein up to
that date; thus enabling the Manila Court not only to appoint an administrator with the will annexed
but also to admit said will to probate more than five months earlier, or more specifically, on October
31, 1962. To allow him now to assail the exercise of jurisdiction over the probate of the will by the
Manila Court and the validity of all the proceedings had in Special Proceeding No. 51396 would put
a premium on his negligence. Moreover, it must be remembered that this Court is not inclined to
annul proceedings regularly had in a lower court even if the latter was not the proper venue therefor,
if the net result would be to have the same proceedings repeated in some other court of similar
jurisdiction; more so in a case like the present where the objection against said proceedings is raised
too late. 16
5. Under Rule 73, section 1 itself, the Quezon City court's assumption of jurisdiction over the decedent's estate on
the basis of the will duly presented for probate by petitioner-widow and finding that Quezon City was the
firstchoice of residence of the decedent, who had his conjugal home and domicile therein with the deference in
comity duly given by the Cebu court could not be contested except by appeal from said court in the original case.
The last paragraph of said Rule expressly provides:
... 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.
(Rule 73)
The exception therein given, viz, "when the want of jurisdiction appears on the record" could probably be properly
invoked, had such deference in comity of the Cebu court to the Quezon City court not appeared in the record, or had
the record otherwise shown that the Cebu court had taken cognizance of the petition before it and assumed
jurisdiction.
6. On the question that Quezon City established to be the residence of the late senator, the appellate court while
recognizing that "the issue is a legitimate one" held in reliance on Borja vs. Tan 17 that.
... The issue of residence comes within the competence of whichever court is considered to prevail in
the exercise jurisdiction - in this case, the Court of First Instance of Cebu as held by this Court.
Parenthetically, we note that the question of the residence of the deceased is a serious one,
requiring both factual and legal resolution on the basis of ample evidence to be submitted in the
ordinary course of procedure in the first instance, particularly in view of the fact that the deceased
was better known as the Senator from Cebu and the will purporting to be his also gives Cebu,
besides Quezon City, as his residence. We reiterate that this matter requires airing in the proper
court, as so indicated in the leading and controlling case of Borja vs. Hon. Bienvenido Tan, et al.,
G.R. L-7792, July 27, 1955.

In the case at bar, however, the Cebu court declined to take cognizance of the intestate petition first filed with it and
deferred to the testate proceedings filed with the Quezon City court and in effect asked the Quezon City court to
determine the residence of the decedent and whether he did leave a last will and testament upon which would
depend the proper venue of the estate proceedings, Cebu or Quezon City. The Quezon City court having thus
determined in effect for both courts at the behest and with the deference and consent of the Cebu court
thatQuezon City was the actual residence of the decedent who died testate and therefore the proper venue, the
Borja ruling would seem to have no applicability. It would not serve the practical ends of justice to still require the
Cebu court, if the Borja ruling is to be held applicable and as indicated in the decision under review, to determine for
itself the actual residence of the decedent (when the Quezon City court had already so determined Quezon City as
the actual residence at the Cebu court's behest and respondents have not seriously questioned this factual finding
based on documentary evidence) and if the Cebu court should likewise determine Quezon City as the actual
residence, or its contrary finding reversed on appeal, only then to allow petitioner-widow after years of waiting and
inaction to institute the corresponding proceedings in Quezon City.
7. With more reason should the Quezon City proceedings be upheld when it is taken into consideration that Rule 76,
section 2 requires that the petition for allowance of a will must show: "(a) the jurisdictional facts." Such "jurisdictional
facts" in probate proceedings, as held by the Court in Fernando vs. Crisostomo 18 " are the death of the decedent, his
residence at the time of his death in the province where the probate court is sitting, or if he is an inhabitant of a foreign
country, his having left his estate in such province."
This tallies with the established legal concept as restated by Moran that "(T)he probate of a will is a proceeding in
rem. The notice by publication as a pre-requisite to the allowance of a will, is a constructive notice to the whole
world, and when probate is granted, the judgment of the court is binding upon everybody, even against the
State.The probate of a will by a court having jurisdiction thereof is conclusive as to its due execution and
validity." 19 The Quezon City court acted regularly within its jurisdiction (even if it were to be conceded that Quezon City
was not the proper venue notwithstanding the Cebu court's giving way and deferring to it,) in admitting the decedent's last
will to probate and naming petitioner-widow as executrix thereof. Hence, the Quezon city court's action should not be set
aside by a writ of prohibition for supposed lack of jurisdiction as per the appellate court's appealed decision, and should
instead be sustained in line with Uriarte, supra, where the Court, in dismissing the certiorari petition challenging the Manila
court's action admitting the decedent's will to probate and distributing the estate in accordance therewith in
the second proceeding, held that "it must be remembered that this Court is not inclined to annul proceedings regularly had
in a lower court even if the latter was not the proper venue therefor, if the net result would be to have the same
proceedings repeated in some other court of similar jurisdiction." As stressed by Chief Justice Moran in Sy Oa, supra, "the
mischievous effect in the administration of justice" of considering the question of residence as affecting the jurisdiction of
the trial court and annulling the whole proceedings only to start all over again the same proceedings before another court
of the same rank in another province "is too obvious to require comment."
8. If the question of jurisdiction were to be made to depend only on who of the decedent's relatives gets first to file a
petition for settlement of the decedent's estate, then the established jurisprudence of the Court that Rule 73, section
1 provides only a rule of venue in order to preclude different courts which may properly assumejurisdiction from
doing so and creating conflicts between them to the detriment of the administration of justice, and that venue
is waivable, would be set at naught. As between relatives who unfortunately do not see eye to eye, it would be
converted into a race as to who can file the petition faster in the court of his/her choice regardless of whether the
decedent is still in cuerpo presente and in disregard of the decedent's actual last domicile, the fact that he left a last
will and testament and the right of his surviving widow named as executrix thereof. Such dire consequences were
certainly not intended by the Rule nor would they be in consonance with public policy and the orderly administration
of justice.
9. It would finally be unjust and inequitable that petitioner-widow, who under all the applicable rules of venue, and
despite the fact that the Cebu court (where respondent Lourdes Cuenco had filed an intestate petition in the Cebu
court earlier by a week's time on 5 March 1964) deferred to the Quezon City court where petitioner had within fifteen
days (on March 12, 1964) after the decedent's death (on February 25, 1964) timely filed the decedent's last will and
petitioned for letters testamentary and is admittedly entitled to preference in the administration of her husband's
estate, 20 would be compelled under the appealed decision to have to go all the way to Cebu and submit anew the
decedent's will there for probate either in a new proceeding or by asking that the intestate proceedings be converted into
a testate proceeding when under the Rules, the proper venue for the testate proceedings, as per the facts of record
and as already affirmed by the Quezon City court is Quezon City, where the decedent and petitioner-widow had their
conjugal domicile.
It would be an unfair imposition upon petitioner as the one named and entitled to be executrix of the decedent's last
will and settle his estate in accordance therewith, and a disregard of her rights under the rule on venue and the law
on jurisdiction to require her to spend much more time, money and effort to have to go from Quezon City to the
Cebu court everytime she has an important matter of the estate to take up with the probate court.

It would doubly be an unfair imposition when it is considered that under Rule 73, section 2, 21 since petitioner's
marriage has been dissolved with the death of her husband, their community property and conjugal estate have to
beadministered and liquidated in the estate proceedings of the deceased spouse. Under the appealed decision,
notwithstanding that petitioner resides in Quezon City, and the proper venue of the testate proceeding was in Quezon City
and the Quezon City court properly took cognizance and exercised exclusive jurisdiction with the deference in comity and
consent of the Cebu court, such proper exercise of jurisdiction would be nullified and petitioner would have to continually
leave her residence in Quezon City and go to Cebu to settle and liquidate even her own community property and conjugal
estate with the decedent.
10. The Court therefore holds under the facts of record that the Cebu court did not act without jurisdiction nor with
grave abuse of discretion in declining to take cognizance of the intestate petition and instead deferring to
thetestate proceedings filed just a week later by petitioner as surviving widow and designated executrix of the
decedent's last will, since the record before it (the petitioner's opposition and motion to dismiss) showed the falsityof
the allegation in the intestate petition that the decedent had died without a will. It is noteworthy that respondents
never challenged by certiorari or prohibition proceedings the Cebu court's order of 10 April 1964 deferring to the
probate proceedings before the Quezon City court, thus leaving the latter free (pursuant to the Cebu court's order of
deference) to exercise jurisdiction and admit the decedent's will to probate.
For the same reasons, neither could the Quezon City court be held to have acted without jurisdiction nor with grave
abuse of discretion in admitting the decedent's will to probate and appointing petitioner as executrix in accordance
with its testamentary disposition, in the light of the settled doctrine that the provisions of Rule 73, section 1 lay down
only a rule of venue, not of jurisdiction.
Since respondents undisputedly failed to appeal from the Quezon City court's order of May 15, 1964 admitting the
will to probate and appointing petitioner as executrix thereof, and said court concededly has jurisdiction to issue said
order, the said order of probate has long since become final and can not be overturned in a special civic action of
prohibition.
11. Finally, it should be noted that in the Supreme Court's exercise of its supervisory authority over all inferior
courts, 22 it may properly determine, as it has done in the case at bar, that venue was properly assumed by
and transferredto the Quezon City court and that it is the interest of justice and in avoidance of needless delay that the
Quezon City court's exercise of jurisdiction over the testate estate of the decedent (with the due deference and consent of
the Cebu court) and its admission to probate of his last will and testament and appointment of petitioner-widow as
administratrix without bond in pursuance of the decedent's express will and all its orders and actions taken in the testate
proceedings before it be approved and authorized rather than to annul all such proceedings regularly had and to repeat
and duplicate the same proceedings before the Cebu court only to revert once more to the Quezon City court should the
Cebu court find that indeed and in fact, as already determined by the Quezon City court on the strength of incontrovertible
documentary evidence of record, Quezon City was the conjugal residence of the decedent.
ACCORDINGLY, judgment is hereby rendered reversing the appealed decision and resolution of the Court of
Appeals and the petition for certiorari and prohibition with preliminary injunction originally filed by respondents with
the Court of Appeals (CA-G.R. No. 34104-R) is ordered dismissed. No costs.
Makalintal, C.J., Zaldivar, Makasiar, Antonio and Esguerra, JJ., concur.
Fernando and Castro, JJ., took no part.

Separate Opinions

BARREDO, J., concurring:


I concur in the main opinion of Mr. Justice Teehankee.

I only want to stress that in my view, the failure of respondents to question within a reasonable time the laying of the
venue in the Quezon City Court of First Instance and the assumption of jurisdiction by that court, after the Court of
First Instance of Cebu deferred in its favor, in order to prevent the holding therein of any proceeding and trial, and
their having filed therein a formal opposition to the probate of the will, makes them guilty of laches, for which reason
they are not entitled to the equitable relief prayed for in the present petition.

Separate Opinions
BARREDO, J., concurring:
I concur in the main opinion of Mr. Justice Teehankee.
I only want to stress that in my view, the failure of respondents to question within a reasonable time the laying of the
venue in the Quezon City Court of First Instance and the assumption of jurisdiction by that court, after the Court of
First Instance of Cebu deferred in its favor, in order to prevent the holding therein of any proceeding and trial, and
their having filed therein a formal opposition to the probate of the will, makes them guilty of laches, for which reason
they are not entitled to the equitable relief prayed for in the present petition.
Footnotes
1 1964 was a leap year.
2 Cited in Annex "C", page 42, Record.
3 Cited in Annex "C", page 46, Record.
4 Cited in Annex "C", page 47, Record.
5 Id., Id., Id., emphasis supplied.
6 Order of 11 May 1964, Annex B, p. 36, Record.
7 Republic Act No. 2961, sec. 44 (e).
8 Emphasis supplied.
9 74 Phil. 239, 241 (1943), notes in parenthesis and emphasis supplied. See 3 Moran's Rules of
Court, 1970 Ed. 370-372.
10 Source of Rule 73 (formerly Rule 75), section 1 of the Revised Rules of Court.
11 Superseded by the Judiciary Act, R.A. 296 as amended.
12 33 SCRA 252 (May 29, 1970).
13 The minor factual difference of that case is that there, the Negros court granted the testamentary
heirs' motion to dismiss the intestate petition first filed before it by the therein petitioner who claimed
to be an acknowledged natural child, and that said petitioner's attempt to intervene in
the probateproceedings subsequently filed in Manila by the testamentary heirs, was declared too
late. Here, the Cebu court acceded in part to petitioner-widow's motion to dismiss by declining to
take cognizance of the first intestate petition and deferring to the Quezon City court which it asked to
act first on the second petition for probate, and while opposition was filed against probate, oppositors
failed to appear at the hearing despite due notice.
14 33 SCRA at p. 259, emphasis supplied.
15 Idem, at p. 260, notes supplied.

16 Idem, at pp. 260-261, emphasis copied..


17 97 Phil. 330 (1955).
18 90 Phil. 585 (1951); see also 3 Moran's 1970 Ed., p. 400.
19 3 Moran's Comments 1970 Ed., p. 395.
20 Rule 78, section 6.
21 "SEC. 2. Where estate settled upon dissolution of marriage. When the marriage is dissolved
by a death of the husband or wife, the community property shall be inventoried, administered,
andliquidated, 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. (Rule 73, emphasis supplied).
22 See People vs. Gutierrez, 36 SCRA 172 (Nov. 26, 1970) and Article X, sec. 5, par. 4 providing
that the Supreme Court shall have the power to "order a change of venue or place of trial to avoid a
miscarriage of justice."

G.R. No. L-48840 December 29, 1943


ERNESTO M. GUEVARA, petitioner-appellant,
vs.
ROSARIO GUEVARA and her husband PEDRO BUISON, respondent-appellees.
Primacias, Abad, Mencias & Castillo for appellant.
Pedro C. Quinto for appellees.

OZAETA, J.:
Ernesto M. Guevarra and Rosario Guevara, ligitimate son and natural daughter, respectively, of the deceased
Victorino L. Guevara, are litigating here over their inheritance from the latter. The action was commenced on
November 12, 1937, by Rosario Guevara to recover from Ernesto Guevara what she claims to be her strict ligitime
as an acknowledged natural daughter of the deceased to wit, a portion of 423,492 square meters of a large
parcel of land described in original certificate of title No. 51691 of the province of Pangasinan, issued in the name of
Ernesto M. Guervara and to order the latter to pay her P6,000 plus P2,000 a year as damages for withholding
such legitime from her. The defendant answered the complaint contending that whatever right or rights the plaintiff
might have had, had been barred by the operation of law.
It appears that on August 26, 1931, Victorino L. Guevara executed a will (exhibit A), apparently with all the
formalities of the law, wherein he made the following bequests: To his stepdaughter Candida Guevara, a pair of
earrings worth P150 and a gold chain worth P40; to his son Ernesto M. Guevara, a gold ring worth P180 and all the
furniture, pictures, statues, and other religious objects found in the residence of the testator in Poblacion Sur,
Bayambang, Pangasinan; "a mi hija Rosario Guevara," a pair of earrings worth P120; to his stepson Piuo Guevara,
a ring worth P120; and to his wife by second marriage, Angustia Posadas, various pieces of jewelry worth P1,020.
He also made the following devises: "A mis hijos Rosario Guevara y Ernesto M. Guevara y a mis hijastros, Vivencio,
Eduviges, Dionisia, Candida y Pio, apellidados Guevara," a residential lot with its improvements situate in the town
of Bayambang, Pangasinan, having an area of 960 square meters and assessed at P540; to his wife Angustia
Posadas he confirmed the donation propter nuptias theretofore made by him to her of a portion of 25 hectares of the
large parcel of land of 259-odd hectares described in plan Psu-66618. He also devised to her a portion of 5 hectares
of the same parcel of land by way of complete settlement of her usufructurary right.
1awphil.net

He set aside 100 hectares of the same parcel of land to be disposed of either by him during his lifetime or by his
attorney-in-fact Ernesto M. Guevara in order to pay all his pending debts and to degray his expenses and those of
his family us to the time of his death.
The remainder of said parcel of land his disposed of in the following manner:
(d). Toda la porcion restante de mi terreno arriba descrito, de la extension superficial aproximada de
ciento veintinueve (129) hectareas setenta (70) areas, y veiticinco (25) centiares, con todas sus mejoras
existentes en la misma, dejo y distribuyo, pro-indiviso, a mis siguientes herederos como sigue:
A mi hijo legitimo, Ernesto M. Guevara, ciento ocho (108) hectareas, ocho (8) areas y cincuenta y cuatro
(54) centiareas, hacia la parte que colinda al Oeste de las cien (100) hectareas referidas en el inciso (a) de
este parrafo del testamento, como su propiedad absoluta y exclusiva, en la cual extension superficial estan
incluidas cuarenta y tres (43) hectareas, veintitres (23) areas y cuarenta y dos (42) centiareas que le doy en
concepto de mejora.
A mi hija natural reconocida, Rosario Guevara, veintiun (21) hectareas, sesenta y un (61) areas y setenta y
un (71) centiareas, que es la parte restante.
Duodecimo. Nombro por la presente como Albacea Testamentario a mi hijo Ernesto M. Guevara, con
relevacion de fianza. Y una vez legalizado este testamento, y en cuanto sea posible, es mi deseo, que los
herederos y legatarios aqui nombrados se repartan extrajudicialmente mis bienes de conformidad con mis
disposiciones arriba consignadas.
Subsequently, and on July 12, 1933, Victorino L. Guevarra executed whereby he conveyed to him the southern half
of the large parcel of land of which he had theretofore disposed by the will above mentioned, inconsideration of the

sum of P1 and other valuable considerations, among which were the payment of all his debts and obligations
amounting to not less than P16,500, his maintenance up to his death, and the expenses of his last illness and
funeral expenses. As to the northern half of the same parcel of land, he declared: "Hago constar tambien que
reconozco a mi referido hijo Ernesto M. guevara como dueo de la mitad norte de la totalidad y conjunto de los
referidos terrenos por haberlos comprado de su propio peculio del Sr. Rafael T. Puzon a quien habia vendido con
anterioridad."
On September 27, 1933, final decree of registration was issued in land registration case No. 15174 of the Court of
First Instance of Pangasinan, and pursuant thereto original certificate of title No. 51691 of the same province was
issued on October 12 of the same year in favor of Ernesto M. Guevara over the whole parcel of land described in
the deed of sale above referred to. The registration proceeding had been commenced on November 1, 1932, by
Victorino L. Guevara and Ernesto M. Guevara as applicants, with Rosario, among others, as oppositor; but before
the trial of the case Victorino L. Guevara withdrew as applicant and Rosario Guevara and her co-oppositors also
withdrew their opposition, thereby facilitating the issuance of the title in the name of Ernesto M. Guevara alone.
On September 27, 1933, Victorino L. Guevarra died. His last will and testament, however, was never presented to
the court for probate, nor has any administration proceeding ever been instituted for the settlement of his estate.
Whether the various legatees mentioned in the will have received their respective legacies or have even been given
due notice of the execution of said will and of the dispositions therein made in their favor, does not affirmatively
appear from the record of this case. Ever since the death of Victorino L. Guevara, his only legitimate son Ernesto M.
Guevara appears to have possessed the land adjudicated to him in the registration proceeding and to have
disposed of various portions thereof for the purpose of paying the debts left by his father.
In the meantime Rosario Guevara, who appears to have had her father's last will and testament in her custody, did
nothing judicially to invoke the testamentary dispositions made therein in her favor, whereby the testator
acknowledged her as his natural daughter and, aside from certain legacies and bequests, devised to her a portion of
21.6171 hectares of the large parcel of land described in the will. But a little over four years after the testor's demise,
she (assisted by her husband) commenced the present action against Ernesto M. Guevara alone for the purpose
hereinbefore indicated; and it was only during the trial of this case that she presented the will to the court, not for the
purpose of having it probated but only to prove that the deceased Victirino L. Guevara had acknowledged her as his
natural daughter. Upon that proof of acknowledgment she claimed her share of the inheritance from him, but on the
theory or assumption that he died intestate, because the will had not been probated, for which reason, she asserted,
the betterment therein made by the testator in favor of his legitimate son Ernesto M. Guevara should be
disregarded. Both the trial court and the Court of appeals sustained that theory.
Two principal questions are before us for determination: (1) the legality of the procedure adopted by the plaintiff
(respondent herein) Rosario Guevara; and (2) the efficacy of the deed of sale exhibit 2 and the effect of the
certificate of title issued to the defendant (petitioner herein) Ernesto M. Guevara.
I
We cannot sanction the procedure adopted by the respondent Rosario Guevara, it being in our opinion in violation of
procedural law and an attempt to circumvent and disregard the last will and testament of the decedent. The Code of
Civil Procedure, which was in force up to the time this case was decided by the trial court, contains the following
pertinent provisions:
Sec. 625. Allowance Necessary, and Conclusive as to Execution. No will shall pass either the real or
personal estate, unless it is proved and allowed in the Court of First Instance, or by appeal to the Supreme
Court; and the allowance by the court of a will of real and personal estate shall be conclusive as to its due
execution.
Sec. 626. Custodian of Will to Deliver. The person who has the custody of a will shall, within thirty days
after he knows of the death of the testator, deliver the will into the court which has jurisdiction, or to the
executor named in the will.
Sec. 627. Executor to Present Will and Accept or Refuse Trust. A person named as executor in a will,
shall within thirty days after he knows of the death of the testor, or within thirty days after he knows that he is
named executor, if he obtained such knowledge after knowing of the death of the testor, present such will to
the court which has jurisdiction, unless the will has been otherwise returned to said court, and shall, within
such period, signify to the court his acceptance of the trust, or make known in writing his refusal to accept it.

Sec. 628. Penalty. A person who neglects any of the duties required in the two proceeding sections,
unless he gives a satisfactory excuse to the court, shall be subject to a fine not exceeding one thousand
dollars.
Sec. 629. Person Retaining Will may be Committed. If a person having custody of a will after the death of
the testator neglects without reasonable cause to deliver the same to the court having jurisdiction, after
notice by the court so to do, he may be committed to the prison of the province by a warrant issued by the
court, and there kept in close confinement until he delivers the will.
The foregoing provisions are now embodied in Rule 76 of the new Rules of Court, which took effect on July 1, 1940.
The proceeding for the probate of a will is one in rem, with notice by publication to the whole world and with
personal notice to each of the known heirs, legatees, and devisees of the testator (section 630, C. c. P., and
sections 3 and 4, Rule 77). Altho not contested (section 5, Rule 77), the due execution of the will and the fact that
the testator at the time of its execution was of sound and disposing mind and not acting under duress, menace, and
undue influence or fraud, must be proved to the satisfaction of the court, and only then may the will be legalized and
given effect by means of a certificate of its allowance, signed by the judge and attested by the seal of the court; and
when the will devises real property, attested copies thereof and of the certificate of allowance must be recorded in
the register of deeds of the province in which the land lies. (Section 12, Rule 77, and section 624, C. C. P.)
It will readily be seen from the above provisions of the law that the presentation of a will to the court for probate is
mandatory and its allowance by the court is essential and indispensable to its efficacy. To assure and compel the
probate of will, the law punishes a person who neglects his duty to present it to the court with a fine not exceeding
P2,000, and if he should persist in not presenting it, he may be committed to prision and kept there until he delivers
the will.
The Court of Appeals took express notice of these requirements of the law and held that a will, unless probated, is
ineffective. Nevertheless it sanctioned the procedure adopted by the respondent for the following reasons:
The majority of the Court is of the opinion that if this case is dismissed ordering the filing of testate
proceedings, it would cause injustice, incovenience, delay, and much expense to the parties, and that
therefore, it is preferable to leave them in the very status which they themselves have chosen, and to decide
their controversy once and for all, since, in a similar case, the Supreme Court applied that same criterion
(Leao vs. Leao, supra), which is now sanctioned by section 1 of Rule 74 of the Rules of Court. Besides,
section 6 of Rule 124 provides that, if the procedure which the court ought to follow in the exercise of its
jurisdiction is not specifically pointed out by the Rules of Court, any suitable process or mode of procedure
may be adopted which appears most consistent to the spirit of the said Rules. Hence, we declare the action
instituted by the plaintiff to be in accordance with law.
Let us look into the validity of these considerations. Section 1 of Rule 74 provides as follows:
Section 1. Extrajudicial settlement by agreement between heirs. If the decedent left no debts and the
heirs and legatees are all of age, or the minors are represented by their judicial guardians, the parties may,
without securing letters of administration, divide the estate among themselves as they see fit by means of a
public instrument filed in the office of the register of deeds, and should they disagree, they may do so in an
ordinary action of partition. If there is only one heir or one legatee, he may adjudicate to himself the entire
estate by means of an affidavit filed in the office of the register of deeds. It shall be presumed that the
decedent left no debts if no creditor files a petition for letters of administration within two years after the
death of the decedent.
That is a modification of section 596 of the Code of Civil Procedure, which reads as follows:
Sec. 596. Settlement of Certain Intestates Without Legal Proceedings. Whenever all the heirs of a person
who died intestate are of lawful age and legal capacity and there are no debts due from the estate, or all the
debts have been paid the heirs may, by agreement duly executed in writing by all of them, and not
otherwise, apportion and divide the estate among themselves, as they may see fit, without proceedings in
court.
The implication is that by the omission of the word "intestate" and the use of the word "legatees" in section 1 of Rule
74, a summary extrajudicial settlement of a deceased person's estate, whether he died testate or intestate, may be
made under the conditions specified. Even if we give retroactive effect to section 1 of Rule 74 and apply it here, as
the Court of Appeals did, we do not believe it sanctions the nonpresentation of a will for probate and much less the

nullification of such will thru the failure of its custodian to present it to the court for probate; for such a result is
precisely what Rule 76 sedulously provides against. Section 1 of Rule 74 merely authorizes the extrajudicial or
judicial partition of the estate of a decedent "without securing letter of administration." It does not say that in case
the decedent left a will the heirs and legatees may divide the estate among themselves without the necessity of
presenting the will to the court for probate. The petition to probate a will and the petition to issue letters of
administration are two different things, altho both may be made in the same case. the allowance of a will precedes
the issuance of letters testamentary or of administration (section 4, Rule 78). One can have a will probated without
necessarily securing letters testamentary or of administration. We hold that under section 1 of Rule 74, in relation to
Rule 76, if the decedent left a will and no debts and the heirs and legatees desire to make an extrajudicial partition
of the estate, they must first present that will to the court for probate and divide the estate in accordance with the
will. They may not disregard the provisions of the will unless those provisions are contrary to law. Neither may they
so away with the presentation of the will to the court for probate, because such suppression of the will is contrary to
law and public policy. The law enjoins the probate of the will and public policy requires it, because unless the will is
probated and notice thereof given to the whole world, the right of a person to dispose of his property by will may be
rendered nugatory, as is attempted to be done in the instant case. Absent legatees and devisees, or such of them as
may have no knowledge of the will, could be cheated of their inheritance thru the collusion of some of the heirs who
might agree to the partition of the estate among themselves to the exclusion of others.
In the instant case there is no showing that the various legatees other than the present litigants had received their
respective legacies or that they had knowledge of the existence and of the provisions of the will. Their right under
the will cannot be disregarded, nor may those rights be obliterated on account of the failure or refusal of the
custodian of the will to present it to the court for probate.
Even if the decedent left no debts and nobdy raises any question as to the authenticity and due execution of the will,
none of the heirs may sue for the partition of the estate in accordance with that will without first securing its
allowance or probate by the court, first, because the law expressly provides that "no will shall pass either real or
personal estate unless it is proved and allowed in the proper court"; and, second, because the probate of a will,
which is a proceeding in rem, cannot be dispensed with the 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 reinvindicacion or partition.
We therefore believe and so hold that section 1 of Rule 74, relied upon by the Court of Appeals, does not sanction
the procedure adopted by the respondent.
The case of Leao vs. Leao (25 Phil., 180), cited by the Court of Appeals, like section 1 of Rule 74, sanctions the
extrajudicial partition by the heirs of the properties left by a decedent, but not the nonpresentation of a will for
probate. In that case one Paulina Ver executed a will on October 11, 1902, and died on November 1, 1902. Her will
was presented for probate on November 10, 1902, and was approved and allowed by the Court on August 16, 1904.
In the meantime, and on November 10, 1902, the heirs went ahead and divided the properties among themselves
and some of them subsequently sold and disposed of their shares to third persons. It does not affirmatively appear
in the decision in that case that the partition made by the heirs was not in accordance with the will or that they in any
way disregarded the will. In closing the case by its order dated September 1, 1911, the trial court validated the
partition, and one of the heirs, Cunegunda Leao, appealed. In deciding the appeal this Court said:
The principal assignment of error is that the lower court committed an error in deciding that the heirs and
legatees of the estate of Da. Paulina Ver had voluntarily divided the estate among themselves.
In resolving that question this Court said:
In view of the positive finding of the judge of the lower court that there had been a voluntary partition of the
estate among the heirs and legatees, and in the absence of positive proof to the contrary, we must conclude
that the lower court had some evidence to support its conclusion.
Thus it will be seen that as a matter of fact no question of law was raised and decided in that case. That decision
cannot be relied upon as an authority for the unprecedented and unheard of procedure adopted by the respondent
whereby she seeks to prove her status as an acknowledged natural child of the decedent by his will and attempts to
nullify and circumvent the testamentary dispositions made by him by not presenting the will to the court for probate

and by claiming her legitime as an acknowledged natural child on the basis of intestacy; and that in the face of
express mandatory provisions of the law requiring her to present the will to the court for probate.
In the subsequent case of Riosa vs. Rocha (1926), 48 Phil. 737, this Court departed from the procedure sanctioned
by the trial court and impliedly approved by this Court in the Leao case, by holding that an extrajudicial partition is
not proper in testate succession. In the Riosa case the Court, speaking thru Chief Justice Avancea, held:
1. EXTRAJUDICIAL PARTITION; NOT PROPER IN TESTATE SUCCESSION. Section 596 of the Code of
Civil Procedure, authorizing the heirs of a person who dies intestate to make extrajudicial partition of the
property of the deceased, without going into any court of justice, makes express reference to intestate
succession, and therefore excludes testate succession.
2. ID.; EFFECTS OF; TESTATE SUCCESSION. In the instant case, which is a testate succession, the
heirs made an extrajudicial partition of the estate and at the same time instituted proceeding for the probate
of the will and the administration of the estate. When the time came for making the partition, they submitted
to the court the extrajudicial partition previously made by them, which the court approved. Held: That for the
purposes of the reservation and the rights and obligations created thereby, in connection with the relatives
benefited, the property must not be deemed transmitted to the heirs from the time the extrajudicial partition
was made, but from the time said partition was approved by the court. (Syllabus.)
The Court of Appeals also cites section 6 of Rule 124, which provides that if the procedure which the court ought to
follow in the exercise of its jurisdiction is not specifically pointed out by the Rules of Court, any suitable process for
mode of proceeding may be adopted which appears most conformable to the spirit of the said Rules. That provision
is not applicable here for the simple reason that the procedure which the court ought to follow in the exercise of its
jurisdiction is specifically pointed out and prescribed in detail by Rules 74, 76, and 77 of the Rules of Court.
The Court of Appeals also said "that if this case is dismissed, ordering the filing of testate proceedings, it would
cause injustice, inconvenience, delay, and much expense to the parties." We see no injustice in requiring the plaintiff
not to violate but to comply with the law. On the contrary, an injustice might be committed against the other heirs and
legatees mentioned in the will if the attempt of the plaintiff to nullify said will by not presenting it to the court for
probate should be sanctioned. As to the inconvenience, delay, and expense, the plaintiff herself is to blame because
she was the custodian of the will and she violated the duty imposed upon her by sections 2, 4, and 5 of Rule 76,
which command her to deliver said will to the court on pain of a fine not exceeding P2,000 and of imprisonment for
contempt of court. As for the defendant, he is not complaining of inconvenience, delay, and expense, but on the
contrary he is insisting that the procedure prescribed by law be followed by the plaintiff.
Our conclusion is that the Court of Appeals erred in declaring the action instituted by the plaintiff to be in accordance
with law. It also erred in awarding relief to the plaintiff in this action on the basis of intestacy of the decedent
notwithstanding the proven existence of a will left by him and solely because said will has not been probated due to
the failure of the plaintiff as custodian thereof to comply with the duty imposed upon her by the law.
It is apparent that the defendant Ernesto M. Guevara, who was named executor in said will, did not take any step to
have it presented to the court for probate and did not signify his acceptance of the trust or refusal to accept it as
required by section 3 of Rule 76 (formerly section 627 of the Code of Civil Procedure), because his contention is
that said will, insofar as the large parcel of land in litigation is concerned, has been superseded by the deed of sale
exhibit 2 and by the subsequent issuance of the Torrens certificate of title in his favor.
II
This brings us to the consideration of the second question, referring to the efficacy of the deed of sale exhibit 2 and
the effect of the certificate of titled issued to the defendant Ernesto M. Guevara. So that the parties may not have
litigated here in vain insofar as that question is concerned, we deem it proper to decide it now and obviate the
necessity of a new action.
The deed of sale exhibit 2 executed by and between Victorino L. Guevara and Ernesto M. Guevara before a notary
public on July 12, 1933, may be divided into two parts: (a) insofar as it disposes of and conveys to Ernesto M.
Guevara the southern half of Victorino L. Guevara's hacienda of 259-odd hectares in consideration of P1 and other
valuable considerations therein mentioned; and (b) insofar as it declares that Ernesto M. Guevara became the
owner of the northern half of the same hacienda by repurchasing it with his own money from Rafael T. Puzon.
A. As to the conveyance of the southern half of the hacienda to Ernesto M. Guevara in consideration of the latter's
assumption of the obligation to pay all the debts of the deceased, the Court of Appeals found it to be valid and

efficacious because: "(a) it has not been proven that the charges imposed as a condition is [are] less than the value
of the property; and (b) neither has it been proven that the defendant did not comply with the conditions imposed
upon him in the deed of transfer." As a matter of fact the Court of Appeals found" "It appears that the defendant has
been paying the debts left by his father. To accomplish this, he had to alienate considerable portions of the abovementioned land. And we cannot brand such alienation as anomalous unless it is proven that they have exceeded the
value of what he has acquired by virtue of the deed of July 12, 1933, and that of his corresponding share in the
inheritance." The finding of the Court of Appeals on this aspect of the case is final and conclusive upon the
respondent, who did not appeal therefrom.
B. With regard to the northern half of the hacienda, the findings of fact and of law made by the Court of Appeals are
as follows:
The defendant has tried to prove that with his own money, he bought from Rafael Puzon one-half of the land
in question, but the Court a quo, after considering the evidence, found it not proven; we hold that such
conclusion is well founded. The acknowledgment by the deceased, Victorino L. Guevara, of the said
transactions, which was inserted incidentally in the document of July 12, 1933, is clearly belied by the fact
that the money paid to Rafael Puzon came from Silvestre P. Coquia, to whom Victorino L. Guevara had sold
a parcel of land with the right of repurchase. The defendant, acting for his father, received the money and
delivered it to Rafael Puzon to redeem the land in question, and instead of executing a deed of redemption
in favor of Victorino L. Guevara, the latter executed a deed of sale in favor of the defendant.
The plaintiff avers that she withdrew her opposition to the registration of the land in the name of the
defendant, because of the latter's promise that after paying all the debt of their father, he would deliver to her
and to the widow their corresponding shares. As their father then was still alive, there was no reason to
require the delivery of her share and that was why she did not insist on her opposition, trusting on the
reliability and sincerity of her brother's promise. The evidence shows that such promise was really made.
The registration of land under the Torrens system does not have the effect of altering the laws of succession,
or the rights of partition between coparceners, joint tenants, and other cotenants nor does it change or affect
in any other way any other rights and liabilities created by law and applicable to unregistered land (sec. 70,
Land Registration Law). The plaintiff is not, then, in estoppel, nor can the doctrine of res judicata be invoked
against her claim. Under these circumstances, she has the right to compel the defendant to deliver her
corresponding share in the estate left by the deceased, Victorino L. Guevara.
In his tenth to fourteenth assignments of error the petitioner assails the foregoing findings of the Court of Appeals.
But the findings of fact made by said court are final and not reviewable by us on certiorari. The Court of Appeals
found that the money with which the petitioner repurchased the northern half of the land in question from Rafael
Puzon was not his own but his father's, it being the proceeds of the sale of a parcel of land made by the latter to
Silvestre P. Coquia. Said court also found that the respondent withdrew her opposition to the registration of the land
in the name of the petitioner upon the latter's promise that after paying all the debts of their father he would deliver
to her and to the widow their corresponding shares. From these facts, it results that the interested parties consented
to the registration of the land in question in the name of Ernesto M. Guevara alone subject to the implied trust on
account of which he is under obligation to deliver and convey to them their corresponding shares after all the debts
of the original owner of said land had been paid. Such finding does not constitute a reversal of the decision and
decree of registration, which merely confirmed the petitioner's title; and in the absence of any intervening innocent
third party, the petitioner may be compelled to fulfill the promise by virtue of which he acquired his title. That is
authorized by section 70 of the Land Registration Act, cited by the Court of Appeals, and by the decision of this
Court in Severino vs. Severino, 44 Phil., 343, and the cases therein cited.
Upon this phase of the litigation, we affirm the finding of the Court of Appeals that the northern half of the land
described in the will exhibit A and in original certificate of title No. 51691 still belongs to the estate of the deceased
Victorino L. Guevara. In the event the petitioner Ernesto M. Guevara has alienated any portion thereof, he is under
obligation to compensate the estate with an equivalent portion from the southern half of said land that has not yet
been sold. In other words, to the estate of Victorino L. Guevara still belongs one half of the total area of the land
described in said original certificate of title, to be taken from such portions as have not yet been sold by the
petitioner, the other half having been lawfully acquired by the latter in consideration of his assuming the obligation to
pay all the debts of the deceased.
Wherefore, that part of the decision of the Court of Appeals which declares in effect that notwithstanding exhibit 2
and the issuance of original certificate of title No. 51691 in the name of Ernesto M. Guevara, one half of the land
described in said certificate of title belongs to the estate of Victorino L. Guevara and the other half to Ernesto M.
Guevara in consideration of the latter's assumption of the obligation to pay all the debts of the deceased, is hereby
affirmed; but the judgment of said court insofar as it awards any relief to the respondent Rosario Guevara in this

action is hereby reversed and set aside, and the parties herein are hereby ordered to present the document exhibit
A to the proper court for probate in accordance with law, without prejudice to such action as the provincial fiscal of
Pangasinan may take against the responsible party or parties under section 4 of Rule 76. After the said document is
approved and allowed by the court as the last will and testament of the deceased Victorino L. Guevara, the heirs
and legatees therein named may take such action, judicial or extrajudicial, as may be necessary to partition the
estate of the testator, taking into consideration the pronouncements made in part II of this opinion. No finding as to
costs in any of the three instances.
Yulo, C.J., and Hontiveros, 1 J., concur.

Separate Opinions

BOCOBO, J., concurring:


I concur in the result. Extrajudicial settlement by agreement among the heirs is authorized by section 1 of Rule 74.
only "if the decedent left no debts." In this case, according to the findings of the Court of Appeals, Ernesto M.
Guevara "has been paying the debts left by his father." It is true that said Ernesto M. Guevara, in consideration of
the conveyance to him of the southern half of the hacienda, assumed all the debts of the deceased, but this
agreement is binding only upon the parties to the contract but not upon the creditors who did not consent thereto.
(Art. 1205, Civil Code.) There being debts when the father died, section 1 of Rule 74 is not applicable.
MORAN, J., concurring in part and dissenting in part:
I would be agreeable to the majority decision but for a statement therein made which in my view repeals by an
erroneous interpretation the provisions of Rule 74, section 1, of the Rules of Court, which reads as follows:
EXTRAJUDICIAL SETTLEMENT BY AGREEMENT BETWEEN HEIRS. If the decedent left no debts and
the heirs and legatees are all of age, or the minors are represented by their judicial guardians, the parties
may, without securing letters of administration, divide the estate among themselves as they see fit by means
of a public instrument filed in the office of the register of deeds, and should they disagree, they may do so in
an ordinary action of partition. If there is only one heir or one legatee, he may adjudicate to himself the entire
estate by means of an affidavit filed in the office of the register of deeds. It shall be presumed that the
decedent left no debts if no creditor files a petition for letters of administration within two years after the
death of the decedent.
The majority holds that under this provision, the heirs and legatees, even if all of them are of age, and there are no
debts to be paid, cannot make an extrajudicial settlement of the estate left by the decedent without first submitting in
court for probate the will left by the testator. This erroneous interpretation clearly overlooks not only the letter and
the spirit but more specially the whole background of the provision.
It is admitted that the provision has been taken from section 596 of Act No. 190 but with modification consisting in
that it is made to apply in testate succession. Said section 596 reads:
SETTLEMENT OF CERTAIN INTESTATE ESTATES WITHOUT LEGAL PROCEEDINGS. Whenever all
the heirs of a person who died intestate are of lawful age and legal capacity, and there are no debts due
from the estate, or all the debts have been paid the heirs may, by agreement duly executed in writing by all
of them, and not otherwise, apportion and divide the estate among themselves, as they may see fit, without
proceedings in court.
It must be observed that the procedure contemplated in this legal provision is completely extrajudicial and the same
procedure intended in section 1 of Rule 74 above quoted which is captioned "Extrajudicial Settlement by
Agreement . . .". Justice Laurel, who was one of the members of this Court when the new Rules were promulgated,
in commenting upon Rule 74, said:

RULE 74. SUMMARY SETTLEMENT OF ESTATES. The corresponding provisions in the Code of Civil
Procedures are sections 596-598. There is substantial analogy between the provisions of the Code of Civil
Procedure and those of Rule 74, save that: (1) Under section 1 of Rule 74, there may be extrajudicial
settlement whether a person died testate or intestate, while under section 596 of the Code of Civil Procedure
extrajudicial settlement can be had only when a person dies intestate. (2) Under Rule 74, section 1,
extrajudicial settlement may take place 'if the decedent left no debts,' while under section 596 of the Code of
Civil Procedure it may take place 'when there are no debts due from the estate, or all the debts have been
paid.' (3) Under section 596 of the Code of Civil Procedure, extrajudicial settlement may take place when
'the heirs and legatees are of lawful age and legal capacity, while under section 1 of Rule 74 it may take
place when the 'the heirs and legatees are all of legal age, or the minors are represented by their judicial
guardians' (4) Unlike the Code of Civil Procedure, section 596, section 1 of Rule 74 requires the extrajudicial
agreement to be filed in the office of the register of deeds; provides that should the heirs disagree, 'they may
do so in an ordinary action of partition', and that 'if there is only one heir or one legatee, he may adjudicate
to himself the entire estate by means of an affidavit filed in the office of the register of deeds', and that 'it
shall be presumed that the decedent left no debts if no creditor files a petition for letter of administration
within two years after the death of the decedent.' [(Emphasis mine); Laurel, Procedural Reform in the
Philippines, pp. 137-138].
The phrase "extrajudicial settlement" unquestionably means liquidation and distribution of the estate without judicial
proceeding. In other words, even in cases of testate succession, the heirs and legatees, when they are all of age or
are represented by their judicial guardians, and there are no debts to be paid, are allowed by section 1 of Rule 74 of
the Rules of Court to liquidate and distribute among themselves the estate left by the decedent and need not go to
court even for the probate of the will. Unless legal terms mean nothing, this is clearly what it meant in said provision
by the words "extrajudicial settlement" and by the clause " . . . the parties may, without securing letters of
administration, divide the estate among themselves as they see fit" . . . . When judicial administration is made
unnecessary by the provision, the inevitable implication is that the probate of the will is also unnecessary, the
probate having no other object than administration for purposes of distribution according to the provisions of the will.
That is why section 4 of rule 78 provides:
ESTATE, HOW ADMINISTERED. When a will is thus allowed, the court shall grant letters testamentary,
or letters of administration with the will annexed, such letters testamentary or of administration shall extend
to all the estate of the testator in the Philippines. Such estate, after the payment of just debts and expenses
of administration, shall be disposed of according to such will, so far as such will may operate upon it; and the
residue, if any, shall be disposed of as is provided by law in cases of estates in the Philippines belonging to
persons who are inhabitants of another state or country.
If judicial administration and distribution is made unnecessary by section 1 of Rule 74, then, I repeat, the probate of
the will being purposeless, becomes unnecessary. If the parties have already divided the estate in accordance with
the will, the probate of the will is a useless ceremony. If they have divided the estate in a different manner, the
probate of the will is worse than useless; it is ridiculous. The following words of this Court in a previous case may
well be here reiterated:
These sections provide for the voluntary division of the whole property of the decedent without proceedings
in court. The provisions which they contain are extremely important. The wisdom which underlies them is
apparent. It is the undisputed policy of every people which maintains the principle of private ownership of
property that he who owns a thing shall not be deprived of its possession or use except for the most urgent
and imperative reasons and then only so long as is necessary to make the rights which underlie those
reasons effective. It is a principle of universal acceptance which declares that one has the instant right to
occupy and use that which he owns, and it is only in the presence of reasons of the strongest and most
urgent nature that the principle is prevented from accomplishing the purpose which underlies it. The force
which gave birth to this stern and imperious principle is the same force which destroyed the feudal
despotism and created the democracy of private owners.
These provisions should, therefore, be given the most liberal construction so that the intent of the framers
may be fully carried out. They should not be straitened or narrowed but should rather be given that wideness
and fullness of application without which they cannot produce their most beneficial effects.
. . . The purpose which underlies them, as we have already intimated, is to put into one's hands the property
which belongs to him not only at the earliest possible moment but also with the least possible expense. By
permitting the partition and division without proceedings in court no time is lost and substantially all expense
and waste are saved. This is as it should be. The State fails wretchedly in its duly to its citizens if the
machinery furnished by it for the division and distribution of the property of a decedent is so cumbersome,

unwieldy and expensive that a considerable portion of the estate is absorbed in the process of such division.
. . . (McMicking vs. Sy Conbieng, 21 Phil., 211; 219-220).
Indeed, there can be no valid reason why the probate of a will may not be dispensed with by agreement of all the
parties interested and the estate left by the decedent settled extrajudicially among all the heirs and legatees, as is
now provided in section 1 of Rule 74. It is well recognized that the allowance of a will gives conclusiveness merely
to its provisions which are governed by the substantive law regarding descent and distribution. If so, why cannot all
the parties interested agree, without going to court, that the will of the decedent is in form valid (this being the only
point to be litigated in a probate proceeding), and that they will divide the inheritance in the manner acceptable to
them? The procedure would not be against public policy or the law placing in the hands of the courts the probate of
wills, because what the courts are enjoined to do for the benefit of the parties, the latter have already done. As long
as the extrajudicial partition of the estate does not affect the rights of third parties and is not rendered invalid by any
provision of the substantive law, no possible objection can be raised thereto. On practical considerations, it would be
useless to force the parties, at their expense, to go thru the formality of probating a will and dividing the estate in
accordance therewith, because as soon as the routine is over, they are of course free to make such transfers to one
another as will be necessary to effect a partition which they would have made if they were allowed to settle the
estate extrajudicially. It is true that there are provisions in the Rules of Court compelling the delivery of a will to the
competent court and punishing omissions to do so, but said provisions are calculated to protect the interests of the
persons entitled to share in the inheritance. The latter may waive such benefit. This waiver cannot be said to be
withdrawal or diminution of the jurisdiction of the court, since it only implies a desire of the parties not to litigate. The
fear that "absent legatees and devisees, or such of them as may have no knowledge of the will, could be cheated of
their inheritance thru the collusion of some of the heirs who might agree to the partition of the estate among
themselves to the exclusion of others", is wisely provided against in the requirement of the Rule that all the parties
interested and all the beneficiaries under the will should be parties to the extrajudicial settlement. The participation
of all the interested parties excludes the probability of fraud or collusion and, even in that eventuality, the aggrieved
beneficiaries are not without adequate remedy for the voidance of the partition under the Civil Code.
And this is in accordance with the weight of authority in this and other jurisdictions. In Leao vs. Leao (25 Phil.,
180), all the heirs and legatees have made an extrajudicial partition of the estate left by the decedent and then filed
the will in court which was probated. Nine years of costly probate proceedings have followed after which the
extrajudicial partition was made known to court. such extrajudicial partition was objected to by one party upon the
ground that it was not in conformity with the provisions of the will. But the trial Court held:
Naturally the partition made by the heirs voluntarily and spontaneously must produce and has produced a
legal status, which cannot be annulled merely for the caprice of one person. and it cannot be said that,
because the partition was not made in accordance with the will, if such be the case, the latter has to be
annulled, for by voluntarily and spontaneously concurring therein they implicitly renounced the effects of said
will, of which they were aware. (See p. 183).
On appeal, this Court affirmed the ruling with the following pronouncement:
In view of the positive finding of the judge of the lower court that there had been a voluntary partition of the
estate among the heirs and legatees and in the absence of positive proof to the contrary, we must conclude
that the lower court had some evidence to support his conclusion. If the heirs and legatees had voluntarily
divided the estate among themselves, then their division is conclusive, unless and until it is shown that there
were debts existing against the estate which had not been paid. No claim is made whatever by third parties
nor objections of any character are made by others than the heirs against said partition. We see no reason
why their heirs and legatees should not be bound by their voluntary acts. (Page 183184).
This case furnishes precisely a valuable experience as to the practical wisdom underlying the procedure established
in section 1 of Rule 74. After the will was probated and after nine years of costly administration proceedings, nothing
absolutely nothing was accomplished by the court except to make the belated pronouncement that the
extrajudicial partition made by the parties prior to the institution of the proceedings was proper and binding upon
them. Thus, the whole proceedings for nine years have proved no more than a futile chronicle of wasted time and
money for the parties and the court. This disgraceful experience could not and did not pass unnoticed to the
members of this Court who drafted the new Rules of Court. The solemn admonition made by this Court in a previous
case (McMicking vs. Sy Conbieng, supra) when it said that "the State fails wretchedly in its duly to its citizens if the
machinery furnished by it for the division and distribution of the property of a decedent is so cumbersome, unwieldy
and expensive that a considerable portion of the estate is absorbed in the process of such division", rang with reechoing insistence and was heeded to when the new Rules of Court was drafted and promulgated. The fundamental
policy pervading the whole system of procedure adopted in said Rules is speed, economy an justice. Thus, features
of procedure were done away with when, without them, the same purpose may be achieved. The result is brevity

and simplicity of procedure with such guarantees as the necessary to assure due process. And to remedy such evil
as is disclosed in the Leao case, a completely extrajudicial settlement is allowed even in testate succession with
the probate of the will dispensed with, when the heirs and legatees who are all of age or represented by their judicial
guardians, so agree, and there are not debts to be paid. Thus, the scope of section 596 of Act No. 190 was
amplified and with it the ruling of this Court in Riosa vs. Rocha (48 Phil., 737). The procedure is in consonance with
the almost unanimous weight of authority in other jurisdictions:
The complainant, to which a demurrer was sustained, shows that all the persons interested in a decedent's
estate, as widow, heirs, distributees, legatees, or devisees, including the person appointed executrix by the
will, and the husbands of femes covert, (all being adults), by agreement divided among themselves all the
property of the estate according to the direction of the will, paid off all debts against the estate, and delivered
the note described to the plaintiff, as a part of her share; and all this was done without probate of the will, or
administration of the estate. The effect of such a division was to invest the plaintiff with an equitable title to
the note. In the absence of the will, the decisions of this court, heretofore made, would meet every argument
in favor of an opposite conclusion. (Anderson vs. Anderson, 37 Ala., 683; Marshallvs. Crow, 29 Ala., 278;
Vanderveer vs. Alston, 16 Ala., 494; Miller vs. Eatman, 11 feature of this case, take it out of the principle of
those decisions? We can perceive no sufficient reason why it should. All the parties interested, or to be
affected, may as well by agreement divide property, where there is a will, without employing the agency of
courts, as in case of intestacy. Parties, competent to act, ought to do that, without the agency of courts,
which the courts would ultimately accomplish. To deny them the privilege of so doing, would manifest a
judicial abhorrence of harmony. By the probate of the will, the claims of heirs and distributees, and of the
widow, would have been subordinated to the directions of the will. this has been accomplished by the
agreement. There being no debts, the executrix would have had no other duty to perform, than to divide the
property according to the will. This, too, has been done by agreement of competent parties. All the ends and
objects of judicial proceedings have been accomplished, by agreement of the parties; and that agreement
must be effective. (Carter vs. Owens, 41 Ala., 215; 216-217).
The absence of sound objection on this ground to a contract having for its sole purpose the disposition of
property in a manner different from that proposed by a a testator, even where the contract contemplates the
rejection of the will when offered for probate or its setting aside when admitted to probate, when it is entirely
free from fraud, and is made by all the parties in interest, may be freely conceded. As has often been
substantially said, the public generally has not interest in the matter of the probate of a will; and only those
interested in the estate under the will or otherwise are affected by such a contract. If they all agree upon
some course to be followed, and their contract is otherwise free from contemplated fraud or violation of any
law, no one else has any such interest as warrants complaint. Such was the character of contract involved in
Spangenberg vs. Spangenberg (App.), 126 Pac., 379, especially relied on by plaintiff here, where the
contract purported to affect only such property of the deceased as should in fact be received by the parties
thereto. In Estate of Garcelon, 104 Cal, 570; 38 Pac., 414; 32 L. R. A.,. 595; 43 Am. St., Rep., 134, another
case much relied on by plaintiff, a contract by an heir to refrain from contesting a will was involved. It was
said that the contract was one that concerned the parties alone, and one that did not appear to be against
public policy. (Gugolz vs. Gehrkens, 130 Pac, Rep., 8, 10; 164 Cal., 596).
The question of public policy is introduced. The disposition of one's property after death is controlled by
statute. One of the next of kin has no vested interest in such property. In cases of intestacy, a next of kin has
such interest as the statute declares. In case there is a will, he has an interest which gives him a standing
and right to contest the will. This right is his alone; in it the public has no interest; he may refrain from
exercising it, or he may dispose of it as he wishes, by release or assignment or settlement, and the law of
public policy is not offended. (In re cook's Will, 217 N. Y. S., 176, 180-181).
Agreement. "It has been definitely decided by the courts of this state, and of many other states, that the
beneficiaries under a will have a right to agree among themselves upon any distribution they see proper of
the property bequeathed to them.
. . . That holding is based upon the proposition that the property is theirs. No one else is interested in its
disposition, and they may, with propriety, make any distribution of it that suits them, so long as they do not
invade the rights of other parties or infringe some rule of public policy'. (Fore vs. McFadden, 276 N. W., 327;
329).
The first assignment of error presented by appellants complains of the action of the court in sustaining
exceptions to averments asking the enforcement of the agreement that the will should not be probated, and
that the estate should be divided among the parties as they would be entitled as heirs at law of the
deceased, the proponent of the will surrendering thereby his rights as principal legatee. This assignment
must be sustained. It cannot be seen that the agreement is contrary to public policy. Parties may make any

contract with reference to their property rights that is not illegal, may adjust by compromise their differences
and disputes concerning the same and, as they bind themselves, so shall they be bound. It is difficult to
understand why this cannot be effected by an agreement not to probate a will, or how it interferes with public
policy. The power to litigate and to establish a right by appeal to the courts is as much the subject of contract
as any other right in property. Such adjustments by contract are favored by the law and the courts, and are
not deemed to be an unwarranted interference with the jurisdiction of the courts, or against public policy. On
the contrary, public policy favors them.
Appellants have cited a case in point, the case of Phillips v. Phillips, 8 Watts, 197, in which it is held
competent for devisees and legatees to bind themselves by a written or parol agreement to destroy a will
before probate, and that a party to the agreement would be estopped from claiming any interest under the
will. The court says: "It cannot admit of doubt that before probate the parties in interest under a will would
have the right to set aside a will, and such an act would be favored, when the object was to avert a family
controversy". The agreement that the will should not be probated, and that the parties would take the
property as heirs at law of the deceased, destroyed the legal effect of the will; and it could not thereafter
have legal existence in conferring rights upon the legatees. (Stringfellow vs. Early, 40 SW., 871, 873-874; 15
Tex. Civ. App., 597).
The contention that the complaint does not state a cause of action, because the contract sued on is against
public policy, and therefore void, is made here for the first time. It is to the interest of the public generally that
the right to make contract should not be unduly restricted, and no agreement will be pronounced void, as
being against public policy, unless it clearly contravenes that which has been declared by statutory
enactment or by judicial decisions to be public policy, or unless the agreement manifestly tends in some way
to injure the public. Whether or not a contract in any given case is contrary to public policy is a question of
law, to be determined from the circumstances of each particular case. Smith vs. Du Bose, 78 Ga., 413; 3
SE., 309-316; 6 Am. St. Rep., 260; Weber vs. Shay, 56 Ohio St., 116; 46 NE., 377; 37 L.R.A., 230; 60 Am.
St. Rep., 743; Pierce vs. Randolph, 12 Tex., 290; Print Numerical Registering Co. vs. Sampson, 19 L. R. Eq.
Cas., 465.
The contract in controversy is in effect but an agreement whereby the parties thereto, "because of their love
and affection for one another" and "being desirous of avoiding litigation over the estate" of their father "in
case of his death," agreed to ignore his will in the event that he made one, and then share his estate equally
as if he had died intestate. In other words, the contract was but an agreement of heirs apparent not to
contest the will of an ancestor. There is nothing to be fond in our code or statutory law prohibiting the making
and enforcement of such a contract, and it has been held in this state that a contract, made after the death
of the deceased, not to contest his will, is purely personal to the parties making it, that it is not against public
policy, and that, when fairly made, it will be enforced, (Spangenberg vs. Spangenberg, 126 Pac. Rep., 379,
382; 19 Cal. App., 439).
Probate Dispensed With. Probate of a will may be dispensed with by an agreement between the persons
interested; or it may be dispensed with where the testator, before his death, conveyed to the devisees all the
property which he had devised to them, or where the will makes no other disposition of the testator's
property than the law would have done had he died interstate, and the rights sought to be established are
admitted by all concerned. But where the language of the will expressly invokes the jurisdiction of the
probate court the fact that no administration is necessary does not affect the power of the court to probate
the will. (68 C. J., pp. 877-878).
Agreement between Persons Interested: a. Requisites and Validity. (1) In General. It has been held that, since
the nature of a probate proceeding is one in rem, the parties cannot submit a controversy arising therein to
arbitration. The law, however, favors the settlement, in good faith, of will contests, by a so-called "family
settlement", although it changes the mode of disposition of the estate; and, therefore, subject to the limitation that a
contestant cannot compromise anything beyond his own personal interest in the contest, persons, such as
devisees, legatee, heirs, or next of kin, having interest in the will or estate, sufficient to entitle them to opposed
probate or contest the will, may enter into an agreement which, in the absence of fraud or misrepresentation, is valid
and binding on all the parties thereto, whereby they waive probate of the will and bind themselves to abide by its
provisions, or whereby they agree that the will is not to be probated or is to be superseded or destroyed; or whereby
any controversy relative to the probate or contest of the will is compromised or settled, and a contest is avoided,
whether or not there were, in fact, valid grounds for the contest. Such an agreement, in order to be valid, must not
exclude anyone entitled under the will, must be entered into by all the persons affected thereby, and all the parties
thereto must be competent to make the agreement, and either they or their representative must fully execute it, and,
under some statutes, it must be properly approved by the court." ([Emphasis supplied] 68 C. J., pp. 909-910).

As to Probate. The operation and effect of the agreement may not to supersede the provisions of the will,
but to carry out its provisions without a probate, and under such agreement the parties are precluded from
denying the probate, or insisting on the invalidating of the will for want of probate. So, also, a person who
agrees not to contest the will is precluded from opposing probate; or the probate of a will may be dispensed
with, and the persons interested in the estate under the will given at least an equitable interest in the
property, where they, being under no disability, divide the estate, pursuant to an agreement among
themselves. Where the effect of the agreement of all interested parties is to repudiate or renounce the will, it
will not be probated, especially where the agreement expressly so provides; but it has been held that, where
the executor, defending a torn will, agrees, for a consideration, not to probate it, the court should not refuse
probate without notifying other beneficiaries and requiring testimony as to the tearing of the will by the
testator. Probate, however, is not prevented by an agreement executed by a part only of the beneficiaries,
and the parties to such agreement are not prevented thereby from taking under the will which is probated by
another interested person. ([Emphasis supplied] 68 C. J., pp. 914-915).
Thus, where the parties, being in doubt as to the instrument being construed as a will, and for the purpose of
saving a family controversy and for the purpose of dividing the estate, enter into a compromise and
settlement agreement, under the terms of which the entire estate is to be, and has in part been, divided, and
agree that the instrument shall not be offered for probate, it is sufficient to prevent a probate.
(Brownvs. Burk, 26 NW [2d ed.], 415.
Validity of Agreements of Dispense with Probate or to Modify or Set Aside Will. Though in some
jurisdictions an agreement to dispense with the probate of a will has been declared to be against public
policy and void, in a majority of the decisions on the point it has been held that all the persons interested in
decedent's estate may by agreement divide the estate among themselves, without probating such
decedent's will or administering the estate, and the validity of a contract having for its sole purpose the
disposition of property in a manner different from that proposed by a testator, even where the contract
contemplates the rejection of the will when offered for probate or its setting aside when admitted to probate,
when it is entirely free from fraud, and is made by all the parties in interest, would seem to be freely
concede. Thus it has been held that all the parties in interest may agree to eliminate from a will a clause
providing for survivorship among them. But an agreement to resist the probate of a will and procure it to be
set aside so as to curt off the interest of one who is not a party to such agreement is against public policy.
Nor does the right of all the parties in interest to set aside or disregard a will extend to the case of an active
trust, for a definite term, created by a testator as he deems proper for the protection of his beneficiaries. A
contract between the next of kin of a decedent, that they will each have a certain portion of the estate, does
not amount to an agreement to divide the estate without probating the will. (28 R.C.L., pp. 357-358).
The minority decision pointed out in the last quotation from the Ruling Case Law (Vol. 28, pp. 357-358) is from the
Supreme Court of only one State that of Wisconsin, in re Will of Dardis (135 Wis., 457; 115 NW., 332). All the
other States held the contrary doctrine that is now embodied in section 1 of Rule 74. Commenting upon the
Wisconsin rule, the Editor of the L.R.A. says the following:
No case has been found other than Re Dardis wherein any court passed upon the validity of a stipulation to
secure the denial to probate of a will theretofore offered for probate, on the ground that the testator was
mentally incompetent to make a will at the time of its execution. The decision of the court is based upon the
doctrine therein enunciated, that proceedings to probate a will are proceedings in rem, which public interest
demands should be pursued to a final adjudication, regardless of the wishes of the interested parties. In this
connection and with reference to this broader question, it is of interest to note that courts of other
jurisdictions, although generally recognizing that proceedings to probate a will are proceedings in rem, hold
that the proceeding is inter partes to the extent that all the parties in interest may control the probate
proceedings, even to the extent of doing away with the probate. (23 L.R.A. [N.S.], p.783).
For the sake of fixity in judicial policy, this Court in the exercise of its constitutional powers, has solemnly given a
form of a rule section 1, Rule 74 to what was merely the consensus of judicial opinion. We cannot now
repudiate the procedure outlined in said provision unless we amend it by another rule.
The majority, however, expresses fear that abuses may easily be committed under the Rules. Such fears have
always been the bugbear set up against all task of procedural reforms. To be sure, there has never been any
provision of law that is not liable to abuses. If by mere possibility of abuse we are to disregard clear provisions of a
procedural law, the result would not only the abrogation of all laws but also the abolition of all courts. When a
procedural law is calculated to remedy an evil under a specific situation therein contemplated, it must be deemed
good even if other situations may be simulated or falsified and placed within its purview. And when that law is duly
enacted, it is no concern of the courts to pass upon its wisdom, their duty being to apply its provisions in a manner

which shall not defeat the intention underlying it. Laws are promulgated to be obeyed and when they are abused
there are the courts to check up the abuse. Courts must deal with the specific circumstances of each case and
construe the provisions in such a manner as to make it impregnable if possible to further abuses. This is
constructive, not destructive, jurisprudence. This explains why laws are more often worded so broadly as to lay
merely general principles a skeleton the flesh to be supplied with judicial decisions. Judicial statemanship
requires that courts in deciding judicial controversies should be careful not to advance opinions which are not
necessary to a proper disposition of the case. Judicial experience has shown that such advanced opinions may not
infrequently place the court in an embarrassing position when a proper case with the proper factual environment is
properly presented with all its angles before the court. Jurisprudence must be carefully progressive and not
impetuously aggressive. for instance, the majority, impressed by the awful circumstances of the present case, has
found it dangerous to hold that the probate of the will may be dispensed with. While this conclusion is constructive
under the peculiar facts of the case, to generalize it is to make destructive. If a proper case is presented to the court
wherein all the heirs and legatees who are all of age have agreed to dispense with the probate of a will and have
actually made an extrajudicial partition, and if it appears further that each of the recipients is in peaceful enjoyment
of his share in the estate, I am sure that the majority, with the practical wisdom they have shown in other cases,
would not dare disturb the peace enjoyed by such heirs and legatees and compel them to go into court and litigate.
The majority, without the necessity of holding whether the probate of a will may or may not be dispensed with under
Rule 74, section 1, could have decided this case by stating that said provision is not applicable, its requirements not
being present. And I would be wholly agreeable to this conclusion because the beneficiaries under the will do not
appear to have made an extrajudicial settlement of the estate left by the deceased Victorino L. Guevara, nor the
action brought by the natural daughter, Rosario Guevara, is one for partition against all such beneficiaries founded
either on an extrajudicial settlement or on the provisions of the will as accepted by all parties to be valid and binding.
Upon the contrary, Rosario Guevara appears to be wishing to take advantage of the will in so far as it is favorable to
her, and repudiate it in so far as it is favorable to others. Apparently, Rosario Guevara was in possession of the will
and the other heirs and legatees were not aware of its contents. The situation not being the one contemplated by
section 1 of Rule 74, plaintiff may not invoke its provisions.

G.R. No. 25489

September 8, 1926

Estate of the deceased Basilia Tantoco. VICENTE FERNANDEZ, petitioner-appellant,


vs.
DOMINGO TANTOCO, ET AL., opponents-appellees.
Feria & La O for appellant.
Gregorio Perfecto for appellees.
STREET, J.:
This is an appeal from an order of the Court of First Instance of the Province of Bulacan, denying probate to an
instrument propounded as the will of Basilia Tantoco, deceased.
It appears that on September 9, 1925, Basilia Tantoco, aged 62 years, executed an instrument purporting to be her
will, she being at the time a patient in the San Juan de Dios Hospital in the City of Manila. Her death occurred a few
days after the will executed, and application for probate was made by father Vicente Fernandez, parish priest of
Malolos. Opposition to probate was made by three brothers and a nephew of the deceased. At the time set for the
submission of proof with respect to the execution of the will, the proponent introduced the three attesting witnesses
to the instrument, namely, Vicente Platon, Fidel Macapugay, and Placido Suarez, as well as Aurea Gaspar, sister-inlaw of the deceased who had been in attendance upon her at the hospital. The instrument shows every external
requisite of proper execution, but the trial judge refused to allow it to be probated, for the reason that the three
attesting witnesses are not in harmony upon the point whether all three of said witnesses were present together at
the time and place when the testatrix and the witnesses affixed their signatures to the document. No testimony was
submitted by the opposition, and the criticisms made by the trial judge with respect to the sufficiency of the proof of
execution arise exclusively upon the testimony of the witnesses for the proponent.
A careful examination of the transcript forces us to the conclusion that the will in question was in every respect
properly executed, and we are of the opinion that error was committed by the trial court in refusing probate.
It appears that the testatrix was single and had no force heirs. For years prior to her death she had observed a need
of school facilities in Malolos; and, moved by charitable impulses, she had dedicated a building with its accessories
and the lot upon which it stood to school purposes. Being desirous that this work should be continued, she provided
in her will that the property above referred to, indicated as item A in her will, should be delivered to the parish priest
for certain religious uses and for the assistance of a catholic school in Malolos, to be conducted by the authority of
the catholic church under the administration of the priest. This item constitutes one of the principal clauses of the
will.
For many years Vicente Platon, an attorney of Malolos, has from to time done legal services for the testatrix; and
about the year 1910 he wrote a will for her containing the same substantial disposition with respect to the property
above-mentioned as is found in the contested instrument. A codicil to the same will was on a later occasion
executed by the testratix with the assistance and on the advice of Sr. Platon.

When her final illness came upon her, testatrix expressed a desire to make some further changes in her will, and Sr.
Platon therefore redrafted the entire document and carried it to the hospital for execution by her on September 9,
1925. Sr. Platon, as of the officiating attorney, was naturally charged with the duties incident to procuring the
execution of the will, and he at first invited the Attending physician, Dr. Nicanor Jacinto to act as one of the
subscribing witnesses, but doctor Jacinto excused himself on the ground that he feared that, if he acted as
subscribing witness to the will, he might become complicated in a family quarrel which would be prejudicial to him as
a physician. He undertook, however, to procure someone to act in his place and he accordingly brought in Doctor
Fidel Macapugay, a resident physician in the hospital, who took his place. The other intending witness was one
Placido Suarez.
The testimony of the attorney, Sr. Platon, is in our opinion in every effect respect worthy of credit, and he gives a
detailed account of the incidents connected with the execution, which could in our opinion have been only by a
person who had his attention fixed upon the occurrences connected therewith. He shows that the testatrix
understood the contents of the instrument and that its provisions were found to be in conformity with her wishes. At
the time of the execution of the instrument she was sitting up in her bed and was able to affix her signature in a clear
and legible hand at the close of the will and upon each of its pages, as the law requires.
The recitals of the closing paragraph in the will and of the attesting clause are full and complete in every respect and
they show that the mind of the attorney was advertent to the requisites of proper formal execution. According to Sr.
Platon, after the testatrix had signed all of the sheets, Doctor Macapugay followed, signing at the end of the
attesting clause and upon the margin of each sheet. Then came Placido Suarez who likewise signed at the end of
the attesting clause and upon each sheet. Finally, Sr. Platon himself affixed his signature at the bottom of the
attesting clause at the bottom of the space used for signatures in the margin.
Macapugay testified somewhat vaguely and evasively; and although he admitted having been the testatrix sign and
the fact that all the signatures of himself are genuine, he exhibited a weak memory with respect to other things that
occurred. In particular he suggests that he left the room before Sr. Platon had finished signing all of the sheets, and
he does not remember seeing Placido Suarez in the room at all.
The other subscribing witness, Placido Suarez, pretended that Macapugay was not present when Suarez signed;
and, while admitting his own signature, he claims not to be able to recognize the other signatures appearing on the
sheets. We have no hesitancy in saying that the testimony of this witness shows a manifest and deliberate
departure from the truth.
In weighing the testimony of the attesting witnesses to a will, the statements of a competent attorney, who has been
charged with the responsibility of seeing to the proper execution of the instrument, is entitled to greater weight than
the testimony of a person casually called to participate in the act, supposing of course that no motive is revealed
that should induce the attorney to prevaricate. The reason is that the mind of the attorney, being conversant with the
requisites of the proper execution of the instrument, is more likely to become fixed on details; and he is more likely
than other persons to retain those incidents in his memory.
It is admitted by all of the witnesses that Aurea Gaspar was present in the room at the time the will was executed,
and she corroborates Sr. Platon upon the point that all of the witnesses were present throughout the ceremonies
attending the execution of the will. This witness speaks with apparent frankness, and we believe her testimony to be
true, notwithstanding the fact that she possibly has a minor interest in the establishment of the will.
In case of opposition to the probate of the will the proponent is legally bound to introduce all of the subscribing
witnesses, if available. They are therefore forced witnesses so far as the proponent is concerned, and he is not
bound by their testimony to the same extent that a litigant is bound by the testimony of witnesses introduced in
ordinary course. It follows that the proponent of a will may avail himself of other proof to establish the instrument,
even contrary to the testimony of some of the subscribing witnesses, or all of them.
With respect to the will now in question a prima facie case for the establishment of the document was made out
when it appeared that the instrument itself was properly drawn and attested and that all of the signatures thereto are
authentic. These facts raise a presumption of regularity; and upon those facts alone the will should, be admitted to
probate in the absence of proof showing that some fatal irregularity occurred. And such irregularity must be proved
by a preponderance of the evidence before probate can be denied.
The order appealed from is therefore reversed and the instrument Exhibit C is declared to be the last will and
testament of Basilia Tantoco. So ordered, without express pronouncement as to costs.
Avancea, C. J., Johnson, Villamor, Ostrand, Johns, Romualdez and Villa-Real, JJ., concur.

G.R. No. L-12190

August 30, 1958

TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO E. GAN, petitioner-appellant,


vs.
ILDEFONSO YAP, oppositor-appellee.
Benedicto C. Belran, Crispin D. Baizas and Roberto H. Benitez for appellant.
Arturo M. Tolentino for appellee.
BENGZON, J.:
On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the University of Santo Tomas Hospital,
leaving properties in Pulilan, Bulacan, and in the City of Manila.
On March 17, 1952, Fausto E. Gan initiated them proceedings in the Manila court of first instance with a petition for
the probate of a holographic will allegedly executed by the deceased, substantially in these words:

Nobyembre 5, 1951.

Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pag-iisip, ay nagsasalaysay na ang aking kayamanan
sa bayan ng Pulilan, Bulacan ay aking ipinamamana sa aking mga kamag-anakang sumusunod:

Vicente Esguerra,
Sr. .............................................

5 Bahagi

Fausto E.
Gan .........................................................

2 Bahagi

Rosario E.
Gan .........................................................

2 Bahagi

Filomena
Alto ..........................................................

1 Bahagi

Beatriz
1 Bahagi
Alto ..............................................................

At ang aking lahat ng ibang kayamanan sa Maynila at iba panglugar ay aking ipinamamana sa aking
asawang si Idelfonso D. Yap sa kondisyong siya'y magpapagawa ng isang Health Center na nagkakahalaga
ng di kukulangin sa halagang P60,000.00 sa bayan ng Pulilan, Bulacan, na nakaukit ang aking pangalang
Felicidad Esguerra-Alto. At kung ito ay may kakulangan man ay bahala na ang aking asawa ang magpuno
upang matupad ang aking kagustuhan.

(Lagda) Felicidad E. Alto-Yap.

Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased had not left any will, nor
executed any testament during her lifetime.
After hearing the parties and considering their evidence, the Hon. Ramon R. San Jose, Judge, 1 refused to probate
the alleged will. A seventy-page motion for reconsideration failed. Hence this appeal.
The will itself was not presented. Petitioner tried to establish its contents and due execution by the statements in
open court of Felina Esguerra, Primitivo Reyes, Socorro Olarte and Rosario Gan Jimenez, whose testimonies may
be summarized as follows:
Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to her first cousin, Vicente Esguerra, her
desire to make a will. She confided however that it would be useless if her husband discovered or knew about it.
Vicente consulted with Fausto E. Gan, nephew of Felicidad, who was then preparing for the bar examinations. The
latter replied it could be done without any witness, provided the document was entirely in her handwriting, signed
and dated by her. Vicente Esguerra lost no time in transmitting the information, and on the strength of it, in the
morning of November 5, 1951, in her residence at Juan Luna Street, Manila, Felicidad wrote, signed and dated a
holographic will substantially of the tenor above transcribed, in the presence of her niece, Felina Esguerra (daughter
of Vicente), who was invited to read it. In the afternoon of that day, Felicidad was visited by a distant relative,
Primitivo Reyes, and she allowed him to read the will in the presence of Felina Esguerra, who again read it.
Nine days later, he had other visitors: Socorro Olarte a cousin, and Rosario Gan Jimenez, a niece. To these she
showed the will, again in the presence of Felina Esguerra, who read it for the third time.
When on November 19, 1951, Felicidad was confined at the U.S.T. Hospital for her last illness, she entrusted the
said will, which was contained in a purse, to Felina Esguerra. But a few hours later, Ildefonso Yap, her husband,
asked Felina for the purse: and being afraid of him by reason of his well-known violent temper, she delivered it to
him. Thereafter, in the same day, Ildefonso Yap returned the purse to Felina, only to demand it the next day shortly
before the death of Felicidad. Again, Felina handed it to him but not before she had taken the purse to the toilet,
opened it and read the will for the last time.2
From the oppositor's proof it appears that Felicidad Esguerra had been suffering from heart disease for several
years before her death; that she had been treated by prominent physicians, Dr. Agerico Sison, Dr. Agustin Liboro
and others; that in May 1950 husband and wife journeyed to the United States wherein for several weeks she was
treated for the disease; that thereafter she felt well and after visiting interesting places, the couple returned to this
country in August 1950. However, her ailment recurred, she suffered several attacks, the most serious of which
happened in the early morning of the first Monday of November 1951 (Nov. 5). The whole household was surprised
and alarmed, even the teachers of the Harvardian Colleges occupying the lower floors and of by the Yap spouses.
Physician's help was hurriedly called, and Dr. Tanjuaquio arrived at about 8:00 a.m., found the patient hardly
breathing, lying in bed, her head held high by her husband. Injections and oxygen were administered. Following the
doctor's advice the patient stayed in bed, and did nothing the whole day, her husband and her personal attendant,
Mrs. Bantique, constantly at her side. These two persons swore that Mrs. Felicidad Esguerra Yap made no will, and
could have made no will on that day.

The trial judge refused to credit the petitioner's evidence for several reasons, the most important of which were
these: (a) if according to his evidence, the decedent wanted to keep her will a secret, so that her husband would not
know it, it is strange she executed it in the presence of Felina Esguerra, knowing as she did that witnesses were
unnecessary; (b) in the absence of a showing that Felina was a confidant of the decedent it is hard to believe that
the latter would have allowed the former to see and read the will several times; (c) it is improbable that the decedent
would have permitted Primitivo Reyes, Rosario Gan Jimenez and Socorro Olarte to read her will, when she
precisely wanted its contents to remain a secret during her lifetime; (d) it is also improbable that her purpose being
to conceal the will from her husband she would carry it around, even to the hospital, in her purse which could for
one reason or another be opened by her husband; (e) if it is true that the husband demanded the purse from Felina
in the U.S.T. Hospital and that the will was there, it is hard to believe that he returned it without destroying the will,
the theory of the petitioner being precisely that the will was executed behind his back for fear he will destroy it.
In the face of these improbabilities, the trial judge had to accept the oppositor's evidence that Felicidad did not and
could not have executed such holographic will.
In this appeal, the major portion of appellant's brief discussed the testimony of the oppositor and of his witnesses in
a vigorous effort to discredit them. It appears that the same arguments, or most of them, were presented in the
motion to reconsider; but they failed to induce the court a quo to change its mind. The oppositor's brief, on the other
hand, aptly answers the criticisms. We deem it unnecessary to go over the same matters, because in our opinion
the case should be decided not on the weakness of the opposition but on the strength of the evidence of the
petitioner, who has the burden of proof.
The Spanish Civil Code permitted the execution of holographic wills along with other forms. The Code of Civil
Procedure (Act 190) approved August 7, 1901, adopted only one form, thereby repealing the other forms, including
holographic wills.
The New Civil Code effective in 1950 revived holographic wills in its arts. 810-814. "A person may execute a
holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to
no other form and may be made in or out of the Philippines, and need not be witnessed."
This is indeed a radical departure from the form and solemnities provided for wills under Act 190, which for fifty
years (from 1901 to 1950) required wills to be subscribed by the testator and three credible witnesses
in each andevery page; such witnesses to attest to the number of sheets used and to the fact that the testator
signed in their presence and that they signed in the presence of the testator and of each other.
The object of such requirements it has been said, is to close the door against bad faith and fraud, to prevent
substitution of wills, to guarantee their truth and authencity (Abangan vs. Abangan, 40 Phil., 476) and to avoid those
who have no right to succeed the testator would succeed him and be benefited with the probate of same.
(Mendoza vs. Pilapil, 40 Off. Gaz., 1855). However, formal imperfections may be brushed aside when authenticity of
the instrument is duly proved. (Rodriguez vs Yap, 40 Off. Gaz. 1st Supp. No. 3 p. 194.)
Authenticity and due execution is the dominant requirements to be fulfilled when such will is submitted to the courts
for allowance. For that purpose the testimony of one of the subscribing witnesses would be sufficient if there is no
opposition (Sec. 5, Rule 77). If there is, the three must testify, if available. (Cabang vs. Delfinado, 34 Phil., 291;
Tolentino vs. Francisco, 57 Phil., 742). From the testimony of such witnesses (and of other additional witnesses) the
court may form its opinion as to the genuineness and authenticity of the testament, and the circumstances its due
execution.
Now, in the matter of holographic wills, no such guaranties of truth and veracity are demanded, since as stated, they
need no witnesses; provided however, that they are "entirely written, dated, and signed by the hand of the testator
himself." The law, it is reasonable to suppose, regards the document itself as material proof of authenticity, and as
its own safeguard, since it could at any time, be demonstrated to be or not to be in the hands of the testator
himself. "In the probate of a holographic will" says the New Civil Code, "it shall be necessary that at least one
witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are
in the handwriting of the testator. If the will is contested, at least three such witnesses shall be required. In the
absence of any such witnesses, (familiar with decedent's handwriting) and if the court deem it necessary, expert
testimony may be resorted to."
The witnesses so presented do not need to have seen the execution of the holographic will. They may be mistaken
in their opinion of the handwriting, or they may deliberately lie in affirming it is in the testator's hand. However, the
oppositor may present other witnesses who also know the testator's handwriting, or some expert witnesses, who
after comparing the will with other writings or letters of the deceased, have come to the conclusion that such will has
not been written by the hand of the deceased. (Sec. 50, Rule 123). And the court, in view of such contradictory
testimony may use its own visual sense, and decide in the face of the document, whether the will submitted to it has
indeed been written by the testator.
Obviously, when the will itself is not submitted, these means of opposition, and of assessing the evidence are not
available. And then the only guaranty of authenticity3 the testator's handwriting has disappeared.

Therefore, the question presents itself, may a holographic will be probated upon the testimony of witnesses who
have allegedly seen it and who declare that it was in the handwriting of the testator? How can the oppositor prove
that such document was not in the testator's handwriting? His witnesses who know testator's handwriting have not
examined it. His experts can not testify, because there is no way to compare the alleged testament with other
documents admittedly, or proven to be, in the testator's hand. The oppositor will, therefore, be caught between the
upper millstone of his lack of knowledge of the will or the form thereof, and the nether millstone of his inability to
prove its falsity. Again the proponent's witnesses may be honest and truthful; but they may have been shown a
faked document, and having no interest to check the authenticity thereof have taken no pains to examine and
compare. Or they may be perjurers boldly testifying, in the knowledge that none could convict them of perjury,
because no one could prove that they have not "been shown" a document which they believed was in the
handwriting of the deceased. Of course, the competency of such perjured witnesses to testify as to the handwriting
could be tested by exhibiting to them other writings sufficiently similar to those written by the deceased; but what
witness or lawyer would not foresee such a move and prepare for it? His knowledge of the handwriting established,
the witness (or witnesses) could simply stick to his statement: he has seen and read a document which he believed
was in the deceased's handwriting. And the court and the oppositor would practically be at the mercy of such
witness (or witnesses) not only as to the execution, but also as to the contents of the will. Does the law permit such
a situation?
The Rules of Court, (Rule 77) approved in 1940 allow proof (and probate) of a lost or destroyed will by secondary
evidence the testimony of witnesses, in lieu of the original document. Yet such Rules could not have contemplated
holographic wills which could not then be validly made here. (See also Sec. 46, Rule 123; Art. 830-New Civil Code.)
Could Rule 77 be extended, by analogy, to holographic wills?
Spanish commentators agree that one of the greatest objections to the holographic will is that it may be lost or
stolen4 an implied admission that such loss or theft renders it useless..
This must be so, because the Civil Code requires it to be protocoled and presented to the judge, (Art. 689) who shall
subscribe it and require its identity to be established by the three witnesses who depose that they have no
reasonable doubt that the will was written by the testator (Art. 691). And if the judge considers that the identity of the
will has been proven he shall order that it be filed (Art. 693). All these, imply presentation of the will itself. Art. 692
bears the same implication, to a greater degree. It requires that the surviving spouse and the legitimate ascendants
and descendants be summoned so that they may make "any statement they may desire to submit with respect to
the authenticity of the will." As it is universally admitted that the holographic will is usually done by the testator and
by himself alone, to prevent others from knowing either its execution or its contents, the above article 692 could not
have the idea of simply permitting such relatives to state whether they know of the will, but whether in the face of
the document itself they think the testator wrote it. Obviously, this they can't do unless the will itself is presented to
the Court and to them.
Undoubtedly, the intention of the law is to give the near relatives the choice of either complying with the will if they
think it authentic, or to oppose it, if they think it spurious.5 Such purpose is frustrated when the document is not
presented for their examination. If it be argued that such choice is not essential, because anyway the relatives may
oppose, the answer is that their opposition will be at a distinct disadvantage, and they have the right and privilege to
comply with the will, if genuine, a right which they should not be denied by withholding inspection thereof from them.
We find confirmation of these ideas--about exhibition of the document itself--in the decision of the Supreme Court of
Spain of June 5, 1925, which denied protocolization or probate to a document containing testamentary dispositions
in the handwriting of the deceased, but apparently mutilated, the signature and some words having been torn from
it. Even in the face of allegations and testimonial evidence (which was controverted), ascribing the mutilation to the
opponents of the will. The aforesaid tribunal declared that, in accordance with the provision of the Civil Code
(Spanish) the will itself, whole and unmutilated, must be presented; otherwise, it shall produce no effect.
Considerando que sentado lo anterior, y estableciendose en el parrafo segundo del articulo 688 del Codigo
civil, que para que sea valido el testamento olografo debera estar escrito todo el y firmado por testador, con
expression del ao, mes y dia en que se otorque, resulta evidente que para la validez y eficacia de esos
testamentos, no basta la demostracion mas o menos cumplida de que cuando se otorgaron se Ilenaron
todos esos requisitos, sino que de la expresada redaccion el precepto legal, y por el tiempo en que el verbo
se emplea, se desprende la necesidad de que el documento se encuentre en dichas condiciones en el
momento de ser presentado a la Autoridad competente, para au adveracion y protocolizacion; y como
consecuencia ineludible de ello, forzoso es affirmar que el de autos carece de validez y aficacia, por no
estarfirmado por el testador, cualquiera que sea la causa de la falta de firma, y sin perjuicio de las acciones
que puedan ejercitar los perjudicados, bien para pedir indemnizacion por el perjuicio a la persona culpable,
si la hubiere, o su castigo en via criminal si procediere, por constituir dicha omision un defecto
insubsanable . . . .
This holding aligns with the ideas on holographic wills in the Fuero Juzgo, admittedly the basis of the Spanish Civil
Code provisions on the matter.6

PRECEDENTES LEGALES--Fuero Juzgo, libro segundo, titulo V, ley 15--E depues que los herederos e sus
fijos ovieren esta manda, fasta ... annos muestrenla al obispo de la tierra, o al juez fasta VI meses y el
obispo o el juez tomen otros tales tres escritos, que fuesen fechos por su mano daquel que fizo la manda; e
por aquellos escriptos, si semjara la letra de la manda, sea confirmada la manda. E depues que todo esto
fuere connoscido, el obispo o el juez, o otras testimonios confirmen el escripto de la manda otra vez, y en
esta manera vala la manda. (Art. 689, Scaevola--Codigo Civil.)
(According to the Fuero above, the will itself must be compared with specimens of the testators handwriting.)
All of which can only mean: the courts will not distribute the property of the deceased in accordance with his
holographic will, unless they are shown his handwriting and signature. 7
Parenthetically, it may be added that even the French Civil Law considers the loss of the holographic will to be fatal.
(Planiol y Ripert, Derecho Civil Frances, traduccion por Diaz Cruz, 1946, Tomo V, page 555).
Taking all the above circumstances together, we reach the conclusion that the execution and the contents of a lost
or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read
such will.8
Under the provisions of Art. 838 of the New Civil Code, we are empowered to adopt this opinion as a Rule of Court
for the allowance of such holographic wills. We hesitate, however, to make this Rule decisive of this controversy,
simultaneously with its promulgation. Anyway, decision of the appeal may rest on the sufficiency, rather the
insufficiency, of the evidence presented by petitioner Fausto E. Gan.
At this point, before proceeding further, it might be convenient to explain why, unlike holographic wills, ordinary wills
may be proved by testimonial evidence when lost or destroyed. The difference lies in the nature of the wills. In the
first, the only guarantee of authenticity is the handwriting itself; in the second, the testimony of the subscribing or
instrumental witnesses (and of the notary, now). The loss of the holographic will entails the loss of the only medium
of proof; if the ordinary will is lost, the subscribing witnesses are available to authenticate.
In the case of ordinary wills, it is quite hard to convince three witnesses (four with the notary) deliberately to lie. And
then their lies could be checked and exposed, their whereabouts and acts on the particular day, the likelihood that
they would be called by the testator, their intimacy with the testator, etc. And if they were intimates or trusted friends
of the testator they are not likely to end themselves to any fraudulent scheme to distort his wishes. Last but not
least, they can not receive anything on account of the will.
Whereas in the case of holographic wills, if oral testimony were admissible9 only one man could engineer the fraud
this way: after making a clever or passable imitation of the handwriting and signature of the deceased, he may
contrive to let three honest and credible witnesses see and read the forgery; and the latter, having no interest, could
easily fall for it, and in court they would in all good faith affirm its genuineness and authenticity. The will having been
lost the forger may have purposely destroyed it in an "accident" the oppositors have no way to expose the trick
and the error, because the document itself is not at hand. And considering that the holographic will may consist of
two or three pages, and only one of them need be signed, the substitution of the unsigned pages, which may be the
most important ones, may go undetected.
If testimonial evidence of holographic wills be permitted, one more objectionable feature feasibility of forgery
would be added to the several objections to this kind of wills listed by Castan, Sanchez Roman and Valverde and
other well-known Spanish Commentators and teachers of Civil Law.10
One more fundamental difference: in the case of a lost will, the three subscribing witnesses would be testifying to a
fact which they saw, namely the act of the testator of subscribing the will; whereas in the case of a lost holographic
will, the witnesses would testify as to their opinion of the handwriting which they allegedly saw, an opinion which can
not be tested in court, nor directly contradicted by the oppositors, because the handwriting itself is not at hand.
Turning now to the evidence presented by the petitioner, we find ourselves sharing the trial judge's disbelief. In
addition to the dubious circumstances described in the appealed decision, we find it hard to believe that the
deceased should show her will precisely to relatives who had received nothing from it: Socorro Olarte and Primitivo
Reyes. These could pester her into amending her will to give them a share, or threaten to reveal its execution to her
husband Ildefonso Yap. And this leads to another point: if she wanted so much to conceal the will from her husband,
why did she not entrust it to her beneficiaries? Opportunity to do so was not lacking: for instance, her husband's trip
to Davao, a few days after the alleged execution of the will.
In fine, even if oral testimony were admissible to establish and probate a lost holographic will, we think the evidence
submitted by herein petitioner is so tainted with improbabilities and inconsistencies that it fails to measure up to that
"clear and distinct" proof required by Rule 77, sec. 6.11
Wherefore, the rejection of the alleged will must be sustained.
Judgment affirmed, with costs against petitioner.

Paras, C. J., Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion, Reyes, J. B. L., Endencia and Felix,
JJ., concur.

Footnotes
1

Now a member of the Court of Appeals.

The contents of the alleged will are for the purposes of this decision, immaterial.

"Una forma de testamento" (holographic will) "en la que toda la garantia consiste en la letra del testador."
(Scaevola, Codigo Civil, Tomo 12, p. 348.)
3

V. Sanchez Roam, Derecho Civil (2nd Ed.) (1910) Vol. 6 pp. 343, 350; Castan, Derecho Civil Espaol
(1944) Tomo 4 p. 337; Valverde, Derecho Civil (1939) Vol. 5, p. 77.
4

V. Sanchez Roman Op. Cit. Vol. 6, p. 357.

Manresa, Codigo Civil, 1932, Vol. 5, p. 481.

We have no doubt that this concept and these doctrines concerning the Spanish Civil Code apply to our
New Civil Code, since the Commission in its Report (p. 52) merely "revived" holographic wills, i.e., those
known to the Spanish Civil Law, before Act 190.
7

Perhaps it may be proved by a photographic or photostatic copy. Evena mimeographed or carbon copy; or
by other similar means, if any, whereby the authenticity of the handwriting of the deceased may be exhibited
and tested before the probate court.
8

We are aware of some American cases that admitted lost holographic wills, upon verbal testimony. (Sec.
41, American Law Reports, 2d. pp. 413, 414.) But the point here raised was not discussed. Anyway it is
safer to follow, in this matter, the theories of the Spanish law.
9

10

Justice Jose B. L. Reyes, professor of Civil Law, makes this Comment:

"Holographic wills are peculiarly dangerous kin case of persons who have written very title. The validity of
these wills depends, exclusively on the authenticity of handwriting, and if writing standards are not
procurable, or not contemporaneous, the courts are left to the mercy of the mendacity of witnesses. It is
questionable whether the recreation of the holographic testament will prove wise." (Lawyer's Journal, Nov.
30, 1950, pp. 556-557.)
11

Intestate of Suntay, 50 Off. Gaz., 5321.

G.R. No. 19153, Johannes v. Imperial, 43


Phil. 597
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
June 30, 1922
G.R. No. 19153
B. E. JOHANNES, as principal administrator of the estate of Carmen

Theodora Johannes, relator,


vs.
CARLOS A. IMPERIAL, as judge of the Court of First Instance, City of
Manila, respondent.
Amzi B. Kelly for relator.
Fisher and De Witt and William C. Brady for respondent.
STATEMENT
Case No. 18600, 1 in which B. E. Johannes, husband of Carmen Theodora
Johannes, deceased as administrator, et al., were relators, and the Honorable
George R. Harvey, as judge of the Court of First Instance of Manila, et al., were
respondents was a petition for certiorari and a temporary injunction, in which
the relators prayed for an order this court
(A) To annul the appointment of Alfred D' Almeida as administrator of said
deposit in the Philippines; and all acts and a proceedings taken by him as said
administrator; and,
(B) To issue an order itself, or one to the said Judge George R. Harvey, directing
the manager of the Philippine National Bank,' to place to the credit B. E.
Johannes, as administrator of the estate of Carmen Theodora Johannes, all of
the funds of said Carmen D' Almeida (Johannes), now on deposit, with said
bank, subject to the order of said court. And, as the act of the said Alfred D'
Almeida in having himself appointed administrator was in evident bad faith, as
clearly appears from the petition asking his appointment, the court is
requested to grant relators five thousand pesos (P5,000), as damages caused
by delay, expensive and unnecessary litigation, and such other relief as the
court may deem in equity proper.
Upon a hearing, the prayer was denied, and the petition dismissed in an
opinion written by Justice Malcolm and concurred in by all the other members
of this court.
[[

]]

After that opinion was rendered, B. E. Johannes, as principal administrator of


the estate of Carmen Theodora Johannes, applied to his Honor Carlos A.
Imperial, as judge of the Court of Instance of the City of Manila, by petition,
which, among other things, alleges:
That "he is the duly appointed principal administrator of the estate of his late
wife at the place of her domicile, Singapore, Straits Settlements, as appears
from a certified copy of his appointment now on file . . .
Second. The said Carmen Theodora Johannes, at the time of her death, was a
subject and citizen of Great Britain, domiciled in Singapore, Straits
Settlements, and your petitioner, the said B. E. Johannes, her lawful husband,
at the time of her death was a subject and citizen of Great Britain and resident
of Singapore, Straits Settlements.

Third. Under British Law, (22 and 23, Charles II c-10, 29 Charles II c-3, and
James II c-17), the husband of a deceased wife is the sole heir, to the exclusion
of all others, of the property of his wife when she dies intestate, as the said
Carmen Theodora Johannes did die.
Fourth. This Honorable Court at a prior date on application of Mr. Alfred D'
Almeida, the brother of the deceased, appointed him as administrator of the
property of the deceased situated within Philippine Islands, in the absence of,
and without notice, knowledge or consent of her husband, your petitioner.
Fifth. Your petitioner is now within the jurisdiction of this court and has come
here and established his residence at "The Manila Hotel," in the City of Manila,
for the sole purpose of taking over from the said Alfred D' Almeida the
administration of said estate: and
To relieve the said Alfred D' Almeida as administrator of said estate within the
jurisdiction of this court and appoint in his stead your petitioner, the said B. E.
Johannes, and principal administrator, "the ancillary administrator" of said
estate now subject to administration within the Philippine Islands.
From an order denying and overruling the petition, the relator filed certiorari
proceedings in this court against the respondent, as judge of the Court of First
Instance, and later made Alfred D'Almeida, a brother of the deceased, ancillary
administrator, defendant, in which he pray for an order of this court:
(a) To substitute your petitioner, the principal administrator, the husband of the
deceased and the owner of the deposit, instead of Alfred D'Almeida, as "the
ancillary administrator' of said estate, in this jurisdiction; and
(b) Order the said Judge to disapprove and disallow all of the amounts claimed
to have been paid for attorneys' fees to Messrs. Fisher and DeWit, and cable,
amounting to P2,860.05; and
(c) To disapproved and disallow the amount of P1,093.75, claimed due
but proven false; and
(d) To cancel the appointment of the special administrator' appointed by virtue
of these false claims; and
(e) Order the said Judge to order the manager of the Philippine National Bank
to place to credit of the said substituted ancillary administrator, Mr. B. E.
Johannes, all of the funds now on deposit in said bank, the property of the
deceased Carmen Theodora Johannes.
The defendant claims that the petition here does not state sufficient facts, and
that at the time the appointment was made, the court had jurisdiction to
appoint Alfred D'Almeida as ancillary administrator of the estate of the
deceased Carmen Theodora Johannes, who was then a resident of the
Philippine Islands, and that his appointment is not subject to review in this
court.

JOHNS, J.:
The legal questions presented are well stated in the former opinion court in
case No. 18600. It appears that the petitioner is the husband of Carmen
Theodora Johannes, deceased, who, at the time of her death, was a resident of
Singapore, Straits Settlements, and a citizen of Great Britain; that he is also a
foreigner and a citizen of Great Britain and an actual resident to Singapore;
that Alfred D'Almeida is a brother of the deceased Carmen Theodora Johannes,
and a bona fide resident of the City of Manila; that at the time of her death
Carmen Theodora Johannes had P109,722.55 on deposit in one of the banks in
the City of Manila; and that the petitioner, her surviving husband, was indebted
to a bank in Manila for about P20,000. That the deceased left no will in the
absence of which the petitioner claims to be her sole heir and entitled to all of
her estate. That there were no debts against the estate of the deceased. Upon
the death of his wife, the petitioner was duly appointed as administrator of her
estate by the court at Singapore, and qualified and entered upon the discharge
of his duties. After the decision was rendered by this court in case No. 18600,
supra, the petitioner came to Manila and claims to have established a
temporary residence at the Manila Hotel, based upon which, in legal effect, he
asked for an order of court that Alfred D'Almeida be removed as ancillary
administrator, and that he be appointed.
From an order of the lower court denying that petition, an original petition was
filed here to review the proceedings of the lower court.
There is a marked legal distinction between the authority of a court to appoint
and the authority to remove an administrator after he is appointed. Here, the
appointment was made and the administrator had qualified and entered upon
the discharge of his duties. There was no contest over the appointment, and
the court had jurisdiction of the petition and of the subject-matter. It was not a
case of where two or more petitions were filed, in which each was claiming the
right to appointed, or in which the court decided which one of the petitioners
should be appointed. It was a case in which only one petition was presented to
the court, and to which no objections were file and in which it appeared the
petitioner was a brother of the deceased, and that the estate was the owner of
property in the City of Manila. The court, having jurisdiction and the
appointment having been made, the only question here presented is whether
Alfred D'Almeida should be removed and the petitioner substituted as ancillary
administrator.
As this court said case No 18600 (Johannes vs. Harvey, supra):
The ancillary administration is proper, whenever a person dies, leaving in a
country other than that of his last domicile, property to be administered in the

nature of assets of the decedent, liable for his individual debts or to be


distributed among his heirs.
It is almost a universal rule to give the surviving spouse a preference when and
administrator is to be appointed, unless for strong reason it is deemed
advisable to name someone else. This preference has particular force under
Spanish Law precedents. However, the Code of Civil Procedure, in section 642,
while naming the surviving spouse is unsuitable for the responsibility. . . .
Undoubtedly, if the husband should come into this jurisdiction, the court give
consideration to his petition that he be named the ancillary administrator for
local purposes. Ancillary letters should ordinarily be granted to the domiciliary
representative, if he applies therefor, or to his nominee, or attorney; but in the
absence of express statutory requirement the court may in its discretion
appoint some other person.
The real contention of the petitioner is that, because he had the legal right to
apply for and be appointed in the first instance, such right is continuous, and
that he could be appointed any time on his own application. That is not the law.
Although it is true that in the first instance everything else being equal and
upon the grounds of comity, in ordinary case, the court would appoint the
petitioner or his nominee as ancillary administrator, but even then, as stated in
the above opinion the appointment is one of more or less legal discretion. But
that is not this case. Here, in legal effect, it is sought to oust an administrator
who was appointed without protest or objection where the court had
jurisdiction of the petitioner and of the subject matter.
Again, it appears that Carmen Theodora Johannes died August 21, 1921, and
on September 19, 1921, the petitioner was appointed administrator of her
estate by Supreme Court of Straits Settlements on his own petition, and on
October 1, 1921, based upon his petition, Alfred D'Almeida, the brother of the
deceased, was appointed administrator of her estate in Manila. The initial
proceeding against the appointment of Alfred D'Almeida, as administrator, was
filed in this court on January 21, 1922.
At time of the appointment here, the court had primary and original
jurisdiction, and no objections were then made. The question as to who should
have been appointed ancillary administrator, if presented at the proper time
and in the proper way, is not before this court. Here, the appointment was
made on the 1st day of October, 1921, and no formal objections were made
until 21st day of January, 1922.
The petition is denied, the injunction dissolved and the case dismissed.
It appears that the debts of the state, if any, are nominal, and that the only
asset here is the money on deposit in the bank. Hence, the administration of

the estate itself is matter of form only and should be very simple and
inexpensive. Even though it is foreign money, it is the duty of the court to
protect it from any illegal, unjust, or unreasonable charges. All claims against
the estate should be for just debts only, or for the actual expenses of
administration, and those should be reasonable. No other claims should be
allowed.
If, as claimed, the real dispute here is whether the brothers and sisters of the
deceased are entitled to share in her estate, or whether the petitioner only, as
the surviving husband, is entitle to all of it, that question is not one of
administration, and any expense and attorneys' fees incurred by either party
for the settlement of that question is a personal matter to them, and should
not be allowed as claims against the estate. Claims against the estate should
only be for just debts or expense for administration of the estate itself.
Costs in favor of the respondent. So ordered.

G.R. Nos. L-3087 and L-3088

July 31, 1954

In re: Testate Estate of the deceased JOSE B. SUNTAY. SILVINO SUNTAY, petitioner-appellant,
vs.
In re: Intestate Estate of the deceased JOSE B. SUNTAY,
FEDERICO C. SUNTAY, administrator-appellee.
Claro M. Recto for appellant.
Sison and Aruego for appellee.
PADILLA, J.:
This is an appeal from a decree of the Court of First Instance of Bulacan disallowing the alleged will and testament
executed in Manila on November 1929, and the alleged last will and testament executed in Kulangsu, Amoy, China,
on 4 January 1931, by Jose B. Suntay. The value of the estate left by the deceased is more than P50,000.
On 14 May 1934 Jose B. Suntay, a Filipino citizen and resident of the Philippines, died in the city of Amoy, Fookien
province, Republic of China, leaving real and personal properties in the Philippines and a house in Amoy, Fookien
province, China, and children by the first marriage had with the late Manuela T. Cruz namely, Apolonio, Concepcion,
Angel, Manuel, Federico, Ana, Aurora, Emiliano, and Jose, Jr. and a child named Silvino by the second marriage
had with Maria Natividad Lim Billian who survived him. Intestate proceedings were instituted in the Court of First
Instance of Bulacan (special proceedings No. 4892) and after hearing letters of administration were issued to
Apolonio Suntay. After the latter's death Federico C. Suntay was appointed administrator of the estate. On 15
October 1934 the surviving widow filed a petition in the Court of First Instance of Bulacan for the probate of a last
will and testament claimed to have been executed and signed in the Philippines on November 1929 by the late Jose
B. Suntay. This petition was denied because of the loss of said will after the filing of the petition and before the
hearing thereof and of the insufficiency of the evidence to establish the loss of the said will. An appeal was taken
from said order denying the probate of the will and this Court held the evidence before the probate court sufficient to
prove the loss of the will and remanded the case to the Court of First Instance of Bulacan for the further proceedings
(63 Phil., 793). In spite of the fact that a commission from the probate court was issued on 24 April 1937 for the
taking of the deposition of Go Toh, an attesting witness to the will, on 7 February 1938 the probate court denied a
motion for continuance of the hearing sent by cablegram from China by the surviving widow and dismissed the
petition. In the meantime the Pacific War supervened. After liberation, claiming that he had found among the files,
records and documents of his late father a will and testament in Chinese characters executed and signed by the
deceased on 4 January 1931 and that the same was filed, recorded and probated in the Amoy district court,
Province of Fookien, China, Silvino Suntay filed a petition in the intestate proceedings praying for the probate of the
will executed in the Philippines on November 1929 (Exhibit B) or of the will executed in Amoy, Fookien, China, on 4
January 1931 (Exhibit N).

There is no merit in the contention that the petitioner Silvino Suntay and his mother Maria Natividad Lim Billian are
estopped from asking for the probate of the lost will or of the foreign will because of the transfer or assignment of
their share right, title and interest in the estate of the late Jose B. Suntay to Jose G. Gutierrez and the spouses
Ricardo Gutierrez and Victoria Goo and the subsequent assignment thereof by the assignees to Francisco Pascual
and by the latter to Federico C. Suntay, for the validity and legality of such assignments cannot be threshed out in
this proceedings which is concerned only with the probate of the will and testament executed in the Philippines on
November 1929 or of the foreign will allegedly executed in Amoy on 4 January 1931 and claimed to have been
probated in the municipal district court of Amoy, Fookien province, Republic of China.
As to prescription, the dismissal of the petition for probate of the will on 7 February 1938 was no bar to the filing of
this petition on 18 June 1947, or before the expiration of ten years.
As to the lost will, section 6, Rule 77, provides:
No will shall be proved as a lost or destroyed will unless the execution and validity of the same be
established, and the will is proved to have been in existence at the time of the death of the testator, or is
shown to have been fraudulently or accidentally destroyed in the lifetime of the testator without his
knowledge, nor unless its provisions are clearly and distinctly proved by at least two credible witnesses.
When a lost will is proved, the provisions thereof must be distinctly stated and certified by the judge, under
the seal of the court, and the certificate must be filed and recorded as other wills are filed and recorded.
The witnesses who testified to the provisions of the lost will are Go Toh, an attesting witness, Anastacio Teodoro and
Ana Suntay. Manuel Lopez, who was an attesting witness to the lost will, was dead at the time of the hearing of this
alternative petition. In his deposition Go Toh testifies that he was one of the witnesses to the lost will consisting of
twenty-three sheets signed by Jose B. Suntay at the bottom of the will and each and every page thereof in the
presence of Alberto Barretto, Manuel Lopez and himself and underneath the testator's signature the attesting
witnesses signed and each of them signed the attestation clause and each and every page of the will in the
presence of the testator and of the other witnesses (answers to the 31st, 41st, 42nd, 49th, 50th, 55th and 63rd
interrogatories, Exhibit D-1), but did not take part in the drafting thereof (answer to the 11th interrogatory,Id.); that he
knew the contents of the will written in Spanish although he knew very little of that language (answers to the 22nd
and 23rd interrogatories and to X-2 cross-interrogatory, Id.) and all he knows about the contends of the lost will was
revealed to him by Jose B. Suntay at the time it was executed (answers to the 25th interrogatory and to X-4 and X-8
cross-interrogatories, Id.); that Jose B. Suntay told him that the contents thereof are the same as those of the draft
(Exhibit B) (answers to the 33rd interrogatory and to X-8 cross-interrogatory, Id.) which he saw in the office of
Alberto Barretto in November 1929 when the will was signed (answers to the 69th, 72nd, and 74th
interrogatories, Id); that Alberto Barretto handed the draft and said to Jose B. Suntay: "You had better see if you
want any correction" (answers to the 81st, 82nd and 83rd interrogatories, Id.); that "after checking Jose B. Suntay
put the "Exhibit B" in his pocket and had the original signed and executed" (answers to the 91st interrogatory, and to
X-18 cross-interrogatory, Id.); that Mrs. Suntay had the draft of the will (Exhibit B) translated into Chinese and he
read the translation (answers to the 67th interrogatory, Id.); that he did not read the will and did not compare it
(check it up) with the draft (Exhibit B) (answers to X-6 and X-20 cross-interrogatories, Id.).
Ana Suntay testifies that sometime in September 1934 in the house of her brother Apolonio Suntay she learned that
her father left a will "because of the arrival of my brother Manuel Suntay, who was bringing along with him certain
document and he told us or he was telling us that it was the will of our father Jose B. Suntay which was taken from
Go Toh. ..." (p. 524, t. s. n., hearing of 24 February 1948); that she saw her brother Apolonio Suntay read the
document in her presence and of Manuel and learned of the adjudication made in the will by her father of his estate,
to wit: one-third to his children, one-third to Silvino and his mother and the other third to Silvino, Apolonio,
Concepcion and Jose, Jr. (pp. 526-8, 530-1, 542, t. s. n. Id.); that "after Apolonio read that portion, then he turned
over the document to Manuel, and he went away," (p. 528, t. s. n., Id.). On cross-examination, she testifies that she
read the part of the will on adjudication to know what was the share of each heir (pp. 530, 544, t. s. n., Id.) and on
redirect she testifies that she saw the signature of her father, Go Toh, Manuel Lopez and Alberto Barretto (p. 546, t.
s. n., Id.).
Anastacio Teodoro testifies that one day in November 1934 (p. 273, t. s. n., hearing of 19 January 1948), before the
last postponement of the hearing granted by the Court, Go Toh arrived at his law office in the De los Reyes Building
and left an envelope wrapped in red handkerchief [Exhibit C] (p. 32, t. s. n., hearing of 13 October 1947); that he
checked up the signatures on the envelope Exhibit A with those on the will placed in the envelope (p. 33, t. s. n., Id.);
that the will was exactly the same as the draft Exhibit B (pp. 32, 47, 50, t. s. n., Id.).
If the will was snatched after the delivery thereof by Go Toh to Anastacio Teodoro And returned by the latter to the
former because they could not agree on the amount of fees, the former coming to the latter's office straight from the
boat (p. 315, t. s. n., hearing of 19 January 1948) that brought him to the Philippines from Amoy, and that delivery
took place in November 1934 (p. 273, t. s. n., Id.), then the testimony of Ana Suntay that she saw and heard her
brother Apolonio Suntay read the will sometime in September 1934 (p. 524, t. s. n., hearing of 24 February 1948),
must not be true.
Although Ana Suntay would be a good witness because she was testifying against her own interest, still the fact
remains that she did not read the whole will but only the adjudication (pp. 526-8, 530-1, 542, t. s. n., Id.) and saw
only the signature, of her father and of the witnesses Go Toh, Manuel Lopez and Alberto Barretto (p. 546, t. s. n.,Id.).

But her testimony on cross-examination that she read the part of the will on adjudication is inconsistent with her
testimony in chief that after Apolonio had read that part of the will he turned over or handed the document to Manuel
who went away (p. 528, t. s. n., Id.).
If it is true that Go Toh saw the draft Exhibit B in the office of Alberto Barretto in November 1929 when the will was
signed, then the part of his testimony that Alberto Barretto handed the draft to Jose B. Suntay to whom he said: "You
had better see if you want any correction" and that "after checking Jose B. Suntay put the "Exhibit B" in his pocket
and had the original signed and executed" cannot be true, for it was not the time for correcting the draft of the will,
because it must have been corrected before and all corrections and additions written in lead pencil must have been
inserted and copied in the final draft of the will which was signed on that occasion. The bringing in for the draft
(Exhibit B) on that occasion is just to fit it within the framework of the appellant's theory. At any rate, all of Go Toh's
testimony by deposition on the provisions of the alleged lost will is hearsay, because he came to know or he learned
to them from information given him by Jose B. Suntay and from reading the translation of the draft (Exhibit B) into
Chinese.
Much stress is laid upon the testimony of Federico C. Suntay who testifies that he read the supposed will or the
alleged will of his father and that the share of the surviving widow, according to the will, is two-thirds of the estate (p.
229, t. s. n., hearing of 24 October 1947). But this witness testified to oppose the appointment of a co-administrator
of the estate, for the reason that he had acquired the interest of the surviving widow not only in the estate of her
deceased husband but also in the conjugal property (pp. 148, 205, 228, 229, 231, t. s. n., Id.) Whether he read the
original will or just the copy thereof (Exhibit B) is not clear. For him the important point was that he had acquired all
the share, participation and interest of the surviving widow and of the only child by the second marriage in the estate
of his deceased father. Be that as it may, his testimony that under the will the surviving widow would take two-thirds
of the estate of the late Jose B. Suntay is at variance with Exhibit B and the testimony of Anastacio Teodoro.
According to the latter, the third for strict legitime is for the ten children; the third for betterment is for Silvino,
Apolonio, Concepcion and Jose Jr.; and the third for free disposal is for the surviving widow and her child Silvino.
Hence, granting that there was a will duly executed by Jose B. Suntay placed in the envelope (Exhibit A) and that it
was in existence at the time of, and not revoked before, his death, still the testimony of Anastacio Teodoro alone
falls short of the legal requirement that the provisions of the lost will must be "clearly and distinctly proved by at least
two credible witnesses." Credible witnesses mean competent witnesses and those who testify to facts from or upon
hearsay are neither competent nor credible witnesses.
On the other hand, Alberto Barretto testifies that in the early part of 1929 he prepared or drew up two mills for Jose
B. Suntay at the latter's request, the rough draft of the first will was in his own handwriting, given to Manuel Lopez
for the final draft or typing and returned to him; that after checking up the final with the rough draft he tore it and
returned the final draft to Manuel Lopez; that this draft was in favor of all the children and the widow (pp. 392-4, 449,
t. s. n., hearing of 21 February 1948); that two months later Jose B. Suntay and Manuel Lopez called on him and the
former asked him to draw up another will favoring more his wife and child Silvino; that he had the rough draft of the
second will typed (pp. 395, 449 t. s. n., Id.) and gave it to Manuel Lopez (p. 396, t. s. n., Id.); that he did not sign as
witness the second will of Jose B. Suntay copied from the typewritten draft [Exhibit B] (p. 420, t. s. n., Id.); that the
handwritten insertions or additions in lead pencil to Exhibit B are not his (pp. 415-7 435-6, 457, t. s. n., Id.); that the
final draft of the first will made up of four or five pages (p. 400, t. s. n., Id.) was signed and executed, two or three
months after Suntay and Lopez had called on him (pp. 397-8, 403, 449, t. s. n., Id.) in his office at the Cebu Portland
Cement in the China Banking Building on Dasmarias street by Jose B. Suntay, Manuel Lopez and a Chinaman
who had all come from Hagonoy (p. 398, t. s. n., Id.); that on that occasion they brought an envelope (Exhibit A)
where the following words were written: "Testamento de Jose B. Suntay" (pp. 399, 404, t. s. n., Id.); that after the
signing of the will it was placed inside the envelope (Exhibit A) together with an inventory of the properties of Jose B.
Suntay and the envelope was sealed by the signatures of the testator and the attesting witnesses (pp. 398, 401,
441, 443, 461, t. s. n., Id.); that he again saw the envelope (Exhibit A) in his house one Saturday in the later part of
August 1934, brought by Go Toh and it was then in perfect condition (pp. 405-6, 411, 440-2, t. s. n., Id.); that on the
following Monday Go Toh went to his law office bringing along with him the envelope (Exhibit A) in the same
condition; that he told Go Toh that he would charge P25,000 as fee for probating the will (pp. 406, 440-2, Id.); that
Go Toh did not leave the envelope (Exhibit A) either in his house or in his law office (p. 407, t. s. n., Id.); that Go Toh
said he wanted to keep it and on no occasion did Go Toh leave it to him (pp. 409, 410, t. s. n., Id.).
The testimony of Go Toh taken and heard by Assistant Fiscal F. B. Albert in connection with the complaint for estafa
filed against Manuel Suntay for the alleged snatching of the envelope (Exhibit A), corroborates the testimony of
Alberto Barretto to the effect that only one will was signed by Jose B. Suntay at his office in which he (Alberto
Barretto), Manuel Lopez and Go Toh took part as attesting witnesses (p. 15, t. s. n., Exhibit 6). Go Toh testified
before the same assistant fiscal that he did not leave the will in the hands of Anastacio Teodoro (p. 26, t. s. n.,
Exhibit 6). He said, quoting his own words, "Because I can not give him this envelope even though the contract (on
fees) was signed. I have to bring that document to court or to anywhere else myself." (p. 27, t. s. n., Exhibit 6).
As to the will claimed to have been executed on 4 January 1931 in Amoy, China, the law on the point in Rule 78.
Section 1 of the rule provides:
Wills proved and allowed in a foreign country, according to the laws of such country, may be allowed, filed,
and recorded by the proper Court of First Instance in the Philippines.

Section 2 provides:
When a copy of such will and the allowance thereof, duly authenticated, is filed with a petition for allowance
in the Philippines, by the executor or other person interested, in the court having jurisdiction, such court shall
fix a time and place for the hearing, and cause notice thereof to be given as in case of an original will
presented for allowance.
Section 3 provides:
If it appears at the hearing that the will should be allowed in the Philippines, the court shall so allow it, and a
certificate of its allowance, signed by the Judge, and attested by the seal of the courts, to which shall be
attached a copy of the will, shall be filed and recorded by the clerk, and the will shall have the same effect as
if originally proved and allowed in such court.
The fact that the municipal district court of Amoy, China, is a probate court must be proved. The law of China on
procedure in the probate or allowance of wills must also be proved. The legal requirements for the execution of a
valid will in China in 1931 should also be established by competent evidence. There is no proof on these points. The
unverified answers to the questions propounded by counsel for the appellant to the Consul General of the Republic
of China set forth in Exhibits R-1 and R-2, objected to by counsel for the appellee, are inadmissible, because apart
from the fact that the office of Consul General does not qualify and make the person who holds it an expert on the
Chinese law on procedure in probate matters, if the same be admitted, the adverse party would be deprived of his
right to confront and cross-examine the witness. Consuls are appointed to attend to trade matters. Moreover, it
appears that all the proceedings had in the municipal district court of Amoy were for the purpose of taking the
testimony of two attesting witnesses to the will and that the order of the municipal district court of Amoy does not
purport to probate the will. In the absence of proof that the municipal district court of Amoy is a probate court and on
the Chinese law of procedure in probate matters, it may be presumed that the proceedings in the matter of
probating or allowing a will in the Chinese courts are the a deposition or to a perpetuation of testimony, and even if it
were so it does not measure same as those provided for in our laws on the subject. It is a proceedings in rem and
for the validity of such proceedings personal notice or by publication or both to all interested parties must be made.
The interested parties in the case were known to reside in the Philippines. The evidence shows that no such notice
was received by the interested parties residing in the Philippines (pp. 474, 476, 481, 503-4, t. s. n., hearing of 24
February 1948). The proceedings had in the municipal district court of Amoy, China, may be likened toe or come up
to the standard of such proceedings in the Philippines for lack of notice to all interested parties and the proceedings
were held at the back of such interested parties.
The order of the municipal district court of Amoy, China, which reads as follows:
ORDER:
SEE BELOW
The above minutes were satisfactorily confirmed by the interrogated parties, who declare that there are no
errors, after said minutes were loudly read and announced actually in the court.
Done and subscribed on the Nineteenth day of the English month of the 35th year of the Republic of China
in the Civil Section of the Municipal District Court of Amoy, China.

HUANG KUANG CHENG


Clerk of Court

CHIANG TENG HWA


Judge

(Exhibit N-13, p. 89 Folder of Exhibits.).


does not purport to probate or allow the will which was the subject of the proceedings. In view thereof, the will and
the alleged probate thereof cannot be said to have been done in accordance with the accepted basic and
fundamental concepts and principles followed in the probate and allowance of wills. Consequently, the authenticated
transcript of proceedings held in the municipal district court of Amoy, China, cannot be deemed and accepted as
proceedings leading to the probate or allowance of a will and, therefore, the will referred to therein cannot be
allowed, filed and recorded by a competent court of this country.
The decree appealed from is affirmed, without pronouncement as to costs.

G.R. No. 101512 August 7, 1992


NILDA GABRIEL, EVA GABRIEL, EDGAR GABRIEL, GEORGE GABRIEL, ROSEMARIE GABRIEL, MARIBEL
GABRIEL, CYNTHIA GABRIEL, RENATO GABRIEL, GERARDO GABRIEL, JOJI ZORAYDA GABRIEL, DANIEL
GABRIEL and FELICITAS JOSE-GABRIEL, petitioners,
vs.
HON COURT OF APPEALS, HON. MANUEL E. YUZON, Judge, Regional Trial Court of Manila, Branch XI, and
ROBERTO DINDO GABRIEL, respondents.

REGALADO, J.:
In its decision in CA-G.R. SP No. 19797 promulgated on August 23, 1991, 1 respondent Court of Appeals dismissed
the petition for certiorari filed by herein petitioners assailing the orders of the lower court in Special Proceeding No. 8844589 thereof which effectively sustained the appointment of private respondent Roberto Dindo Gabriel as administrator
of the estate of the late Domingo Gabriel.
Petitioners' present appeal by certiorari would have this Court set aside that decision of respondent court, hence the
need to examine the chronology of antecedent facts, as found by respondent court and detailed hereunder,
pertinent to and which culminated in their recourse now before us.
On May 12, 1988, or nine (9) months after Domingo Gabriel died on August 6, 1987, private respondent filed with
the Regional Trial Court of Manila, Branch XI, a petition for letters of administration alleging, among others, that he
is the son of the decedent, a college graduate, engaged in business, and is fully capable of administering the estate
of the late Domingo Gabriel. Private respondent mentioned eight (8) of herein petitioners as the other next of kin
and heirs of the decedent. 2
On May 17, 1988, the court below issued an order 3 setting the hearing of the petition on June 29, 1988, on which date
all persons interested may show cause, if any, why the petition should not be granted. The court further directed the

publication of the order in "Mabuhay," a newspaper of general circulation, once a week for three (3) consecutive weeks.
No opposition having been filed despite such publication of the notice of hearing, private respondent was allowed to
present his evidence ex parte. Thereafter, the probate court issued an order, dated July 8, 1988, appointing private
respondent as administrator of the intestate estate of the late Domingo Gabriel on a bond of P30,000.00. 4

Subsequently, a notice to creditors for the filing of claims against the estate of the decedent was published in the
"Metropolitan News." As a consequence, Aida Valencia, mother of private respondent, filed a "Motion to File Claim of
(sic) the Intestate Estate of Domingo P. Gabriel" alleging that the decision in a civil case between her and the
deceased remained unsatisfied and that she thereby had an interest in said estate. 5
On December 12, 1988, private respondent filed for approval by the probate court an "Inventory and Appraisal"
placing the value of the properties left by the decedent at P18,960,000.00, which incident was set for hearing on
January 16, 1989. 6
On February 2, 1989, petitioners Nilda, Eva, Boy, George, Rosemarie, and Maribel, all surnamed Gabriel, filed their
"Opposition and Motion" praying for the recall of the letters of administration issued to private respondent and the
issuance of such letters instead to petitioner Nilda Gabriel, as the legitimate daughter of the deceased, or any of the
other oppositors who are the herein petitioners. 7 After some exchanges and on order of the court, petitioners filed an
"Opposition to the Petition and Motion," dated May 20, 1989, alleging that (1) they were not duly informed by personal
notice of the petition for administration; (2) petitioner Nilda Gabriel, as the legitimate daughter, should be preferred over
private respondent; (3) private respondent has a conflicting and/or adverse interest against the estate because he might
prefer the claims of his mother and (4) most of the properties of the decedent have already been relinquished by way of
transfer of ownership to petitioners and should not be included in the value of the estate sought to be administered by
private respondent. 8
On September 21, 1989, the probate court issued an order denying the opposition of petitioners on the ground that
they had not shown any circumstance sufficient to overturn the order of July 8, 1988, in that (1) no evidence was
submitted by oppositor Nilda Gabriel to prove that she is a legitimate daughter of the deceased; and (2) there is no
proof to show that the person who was appointed administrator is unworthy, incapacitated or unsuitable to perform
the trust as to make his appointment inadvisable under these circumstances. 9 The motion for reconsideration filed by
petitioners was likewise denied in an order dated December 22, 1989. 10
From said orders, herein petitioners filed a special civil action for certiorari with the Court of Appeals, on the
following grounds:
1. The orders of September 21, 1989 and December 22, 1989 are null and void, being contrary to
the facts, law and jurisprudence on the matter;
2. Respondent judge, in rendering the aforesaid orders, gravely acted with abuse of discretion
amounting to lack and/or excess of jurisdiction, hence said orders are null and void ab initio; and
3. Private respondent is morally incompetent and unsuitable to perform the duties of an administrator
as he would give prior preference to the claims of his mother against the estate itself. 11
As stated at the outset, the Court of Appeals rendered judgment dismissing that petition for certiorari on the ground
that the appointment of an administrator is left entirely to the sound discretion of the trial court which may not be
interfered with unless abused; that the fact that there was no personal notice served on petitioners is not a denial of
due process as such service is not a jurisdictional requisite and petitioners were heard on their opposition; and that
the alleged violation of the order of preference, if any, is an error of fact or law which is a mistake of judgment,
correctible by appeal and not by the special civil action of certiorari. 12
In the petition for review on certiorari at bar, petitioners primarily aver that under Section 6, Rule 78 of the Rules of
Court, it is the surviving spouse who is first in the order of preference for the appointment of an administrator.
Petitioner Felicitas Jose-Gabriel is the widow and legal surviving spouse of the deceased Domingo Gabriel and
should, therefore, be preferred over private respondent who is one of the illegitimate children of the decedent by
claimant. Aida Valencia. Secondly, they claim that assuming that the widow is incompetent, the next of kin must be
appointed. As between a legitimate and an illegitimate child, the former is preferred, hence petitioner Nilda Gabriel,
as the legitimate daughter, must be preferred over private respondent who is an illegitimate son. Thirdly, it is
contended that the non-observance or violation per se of the order of preference already constitutes a grave abuse
of discretion amounting to lack of jurisdiction.

On the other hand, private respondent contends that the court did not commit a grave abuse of discretion in not
following the order of preference because the same is not absolute and the choice of who to appoint rests in the
sound discretion of the court. He calls attention to the fact that petitioners Nilda Gabriel and Felicitas Jose-Gabriel
never applied for appointment despite the lapse of more than nine (9) months from the death of Domingo Gabriel,
hence it was not possible for the probate court to have considered them for appointment. Besides, it is not denied
that several properties of the deceased have already been relinquished to herein petitioners, hence they would have
no interest in applying for letters of administration. Lastly, private respondent submits that it has not been shown that
he is incompetent nor is he disqualified from being appointed or serving as administrator.
Section 6, Rule 78 of the Rules of Court provides:
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 husband or wife, as the case may be, or the 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. (Emphases ours.)
Evidently, the foregoing provision of the Rules prescribes the order of preference in the issuance of letters of
administration, 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.
In the appointment of the 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. This is the same consideration which
Section 6 of Rule 78 takes into account in establishing the order of preference in the appointment of administrators
for the estate. The underlying assumption behind this rule is that those who will reap the benefit of a wise, speedy
and economical administration of the estate, or, on the other hand, suffer the consequences of waste, improvidence
or mismanagement, have the highest interest and most influential motive to administer the estate correctly. 13
This is likewise the same consideration which the law takes into account in establishing the preference of the widow
to administer the estate of her husband upon the latter's death, because she is supposed to have an interest therein
as a partner in the conjugal partnership. 14 Under the law, the widow would have the right of succession over a portion of
the exclusive property of the decedent, aside from her share in the conjugal partnership. For such reason, she would have
as much, if not more, interest in administering the entire estate correctly than any other next of kin. 15 On this ground
alone, petitioner Felicitas Jose-Gabriel, the widow of the deceased Domingo Gabriel, has every right and is very much
entitled to the administration of the estate of her husband since one who has greater interest in the estate is preferred to
another who has less. 16
Private respondent, however, argues that Felicitas Jose-Gabriel may no longer be appointed administratrix by
reason of her failure to apply for letters of administration within thirty (30) days from the death of her husband, as
required under the rules.
It is true that Section 6(b) of Rule 78 provides that the preference given to the surviving spouse or next of kin may
be disregarded by the court where said persons neglect to apply for letters of administration for thirty (30) days after
the decedent's death. However, it is our considered opinion that such failure is not sufficient to exclude the widow
from the administration of the estate of her husband. There must be a very strong case to justify the exclusion of the
widow from the administration. 17
In the case at bar, there is no compelling reason sufficient to disqualify Felicitas Jose-Gabriel from appointment as
administratrix of the decedent's estate. Moreover, just as the order of preference is not absolute and may be
disregarded for valid cause 18 despite the mandatory tenor in the opening sentence of Rule 78 for its observance, so may

the 30-day period be likewise waived under the permissive tone in paragraph (b) of said rule which merely provides that
said letters, as an alternative, "may be granted to one or more of the principal creditors."

On the other hand, we feel that we should not nullify the appointment of private respondent as administrator. 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 and said judgment is not to be interfered with on appeal
unless the said court is clearly in error. 19 Administrators have such a right and corresponding interest in the execution of
their trust as would entitle them to protection from removal without just cause. Thus, Section 2 of Rule 82 provides the
legal and specific causes authorizing the probate court to remove an administrator.
While it is conceded that the court is invested with ample discretion in the removal of an administrator, it must,
however, have some fact legally before it in order to justify such removal. There must be evidence of an act or
omission on the part of the administrator not conformable to or in disregard of the rules or the orders of the court
which it deems sufficient or substantial to warrant the removal of the administrator. 20 In the instant case, a mere
importunity by some of the heirs of the deceased, there being no factual and substantial bases therefor, is not adequate
ratiocination for the removal of private respondent. Suffice it to state that the removal of an administrator does not lie on
the whims, caprices and dictates of the heirs or beneficiaries of the estate. In addition, the court may also exercise its
discretion in appointing an administrator where those who are entitled to letters fail to apply therefor within a given time. 21
On the equiponderance of the foregoing legal positions, we see no reason why, for the benefit of the estate and
those interested therein, more than one administrator may not be appointed since that is both legally permissible
and sanctioned in practice. 22 Section 6(a) of Rule 78 specifically states that letters of administration may be issued to
both the surviving spouse and the next of
kin. 23 In fact, Section 2 of Rule 82 contemplates a contingency which may arise when there is only one administrator but
which may easily be remediable where there is co-administration, to wit: "When an executor or administrator dies, resigns,
or is removed the remaining executor or administrator may administer the trust alone, . . . ." Also, co-administration herein
will constitute a recognition of both the extent of the interest of the widow in the estate and the creditable services
rendered to and which may further be expected from private respondent for the same estate.
Under both Philippine and American jurisprudence, the appointment of co-administrators has been upheld for
various reasons, viz: (1) to have the benefit of their judgment and perhaps at all times to have different interests
represented; 24 (2) where justice and equity demand that opposing parties or factions be represented in the management
of the estate of the deceased; 25
(3) where the estate is large or, from any cause, an intricate and perplexing one to settle; 26 (4) to have all interested
persons satisfied and the representatives to work in harmony for the best interests of the estate; 27 and (5) when a person
entitled to the administration of an estate desires to have another competent person associated with him in the office. 28
Under the circumstances obtaining herein, we deem it just, equitable and advisable that there be a co-administration
of the estate of the deceased by petitioner Felicitas Jose-Gabriel and private respondent Roberto Dindo Gabriel. As
earlier stated, the purpose of having co-administrators is to have the benefit of their judgment and perhaps at all
times to have different interests represented, especially considering that in this proceeding they will respectively
represent the legitimate and illegitimate groups of heirs to the estate. Thereby, it may reasonably be expected that
all interested persons will be satisfied, with the representatives working in harmony under the direction and
supervision of the probate court.
WHEREFORE, the judgment of respondent Court of Appeals is MODIFIED by AFFIRMING the validity of the
appointment of respondent Roberto Dindo Gabriel as judicial administrator and ORDERING the appointment of
petitioner Felicitas Jose-Gabriel as co-administratrix in Special Proceeding No. 88-4458 of Branch XI, Regional Trial
Court of Manila.
SO ORDERED.
Narvasa, C.J., Padilla and Nocon, JJ., concur.

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., movantappellee.
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 206208 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 socalledmodus 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 andthat the assets (to the extent they existed)of both estates would be administrated jointly
by the PCIB as administrator of the estate of C. N. Hodges and Avelina A. Magno as administratrix
of the estate of Linnie Jane Hodges, subject, however, to the aforesaid October 5, 1963 Motion,
namely, the PCIB's claim to exclusive possession and ownership of one-hundred percent (10017,)
(or, in the alternative, seventy-five percent [75%] of all assets owned by C. N. Hodges or Linnie Jane
Hodges situated in the Philippines. On February 1, 1964 (pp. 934-935, CFI Rec., S. P. No. 1672) this
Honorable Court amended its order of January 24, 1964 but in no way changes its recognition of the
aforedescribed basic demand by the PCIB as administrator of the estate of C. N. Hodges to one
hundred percent (100%) of the assets claimed by both estates.
4. On February 15, 1964 the PCIB filed a "Motion to Resolve" the aforesaid Motion of October 5,
1963. This Honorable Court set for hearing on June 11, 1964 the Motion of October 5, 1963.
5. On June 11, 1964, because the undersigned Allison J. Gibbs was absent in the United States, this
Honorable Court ordered the indefinite postponement of the hearing of the Motion of October 5,
1963.
6. Since its appointment as administrator of the estate of C. N. Hodges the PCIB has not been able
to properly carry out its duties and obligations as administrator of the estate of C. N. Hodges
because of the following acts, among others, of Avelina A. Magno and those who claim to act for her
as administratrix of the estate of Linnie Jane Hodges:
(a) Avelina A. Magno illegally acts as if she is in exclusive control of all of the assets
in the Philippines of both estates including those claimed by the estate of C. N.
Hodges as evidenced in part by her locking the premises at 206-208 Guanco Street,
Iloilo City on August 31, 1964 and refusing to reopen same until ordered to do so by
this Honorable Court on September 7, 1964.
(b) Avelina A. Magno illegally acts as though she alone may decide how the assets of
the estate of C.N. Hodges should be administered, who the PCIB shall employ and
how much they may be paid as evidenced in party by her refusal to sign checks
issued by the PCIB payable to the undersigned counsel pursuant to their fee
agreement approved by this Honorable Court in its order dated March 31, 1964.
(c) Avelina A. Magno illegally gives access to and turns over possession of the
records and assets of the estate of C.N. Hodges to the attorney-in-fact of the Higdon
Family, Mr. James L. Sullivan, as evidenced in part by the cashing of his personal
checks.
(d) Avelina A. Magno illegally refuses to execute checks prepared by the PCIB drawn
to pay expenses of the estate of C. N. Hodges as evidenced in part by the check
drawn to reimburse the PCIB's advance of P48,445.50 to pay the 1964 income taxes
reported due and payable by the estate of C.N. Hodges.
7. Under and pursuant to the orders of this Honorable Court, particularly those of January 24 and
February 1, 1964, and the mandate contained in its Letters of Administration issued on January 24,
1964 to the PCIB, it has

"full authority to take possession of all the property of the deceased


C. N. Hodges
"and to perform all other acts necessary for the preservation of said property." (p.
914, CFI Rec., S.P. No. 1672.)
8. As administrator of the estate of C. N. Hodges, the PCIB claims the right to the immediate
exclusive possession and control of all of the properties, accounts receivables, court cases, bank
accounts and other assets, including the documentary records evidencing same, which existed in
the Philippines on the date of C. N. Hodges' death, December 25, 1962, and were in his possession
and registered in his name alone. The PCIB knows of no assets in the Philippines registered in the
name of Linnie Jane Hodges, the estate of Linnie Jane Hodges, or, C. N. Hodges, Executor of the
Estate of Linnie Jane Hodges on December 25, 1962. All of the assets of which the PCIB has
knowledge are either registered in the name of C. N. Hodges, alone or were derived therefrom since
his death on December 25, 1962.
9. The PCIB as the current administrator of the estate of C. N. Hodges, deceased, succeeded to all
of the rights of the previously duly appointed administrators of the estate of C. N. Hodges, to wit:
(a) On December 25, 1962, date of C. N. Hodges' death, this Honorable Court
appointed Miss Avelina A. Magno simultaneously as:
(i) Administratrix of the estate of Linnie Jane Hodges (p. 102, CFI Rec., S.P. No.
1307) to replace the deceased C. N. Hodges who on May 28, 1957 was appointed
Special Administrator (p. 13. CFI Rec. S.P. No. 1307) and on July 1, 1957 Executor
of the estate of Linnie Jane Hodges (p. 30, CFI Rec., S. P. No. 1307).
(ii) Special Administratrix of the estate of C. N. Hodges (p. 102, CFI Rec., S.P. No.
1307).
(b) On December 29, 1962 this Honorable Court appointed Harold K. Davies as cospecial 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 coadministrator 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 coadministrators 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 CoAdministratrix 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 andimmovable assets in the Philippines are concerned. We shall not, at
this stage, discuss what law should govern the assets of Linnie Jane Hodges located
in Oklahoma and Texas, because the only assets in issue in this motion are those
within the jurisdiction of this motion Court in the two above-captioned Special
Proceedings.
8. Under Philippine and Texas law, the conjugal or community estate of spouses shall, upon
dissolution, be divided equally between them. Thus, upon the death of Linnie Jane Hodges on May
23, 1957, one-half (1/2) of the entirety of the assets of the Hodges spouses constituting their
conjugal estate pertained automatically to Charles Newton Hodges, not by way of inheritance, but in
his own right as partner in the conjugal partnership. The other one-half (1/2) portion of the conjugal
estate constituted the estate of Linnie Jane Hodges. This is the only portion of the conjugal estate
capable of inheritance by her heirs.
9. This one-half (1/2) portion of the conjugal assets pertaining to Linnie Jane Hodges cannot, under
a clear and specific provision of her Will, be enhanced or increased by income, earnings, rents, or
emoluments accruing after her death on May 23, 1957. Linnie Jane Hodges' Will provides that "all
rents, emoluments and income from said estate shall belong to him (C. N. Hodges) and he is further
authorized to use any part of the principal of said estate as he may need or desire." (Paragraph 3,
Annex "A".) Thus, by specific provision of Linnie Jane Hodges' Will, "all rents, emoluments and

income" must be credited to the one-half (1/2) portion of the conjugal estate pertaining to C. N.
Hodges. Clearly, therefore, the estate of Linnie Jane Hodges, capable of inheritance by her heirs,
consisted exclusively of no more than one-half (1/2) of the conjugal estate, computed as of the time
of her death on May 23, 1957.
10. Articles 900, 995 and 1001 of the New Civil Code provide that the surviving spouse of a
deceased leaving no ascendants or descendants is entitled, as a matter of right and by way of
irrevocable legitime, to at least one-half (1/2) of the estate of the deceased, and no testamentary
disposition by the deceased can legally and validly affect this right of the surviving spouse. In fact,
her husband is entitled to said one-half (1/2) portion of her estate by way of legitime. (Article 886,
Civil Code.) Clearly, therefore, immediately upon the death of Linnie Jane Hodges, C. N. Hodges
was the owner of at least three-fourths (3/4) or seventy-five (75%) percent of all of the conjugal
assets of the spouses, (1/2 or 50% by way of conjugal partnership share and 1/4 or 25% by way of
inheritance and legitime) plus all "rents, emoluments and income" accruing to said conjugal estate
from the moment of Linnie Jane Hodges' death (see paragraph 9, supra).
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 orsimple substitution can be valid, three alternative conditions must be
present, namely, that the first designated heir (1) should die before the testator; or (2)
should not wish to accept the inheritance; or (3) should be incapacitated to do so.
None of these conditions apply to C. N. Hodges, and, therefore, the substitution
provided for by the above-quoted provision of the Will is not authorized by the Code,
and, therefore, it is void. Manresa, commenting on these kisses of substitution,
meaningfully stated that: "... cuando el testador instituyeun primer heredero, y por
fallecimiento de este nombra otro u otros, ha de entenderse que estas segundas
designaciones solo han de llegar a tener efectividad en el caso de que el primer
instituido muera antes que el testador, fuera o no esta su verdadera intencion. ...". (6
Manresa, 7 a ed., pag. 175.) In other words, when another heir is designated to
inherit upon the death of a first heir, the second designation can have effect only in
case the first instituted heir dies before the testator, whether or not that was the true
intention of said testator. Since C. N. Hodges did not die before Linnie Jane Hodges,
the provision for substitution contained in Linnie Jane Hodges' Willis void.
(d) In view of the invalidity of the provision for substitution in the Will, C. N. Hodges'
inheritance to the entirety of the Linnie Jane Hodges estate is irrevocable and final.
19. Be that as it may, at the time of C. N. Hodges' death, the entirety of the conjugal estate appeared
and was registered in him exclusively as owner. Thus, the presumption is that all said assets
constituted his estate. Therefore
(a) If the HIGDONS wish to enforce their dubious rights as substituted heirs to 1/4 of the conjugal
estate (the other 1/4 is covered by the legitime of C. N. Hodges which can not be affected by any
testamentary disposition), their remedy, if any, is to file their claim against the estate of C. N.
Hodges, which should be entitled at the present time to full custody and control of all the conjugal
estate of the spouses.
(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. 231232, 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 cosigned 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.
L
THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN FAVOR OF THE
APPELLEE, BELCESAR CAUSING, EXECUTED BY THE APPELLEE, AVELINA A. MAGNO,
COVERING PARCELS OF LAND OWNED BY THE DECEASED, CHARLES NEWTON HODGES,
AND THE CONTRACTS TO SELL COVERING WHICH WERE EXECUTED BY HIM DURING HIS
LIFETIME.
LI
THE LOWER COURT ERRED IN APPROVING THE DEEDS OF SALE IN FAVOR OF THE
APPELLEE, BELCESAR CAUSING, ALTHOUGH HE WAS IN ARREARS IN THE PAYMENTS
AGREED UPON IN THE ORIGINAL CONTRACT TO SELL WHICH HE EXECUTED WITH THE
DECEASED, CHARLES NEWTON HODGES, IN THE AMOUNT OF P2,337.50.
LII
THE LOWER COURT ERRED IN APPROVING THE DEED OF SALE IN FAVOR OF THE
APPELLEE, BELCESAR CAUSING, ALTHOUGH THE SAME WAS NOT EXECUTED IN
ACCORDANCE WITH THE RULES OF COURT.
LIII to LXI
THE LOWER COURT ERRED IN ORDERING THE APPELLANT, PHILIPPINE COMMERCIAL AND
INDUSTRIAL BANK TO SURRENDER THE OWNER'S DUPLICATE CERTIFICATES OF TITLE
OVER THE RESPECTIVE LOTS COVERED BY THE DEEDS OF SALE EXECUTED BY THE
APPELLEE, AVELINA A. MAGNO, IN FAVOR OF THE OTHER APPELLEES, JOSE PABLICO,
ALFREDO CATEDRAL, SALVADOR S. GUZMAN, FLRENIA BARRIDO, PURIFICACION
CORONADO, BELCESAR CAUSING, ARITEO THOMAS JAMIR, MAXIMA BATISANAN AND
GRACIANO L. LUCERO.
LXII
THE LOWER COURT ERRED IN RESOLVING THE MOTION OF THE APPELLEE, WESTERN
INSTITUTE OF TECHNOLOGY, DATED NOVEMBER 3, 1965, WITHOUT ANY COPY THEREOF
HAVING BEEN SERVED UPON THE APPELLANT, PHILIPPINE COMMERCIAL & INDUSTRIAL
BANK.

LXIII
THE LOWER COURT ERRED IN HEARING AND CONSIDERING THE MOTION OF THE
APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY, DATED NOVEMBER 3rd, 1965, ON
NOVEMBER 23, 1965, WHEN THE NOTICE FOR THE HEARING THEREOF WAS FOR
NOVEMBER 20, 1965.
LXIV
THE LOWER COURT ERRED IN GRANTING THE APPELLEE, WESTERN INSTITUTE OF
TECHNOLOGY A RELIEF OTHER THAN THAT PRAYED FOR IN ITS MOTION, DATED
NOVEMBER 3, 1965, IN THE ABSENCE OF A PRAYER FOR GENERAL RELIEF CONTAINED
THEREIN.
LXV
THE LOWER COURT ERRED IN ALLOWING THE APPELLEE, WESTERN INSTITUTE OF
TECHNOLOGY, TO CONTINUE PAYMENTS UPON A CONTRACT TO SELL THE TERMS AND
CONDITIONS OF WHICH IT HAS FAILED TO FULFILL.
LXVI
THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF THE APPELLEE, WESTERN
INSTITUTE OF TECHNOLOGY OVER THE REAL PROPERTY SUBJECT MATTER OF THE
CONTRACT TO SELL IT EXECUTED WITH THE DECEASED, CHARLES NEWTON HODGES,
WHILE ACTING AS A PROBATE COURT.
LXVII
LOWER COURT ERRED IN ALLOWING THE CONTINUATION OF PAYMENTS BY THE
APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY, UPON A CONTRACT TO SELL
EXECUTED BY IT AND THE DECEASED, CHARLES NEWTON HODGES, TO A PERSON OTHER
THAN HIS LAWFULLY APPOINTED ADMINISTRATOR.
LXVIII
THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF RETAINER'S FEES FROM THE
SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE HODGES, WHEN THERE IS NEITHER
SUCH ESTATE NOR ASSETS THEREOF.
LXIX
THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF RETAINER'S FEES OF
LAWYERS OF ALLEGED HEIRS TO THE SUPPOSED ESTATE OF THE DECEASED, LINNIE
JANE HODGES.
LXX
THE LOWER COURT ERRED IN IMPLEMENTING THE ALLEGED AGREEMENT BETWEEN THE
HEIRS OF THE SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE HODGES, AND THEIR
LAWYERS.
LXXI
THE LOWER COURT ERRED IN ORDERING THE PREMATURE DISTRIBUTION OF ESTATE
ASSETS TO ALLEGED HEIRS OR BENEFICIARIES THEREOF, BY WAY OF RETAINER'S FEES.
LXXII
THE LOWER COURT ERRED IN ORDERING THAT ALL FINAL DEEDS OF SALE EXECUTED
PURSUANT TO CONTRACTS TO SELL ENTERED INTO BY THE DECEASED, CHARLES
NEWTON HODGES, DURING HIS LIFETIME, BE SIGNED JOINTLY BY THE APPELLEE, AVELINA
A. MAGNO, AND THE APPELLANT, PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, AND
NOT BY THE LATTER ONLY AS THE LAWFULLY APPOINTED ADMINISTRATOR OF HIS ESTATE.
LXXIII

THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF LEGAL EXPENSES FROM THE
SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE HODGES, WHEN THERE IS NEITHER
SUCH ESTATE NOR ASSETS THEREOF.
LXXIV
THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF LEGAL EXPENSES OF
LAWYERS OF ALLEGED HEIRS TO THE SUPPOSED ESTATE OF THE DECEASED, LINNIE
JANE HODGES.
LXXV
THE LOWER COURT ERRED IN ORDERING THE PREMATURE DISTRIBUTION OF ESTATE
ASSETS TO ALLEGED HEIRS OR BENEFICIARIES THEREOF, BY WAY OF LEGAL EXPENSES.
LXXVI
THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF COMPENSATION TO THE
PURPORTED ADMINISTRATRIX OF THE SUPPOSED ESTATE OF THE DECEASED, LINNIE
JANE HODGES, THE INSTANT APPELLEE, AVELINA A. MAGNO, WHEN THERE IS NEITHER
SUCH ESTATE NOR ASSETS THEREOF.
LXXVII
THE LOWER COURT ERRED IN ORDERING THAT THE FUNDS OF THE TESTATE ESTATE OF
THE DECEASED, CHARLES NEWTON HODGES, BE PLACED IN A JOINT ACCOUNT OF THE
APPELLANT, PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, AND THE APPELLEE,
AVELINA A. MAGNO, WHO IS A COMPLETE STRANGER TO THE AFORESAID ESTATE.
LXXVIII
THE LOWER COURT ERRED IN ORDERING THAT THE APPELLEE, AVELINA A. MAGNO, BE
GIVEN EQUAL ACCESS TO THE RECORDS OF THE TESTATE ESTATE OF THE DECEASED,
CHARLES NEWTON HODGES, WHEN SHE IS A COMPLETE STRANGER TO THE AFORESAID
ESTATE. (Pp. 73-83, Appellant's Brief.)
To complete this rather elaborate, and unavoidably extended narration of the factual setting of these cases, it may
also be mentioned that an attempt was made by the heirs of Mrs. Hodges to have respondent Magno removed as
administratrix, with the proposed appointment of Benito J. Lopez in her place, and that respondent court did actually
order such proposed replacement, but the Court declared the said order of respondent court violative of its
injunction of August 8, 1967, hence without force and effect (see Resolution of September 8, 1972 and February 1,
1973). Subsequently, Atty. Efrain B. Trenas, one of the lawyers of said heirs, appeared no longer for the proposed
administrator Lopez but for the heirs themselves, and in a motion dated October 26, 1972 informed the Court that a
motion had been filed with respondent court for the removal of petitioner PCIB as administrator of the estate of C. N.
Hodges in Special Proceedings 1672, which removal motion alleged that 22.968149% of the share of C. N. Hodges
had already been acquired by the heirs of Mrs. Hodges from certain heirs of her husband. Further, in this
connection, in the answer of PCIB to the motion of respondent Magno to have it declared in contempt for
disregarding the Court's resolution of September 8, 1972 modifying the injunction of August 8, 1967, said petitioner
annexed thereto a joint manifestation and motion, appearing to have been filed with respondent court, informing
said court that in addition to the fact that 22% of the share of C. N. Hodges had already been bought by the heirs of
Mrs. Hodges, as already stated, certain other heirs of Hodges representing 17.343750% of his estate were joining
cause with the heirs of Mrs. Hodges as against PCIB, thereby making somewhat precarious, if not possibly
untenable, petitioners' continuation as administrator of the Hodges estate.
RESOLUTION OF ISSUES IN THE CERTIORARI AND
PROHIBITION CASES
I
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 thirtythree 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 certiorariand
prohibition in view of the existence of the remedy of appeal which it claims is proven by the very appeals now before
Us. Such contention fails to take into account that there is a common thread among the basic issues involved in all
these thirty-three appeals which, unless resolved in one single proceeding, will inevitably cause the proliferation of
more or less similar or closely related incidents and consequent eventual appeals. If for this consideration alone,
and without taking account anymore of the unnecessary additional effort, expense and time which would be involved
in as many individual appeals as the number of such incidents, it is logical and proper to hold, as We do hold, that
the remedy of appeal is not adequate in the present cases. In determining whether or not a special civil action
of certiorari or prohibition may be resorted to in lieu of appeal, in instances wherein lack or excess of jurisdiction or
grave abuse of discretion is alleged, it is not enough that the remedy of appeal exists or is possible. It is
indispensable that taking all the relevant circumstances of the given case, appeal would better serve the interests of
justice. Obviously, the longer delay, augmented expense and trouble and unnecessary repetition of the same work
attendant to the present multiple appeals, which, after all, deal with practically the same basic issues that can be
more expeditiously resolved or determined in a single special civil action, make the remedies of certiorari and
prohibition, pursued by petitioner, preferable, for purposes of resolving the common basic issues raised in all of
them, despite the conceded availability of appeal. Besides, the settling of such common fundamental issues would
naturally minimize the areas of conflict between the parties and render more simple the determination of the
secondary issues in each of them. Accordingly, respondent Magno's objection to the present remedy
of certiorari and prohibition must be overruled.
We come now to the errors assigned by petitioner-appellant, Philippine Commercial & Industrial Bank, (PCIB, for
short) in the petition as well as in its 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-facieto 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 visa-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 nonjurisdictional 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 "Onehalf 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 them 6 only during his lifetime,
which means that while he could completely and absolutely dispose of any portion thereof inter vivos to anyone other than
himself, he was not free to do so mortis causa, and all his rights to what might remain upon his death would cease entirely
upon the occurrence of that contingency, inasmuch as the right of his brothers and sisters-in-law to the inheritance,
although vested already upon the death of Mrs. Hodges, would automatically become operative upon the occurrence of
the death of Hodges in the event of actual existence of any remainder of her estate then.
Contrary to the view of respondent Magno, however, it was not the usufruct alone of her estate, as contemplated in
Article 869 of the Civil Code, that she bequeathed to Hodges during his lifetime, but the full ownership thereof,

although the same was to last also during his lifetime only, even as there was no restriction whatsoever against his
disposing or conveying the whole or any portion thereof to anybody other than himself. The Court sees no legal
impediment to this kind of institution, in this jurisdiction or under Philippine law, except that it cannot apply to the
legitime of Hodges as the surviving spouse, consisting of one-half of the estate, considering that Mrs. Hodges had
no surviving ascendants nor descendants. (Arts. 872, 900, and 904, New Civil Code.)
But relative precisely to the question of how much of Mrs. Hodges' share of the conjugal partnership properties may
be considered as her estate, the parties are in disagreement as to how Article 16 of the Civil Code 7 should be
applied. On the one hand, petitioner claims that inasmuch as Mrs. Hodges was a resident of the Philippines at the time of
her death, under said Article 16, construed in relation to the pertinent laws of Texas and the principle of renvoi, what
should be applied here should be the rules of succession under the Civil Code of the Philippines, and, therefore, her
estate could consist of no more than one-fourth of the said conjugal properties, the other fourth being, as already
explained, the legitime of her husband (Art. 900, Civil Code) which she could not have disposed of nor burdened with any
condition (Art. 872, Civil Code). On the other hand, respondent Magno denies that Mrs. Hodges died a resident of the
Philippines, since allegedly she never changed nor intended to change her original residence of birth in Texas, United
States of America, and contends that, anyway, regardless of the question of her residence, she being indisputably a
citizen of Texas, under said Article 16 of the Civil Code, the distribution of her estate is subject to the laws of said State
which, according to her, do not provide for any legitime, hence, the brothers and sisters of Mrs. Hodges are entitled to the
remainder of the whole of her share of the conjugal partnership properties consisting of one-half thereof. Respondent
Magno further maintains that, in any event, Hodges had renounced his rights under the will in favor of his co-heirs, as
allegedly proven by the documents touching on the point already mentioned earlier, the genuineness and legal
significance of which petitioner seemingly questions. Besides, the parties are disagreed as to what the pertinent laws of
Texas provide. In the interest of settling the estates herein involved soonest, it would be best, indeed, if these conflicting
claims of the parties were determined in these proceedings. The Court regrets, however, that it cannot do so, for the
simple reason that neither the evidence submitted by the parties in the court below nor their discussion, in their respective
briefs and memoranda before Us, of their respective contentions on the pertinent legal issues, of grave importance as
they are, appear to Us to be adequate enough to enable Us to render an intelligent comprehensive and just resolution.
For one thing, there is no clear and reliable proof of what in fact the possibly applicable laws of Texas are. 7* Then also,
the genuineness of documents relied upon by respondent Magno is disputed. And there are a number of still other
conceivable related issues which the parties may wish to raise but which it is not 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 respondentappellee 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 onehalf 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 onefourth 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-indivisoof
the two estates that should deprive appellee of freedom to act independently from PCIB, as administrator of the
estate of Hodges, just as, for the same reason, the latter should not have authority to act independently from her.
And considering that the lower court failed to adhere consistently to this basic point of view, by allowing the two
administrators to act independently of each other, in the various instances already noted in the narration of facts
above, the Court has to look into the attendant circumstances of each of the appealed orders to be able to
determine whether any of them has to be set aside or they may all be legally maintained notwithstanding the failure
of the court a quo to observe the pertinent procedural technicalities, to the end only that graver injury to the
substantive rights of the parties concerned and unnecessary and undesirable proliferation of incidents in the subject
proceedings may be forestalled. In other words, We have to determine, whether or not, in the light of the unusual
circumstances extant in the record, there is need to be more pragmatic and to adopt a rather unorthodox approach,
so as to cause the least disturbance in rights already being exercised by numerous innocent third parties, even if to
do so may not appear to be strictly in accordance with the letter of the applicable purely adjective rules.

Incidentally, it may be mentioned, at this point, that it was principally on account of the confusion that might result
later from PCIB's continuing to administer all the community properties, notwithstanding the certainty of the
existence of the separate estate of Mrs. Hodges, and to enable both estates to function in the meantime with a
relative degree of regularity, that the Court ordered in the resolution of September 8, 1972 the modification of the
injunction issued pursuant to the resolutions of August 8, October 4 and December 6, 1967, by virtue of which
respondent Magno was completely barred from any participation in the administration of the properties herein
involved. In the September 8 resolution, We ordered that, pending this decision, Special Proceedings 1307 and
1672 should proceed jointly and that the respective administrators therein "act conjointly none of them to act
singly and independently of each other for any purpose." Upon mature deliberation, We felt that to allow PCIB to
continue managing or administering all the said properties to the exclusion of the administratrix of Mrs. Hodges'
estate might place the heirs of Hodges at an unduly advantageous position which could result in considerable, if not
irreparable, damage or injury to the other parties concerned. It is indeed to be regretted that apparently, up to this
date, more than a year after said resolution, the same has not been given due regard, as may be gleaned from the
fact that recently, respondent Magno has filed in these proceedings a motion to declare PCIB in contempt for
alleged failure to abide therewith, notwithstanding that its repeated motions for reconsideration thereof have all been
denied soon after they were filed. 9
Going back to the appeals, it is perhaps best to begin first with what appears to Our mind to be the simplest, and
then proceed to the more complicated ones in that order, without regard to the numerical sequence of the
assignments of error in appellant's brief or to the order of the discussion thereof by counsel.
Assignments of error numbers
LXXII, LXXVII and LXXVIII.
These assignments of error relate to (1) the order of the trial court of August 6, 1965 providing that "the deeds of
sale (therein referred to involving properties in the name of Hodges) should be signed jointly by the PCIB, as
Administrator of Testate Estate of C.N. Hodges, and Avelina A. Magno, as Administratrix of the Testate Estate of
Linnie Jane Hodges, and to this effect, the PCIB should take the necessary steps so that Administratrix Avelina A.
Magno could sign the deeds of sale," (p. 248, Green Rec. on Appeal) (2) the order of October 27, 1965 denying the
motion for reconsideration of the foregoing order, (pp. 276-277, id.) (3) the other order also dated October 27, 1965
enjoining inter alia, that "(a) all cash collections should be deposited in the joint account of the estate of Linnie Jane
Hodges and estate of C. N. Hodges, (b) that whatever cash collections (that) had 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, 1 1* all proceeds of remunerative transfers or dispositions made by
Hodges after the death of his wife should be deemed as continuing to be parts of her estate and, therefore, subject to the
terms of her will in favor of her brothers and sisters, in the sense that should there be no showing that such proceeds,
whether in cash or property have been subsequently conveyed or assigned subsequently by Hodges to any third party by
acts inter vivos with the result that they could not thereby belong to him anymore at the time of his death, they
automatically became part of the inheritance of said brothers and sisters. The deeds here in question involve transactions
which are exactly of this nature. Consequently, the payments made by the appellees should be considered as payments
to the estate of Mrs. Hodges which is to be distributed and partitioned among her heirs specified in the will.
The five deeds of sale predicated on contracts to sell executed Hodges during the lifetime of his wife, present a
different situation. At first blush, it would appear that as to them, PCIB's position has some degree of plausibility.
Considering, however, that the adoption of PCIB's theory would necessarily have tremendous repercussions and
would bring about considerable disturbance of property rights that have somehow accrued already in favor of
innocent third parties, the five purchasers aforenamed, the Court is inclined to take a pragmatic and practical view of
the legal situation involving them by overlooking the possible technicalities in the way, the non-observance of which
would not, after all, detract materially from what should substantially correspond to each and all of the parties
concerned.
To start with, these contracts can hardly be ignored. Bona fide third parties are involved; as much as possible, they
should not be made to suffer any prejudice on account of judicial controversies not of their own making. What is
more, the transactions they rely on were submitted by them to the probate court for approval, and from already
known and recorded actuations of said court then, they had reason to believe that it had authority to act on their
motions, since appellee Magno had, from time to time prior to their transactions with her, been allowed to act in her
capacity as administratrix of one of the subject estates either alone or conjointly with PCIB. All the sales in question
were executed by Magno in 1966 already, but before that, the court had previously authorized or otherwise
sanctioned expressly many of her act as administratrix involving expenditures from the estate made by her either
conjointly with or independently from PCIB, as Administrator of the Estate of Hodges. Thus, it may be said that said
buyers-appellees merely followed precedents in previous orders of the court. Accordingly, unless the impugned
orders approving those sales indubitably suffer from some clearly fatal infirmity the Court would rather affirm them.

It is quite apparent from the record that the properties covered by said sales are equivalent only to a fraction of what
should constitute the estate of Mrs. Hodges, even if it is assumed that the same would finally be held to be only onefourth 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.
SUM MARY
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 coappellees 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 beengratuitously disposed of
therefrom, by Hodges in favor of third persons since then, for even if it were assumed that, as contended by PCIB,
under Article 16 of the Civil Code and applying renvoi the laws of the Philippines are the ones ultimately applicable,
such one-fourth share would be her free disposable portion, taking into account already the legitime of her husband
under Article 900 of the Civil Code.
The foregoing considerations leave the Court with no alternative than to conclude that in predicating its orders on
the assumption, albeit unexpressed therein, that there is an estate of Mrs. Hodges to be distributed among her

brothers and sisters and that respondent Magno is the legal administratrix thereof, the trial court acted correctly and
within its jurisdiction. Accordingly, the petition for certiorari and prohibition has to be denied. The Court feels
however, that pending the liquidation of the conjugal partnership and the determination of the specific properties
constituting her estate, the two administrators should act conjointly as ordered in the Court's resolution of
September 8, 1972 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 respondentappellee 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 onefourth 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
administrator12; 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.
Zaldivar, Castro, Esguerra and Fernandez, JJ., concur.
Makasiar, Antonio, Muoz Palma and Aquino, JJ., concur in the result.

Separate Opinions

FERNANDO, J., concurring:


I concur on the basis of the procedural pronouncements in the opinion.
TEEHANKEE, J., concurring:
I concur in the result of dismissal of the petition for certiorari and prohibition in Cases L-27860 and L-27896 and with
the affirmance of the appealed orders of the probate court in Cases L-27936-37.
I also concur with the portion of the dispositive part of the judgment penned by Mr. Justice Barredo decreeing
thelifting of the Court's writ of preliminary injunction of August 8, 1967 as amended on October 4, and December 6,
1967 1 and ordering in lieu thereof that the Court's resolution of September 8, 1972 2 which directed that petitionerappellantPCIB as administrator of C. N. (Charles Newton) Hodges' estate (Sp. Proc. No. 1672 and respondent-appellee
Avelina A. Magno as administratrix of Linnie Jane Hodges' estate (Sp. Proc. No. 1307) should act always conjointly never
independently from each other, as such administrators, is reiterated and shall continue in force and made part of the
judgment.
It is manifest from the record that petitioner-appellant PCIB's primal contention in the cases at bar belatedly filedby it
with this Court on August 1, 1967 (over ten (10) years after Linnie Jane Hodges' death on May 23, 1957 and (over
five (5) years after her husband C.N. Hodges' death on December 25, 1962 during which time both estates have
been pending settlement and distribution to the decedents' respective rightful heirs all this time up to now) that
the probate court per its order of December 14, 1957 (supplementing an earlier order of May 25, 1957) 3 in granting
C. N. Hodges' motion as Executor of his wife Linnie's estate to continue their "business of buying and selling personal and
real properties" and approving "all sales, conveyances, leases and mortgages" made and to be made by him as such
executor under his obligation to submit his yearly accounts in effect declared him as sole heir of his wife's estate and
nothing remains to be done except to formally close her estate (Sp. Proc. No. 1307) as her estate was thereby merged
with his own so that nothing remains of it that may be adjudicated to her brothers and sisters as her designated heirs after
him, 4 is wholly untenable and deserves scant consideration.
Aside from having been put forth as an obvious afterthought much too late in the day, this contention of PCIB that
there no longer exists any separate estate of Linnie Jane Hodges after the probate court's order of December 14,
1957 goes against the very acts and judicial admissions of C.N. Hodges as her executor whereby he consistently
recognized the separate existence and identity of his wife's estate apart from his own separate estate and from his
own share of their conjugal partnership and estate and "never considered the whole estate as a single one
belonging exclusively to himself" during the entire period that he survived her for over five (5) years up to the time of
his own death on December 25, 1962 5 and against the identical acts and judicial admissions of PCIB as administrator of
C.N. Hodges' estate until PCIB sought in 1966 to take over both estates as pertaining to its sole administration.
PCIB is now barred and estopped from contradicting or taking a belated position contradictory to or inconsistent with
its previous admissions 6 (as well as those of C.N. Hodges himself in his lifetime and of whose estate PCIB is
merely an administrator) recognizing the existence and identity of Linnie Jane Hodges' separate estate and the legal
rights and interests therein of her brothers and sisters as her designated heirs in her will.
PCIB's petition for certiorari and prohibition to declare all acts of the probate court in Linnie Jane Hodges' estate
subsequent to its order of December 14, 1957 as "null and void for having been issued without jurisdiction" must
therefore be dismissed with the rejection of its belated and untenable contention that there is no longer any estate of
Mrs. Hodges of which respondent Avelina Magno is the duly appointed and acting administratrix.

PCIB's appeal 7 from the probate court's various orders recognizing respondent Magno as administratrix of Linnie's estate
(Sp. Proc No. 1307) and sanctioning her acts of administration of said estate and approving the sales contracts executed
by her with the various individual appellees, which involve basically the same primal issue raised in the petition as to
whether there still exists a separate estate of Linnie of which respondent-appellee Magno may continue to be the
administratrix, must necessarily fail a result of the Court's main opinion at bar that there does exist such an estate and
that the twoestates (husband's and wife's) must be administered cojointly by their respective administrators (PCIB and
Magno).
The dispositive portion of the main opinion
The main opinion disposes that:
IN VIEW OF ALL THE FOREGOING PREMISES, judgment is hereby rendered DISMISSING the
petition in G. R. Nos. L-27860 and L-27896, and AFFIRMING, in G. R. Nos. L-27936-37 and the
other thirty-one numbers hereunder ordered to be added after payment of the corresponding docket
fees, all the orders of the trial court under appeal enumerated in detail on pages 35 to 37 and 80 to
82 of this decision:
The existence of the Testate Estate of Linnie Jane Hodges, with respondent-appellee Avelina A.
Magno, as administratrix thereof is recognized, and
It is declared that, until final judgment is ultimately rendered regarding (1) the manner of applying
Article 16 of the Civil Code of the Philippines to the situation obtaining in these cases and (2) the
factual and legal issues of whether or not Charles Newton Hodges has effectively and legally
renounced his inheritance under the will of Linnie Jane Hodges, the said estate consists of onefourthof 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
ofgratuitously to third parties by the husband, and second, that should the purported renunciation be
declared legally effective, no deduction whatsoever are to be made from said estate;
In consequence, the preliminary injunction of August 8, 1967, as amended on October 4 and
December 6, 1967, is lifted and the resolution of September 8, 1972, directing that petitionerappellant PCIB, as Administrator of the Testate Estate of Charles Newton Hodges in Special
Proceedings 1672, and respondent-appellee Avelina A. Magno, as Administratrix of the Testate
Estate of Linnie Jane Hodges in Special Proceedings 1307, should act thenceforth always conjointly,
never independently from each other, as such administrators, is reiterated, and the same is made
part of this judgment and shall continue in force, pending the liquidation of the conjugal partnership
of the deceased spouses and the determination and segregation from each other of their respective
estates; provided, that upon the finality of this judgment, the trial court should immediately proceed
to the partition of the presently combined estates of the spouses, to the end that the one-half share
thereof of Mrs. Hodges may be properly and clearly identified;
Thereafter, the trial court should forthwith segregate the remainder of the one-fourth herein adjudged
to be her estate and cause the same to be turned over or delivered to respondent for her exclusive
administration in Special Proceedings 1307, while the other one-fourth shall remain under the joint
administrative of said respondent and petitioner under a joint proceedings in Special Proceedings
1307 and 1672, whereas the half unquestionably pertaining to Hodges shall
be administered bypetitioner exclusively in Special Proceedings 1672, without prejudice to the
resolution by the trial court of the pending motions for its removal as administrator;
And this arrangement shall be maintained until the final resolution of the two issues
of renvoi andrenunciation hereby reserved for further hearing and determination, and the
corresponding completesegregation and partition of the two estates in the proportions that may
result from the said resolution.
Generally and in all other respects, the parties and the court a quo are directed to adhere
henceforth, in all their actuations in Special Proceedings 1307 and 1672, to the views passed and
ruled upon by the Court in the foregoing opinion. 8
Minimum estimate of Mrs. Hodges' estate:
One-fourth of conjugal properties.
The main opinion in declaring the existence of a separate estate of Linnie Jane Hodges which shall pass to her
brothers and sisters with right of representation (by their heirs) as her duly designated heirs declares that her estate
consists as a minimum (i.e. assuming (1) that under Article 16 of the Philippine Civil Code C. N. Hodges as surviving
husband was entitled to one-half of her estate as legitime and (2) that he had not effectively and
legallyrenounced his inheritance under her will) of "one-fourth of the community properties of the said spouses, as of

the time of the death of the wife on May 23, 1957, minus whatever the husband had already gratuitously disposed of
in favor of third persons from said date until his death," with the proviso that proceeds of remunerativedispositions or
sales for valuable consideration made by C. N. Hodges after his wife Linnie's death shall continue to be part of her
estate unless subsequently disposed of by him gratuitously to third parties subject to the condition, however, that if
he is held to have validly and effectively renounced his inheritance under his wife's will,no deductions of any
dispositions made by Hodges even if gratuitously are to be made from his wife Linnie's estate which shall
pass intact to her brothers and sisters as her designated heirs called in her will to succeed to her estate upon the
death of her husband C. N. Hodges.
Differences with the main opinion
I do not share the main opinion's view that Linnie Jane Hodges instituted her husband as her heir under her will "to
have dominion over all her estate during his lifetime ... as absolute owner of the properties ..." 9 and that she
bequeathed "the whole of her estate to be owned and enjoyed by him as universal and sole heir with absolute
dominion over them only during his lifetime, which means that while he could completely and absolutely dispose of any
portion thereof inter vivos to anyone other than himself, he was not free to do so mortis causa, and all his rights to what
might remain upon his death would cease entirely upon the occurrence of that contingency, inasmuch as the right of his
brothers and sisters-in-law to the inheritance, although vested already upon the death of Mrs. Hodges, would
automatically become operative upon the occurrence of the death of Hodges in the event of actual existence of any
remainder of her estate then." 10
As will be amplified hereinafter, I do not subscribe to such a view that Linnie Jane Hodges willed "full and absolute
ownership" and "absolute dominion" over her estate to her husband, but rather that she named her husband C. N.
Hodges and her brothers and sisters as instituted heirs with a term under Article 885 of our Civil Code, to wit,
Hodges as instituted heir with a resolutory term whereunder his right to the succession ceased in diem upon arrival
of the resolutory term of his death on December 25, 1962 and her brothers and sisters as instituted heirs with
a suspensive term whereunder their right to the succession commenced ex die upon arrival of the suspensive term
of the death of C. N. Hodges on December 25, 1962.
Hence, while agreeing with the main opinion that the proceeds of all remunerative dispositions made by C. N.
Hodges after his wife's death remain an integral part of his wife's estate which she willed to her brothers and sisters,
I submit that C. N. Hodges could not validly make gratuitous dispositions of any part or all of his wife's estate
"completely and absolutely dispose of any portion thereof inter vivos to anyone other than himself" in the language
of the main opinion, supra and thereby render ineffectual and nugatory her institution of her brothers and sisters
as her designated heirs to succeed to her whole estate "at the death of (her) husband." If according to the main
opinion, Hodges could not make such gratuitous "complete and absolute dispositions" of his wife Linnie's estate
"mortis causa," it would seem that by the same token and rationale he was likewise proscribed by the will from
making such dispositions of Linnie's estate inter vivos.
I believe that the two questions of renvoi and renunciation should be resolved preferentially and expeditiously by the
probate court ahead of the partition and segregation of the minimum one-fourth of the conjugal or community
properties constituting Linnie Jane Hodges' separate estate, which task considering that it is now seventeen (17)
years since Linnie Jane Hodges' death and her conjugal estate with C. N. Hodges has remained unliquidated up to
now might take a similar number of years to unravel with the numerous items, transactions and details of the sizable
estates involved.
Such partition of the minimum one-fourth would not be final, since if the two prejudicial questions
of renvoi andrenunciation were resolved favorably to Linnie's estate meaning to say that if it should be held that C.
N. Hodges is not entitled to any legitime of her estate and at any rate he had totally renounced his inheritance under
the will), then Linnie's estate would consist not only of the minimum one-fourth but one-half of the conjugal or
community properties of the Hodges spouses, which would require again the partition and segregation of still
another one-fourth of said. properties to complete Linnie's separate estate.
My differences with the main opinion involve further the legal concepts, effects and consequences of the
testamentary dispositions of Linnie Jane Hodges in her will and the question of the best to reach a solution of the
pressing question of expediting the closing of the estates which after all do not appear to involve any outstanding
debts nor any dispute between the heirs and should therefore be promptly settled now after all these years without
any further undue complications and delays and distributed to the heirs for their full enjoyment and benefit. As no
consensus appears to have been reached thereon by a majority of the Court, I propose to state views as concisely
as possible with the sole end in view that they may be of some assistance to the probate court and the parties in
reaching an expeditious closing and settlement of the estates of the Hodges spouses.
Two Assumptions
As indicated above, the declaration of the minimum of Mrs. Hodges' estate as one-fourth of the conjugal properties
is based on two assumptions most favorable to C. N. Hodges' estate and his heirs, namely (1) that the probate court
must accept the renvoi or "reference back" 11 allegedly provided by the laws of the State of Texas (of which state the
Hodges spouses were citizens) whereby the civil laws of the Philippines as the domicile of the Hodges spouses would
govern their succession notwithstanding the provisions of Article 16 of our Civil Code (which provides that the national law
of the decedents, in this case, of Texas, shall govern their succession) with the result that her estate would consist of no

more than one-fourth of the conjugal properties since the legitime of her husband (the other one-fourth of said conjugal
properties or one-half of her estate, under Article 900 of our Civil Code) could not then be disposed of nor burdened with
any condition by her and (2) that C.N. Hodges had not effectively and legally renounced his inheritance under his wife's
will.

These two assumptions are of course flatly disputed by respondent-appellee Magno as Mrs. Hodges' administratrix,
who avers that the law of the State of Texas governs her succession and does not provide for and legitime, hence,
her brothers and sisters are entitled to succeed to the whole of her share of the conjugal properties which is onehalf thereof and that in any event, Hodges had totally renounced all his rights under the will.
The main opinion concedes that "(I)n the interest of settling the estates herein involved soonest, it would be best,
indeed, if these conflicting claims of the parties were determined in these proceedings." It observes however that
this cannot be done due to the inadequacy of the evidence submitted by the parties in the probate court and of the
parties' discussion, viz, "there is no clear and reliable proof of what the possibly applicable laws of Texas are. Then
also, the genuineness of the documents relied upon by respondent Magno [re Hodges' renunciation] is disputed." 12
Hence, the main opinion expressly reserves resolution and determination on these two conflicting claims and issues
which it deems "are not properly before the Court
now," 13 and specifically holds that "(A)ccordingly, the only question that remains to be settled in the further proceedings
hereby ordered to be held in the court below is how much more than as fixed above is the estate of Mrs. Hodges, and this
would depend on (1) whether or not the applicable laws of Texas do provide in effect for more, such as, when there is
nolegitime provided therein, and (2) whether or not Hodges has validly waived his whole inheritance from Mrs. Hodges." 14
Suggested guidelines
Considering that the only unresolved issue has thus been narrowed down and in consonance with the ruling spirit of
our probate law calling for the prompt settlement of the estates of deceased persons for the benefit of creditors and
those entitled to the residue by way of inheritance considering that the estates have been long pending
settlement since 1957 and 1962, respectively it was felt that the Court should lay down specific guidelines for the
guidance of the probate court towards the end that it may expedite the closing of the protracted estates proceedings
below to the mutual satisfaction of the heirs and without need of a dissatisfied party elevating its resolution of
this only remaining issue once more to this Court and dragging out indefinitely the proceedings.
After all, the only question that remains depends for its determination on the resolution of the two questions
ofrenvoi and renunciation, i.e. as to whether C. N. Hodges can claim a legitime and whether he had renounced the
inheritance. But as already indicated above, the Court without reaching a consensus which would finally resolve the
conflicting claims here and now in this case opted that "these and other relevant matters should first be threshed out
fully in the trial court in the proceedings hereinafter to be held for the purpose of ascertaining and/or distributing the
estate of Mrs. Hodges to her heirs in accordance with her duly probated will." 15
The writer thus feels that laying down the premises and principles governing the nature, effects and consequences
of Linnie Jane Hodges' testamentary dispositions in relation to her conjugal partnership and co-ownership of
properties with her husband C. N. Hodges and "thinking out" the end results, depending on whether the evidence
directed to be formally received by the probate court would bear out that under renvoi C. N. Hodges was or was not
entitled to claim a legitime of one-half of his wife Linnie's estate and/or that he had or had not effectively and
validly renounced his inheritance should help clear the decks, as it were, and assist the probate court in resolving
the only remaining question of how much more than the minimum one-fourth of the community properties of the
Hodges spouses herein finally determined should be awarded as the separate estate of Linnie, particularly since the
views expressed in the main opinion have not gained a consensus of the Court. Hence, the following suggested
guidelines, which needless to state, represent the personal opinion and views of the writer:
1. To begin with, as pointed out in the main opinion, "according to Hodges' own inventory submitted by him as
executor of the estate of his wife, practically all their properties were conjugal which means that the spouses
haveequal shares therein." 16
2. Upon the death of Mrs. Hodges on May 23, 1957, and the dissolution thereby of the marriage, the law imposed
upon Hodges as surviving husband the duty of inventorying, administering and liquidating the conjugal or
community property. 17 Hodges failed to discharge this duty of liquidating the conjugal partnership and estate. On the
contrary, he sought and obtained authorization from the probate court to continue the conjugal partnership's business of
buying and selling real and personal properties.
In his annual accounts submitted to the probate court as executor of Mrs. Hodges' estate, Hodges
thusconsistently reported the considerable combined income (in six figures) of the conjugal partnership or
coownership and then divided the same equally between himself and Mrs. Hodges' estate and as consistently
filed separate income tax returns and paid the income taxes for each resulting half of such combined income
corresponding to his own and to Mrs. Hodges' estate. 18 (Parenthetically, he could not in law do this, had he
adjudicated Linnie's entire estate to himself, thus supporting the view advanced even in the main opinion that
"Hodges waived not only his rights to the fruits but to the properties themselves." 19

By operation of the law of trust 20 as well as by his own acknowledgment and acts, therefore, all transactions made by
Hodges after his wife's death were deemed for and on behalf of their unliquidated conjugal partnership
and community estate and were so reported and treated by him.
3. With this premise established that all transactions of Hodges after his wife's death were for and on behalf of
their unliquidated conjugal partnership and community estate, share and share alike, it should be clear that
nogratuitous dispositions, if any, made by C. N. Hodges from his wife Linnie's estate should be deducted from
herseparate estate as held in the main opinion. On the contrary, any such gratuitous dispositions should be charged
to his own share of the conjugal estate since he had no authority or right to make any gratuitous dispositions of
Linnie's properties to the prejudice of her brothers and sisters whom she called to her succession upon his death,
not to mention that the very authority obtained by him from the probate court per its orders of May 25, and
December 14, 1957 was to continue the conjugal partnership's business of buying and selling real properties for the
account of their unliquidated conjugal estate and co-ownership, share and share alike and not to make
anyfree dispositions of Linnie's estate.
4. All transactions as well after the death on December 25, 1962 of Hodges himself appear perforce and necessarily
to have been conducted, on the same premise, for and on behalf of their unliquidated conjugal partnership and/or
co-ownership, share and share alike since the conjugal partnership remained unliquidated which is another
way of saying that such transactions, purchases and sales, mostly the latter, must be deemed in effect to have been
made for the respective estates of C. N. Hodges and of his wife Linnie Jane Hodges, as both estates continued to
have an equal stake and share in the conjugal partnership which was not only leftunliquidated but continued as a
co-ownership or joint business with the probate court's approval by Hodges during the five-year period that he
survived his wife.
This explains the probate court's action of requiring that deeds of sale executed by PCIB as Hodges' estate's
administrator be "signed jointly" by respondent Magno as Mrs. Hodges' estate's administratrix, as well as its order
authorizing payment by lot purchasers from the Hodges to either estate, since "there is as yet no judicial declaration
of heirs nor distribution of properties to whomsoever are entitled thereto." 22
And this equally furnishes the rationale of the main opinion for continued conjoint administration by the
administrators of the two estates of the deceased spouses, "pending the liquidation of the conjugal
partnership,"23 since "it is but logical that both estates should be administered jointly by the representatives of both,
pending their segregation from each other. Particularly ... because the actuations so far of PCIB evince a determined,
albeit groundless, intent to exclude the other heirs of Mrs. Hodges from their inheritance." 24 5. Antly by the
representatives of both, pending their segregation from each other. Particularly ... because the actuations so far of PCIB
evince a determined, albeit groundless, intent to exclude the other heirs of Mrs. Hodges from their inheritance." 24
5. As stressed in the main opinion, the determination of the only unresolved issue of how much more than the
minimum of one-fourth of the community or conjugal properties of the Hodges spouses pertains to Mrs. Hodges'
estate depends on the twin questions of renunciation and renvoi. It directed consequently that "a joint hearing of the
two probate proceedings herein involved" be held by the probate court for the reception of "further evidence" in
order to finally resolved these twin questions. 25
(a) On the question of renunciation, it is believed that all that the probate court has to do is to receive formally in
evidence the various documents annexed to respondent Magno's answer at bar, 26 namely: Copy of the U.S. Estate
Tax Return filed on August 8, 1958 by C. N. Hodges for his wife Linnie's estate wherein he purportedly declared that he
wasrenouncing his inheritance under his wife's will in favor of her brothers and sisters as co-heirs designated with him and
that it was his "intention (as) surviving husband of the deceased to distribute the remaining property and interests of the
deceased in their community estate to the devisee and legatees named in the will when the debts, liabilities, taxes and
expenses of administration are finally determined and paid;" 27 and
The affidavit of ratification of such renunciation (which places him in estoppel) allegedly executed on August 9, 1962
by C. N. Hodges in Iloilo City wherein he reaffirmed that "... on August 8, 1958, I renounced and disclaimed any and
all right to receive the rents, emoluments and income from said estate" and further declared that "(T)he purpose of
this affidavit is to ratify and confirm, and I do hereby ratify and confirm, the declaration made in schedule M of said
return and hereby formally disclaim and renounce any right on my part to receive any of the said rents, emoluments
and income from the estate of my deceased wife, Linnie Jane Hodges. This affidavit is made to absolve me or my
estate from any liability for the payment of income taxes on income which has accrued to the estate of Linnie Jane
Hodges since the death of the said Linnie Jane Hodges on May 23, 1957." 28
(b) On the question of renvoi, all that remains for the probate court to do is to formally receive in evidence duly
authenticated copies of the laws of the State of Texas governing the succession of Linnie Jane Hodges and her
husband C. N. Hodges as citizens of said State at the time of their respective deaths on May 23,
1957 andDecember 25, 1962. 29
6. The text and tenor of the declarations by C. N. Hodges of renunciation of his inheritance from his wife in favor of
her other named heirs in her will (her brothers and sisters and their respective heirs) as ratified and
reiteratedexpressly in his affidavit of renunciation executed four years later for the avowed purpose of not being held
liable for payment of income taxes on income which has accrued to his wife's estate since her death indicate a valid
and effective renunciation.

Once the evidence has been formally admitted and its genuineness and legal effectivity established by the probate
court, the renunciation by C. N. Hodges must be given due effect with the result that C. N. Hodges therefore
acquired no part of his wife's one-half share of the community properties since he removed himself as an heir by
virtue of his renunciation. By simple substitution then under Articles 857 and 859 of our Civil Code 30and by virtue of
the will's institution of heirs, since "the heir originally instituted C. N. Hodges) does not become an heir" 31by force of his
renunciation, Mrs. Hodges' brothers and sisters whom she designated as her heirs upon her husband's death are called
immediately to her succession.
Consequently, the said community and conjugal properties would then pertain pro indiviso share and share alike to
their respective estates, with each estate, however, shouldering its own expenses of administration, estate and
inheritance taxes, if any remain unpaid, attorneys' fees and other like expenses and the net remainder to be
adjudicated directly to the decedents' respective brothers and sisters (and their heirs) as the heirs duly designated in
their respective wills. The question of renvoi becomes immaterial since most laws and our
lawspermit such renunciation of inheritance.
7. If there were no renunciation (or the same may somehow be declared to have not been valid and effective) by C.
N. Hodges of his inheritance from his wife, however, what would be the consequence?
(a) If the laws on succession of the State of Texas do provide for renvoi or "reference back" to Philippine law as the
domiciliary law of the Hodges' spouses governing their succession, then petitioners' view that Mrs. Hodges' estate
would consist only of the minimum of "one-fourth of the community properties of the said spouses, as of the time of
(her) death on May 23, 1957" would have to be sustained and C. N. Hodges' estate would consist ofthree-fourths of
the community properties, comprising his own one-half (or two-fourths) share and the other fourth of Mrs. Hodges'
estate as the legitime granted him as surviving spouse by Philippine law (Article 900 of the Civil Code) which could
not be disposed of nor burdened with any condition by Mrs. Hodges as testatrix.
(b) If the laws on succession of the State of Texas do not provide for such renvoi and respondent Magno's assertion
is correct that the Texas law which would then prevail, provides for no legitime for C. N. Hodges as the surviving
spouse, then respondent Magno's assertion that Mrs. Hodges' estate would consist of one-half of the community
properties (with the other half pertaining to C. N. Hodges) would have to be sustained. The community and conjugal
properties would then pertain share and share alike to their respective estates, with each estate shouldering its own
expenses of administration in the same manner stated in the last paragraph of paragraph 6 hereof. .
8. As to the nature of the institution of heirs made by Mrs. Hodges in her will, the main opinion holds that "(T)he
brothers and sisters of Mrs. Hodges are not substitutes for Hodges; rather, they are also heirs
institutedsimultaneously with Hodges," but goes further and holds that "it was not the usufruct alone of her estate ...
that she bequeathed to Hodges during his lifetime, but the full ownership thereof, although the same was to last also
during his lifetime only, even as there was no restriction against his disposing or conveying the whole or any portion
thereof anybody other than himself" and describes Hodges "as universal and sole heir with absolute dominion over
Mrs. Hodges' estate (except over their Lubbock, Texas property ), 32 adding that "Hodges was not obliged to preserve
anything for them" (referring to Mrs. Hodges' brothers and sisters as instituted co-heirs). 33
Contrary to this view of the main opinion, the writer submits that the provisions of Mrs. Hodges' will did not grant to
C.N. Hodges "full ownership" nor "absolute dominion" over her estate, such that he could as "universal and sole
heir" by the mere expedient of gratuitously disposing to third persons her whole estate during his lifetime nullifyher
institution of her brothers and sisters as his co-heirs to succeed to her whole estate "at the death of (her)
husband," deprive them of any inheritance and make his own brothers and sisters in effect sole heirs not only of his
own estate but of his wife's estate as well.
Thus, while Linnie Jane Hodges did not expressly name her brothers and sisters as substitutes for Hodges because
she willed that they would enter into the succession upon his death, still it cannot be gainsaid, as the main opinion
concedes, "that they are also heirs instituted simultaneously with Hodges, subject however to certain conditions,
partially resolutory insofar as Hodges was concerned and correspondingly suspensive with reference to his brothers
and sisters-in-law." 34
Hence, if Hodges is found to have validly renounced his inheritance, there would be a substitution of heirs in fact
and in law since Linnie's brothers and sisters as the heirs "simultaneously instituted" with a suspensive term would
be called immediately to her succession instead of waiting for the arrival of suspensive term of Hodges' death, since
as the heir originally instituted he does not become an heir by force of his renunciation and therefore they would
"enter into the inheritance in default of the heir originally instituted" (Hodges) under the provisions of Article 857 and
859 of our Civil Code, supra, 35 thus accelerating their succession to her estate as a consequence of Hodges'
renunciation.
Consequently, Linnie Jane Hodges willed that her husband C.N. Hodges would "during his natural
lifetime ...manage, control, use and enjoy said estate" and that only "all rents, emoluments and income" alone shall
belong to him. She further willed that while he could sell and purchase properties of her estate, and "use any part of
the principal estate," such principal notwithstanding "any changes in the physical properties of said estate"(i.e. new
properties acquired or exchanged) would still pertain to her estate, which at the time of his death would pass infull
dominion to her brothers and sisters as the ultimate sole and universal heirs of her estate. 36

The testatrix Linnie Jane Hodges in her will thus principally provided that "I give, devise and bequeath all of the rest,
residue and remainder of my estate, both personal and real ... to my beloved husband, Charles Newton Hodges, to
have and to hold with him ... during his natural lifetime;" 37 that "(he) shall have the right to manage, control,
use and enjoy said estate during his lifetime, ... to make any changes in the physical properties of said estate, bysale ...
and the purchase of any other or additional property as he may think best ... . All rents, emoluments and incomefrom said
estate shall belong to him and he is further authorized to use any part of the principal of said estate as he may need or
desire, ... he shall not sell or otherwise dispose of any of the improved property now owned by us, located at ... City of
Lubbock, Texas ... . He shall have the right to subdivide any farm land and sell lots therein, and may sell unimproved
town lots;" 38 that "(A)t the death of my said husband, Charles Newton, I give, devise and bequeath all of the rest, residue
and remainder of my estate, both personal and real, ... to be equally divided among my brothers and sisters, share and
share alike, namely: Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Sadie Rascoe, Era Roman and Nimroy
Higdon;" 39 and that "(I)n case of the death of any of my brothers and/or sisters ... prior to the death of my husband ... the
heirs of such deceased brother or sister shall take jointly the share which would have gone to such brother or sister had
she or he survived." 40
Such provisions are wholly consistent with the view already fully expounded above that all transactions and sales
made by Hodges after his wife Linnie's death were by operation of the law of trust as well as
by his ownacknowledgment and acts deemed for and on behalf of their unliquidated conjugal partnership and
community estate, share and share alike, with the express authorization of the probate court per its orders of May
25, and December 14, 1957 granting Hodges' motion to continue the conjugal partnership business of buying and
selling real estate even after her death. By the same token, Hodges could not conceivably be deemed to have had
any authority or right to dispose gratuitously of any portion of her estate to whose succession she had called her
brothers and sisters upon his death.
9. Such institutions of heirs with a term are expressly recognized and permitted under Book III, Chapter 2, section 4
of our Civil Code dealing with "conditional testamentary dispositions and testamentary dispositions with a term."41
Thus, Article 885 of our Civil Code expressly provides that:
ART 885. The designation of the day or time when the effects of the institution of an heir
shallcommence or cease shall be valid.
In both cases, the legal heir shall be considered as called to the succession until the arrival of the
period or its expiration. But in the first case he shall not enter into possession of the property until
after having given sufficient security, with the intervention of the instituted heir.
Accordingly, under the terms of Mrs. Hodges' will, her husband's right to the succession as the instituted heir
ceased in diem, i.e. upon the arrival of the resolutory term of his death on December 25, 1962, while her brothers'
and sisters' right to the succession also as instituted heirs commenced ex die, i.e. upon the expiration of the
suspensive term (as far as they were concerned) of the death of C. N. Hodges on December 25, 1962 . 42
As stated in Padilla's treatise on the Civil Code, "A term is a period whose arrival is certain although the exact date
thereof may be uncertain. A term may have either a suspensive or a resolutory effect. The designation of the day
when the legacy "shall commence" is ex die, or a term with a suspensive effect, from a certain day. The designation
of the day when the legacy "shall cease" is in diem or a term with a resolutory effect, until a certain day." He adds
that "A legacy based upon a certain age or upon the death of a person is not a condition but aterm. If the arrival of
the term would commence the right of the heir, it is suspensive. If the arrival of the term would terminate his right, it
is resolutory" and that "upon the arrival of the period, in case of a suspensive term, the instituted heir is entitled to
the succession, and in case of a resolutory term, his right terminates." 43
10. The sizable estates herein involved have now been pending settlement for a considerably protracted period (of
seventeen years counted from Linnie's death in 1957), and all that is left to be done is to resolve the onlyremaining
issue (involving the two questions of renunciation and renvoi) hereinabove discussed in order to close up the
estates and finally effect distribution to the deceased spouses' respective brothers and sisters and their heirs as the
heirs duly instituted in their wills long admitted to probate. Hence, it is advisable for said instituted heirs and their
heirs in turn 44 to come to terms for the adjudication and distribution to them pro-indiviso of the up to now unliquidated
community properties of the estates of the Hodges spouses (derived from their unliquidated conjugal partnership) rather
than to get bogged down with the formidable task of physically segregating and partitioning the two estates with the
numerous transactions, items and details and physical changes of properties involved. The estates proceedings would
thus be closed and they could then name their respective attorneys-in-fact to work out the details of segregating, dividing
or partitioning the unliquidated community properties or liquidating them which can be done then on their own without
further need of intervention on the part of the probate court as well as allow them meanwhile to enjoy and make use of the
income and cash and liquid assets of the estates in such manner as may be agreed upon between them.
Such a settlement or modus vivendi between the heirs of the unliquidated two estates for the mutual benefit of all of
them should not prove difficult, considering that it appears as stated in the main opinion that 22.968149% of the
share or undivided estate of C. N. Hodges have already been acquired by the heirs of Linnie Jane Hodges from
certain heirs of her husband, while certain other heirs representing 17.34375% of Hodges' estate were joining cause
with Linnie's heirs in their pending and unresolved motion for the removal of petitioner PCIB as administrator of

Hodges' estate, 45 apparently impatient with the situation which has apparently degenerated into a running battle between
the administrators of the two estates to the common prejudice of all the heirs.
11. As earlier stated, the writer has taken the pain of suggesting these guidelines which may serve to guide the
probate court as well as the parties towards expediting the winding up and closing of the estates and the distribution
of the net estates to the instituted heirs and their successors duly entitled thereto. The probate court should exert all
effort towards this desired objective pursuant to the mandate of our probate law, bearing in mind the Court's
admonition in previous cases that "courts of first instance should exert themselves to close up estate within twelve
months from the time they are presented, and they may refuse to allow any compensation to executors and
administrators who do not actively labor to that end, and they may even adopt harsher measures."46
Timeliness of appeals and imposition of
thirty-one (31) additional docket fees
Two appeals were docketed with this Court, as per the two records on appeal submitted (one with a green cover
and the other with a yellow cover). As stated at the outset, these appeals involve basically the same primal issue
raised in the petition for certiorari as to whether there still exists a separate estate of Linnie Jane Hodges which has
to continue to be administered by respondent Magno. Considering the main opinion's ruling in the affirmative and
that her estate and that of her husband (since they jointly comprise unliquidated community properties) must be
administered conjointly by their respective administrators (PCIB and Magno), the said appeals (involving thirty-three
different orders of the probate court approving sales contracts and other acts of administration executed and
performed by respondent Magno on behalf of Linnie's estate) have been necessarily overruled by the Court's
decision at bar.
(a) The "priority question" raised by respondent Magno as to the patent failure of the two records on appeal to show
on their face and state the material data that the appeals were timely taken within the 30-day reglamentary period
as required by Rule 41, section 6 of the Rules of Court, has been brushed aside by the main opinion with the
statement that it is "not necessary to pass upon the timeliness of any of said appeals" since they "revolve around
practically the same main issues and ... it is admitted that some of them have been timely taken." 47 The main opinion
thus proceeded with the determination of the thirty-three appealed orders despite the grave defect of the appellant PCIB's
records on appeal and their failure to state the required material data showing the timeliness of the appeals.
Such disposition of the question of timeliness deemed as "mandatory and jurisdictional" in a number of cases merits
the writer's concurrence in that the question raised has been subordinated to the paramount considerations of
substantial justice and a "liberal interpretation of the rules" applied so as not to derogate and detract from the
primary intent and purpose of the rules, viz "the proper and just determination of a litigation" 48 which calls for
"adherence to a liberal construction of the procedural rules in order to attain their objective of substantial justice and of
avoiding denials of substantial justice due to procedural technicalities." 49
Thus, the main opinion in consonance with the same paramount considerations of substantial justice has likewise
overruled respondents' objection to petitioner's taking the recourse of "the present remedy of certiorari and
prohibition" "despite the conceded availability of appeal" on the ground that "there is a common thread among
the basic issues involved in all these thirty-three appeals (which) deal with practically the same basic issues that
can be more expeditiously resolved or determined in a single special civil action . . . " 50
(b) Since the basic issues have been in effect resolved in the special civil action at bar (as above stated) with the
dismissal of the petition by virtue of the Court's judgment as to the continued existence of a separate estate of
Linnie Jane Hodges and the affirmance as a necessary consequence of the appealed orders approving and
sanctioning respondent Magno's sales contracts and acts of administration, some doubt would arise as to the
propriety of the main opinion requiring the payment by PCIB of thirty-one (31) additional appeal docket fees. This
doubt is further enhanced by the question of whether it would make the cost of appeal unduly expensive or
prohibitive by requiring the payment of a separate appeal docket fee for each incidental order questioned when the
resolution of all such incidental questioned orders involve basically one and the same main issue (in this case, the
existence of a separate estate of Linnie Jane Hodges) and can be more expeditiously resolved or determined in
a single special civil action" (for which a single docket fee is required) as stated in the main opinion. 51Considering the
importance of the basic issues and the magnitude of the estates involved, however, the writer has pro hac vice given his
concurrence to the assessment of the said thirty-one (31) additional appeal docket fees.
MAKALINTAL, C.J., concurring:
I concur in the separate opinion of Justice Teehankee, which in turn agrees with the dispositive portion of the main
opinion of Justice Barredo insofar as it dismisses the petition for certiorari and prohibition in Cases L-27860 and L27896 and affirms the appealed orders of the probate court in cases L-27936-37.
However, I wish to make one brief observation for the sake of accuracy. Regardless of whether or not C. N. Hodges
was entitled to a legitime in his deceased wife's estate which question, still to be decided by the said probate
court, may depend upon what is the law of Texas and upon its applicability in the present case the said estate
consists of one-half, not one-fourth, of the conjugal properties. There is neither a minimum of one-fourth nor a
maximum beyond that. It is important to bear this in mind because the estate of Linnie Hodges consists of her share
in the conjugal properties, is still under administration and until now has not been distributed by order of the court.

The reference in both the main and separate opinions to a one-fourth portion of the conjugal properties as Linnie
Hodges' minimum share is a misnomer and is evidently meant only to indicate that if her husband should eventually
be declared entitled to a legitime, then the disposition made by Linnie Hodges in favor of her collateral relatives
would be valid only as to one-half of her share, or one-fourth of the conjugal properties, since the remainder, which
constitutes such legitime, would necessarily go to her husband in absolute ownership, unburdened by any
substitution, term or condition, resolutory or otherwise. And until the estate is finally settled and adjudicated to the
heirs who may be found entitled to it, the administration must continue to cover Linnie's entire conjugal share.

Separate Opinions
FERNANDO, J., concurring:
I concur on the basis of the procedural pronouncements in the opinion.
TEEHANKEE, J., concurring:
I concur in the result of dismissal of the petition for certiorari and prohibition in Cases L-27860 and L-27896 and with
the affirmance of the appealed orders of the probate court in Cases L-27936-37.
I also concur with the portion of the dispositive part of the judgment penned by Mr. Justice Barredo decreeing
thelifting of the Court's writ of preliminary injunction of August 8, 1967 as amended on October 4, and December 6,
1967 1 and ordering in lieu thereof that the Court's resolution of September 8, 1972 2 which directed that petitionerappellantPCIB as administrator of C. N. (Charles Newton) Hodges' estate (Sp. Proc. No. 1672 and respondent-appellee
Avelina A. Magno as administratrix of Linnie Jane Hodges' estate (Sp. Proc. No. 1307) should act always conjointly never
independently from each other, as such administrators, is reiterated and shall continue in force and made part of the
judgment.
It is manifest from the record that petitioner-appellant PCIB's primal contention in the cases at bar belatedly filedby it
with this Court on August 1, 1967 (over ten (10) years after Linnie Jane Hodges' death on May 23, 1957 and (over
five (5) years after her husband C.N. Hodges' death on December 25, 1962 during which time both estates have
been pending settlement and distribution to the decedents' respective rightful heirs all this time up to now) that
the probate court per its order of December 14, 1957 (supplementing an earlier order of May 25, 1957) 3 in granting
C. N. Hodges' motion as Executor of his wife Linnie's estate to continue their "business of buying and selling personal and
real properties" and approving "all sales, conveyances, leases and mortgages" made and to be made by him as such
executor under his obligation to submit his yearly accounts in effect declared him as sole heir of his wife's estate and
nothing remains to be done except to formally close her estate (Sp. Proc. No. 1307) as her estate was thereby merged
with his own so that nothing remains of it that may be adjudicated to her brothers and sisters as her designated heirs after
him, 4 is wholly untenable and deserves scant consideration.
Aside from having been put forth as an obvious afterthought much too late in the day, this contention of PCIB that
there no longer exists any separate estate of Linnie Jane Hodges after the probate court's order of December 14,
1957 goes against the very acts and judicial admissions of C.N. Hodges as her executor whereby he consistently
recognized the separate existence and identity of his wife's estate apart from his own separate estate and from his
own share of their conjugal partnership and estate and "never considered the whole estate as a single one
belonging exclusively to himself" during the entire period that he survived her for over five (5) years up to the time of
his own death on December 25, 1962 5 and against the identical acts and judicial admissions of PCIB as administrator of
C.N. Hodges' estate until PCIB sought in 1966 to take over both estates as pertaining to its sole administration.
PCIB is now barred and estopped from contradicting or taking a belated position contradictory to or inconsistent with
its previous admissions 6 (as well as those of C.N. Hodges himself in his lifetime and of whose estate PCIB is
merely an administrator) recognizing the existence and identity of Linnie Jane Hodges' separate estate and the legal
rights and interests therein of her brothers and sisters as her designated heirs in her will.
PCIB's petition for certiorari and prohibition to declare all acts of the probate court in Linnie Jane Hodges' estate
subsequent to its order of December 14, 1957 as "null and void for having been issued without jurisdiction" must
therefore be dismissed with the rejection of its belated and untenable contention that there is no longer any estate of
Mrs. Hodges of which respondent Avelina Magno is the duly appointed and acting administratrix.
PCIB's appeal 7 from the probate court's various orders recognizing respondent Magno as administratrix of Linnie's estate
(Sp. Proc No. 1307) and sanctioning her acts of administration of said estate and approving the sales contracts executed
by her with the various individual appellees, which involve basically the same primal issue raised in the petition as to
whether there still exists a separate estate of Linnie of which respondent-appellee Magno may continue to be the
administratrix, must necessarily fail a result of the Court's main opinion at bar that there does exist such an estate and
that the twoestates (husband's and wife's) must be administered cojointly by their respective administrators (PCIB and
Magno).

The dispositive portion of the main opinion


The main opinion disposes that:
IN VIEW OF ALL THE FOREGOING PREMISES, judgment is hereby rendered DISMISSING the
petition in G. R. Nos. L-27860 and L-27896, and AFFIRMING, in G. R. Nos. L-27936-37 and the
other thirty-one numbers hereunder ordered to be added after payment of the corresponding docket
fees, all the orders of the trial court under appeal enumerated in detail on pages 35 to 37 and 80 to
82 of this decision:
The existence of the Testate Estate of Linnie Jane Hodges, with respondent-appellee Avelina A.
Magno, as administratrix thereof is recognized, and
It is declared that, until final judgment is ultimately rendered regarding (1) the manner of applying
Article 16 of the Civil Code of the Philippines to the situation obtaining in these cases and (2) the
factual and legal issues of whether or not Charles Newton Hodges has effectively and legally
renounced his inheritance under the will of Linnie Jane Hodges, the said estate consists of onefourthof 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
ofgratuitously to third parties by the husband, and second, that should the purported renunciation be
declared legally effective, no deduction whatsoever are to be made from said estate;
In consequence, the preliminary injunction of August 8, 1967, as amended on October 4 and
December 6, 1967, is lifted and the resolution of September 8, 1972, directing that petitionerappellant PCIB, as Administrator of the Testate Estate of Charles Newton Hodges in Special
Proceedings 1672, and respondent-appellee Avelina A. Magno, as Administratrix of the Testate
Estate of Linnie Jane Hodges in Special Proceedings 1307, should act thenceforth always conjointly,
never independently from each other, as such administrators, is reiterated, and the same is made
part of this judgment and shall continue in force, pending the liquidation of the conjugal partnership
of the deceased spouses and the determination and segregation from each other of their respective
estates; provided, that upon the finality of this judgment, the trial court should immediately proceed
to the partition of the presently combined estates of the spouses, to the end that the one-half share
thereof of Mrs. Hodges may be properly and clearly identified;
Thereafter, the trial court should forthwith segregate the remainder of the one-fourth herein adjudged
to be her estate and cause the same to be turned over or delivered to respondent for her exclusive
administration in Special Proceedings 1307, while the other one-fourth shall remain under the joint
administrative of said respondent and petitioner under a joint proceedings in Special Proceedings
1307 and 1672, whereas the half unquestionably pertaining to Hodges shall
be administered bypetitioner exclusively in Special Proceedings 1672, without prejudice to the
resolution by the trial court of the pending motions for its removal as administrator;
And this arrangement shall be maintained until the final resolution of the two issues
of renvoi andrenunciation hereby reserved for further hearing and determination, and the
corresponding completesegregation and partition of the two estates in the proportions that may
result from the said resolution.
Generally and in all other respects, the parties and the court a quo are directed to adhere
henceforth, in all their actuations in Special Proceedings 1307 and 1672, to the views passed and
ruled upon by the Court in the foregoing opinion. 8
Minimum estimate of Mrs. Hodges' estate:
One-fourth of conjugal properties.
The main opinion in declaring the existence of a separate estate of Linnie Jane Hodges which shall pass to her
brothers and sisters with right of representation (by their heirs) as her duly designated heirs declares that her estate
consists as a minimum (i.e. assuming (1) that under Article 16 of the Philippine Civil Code C. N. Hodges as surviving
husband was entitled to one-half of her estate as legitime and (2) that he had not effectively and
legallyrenounced his inheritance under her will) of "one-fourth of the community properties of the said spouses, as of
the time of the death of the wife on May 23, 1957, minus whatever the husband had already gratuitously disposed of
in favor of third persons from said date until his death," with the proviso that proceeds of remunerativedispositions or
sales for valuable consideration made by C. N. Hodges after his wife Linnie's death shall continue to be part of her
estate unless subsequently disposed of by him gratuitously to third parties subject to the condition, however, that if
he is held to have validly and effectively renounced his inheritance under his wife's will,no deductions of any
dispositions made by Hodges even if gratuitously are to be made from his wife Linnie's estate which shall
pass intact to her brothers and sisters as her designated heirs called in her will to succeed to her estate upon the
death of her husband C. N. Hodges.

Differences with the main opinion


I do not share the main opinion's view that Linnie Jane Hodges instituted her husband as her heir under her will "to
have dominion over all her estate during his lifetime ... as absolute owner of the properties ..." 9 and that she
bequeathed "the whole of her estate to be owned and enjoyed by him as universal and sole heir with absolute
dominion over them only during his lifetime, which means that while he could completely and absolutely dispose of any
portion thereof inter vivos to anyone other than himself, he was not free to do so mortis causa, and all his rights to what
might remain upon his death would cease entirely upon the occurrence of that contingency, inasmuch as the right of his
brothers and sisters-in-law to the inheritance, although vested already upon the death of Mrs. Hodges, would
automatically become operative upon the occurrence of the death of Hodges in the event of actual existence of any
remainder of her estate then." 10
As will be amplified hereinafter, I do not subscribe to such a view that Linnie Jane Hodges willed "full and absolute
ownership" and "absolute dominion" over her estate to her husband, but rather that she named her husband C. N.
Hodges and her brothers and sisters as instituted heirs with a term under Article 885 of our Civil Code, to wit,
Hodges as instituted heir with a resolutory term whereunder his right to the succession ceased in diem upon arrival
of the resolutory term of his death on December 25, 1962 and her brothers and sisters as instituted heirs with
a suspensive term whereunder their right to the succession commenced ex die upon arrival of the suspensive term
of the death of C. N. Hodges on December 25, 1962.
Hence, while agreeing with the main opinion that the proceeds of all remunerative dispositions made by C. N.
Hodges after his wife's death remain an integral part of his wife's estate which she willed to her brothers and sisters,
I submit that C. N. Hodges could not validly make gratuitous dispositions of any part or all of his wife's estate
"completely and absolutely dispose of any portion thereof inter vivos to anyone other than himself" in the language
of the main opinion, supra and thereby render ineffectual and nugatory her institution of her brothers and sisters
as her designated heirs to succeed to her whole estate "at the death of (her) husband." If according to the main
opinion, Hodges could not make such gratuitous "complete and absolute dispositions" of his wife Linnie's estate
"mortis causa," it would seem that by the same token and rationale he was likewise proscribed by the will from
making such dispositions of Linnie's estate inter vivos.
I believe that the two questions of renvoi and renunciation should be resolved preferentially and expeditiously by the
probate court ahead of the partition and segregation of the minimum one-fourth of the conjugal or community
properties constituting Linnie Jane Hodges' separate estate, which task considering that it is now seventeen (17)
years since Linnie Jane Hodges' death and her conjugal estate with C. N. Hodges has remained unliquidated up to
now might take a similar number of years to unravel with the numerous items, transactions and details of the sizable
estates involved.
Such partition of the minimum one-fourth would not be final, since if the two prejudicial questions
of renvoi andrenunciation were resolved favorably to Linnie's estate meaning to say that if it should be held that C.
N. Hodges is not entitled to any legitime of her estate and at any rate he had totally renounced his inheritance under
the will), then Linnie's estate would consist not only of the minimum one-fourth but one-half of the conjugal or
community properties of the Hodges spouses, which would require again the partition and segregation of still
another one-fourth of said. properties to complete Linnie's separate estate.
My differences with the main opinion involve further the legal concepts, effects and consequences of the
testamentary dispositions of Linnie Jane Hodges in her will and the question of the best to reach a solution of the
pressing question of expediting the closing of the estates which after all do not appear to involve any outstanding
debts nor any dispute between the heirs and should therefore be promptly settled now after all these years without
any further undue complications and delays and distributed to the heirs for their full enjoyment and benefit. As no
consensus appears to have been reached thereon by a majority of the Court, I propose to state views as concisely
as possible with the sole end in view that they may be of some assistance to the probate court and the parties in
reaching an expeditious closing and settlement of the estates of the Hodges spouses.
Two Assumptions
As indicated above, the declaration of the minimum of Mrs. Hodges' estate as one-fourth of the conjugal properties
is based on two assumptions most favorable to C. N. Hodges' estate and his heirs, namely (1) that the probate court
must accept the renvoi or "reference back" 11 allegedly provided by the laws of the State of Texas (of which state the
Hodges spouses were citizens) whereby the civil laws of the Philippines as the domicile of the Hodges spouses would
govern their succession notwithstanding the provisions of Article 16 of our Civil Code (which provides that the national law
of the decedents, in this case, of Texas, shall govern their succession) with the result that her estate would consist of no
more than one-fourth of the conjugal properties since the legitime of her husband (the other one-fourth of said conjugal
properties or one-half of her estate, under Article 900 of our Civil Code) could not then be disposed of nor burdened with
any condition by her and (2) that C.N. Hodges had not effectively and legally renounced his inheritance under his wife's
will.
These two assumptions are of course flatly disputed by respondent-appellee Magno as Mrs. Hodges' administratrix,
who avers that the law of the State of Texas governs her succession and does not provide for and legitime, hence,
her brothers and sisters are entitled to succeed to the whole of her share of the conjugal properties which is onehalf thereof and that in any event, Hodges had totally renounced all his rights under the will.

The main opinion concedes that "(I)n the interest of settling the estates herein involved soonest, it would be best,
indeed, if these conflicting claims of the parties were determined in these proceedings." It observes however that
this cannot be done due to the inadequacy of the evidence submitted by the parties in the probate court and of the
parties' discussion, viz, "there is no clear and reliable proof of what the possibly applicable laws of Texas are. Then
also, the genuineness of the documents relied upon by respondent Magno [re Hodges' renunciation] is disputed." 12
Hence, the main opinion expressly reserves resolution and determination on these two conflicting claims and issues
which it deems "are not properly before the Court
now," 13 and specifically holds that "(A)ccordingly, the only question that remains to be settled in the further proceedings
hereby ordered to be held in the court below is how much more than as fixed above is the estate of Mrs. Hodges, and this
would depend on (1) whether or not the applicable laws of Texas do provide in effect for more, such as, when there is
nolegitime provided therein, and (2) whether or not Hodges has validly waived his whole inheritance from Mrs. Hodges." 14
Suggested guidelines
Considering that the only unresolved issue has thus been narrowed down and in consonance with the ruling spirit of
our probate law calling for the prompt settlement of the estates of deceased persons for the benefit of creditors and
those entitled to the residue by way of inheritance considering that the estates have been long pending
settlement since 1957 and 1962, respectively it was felt that the Court should lay down specific guidelines for the
guidance of the probate court towards the end that it may expedite the closing of the protracted estates proceedings
below to the mutual satisfaction of the heirs and without need of a dissatisfied party elevating its resolution of
this only remaining issue once more to this Court and dragging out indefinitely the proceedings.
After all, the only question that remains depends for its determination on the resolution of the two questions
ofrenvoi and renunciation, i.e. as to whether C. N. Hodges can claim a legitime and whether he had renounced the
inheritance. But as already indicated above, the Court without reaching a consensus which would finally resolve the
conflicting claims here and now in this case opted that "these and other relevant matters should first be threshed out
fully in the trial court in the proceedings hereinafter to be held for the purpose of ascertaining and/or distributing the
estate of Mrs. Hodges to her heirs in accordance with her duly probated will." 15
The writer thus feels that laying down the premises and principles governing the nature, effects and consequences
of Linnie Jane Hodges' testamentary dispositions in relation to her conjugal partnership and co-ownership of
properties with her husband C. N. Hodges and "thinking out" the end results, depending on whether the evidence
directed to be formally received by the probate court would bear out that under renvoi C. N. Hodges was or was not
entitled to claim a legitime of one-half of his wife Linnie's estate and/or that he had or had not effectively and
validly renounced his inheritance should help clear the decks, as it were, and assist the probate court in resolving
the only remaining question of how much more than the minimum one-fourth of the community properties of the
Hodges spouses herein finally determined should be awarded as the separate estate of Linnie, particularly since the
views expressed in the main opinion have not gained a consensus of the Court. Hence, the following suggested
guidelines, which needless to state, represent the personal opinion and views of the writer:
1. To begin with, as pointed out in the main opinion, "according to Hodges' own inventory submitted by him as
executor of the estate of his wife, practically all their properties were conjugal which means that the spouses
haveequal shares therein." 16
2. Upon the death of Mrs. Hodges on May 23, 1957, and the dissolution thereby of the marriage, the law imposed
upon Hodges as surviving husband the duty of inventorying, administering and liquidating the conjugal or
community property. 17 Hodges failed to discharge this duty of liquidating the conjugal partnership and estate. On the
contrary, he sought and obtained authorization from the probate court to continue the conjugal partnership's business of
buying and selling real and personal properties.
In his annual accounts submitted to the probate court as executor of Mrs. Hodges' estate, Hodges
thusconsistently reported the considerable combined income (in six figures) of the conjugal partnership or
coownership and then divided the same equally between himself and Mrs. Hodges' estate and as consistently
filed separate income tax returns and paid the income taxes for each resulting half of such combined income
corresponding to his own and to Mrs. Hodges' estate. 18 (Parenthetically, he could not in law do this, had he
adjudicated Linnie's entire estate to himself, thus supporting the view advanced even in the main opinion that
"Hodges waived not only his rights to the fruits but to the properties themselves." 19
By operation of the law of trust 20 as well as by his own acknowledgment and acts, therefore, all transactions made by
Hodges after his wife's death were deemed for and on behalf of their unliquidated conjugal partnership
and community estate and were so reported and treated by him.
3. With this premise established that all transactions of Hodges after his wife's death were for and on behalf of
their unliquidated conjugal partnership and community estate, share and share alike, it should be clear that
nogratuitous dispositions, if any, made by C. N. Hodges from his wife Linnie's estate should be deducted from
herseparate estate as held in the main opinion. On the contrary, any such gratuitous dispositions should be charged
to his own share of the conjugal estate since he had no authority or right to make any gratuitous dispositions of
Linnie's properties to the prejudice of her brothers and sisters whom she called to her succession upon his death,
not to mention that the very authority obtained by him from the probate court per its orders of May 25, and

December 14, 1957 was to continue the conjugal partnership's business of buying and selling real properties for the
account of their unliquidated conjugal estate and co-ownership, share and share alike and not to make
anyfree dispositions of Linnie's estate.
4. All transactions as well after the death on December 25, 1962 of Hodges himself appear perforce and necessarily
to have been conducted, on the same premise, for and on behalf of their unliquidated conjugal partnership and/or
co-ownership, share and share alike since the conjugal partnership remained unliquidated which is another
way of saying that such transactions, purchases and sales, mostly the latter, must be deemed in effect to have been
made for the respective estates of C. N. Hodges and of his wife Linnie Jane Hodges, as both estates continued to
have an equal stake and share in the conjugal partnership which was not only leftunliquidated but continued as a
co-ownership or joint business with the probate court's approval by Hodges during the five-year period that he
survived his wife.
This explains the probate court's action of requiring that deeds of sale executed by PCIB as Hodges' estate's
administrator be "signed jointly" by respondent Magno as Mrs. Hodges' estate's administratrix, as well as its order
authorizing payment by lot purchasers from the Hodges to either estate, since "there is as yet no judicial declaration
of heirs nor distribution of properties to whomsoever are entitled thereto." 22
And this equally furnishes the rationale of the main opinion for continued conjoint administration by the
administrators of the two estates of the deceased spouses, "pending the liquidation of the conjugal
partnership,"23 since "it is but logical that both estates should be administered jointly by the representatives of both,
pending their segregation from each other. Particularly ... because the actuations so far of PCIB evince a determined,
albeit groundless, intent to exclude the other heirs of Mrs. Hodges from their inheritance." 24 5. Antly by the
representatives of both, pending their segregation from each other. Particularly ... because the actuations so far of PCIB
evince a determined, albeit groundless, intent to exclude the other heirs of Mrs. Hodges from their inheritance." 24
5. As stressed in the main opinion, the determination of the only unresolved issue of how much more than the
minimum of one-fourth of the community or conjugal properties of the Hodges spouses pertains to Mrs. Hodges'
estate depends on the twin questions of renunciation and renvoi. It directed consequently that "a joint hearing of the
two probate proceedings herein involved" be held by the probate court for the reception of "further evidence" in
order to finally resolved these twin questions. 25
(a) On the question of renunciation, it is believed that all that the probate court has to do is to receive formally in
evidence the various documents annexed to respondent Magno's answer at bar, 26 namely: Copy of the U.S. Estate
Tax Return filed on August 8, 1958 by C. N. Hodges for his wife Linnie's estate wherein he purportedly declared that he
wasrenouncing his inheritance under his wife's will in favor of her brothers and sisters as co-heirs designated with him and
that it was his "intention (as) surviving husband of the deceased to distribute the remaining property and interests of the
deceased in their community estate to the devisee and legatees named in the will when the debts, liabilities, taxes and
expenses of administration are finally determined and paid;" 27 and
The affidavit of ratification of such renunciation (which places him in estoppel) allegedly executed on August 9, 1962
by C. N. Hodges in Iloilo City wherein he reaffirmed that "... on August 8, 1958, I renounced and disclaimed any and
all right to receive the rents, emoluments and income from said estate" and further declared that "(T)he purpose of
this affidavit is to ratify and confirm, and I do hereby ratify and confirm, the declaration made in schedule M of said
return and hereby formally disclaim and renounce any right on my part to receive any of the said rents, emoluments
and income from the estate of my deceased wife, Linnie Jane Hodges. This affidavit is made to absolve me or my
estate from any liability for the payment of income taxes on income which has accrued to the estate of Linnie Jane
Hodges since the death of the said Linnie Jane Hodges on May 23, 1957." 28
(b) On the question of renvoi, all that remains for the probate court to do is to formally receive in evidence duly
authenticated copies of the laws of the State of Texas governing the succession of Linnie Jane Hodges and her
husband C. N. Hodges as citizens of said State at the time of their respective deaths on May 23,
1957 andDecember 25, 1962. 29
6. The text and tenor of the declarations by C. N. Hodges of renunciation of his inheritance from his wife in favor of
her other named heirs in her will (her brothers and sisters and their respective heirs) as ratified and
reiteratedexpressly in his affidavit of renunciation executed four years later for the avowed purpose of not being held
liable for payment of income taxes on income which has accrued to his wife's estate since her death indicate a valid
and effective renunciation.
Once the evidence has been formally admitted and its genuineness and legal effectivity established by the probate
court, the renunciation by C. N. Hodges must be given due effect with the result that C. N. Hodges therefore
acquired no part of his wife's one-half share of the community properties since he removed himself as an heir by
virtue of his renunciation. By simple substitution then under Articles 857 and 859 of our Civil Code 30and by virtue of
the will's institution of heirs, since "the heir originally instituted C. N. Hodges) does not become an heir" 31by force of his
renunciation, Mrs. Hodges' brothers and sisters whom she designated as her heirs upon her husband's death are called
immediately to her succession.
Consequently, the said community and conjugal properties would then pertain pro indiviso share and share alike to
their respective estates, with each estate, however, shouldering its own expenses of administration, estate and

inheritance taxes, if any remain unpaid, attorneys' fees and other like expenses and the net remainder to be
adjudicated directly to the decedents' respective brothers and sisters (and their heirs) as the heirs duly designated in
their respective wills. The question of renvoi becomes immaterial since most laws and our
lawspermit such renunciation of inheritance.
7. If there were no renunciation (or the same may somehow be declared to have not been valid and effective) by C.
N. Hodges of his inheritance from his wife, however, what would be the consequence?
(a) If the laws on succession of the State of Texas do provide for renvoi or "reference back" to Philippine law as the
domiciliary law of the Hodges' spouses governing their succession, then petitioners' view that Mrs. Hodges' estate
would consist only of the minimum of "one-fourth of the community properties of the said spouses, as of the time of
(her) death on May 23, 1957" would have to be sustained and C. N. Hodges' estate would consist ofthree-fourths of
the community properties, comprising his own one-half (or two-fourths) share and the other fourth of Mrs. Hodges'
estate as the legitime granted him as surviving spouse by Philippine law (Article 900 of the Civil Code) which could
not be disposed of nor burdened with any condition by Mrs. Hodges as testatrix.
(b) If the laws on succession of the State of Texas do not provide for such renvoi and respondent Magno's assertion
is correct that the Texas law which would then prevail, provides for no legitime for C. N. Hodges as the surviving
spouse, then respondent Magno's assertion that Mrs. Hodges' estate would consist of one-half of the community
properties (with the other half pertaining to C. N. Hodges) would have to be sustained. The community and conjugal
properties would then pertain share and share alike to their respective estates, with each estate shouldering its own
expenses of administration in the same manner stated in the last paragraph of paragraph 6 hereof. .
8. As to the nature of the institution of heirs made by Mrs. Hodges in her will, the main opinion holds that "(T)he
brothers and sisters of Mrs. Hodges are not substitutes for Hodges; rather, they are also heirs
institutedsimultaneously with Hodges," but goes further and holds that "it was not the usufruct alone of her estate ...
that she bequeathed to Hodges during his lifetime, but the full ownership thereof, although the same was to last also
during his lifetime only, even as there was no restriction against his disposing or conveying the whole or any portion
thereof anybody other than himself" and describes Hodges "as universal and sole heir with absolute dominion over
Mrs. Hodges' estate (except over their Lubbock, Texas property ), 32 adding that "Hodges was not obliged to preserve
anything for them" (referring to Mrs. Hodges' brothers and sisters as instituted co-heirs). 33
Contrary to this view of the main opinion, the writer submits that the provisions of Mrs. Hodges' will did not grant to
C.N. Hodges "full ownership" nor "absolute dominion" over her estate, such that he could as "universal and sole
heir" by the mere expedient of gratuitously disposing to third persons her whole estate during his lifetime nullifyher
institution of her brothers and sisters as his co-heirs to succeed to her whole estate "at the death of (her)
husband," deprive them of any inheritance and make his own brothers and sisters in effect sole heirs not only of his
own estate but of his wife's estate as well.
Thus, while Linnie Jane Hodges did not expressly name her brothers and sisters as substitutes for Hodges because
she willed that they would enter into the succession upon his death, still it cannot be gainsaid, as the main opinion
concedes, "that they are also heirs instituted simultaneously with Hodges, subject however to certain conditions,
partially resolutory insofar as Hodges was concerned and correspondingly suspensive with reference to his brothers
and sisters-in-law." 34
Hence, if Hodges is found to have validly renounced his inheritance, there would be a substitution of heirs in fact
and in law since Linnie's brothers and sisters as the heirs "simultaneously instituted" with a suspensive term would
be called immediately to her succession instead of waiting for the arrival of suspensive term of Hodges' death, since
as the heir originally instituted he does not become an heir by force of his renunciation and therefore they would
"enter into the inheritance in default of the heir originally instituted" (Hodges) under the provisions of Article 857 and
859 of our Civil Code, supra, 35 thus accelerating their succession to her estate as a consequence of Hodges'
renunciation.
Consequently, Linnie Jane Hodges willed that her husband C.N. Hodges would "during his natural
lifetime ...manage, control, use and enjoy said estate" and that only "all rents, emoluments and income" alone shall
belong to him. She further willed that while he could sell and purchase properties of her estate, and "use any part of
the principal estate," such principal notwithstanding "any changes in the physical properties of said estate"(i.e. new
properties acquired or exchanged) would still pertain to her estate, which at the time of his death would pass infull
dominion to her brothers and sisters as the ultimate sole and universal heirs of her estate. 36
The testatrix Linnie Jane Hodges in her will thus principally provided that "I give, devise and bequeath all of the rest,
residue and remainder of my estate, both personal and real ... to my beloved husband, Charles Newton Hodges, to
have and to hold with him ... during his natural lifetime;" 37 that "(he) shall have the right to manage, control,
use and enjoy said estate during his lifetime, ... to make any changes in the physical properties of said estate, bysale ...
and the purchase of any other or additional property as he may think best ... . All rents, emoluments and incomefrom said
estate shall belong to him and he is further authorized to use any part of the principal of said estate as he may need or
desire, ... he shall not sell or otherwise dispose of any of the improved property now owned by us, located at ... City of
Lubbock, Texas ... . He shall have the right to subdivide any farm land and sell lots therein, and may sell unimproved
town lots;" 38 that "(A)t the death of my said husband, Charles Newton, I give, devise and bequeath all of the rest, residue
and remainder of my estate, both personal and real, ... to be equally divided among my brothers and sisters, share and

share alike, namely: Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Sadie Rascoe, Era Roman and Nimroy
Higdon;" 39 and that "(I)n case of the death of any of my brothers and/or sisters ... prior to the death of my husband ... the
heirs of such deceased brother or sister shall take jointly the share which would have gone to such brother or sister had
she or he survived." 40

Such provisions are wholly consistent with the view already fully expounded above that all transactions and sales
made by Hodges after his wife Linnie's death were by operation of the law of trust as well as
by his ownacknowledgment and acts deemed for and on behalf of their unliquidated conjugal partnership and
community estate, share and share alike, with the express authorization of the probate court per its orders of May
25, and December 14, 1957 granting Hodges' motion to continue the conjugal partnership business of buying and
selling real estate even after her death. By the same token, Hodges could not conceivably be deemed to have had
any authority or right to dispose gratuitously of any portion of her estate to whose succession she had called her
brothers and sisters upon his death.
9. Such institutions of heirs with a term are expressly recognized and permitted under Book III, Chapter 2, section 4
of our Civil Code dealing with "conditional testamentary dispositions and testamentary dispositions with a term."41
Thus, Article 885 of our Civil Code expressly provides that:
ART 885. The designation of the day or time when the effects of the institution of an heir
shallcommence or cease shall be valid.
In both cases, the legal heir shall be considered as called to the succession until the arrival of the
period or its expiration. But in the first case he shall not enter into possession of the property until
after having given sufficient security, with the intervention of the instituted heir.
Accordingly, under the terms of Mrs. Hodges' will, her husband's right to the succession as the instituted heir
ceased in diem, i.e. upon the arrival of the resolutory term of his death on December 25, 1962, while her brothers'
and sisters' right to the succession also as instituted heirs commenced ex die, i.e. upon the expiration of the
suspensive term (as far as they were concerned) of the death of C. N. Hodges on December 25, 1962 . 42
As stated in Padilla's treatise on the Civil Code, "A term is a period whose arrival is certain although the exact date
thereof may be uncertain. A term may have either a suspensive or a resolutory effect. The designation of the day
when the legacy "shall commence" is ex die, or a term with a suspensive effect, from a certain day. The designation
of the day when the legacy "shall cease" is in diem or a term with a resolutory effect, until a certain day." He adds
that "A legacy based upon a certain age or upon the death of a person is not a condition but aterm. If the arrival of
the term would commence the right of the heir, it is suspensive. If the arrival of the term would terminate his right, it
is resolutory" and that "upon the arrival of the period, in case of a suspensive term, the instituted heir is entitled to
the succession, and in case of a resolutory term, his right terminates." 43
10. The sizable estates herein involved have now been pending settlement for a considerably protracted period (of
seventeen years counted from Linnie's death in 1957), and all that is left to be done is to resolve the onlyremaining
issue (involving the two questions of renunciation and renvoi) hereinabove discussed in order to close up the
estates and finally effect distribution to the deceased spouses' respective brothers and sisters and their heirs as the
heirs duly instituted in their wills long admitted to probate. Hence, it is advisable for said instituted heirs and their
heirs in turn 44 to come to terms for the adjudication and distribution to them pro-indiviso of the up to now unliquidated
community properties of the estates of the Hodges spouses (derived from their unliquidated conjugal partnership) rather
than to get bogged down with the formidable task of physically segregating and partitioning the two estates with the
numerous transactions, items and details and physical changes of properties involved. The estates proceedings would
thus be closed and they could then name their respective attorneys-in-fact to work out the details of segregating, dividing
or partitioning the unliquidated community properties or liquidating them which can be done then on their own without
further need of intervention on the part of the probate court as well as allow them meanwhile to enjoy and make use of the
income and cash and liquid assets of the estates in such manner as may be agreed upon between them.
Such a settlement or modus vivendi between the heirs of the unliquidated two estates for the mutual benefit of all of
them should not prove difficult, considering that it appears as stated in the main opinion that 22.968149% of the
share or undivided estate of C. N. Hodges have already been acquired by the heirs of Linnie Jane Hodges from
certain heirs of her husband, while certain other heirs representing 17.34375% of Hodges' estate were joining cause
with Linnie's heirs in their pending and unresolved motion for the removal of petitioner PCIB as administrator of
Hodges' estate, 45 apparently impatient with the situation which has apparently degenerated into a running battle between
the administrators of the two estates to the common prejudice of all the heirs.
11. As earlier stated, the writer has taken the pain of suggesting these guidelines which may serve to guide the
probate court as well as the parties towards expediting the winding up and closing of the estates and the distribution
of the net estates to the instituted heirs and their successors duly entitled thereto. The probate court should exert all
effort towards this desired objective pursuant to the mandate of our probate law, bearing in mind the Court's
admonition in previous cases that "courts of first instance should exert themselves to close up estate within twelve
months from the time they are presented, and they may refuse to allow any compensation to executors and
administrators who do not actively labor to that end, and they may even adopt harsher measures."46

Timeliness of appeals and imposition of


thirty-one (31) additional docket fees
Two appeals were docketed with this Court, as per the two records on appeal submitted (one with a green cover
and the other with a yellow cover). As stated at the outset, these appeals involve basically the same primal issue
raised in the petition for certiorari as to whether there still exists a separate estate of Linnie Jane Hodges which has
to continue to be administered by respondent Magno. Considering the main opinion's ruling in the affirmative and
that her estate and that of her husband (since they jointly comprise unliquidated community properties) must be
administered conjointly by their respective administrators (PCIB and Magno), the said appeals (involving thirty-three
different orders of the probate court approving sales contracts and other acts of administration executed and
performed by respondent Magno on behalf of Linnie's estate) have been necessarily overruled by the Court's
decision at bar.
(a) The "priority question" raised by respondent Magno as to the patent failure of the two records on appeal to show
on their face and state the material data that the appeals were timely taken within the 30-day reglamentary period
as required by Rule 41, section 6 of the Rules of Court, has been brushed aside by the main opinion with the
statement that it is "not necessary to pass upon the timeliness of any of said appeals" since they "revolve around
practically the same main issues and ... it is admitted that some of them have been timely taken." 47 The main opinion
thus proceeded with the determination of the thirty-three appealed orders despite the grave defect of the appellant PCIB's
records on appeal and their failure to state the required material data showing the timeliness of the appeals.
Such disposition of the question of timeliness deemed as "mandatory and jurisdictional" in a number of cases merits
the writer's concurrence in that the question raised has been subordinated to the paramount considerations of
substantial justice and a "liberal interpretation of the rules" applied so as not to derogate and detract from the
primary intent and purpose of the rules, viz "the proper and just determination of a litigation" 48 which calls for
"adherence to a liberal construction of the procedural rules in order to attain their objective of substantial justice and of
avoiding denials of substantial justice due to procedural technicalities." 49
Thus, the main opinion in consonance with the same paramount considerations of substantial justice has likewise
overruled respondents' objection to petitioner's taking the recourse of "the present remedy of certiorari and
prohibition" "despite the conceded availability of appeal" on the ground that "there is a common thread among
the basic issues involved in all these thirty-three appeals (which) deal with practically the same basic issues that
can be more expeditiously resolved or determined in a single special civil action . . . " 50
(b) Since the basic issues have been in effect resolved in the special civil action at bar (as above stated) with the
dismissal of the petition by virtue of the Court's judgment as to the continued existence of a separate estate of
Linnie Jane Hodges and the affirmance as a necessary consequence of the appealed orders approving and
sanctioning respondent Magno's sales contracts and acts of administration, some doubt would arise as to the
propriety of the main opinion requiring the payment by PCIB of thirty-one (31) additional appeal docket fees. This
doubt is further enhanced by the question of whether it would make the cost of appeal unduly expensive or
prohibitive by requiring the payment of a separate appeal docket fee for each incidental order questioned when the
resolution of all such incidental questioned orders involve basically one and the same main issue (in this case, the
existence of a separate estate of Linnie Jane Hodges) and can be more expeditiously resolved or determined in
a single special civil action" (for which a single docket fee is required) as stated in the main opinion. 51Considering the
importance of the basic issues and the magnitude of the estates involved, however, the writer has pro hac vice given his
concurrence to the assessment of the said thirty-one (31) additional appeal docket fees.
MAKALINTAL, C.J., concurring:
I concur in the separate opinion of Justice Teehankee, which in turn agrees with the dispositive portion of the main
opinion of Justice Barredo insofar as it dismisses the petition for certiorari and prohibition in Cases L-27860 and L27896 and affirms the appealed orders of the probate court in cases L-27936-37.
However, I wish to make one brief observation for the sake of accuracy. Regardless of whether or not C. N. Hodges
was entitled to a legitime in his deceased wife's estate which question, still to be decided by the said probate
court, may depend upon what is the law of Texas and upon its applicability in the present case the said estate
consists of one-half, not one-fourth, of the conjugal properties. There is neither a minimum of one-fourth nor a
maximum beyond that. It is important to bear this in mind because the estate of Linnie Hodges consists of her share
in the conjugal properties, is still under administration and until now has not been distributed by order of the court.
The reference in both the main and separate opinions to a one-fourth portion of the conjugal properties as Linnie
Hodges' minimum share is a misnomer and is evidently meant only to indicate that if her husband should eventually
be declared entitled to a legitime, then the disposition made by Linnie Hodges in favor of her collateral relatives
would be valid only as to one-half of her share, or one-fourth of the conjugal properties, since the remainder, which
constitutes such legitime, would necessarily go to her husband in absolute ownership, unburdened by any
substitution, term or condition, resolutory or otherwise. And until the estate is finally settled and adjudicated to the
heirs who may be found entitled to it, the administration must continue to cover Linnie's entire conjugal share.
Footnotes