G.R. No.

L-7188

August 9, 1954

In re: Will and Testament of the deceased REVEREND SANCHO ABADIA.

SEVERINA A. VDA. DE ENRIQUEZ, ET AL., petitioners-appellees,
vs.
MIGUEL ABADIA, ET AL., oppositors-appellants.
Manuel A. Zosa, Luis B. Ladonga, Mariano A. Zosa and B. G. Advincula for appellants.
C. de la Victoria for appellees.
MONTEMAYOR, J.:
On September 6, 1923, Father Sancho Abadia, parish priest of Talisay, Cebu, executed a document
purporting to be his Last Will and Testament now marked Exhibit "A". Resident of the City of Cebu,
he died on January 14, 1943, in the municipality of Aloguinsan, Cebu, where he was an evacuee. He
left properties estimated at P8,000 in value. On October 2, 1946, one Andres Enriquez, one of the
legatees in Exhibit "A", filed a petition for its probate in the Court of First Instance of Cebu. Some
cousins and nephews who would inherit the estate of the deceased if he left no will, filed opposition.
During the hearing one of the attesting witnesses, the other two being dead, testified without
contradiction that in his presence and in the presence of his co-witnesses, Father Sancho wrote out
in longhand Exhibit "A" in Spanish which the testator spoke and understood; that he (testator) signed
on he left hand margin of the front page of each of the three folios or sheets of which the document
is composed, and numbered the same with Arabic numerals, and finally signed his name at the end
of his writing at the last page, all this, in the presence of the three attesting witnesses after telling
that it was his last will and that the said three witnesses signed their names on the last page after the
attestation clause in his presence and in the presence of each other. The oppositors did not submit
any evidence.
The learned trial court found and declared Exhibit "A" to be a holographic will; that it was in the
handwriting of the testator and that although at the time it was executed and at the time of the
testator's death, holographic wills were not permitted by law still, because at the time of the hearing
and when the case was to be decided the new Civil Code was already in force, which Code
permitted the execution of holographic wills, under a liberal view, and to carry out the intention of the
testator which according to the trial court is the controlling factor and may override any defect in
form, said trial court by order dated January 24, 1952, admitted to probate Exhibit "A", as the Last
Will and Testament of Father Sancho Abadia. The oppositors are appealing from that decision; and
because only questions of law are involved in the appeal, the case was certified to us by the Court of
Appeals.
The new Civil Code (Republic Act No. 386) under article 810 thereof provides that a person may
execute a holographic will which must be entirely written, dated and signed by the testator himself
and need not be witnessed. It is a fact, however, that at the time that Exhibit "A" was executed in
1923 and at the time that Father Abadia died in 1943, holographic wills were not permitted, and the
law at the time imposed certain requirements for the execution of wills, such as numbering
correlatively each page (not folio or sheet) in letters and signing on the left hand margin by the
testator and by the three attesting witnesses, requirements which were not complied with in Exhibit
"A" because the back pages of the first two folios of the will were not signed by any one, not even by

the testator and were not numbered, and as to the three front pages, they were signed only by the
testator.
Interpreting and applying this requirement this Court in the case of In re Estate of Saguinsin, 41
Phil., 875, 879, referring to the failure of the testator and his witnesses to sign on the left hand
margin of every page, said:
. . . . This defect is radical and totally vitiates the testament. It is not enough that the
signatures guaranteeing authenticity should appear upon two folios or leaves; three pages
having been written on, the authenticity of all three of them should be guaranteed by the
signature of the alleged testatrix and her witnesses.
And in the case of Aspe vs. Prieto, 46 Phil., 700, referring to the same requirement, this Court
declared:
From an examination of the document in question, it appears that the left margins of the six
pages of the document are signed only by Ventura Prieto. The noncompliance with section 2
of Act No. 2645 by the attesting witnesses who omitted to sign with the testator at the left
margin of each of the five pages of the document alleged to be the will of Ventura Prieto, is a
fatal defect that constitutes an obstacle to its probate.
What is the law to apply to the probate of Exh. "A"? May we apply the provisions of the new Civil
Code which not allows holographic wills, like Exhibit "A" which provisions were invoked by the
appellee-petitioner and applied by the lower court? But article 795 of this same new Civil Code
expressly provides: "The validity of a will as to its form depends upon the observance of the law in
force at the time it is made." The above provision is but an expression or statement of the weight of
authority to the affect that the validity of a will is to be judged not by the law enforce at the time of the
testator's death or at the time the supposed will is presented in court for probate or when the petition
is decided by the court but at the time the instrument was executed. One reason in support of the
rule is that although the will operates upon and after the death of the testator, the wishes of the
testator about the disposition of his estate among his heirs and among the legatees is given solemn
expression at the time the will is executed, and in reality, the legacy or bequest then becomes a
completed act. This ruling has been laid down by this court in the case of In re Will of Riosa, 39 Phil.,
23. It is a wholesome doctrine and should be followed.
Of course, there is the view that the intention of the testator should be the ruling and controlling
factor and that all adequate remedies and interpretations should be resorted to in order to carry out
said intention, and that when statutes passed after the execution of the will and after the death of the
testator lessen the formalities required by law for the execution of wills, said subsequent statutes
should be applied so as to validate wills defectively executed according to the law in force at the time
of execution. However, we should not forget that from the day of the death of the testator, if he
leaves a will, the title of the legatees and devisees under it becomes a vested right, protected under
the due process clause of the constitution against a subsequent change in the statute adding new
legal requirements of execution of wills which would invalidate such a will. By parity of reasoning,
when one executes a will which is invalid for failure to observe and follow the legal requirements at
the time of its execution then upon his death he should be regarded and declared as having died
intestate, and his heirs will then inherit by intestate succession, and no subsequent law with more
liberal requirements or which dispenses with such requirements as to execution should be allowed to
validate a defective will and thereby divest the heirs of their vested rights in the estate by intestate

succession. The general rule is that the Legislature can not validate void wills (57 Am. Jur., Wills,
Sec. 231, pp. 192-193).
In view of the foregoing, the order appealed from is reversed, and Exhibit "A" is denied probate. With
costs.
Paras, C.J., Pablo, Bengzon, Padilla, Reyes, A., Jugo, Bautista Angelo, Labrador, Concepcion and
Reyes J.B.L., JJ., concur.

G.R. No. L-32636

March 17, 1930

In the matter Estate of Edward Randolph Hix, deceased.

A.W. FLUEMER, petitioner-appellant,
vs.
ANNIE COUSHING HIX, oppositor-appellee.
C.A. Sobral for appellant.
Harvey & O' Brien and Gibbs & McDonough for appellee.
MALCOLM, J.:
The special administrator of the estate of Edward Randolph Hix appeals from a decision of Judge of
First Instance Tuason denying the probate of the document alleged to by the last will and testament
of the deceased. Appellee is not authorized to carry on this appeal. We think, however, that the
appellant, who appears to have been the moving party in these proceedings, was a "person
interested in the allowance or disallowance of a will by a Court of First Instance," and so should be
permitted to appeal to the Supreme Court from the disallowance of the will (Code of Civil Procedure,
sec. 781, as amended; Villanueva vs. De Leon [1925], 42 Phil., 780).
It is 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 Verginia Code,
Annotated, by Hogg, Charles E., vol. 2, 1914, p. 1690, and as certified to by the Director of the
National Library. But this was far from 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
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 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 sale 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.
In addition, the due execution of the will was not established. The only evidence on this point is to be
found in the testimony of the petitioner. Aside from this, there was nothing to indicate that the will
was acknowledged by the testator in the presence of two competent witnesses, of that these
witnesses subscribed the will in the presence of the testator and of each other as the law of West
Virginia seems to require. On the supposition that the witnesses to the will reside without the

Philippine Islands, it would then the duty of the petitioner to prove execution by some other means
(Code of Civil Procedure, sec. 633.)
It was also necessary for the petitioner to prove that the testator had his domicile in West Virginia
and not establish this fact consisted of the recitals in the CATHY will and the testimony of the
petitioner. Also in beginning administration proceedings orginally in the Philippine Islands, the
petitioner violated his own theory by attempting to have the principal administration in the Philippine
Islands.
While the appeal pending submission in this court, the attorney for the appellant presented an
unverified petition asking the court to accept as part of the evidence the documents attached to the
petition. One of these documents discloses that a paper writing purporting to be the was presented
for probate on June 8, 1929, to the clerk of Randolph Country, State of West Virginia, in vacation,
and was duly proven by the oaths of Dana Wamsley and Joseph L. MAdden, the subscribing
witnesses thereto , and ordered to be recorded and filed. It was shown by another document that, in
vacation, on June 8, 1929, the clerk of court of Randolph Country, West Virginia, appointed Claude
W. Maxwell as administrator, cum testamento annexo, of the estate of Edward Randolph Hix,
deceased. In this connection, it is to be noted that the application for the probate of the will in the
Philippines was filed on February 20, 1929, while the proceedings in West Virginia appear to have
been initiated on June 8, 1929. These facts are strongly indicative of an intention to make the
Philippines the principal administration and West Virginia the ancillary administration. However this
may be, no attempt has been made to comply with Civil Procedure, for no hearing on the question of
the allowance of a will said to have been proved and allowed in West Virginia has been requested.
There is no showing that the deceased left any property at any place other than the Philippine
Islands and no contention that he left any in West Virginia.
Reference has been made by the parties to a divorce purported to have been awarded Edward
Randolph Hix from Annie Cousins Hix on October 8, 1925, in the State of West specific
pronouncements on the validity or validity of this alleged divorce.
For all of the foregoing, the judgment appealed from will be affirmed, with the costs of this instance
against the appellant.
Villamor, Ostrand, Johns, Romualdez and Villa-Real, JJ., concur.
G.R. No. L-4113

June 30, 1952

Testamentaria del finado William R. Giberson. LELA G. DALTON, solicitante-apelante,

vs.
SPRING GIBERSON, opositor-apelado.
Los hechos aparecen relacionados en la decision del Tribunal.
Sres. C. D. Johnston y A. P. Deen en representacion de la apelante.
D. Francisco E. F. Remotique en representacion del apelado.
PABLO, J.:
Lela G. Dalton presento' en 10 de febrero de 1949 una solicitud en el Juzgado de Primera Instancia
de Cebupidiendo la legalizacion de un documento que, segun alega ella, es testamento olografo de
William R. Giberson, otorgadoen 29 de abril de 1920 en San Francisco, California; que Giberson era

ciudadano del estado de Illinois, Estados Unidos, y residente de Cebu; y que fallecio en 6 de agosto
de 1943 en el campo de concentracion de la Universidad de Sto, Tomas, Manila, Filipinas.
Spring Giberson, hijo legitimo de William R. Giberson, presento un oposicion alegando que el
testamento es apocrifo; que no representa la verdadera voluntad del finado Giberson: y que no ha
sido otor gado de acuerdo con la ley.
En 1. de julio de 1949, el opositor presento una mocionpidiendo el sobreseimiento de la solicitud,
alegando que, antes de que un testamento otorgado en pais extranjeropueda ser legalizado en las
Islas Filipinas, debe demostrarse que dicho testamento habia sido legalizado previamenteen dicho
pais, de acuerdo con el articulo 1 de la Regla 78; que la solicitud no alega que el testamento habia
sido ya legalizado en California.
La solicitante se opuso a la mocion de sobreseimiento. En 20 de junio de 1950 el Juez sobreseyo la
solicitud, declarando: ". . . under our existing rules only those wills that have previously been proved
and allowed in the United States, or any state or territory thereof, or any foreign country, according to
the laws of such state, territory, or country, may be allowed, filed or recorded in the proper court of
first instance in the Philippines. . . ." Contra esta orden la solicitante apela.
El opositor, en apoyo de su teoria, sostiene que el articulo 635 del Codigo de Procedimiento Civil ha
sido derogado por la Regla 78, en virtud de la seccion 13, Articulo VIII de la Constitucion. Dicho
articulo 635 del Codigo de Procedimiento Civil dice asi:
El testamento otorgado fuera de las Islas Filipinas, que pudiere autenticarse y legalizarse
conforme a las leyes del estado o pais en donde se otorgo, podra autenticarse, legalizarse y
registrarse en las Islas Filipinas, y tendra la misma eficacia quesi se hubiere otorgado de
conformidad con las leyes de estas Islas.
Este articulo y ha sido aplicado en la causa de Babcock Templeton contra Rider Babcock, 52 Jur.
Fil., 134, en la cual se declaro que el testamento otorgado en California y que podia legalizarse en
dicho estado, puede ser legalizado en Filipinas. En el asunto de Varela contra Varela Calderon, 57
Jur. Fil., 291, se legalizo el testamento otorgado en Paris, Francia, por el finado Dr. Francisco Varela
Calderon porque era un testamento que podiaser legalizado de acuerdo con las leyes de Francia.
Una persona puede disponer de sus bienes para despues de su muerte por testamento. El
otorgamiento de un testamentoes un acto juridico que puede realizarse en Filipinas o en el
extranjero; si se otorga en pais extranjero, tiene que hacerse de acuerdo con las leyes de dicho
pais, que es regla universalmente adoptada.
El extranjero puede disponer para despues de su muerte de sus bienes en Filipinas por testamento
y no es forzoso que lo otorgue en Filipinas; puede hacerlo en su propio pais o en otro, pero de
acuerdo con las leyes del pais en que lo otorga. El articulo 635 del Codigo de Procedimiento Civil,
respetando la libertad del testador de otorgar su testamento en cualquier lugar, dispone que el
testamento que puede legalizarse en un pais extranjero en consonancia con las leyes de dicho pais
puede legalizsarse tambien en Filipinas. Esa disposicion es sustantiva, crea los derechos de los
beneficiarios del testamento: se les asegura poder legalizar en Filipinas los testamentos
otorgadosfuera de las Islas si pueden ser legalizados en el pais en que fueron otorgados, dandoles
causa de accion para pedirjudicialmente el cumplimiento de la ultima voluntad del testador sea cual
fuere el lugar de su otorgamiento. Sinesa disposicion quedaria truncada la facultad de testar.
Al enmendar este Tribunal el Codigo de Procedimiento Civil, solamente enmendo la parte procesal,
pero no la parte sustantiva. "La ley sustantiva no puede ser enmendadapor reglas de

procedimiento." (Reyes contra Viuda de Luz,* 16 Lawyer Journal, 623.) For tanto, queda aun
subsistente como derecho sustantivo el articulo635 del Codigo de Procedimiento Civil.
Y el articulo 637 dice asi: "Los testamentos autenticados y legalizados en los Estados Unidos, o en
cualquier estado o territorio de los mismos, o en un estado o paisextranjero, de conformidad con las
leyes de dicho estado, territorio o pais, podran ser legalizados, registrados yarchivados en el
Juzgado de Primera Instancia de la provinciaen que el testador tuviere bienes muebles, o inmuebles
efectados por dichos testamentos." Este articulono esta en conflicto con el articulo 635; en realidad,
noes mas que su corolario. Si un testamento otorgado en pais extranjero que puede legalizarse de
acuerdo con las leyes de dicho pais puede tambien legalizarse en las Islas Filipinas, con mayor
razon los testamentos ya legalizadosen paises extranjeros de acuerdo con las leyes de dichos
paises, pueden legalizarse tambien en Filipinas.
El articulo 1 de la Regla 78 no es mas que una transplantacion del articulo 637 del Codigo de
Procedimiento Civil. Reproducimos las dos disposiciones:
RULE 78, SECTION 1. Wills proved outside Philippines may be allowed here. 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.
SEC. 637. Wills proved outside islands may be allowed here. Wills proved and allowed in
the United States, or any State or Territory thereof, or in a foreign state or country, according
to the laws of such State, Territory, or country, may be allowed, filed,and recorded in the
Court of First Instance of the province in which the testator has real or personal estate on
which such will may operate.
Las palabras subrayadas en la segunda disposicion son las que no aparecen en la primera.
El articulo 1 de la Regla 78 no impide que puede legalizarse en Filipinas un testamento otorgado en
un pais extranjero,si puede ser legalizado de acuerdo con las leyes de dicho pais, ni exige que sea
previamente legalizado en dicho pais. Es insostenible, por tanto, la teoria del opositor.
Se revoca la orden apelada con costas contra el apelado.
Paras, Pres., Feria, Bengzon, Padilla, Tuason, Montemayor, Bautista Angelo y Labrador, MM., estan
conformes.

Footnotes
*

88 Phil., 580.

G.R. No. L-20234

December 23, 1964

PAULA DE LA CERNA, ET AL., petitioners,

vs.
MANUELA REBACA POTOT, ET AL., and THE HONORABLE COURT OF
APPEALS, respondents.

Philip M. Alo and Crispin M. Menchavez for petitioners.

Nicolas Jumapao for respondents.
REYES, J.B.L., J.:
Appeal by Paula de la Cerna and others from a decision of the Court of Appeals, Sixth Division
(C.A.-G.R. No. 23763-R) reversing that of the Court of First Instance of Cebu (Civ. Case No. R-3819)
and ordering the dismissal of an action for partition.
The factual background appears in the following portion of the decision of the Court of Appeals
(Petition, Annex A, pp. 2-4):
It appears that on May 9, 1939, the spouses, Bernabe de la Serna and Gervasia Rebaca,
executed a joint last will and testament in the local dialect whereby they willed that "our two
parcels of land acquired during our marriage together with all improvements thereon shall be
given to Manuela Rebaca, our niece, whom we have nurtured since childhood, because God
did not give us any child in our union, Manuela Rebaca being married to Nicolas Potot", and
that "while each of the testators is yet living, he or she will continue to enjoy the fruits of the
two lands aforementioned", the said two parcels of land being covered by Tax No. 4676 and
Tax No. 6677, both situated in sitio Bucao, barrio Lugo, municipality of Borbon, province of
Cebu. Bernabe dela Serna died on August 30, 1939, and the aforesaid will was submitted to
probate by said Gervasia and Manuela before the Court of First Instance of Cebu which,
after due publication as required by law and there being no opposition, heard the evidence,
and, by Order of October 31, 1939; in Special Proceedings No. 499, "declara legalizado el
documento Exhibit A como el testamento y ultima voluntad del finado Bernabe de la Serna
con derecho por parte du su viuda superstite Gervasia Rebaca y otra testadora al propio
tiempo segun el Exhibit A de gozar de los frutos de los terranos descritos en dicho
documents; y habido consideracion de la cuantia de dichos bienes, se decreta la distribucion
sumaria de los mismos en favor de la logataria universal Manuela Rebaca de Potot previa
prestacion por parte de la misma de una fianza en la sum de P500.00 para responder de
cualesquiera reclamaciones que se presentare contra los bienes del finado Bernabe de la
Serna de los aos desde esta fecha" (Act Esp. 499, Testamentaria Finado Bernabe de la
Serna) Upon the death of Gervasia Rebaca on October 14, 1952, another petition for the
probate of the same will insofar as Gervasia was concerned was filed on November 6, 1952,
being Special Proceedings No. 1016-R of the same Court of First Instance of Cebu, but for
failure of the petitioner, Manuela R. Potot and her attorney, Manuel Potot to appear, for the
hearing of said petition, the case was dismissed on March 30, 1954 Spec. Proc. No. 1016-R,
In the matter of the Probate of the Will of Gervasia Rebaca).
The Court of First Instance ordered the petition heard and declared the testament null and void, for
being executed contrary to the prohibition of joint wills in the Civil Code (Art. 669, Civil Code of 1889
and Art. 818, Civil Code of the Philippines); but on appeal by the testamentary heir, the Court of
Appeals reversed, on the ground that the decree of probate in 1939 was issued by a court of probate
jurisdiction and conclusive on the due execution of the testament. Further, the Court of Appeals
declared that:
... . It is true the law (Art. 669, old Civil Code; Art. 818, new Civil Code). prohibits the making
of a will jointly by two or more persons either for their reciprocal benefit or for the benefit of a
third person. However, this form of will has long been sanctioned by use, and the same has

continued to be used; and when, as in the present case, one such joint last will and
testament has been admitted to probate by final order of a Court of competent jurisdiction,
there seems to be no alternative except to give effect to the provisions thereof that are not
contrary to law, as was done in the case of Macrohon vs. Saavedra, 51 Phil. 267, wherein
our Supreme Court gave effect to the provisions of the joint will therein mentioned, saying,
"assuming that the joint will in question is valid."
Whence this appeal by the heirs intestate of the deceased husband, Bernabe de la Cerna.
The appealed decision correctly held that the final decree of probate, entered in 1939 by the Court of
First Instance of Cebu (when the testator, Bernabe de la Cerna, died), has conclusive effect as to his
last will and testament despite the fact that even then the Civil Code already decreed the invalidity of
joint wills, whether in favor of the joint testators, reciprocally, or in favor of a third party (Art. 669, old
Civil Code). The error thus committed by the probate court was an error of law, that should have
been corrected by appeal, but which did not affect the jurisdiction of the probate court, nor the
conclusive effect of its final decision, however erroneous. A final judgment rendered on a petition for
the probate of a will is binding upon the whole world (Manalo vs. Paredes, 47 Phil. 938; In re Estates
of Johnson, 39 Phil. 156); and public policy and sound practice demand that at the risk of occasional
errors judgment of courts should become final at some definite date fixed by law. Interest rei
publicae ut finis set litium (Dy Cay vs. Crossfield, 38 Phil, 521, and other cases cited in 2 Moran,
Comments on the Rules of Court (1963 Ed., p. 322).
Petitioners, as heirs and successors of the late Bernabe de la Cerna, are concluded by the 1939
decree admitting his will to probate. The contention that being void the will cannot be validated,
overlooks that the ultimate decision on Whether an act is valid or void rests with the courts, and here
they have spoken with finality when the will was probated in 1939. On this court, the dismissal of
their action for partition was correct.
But the Court of Appeals should have taken into account also, to avoid future misunderstanding, that
the probate decree in 1989 could only affect the share of the deceased husband, Bernabe de la
Cerna. It could not include the disposition of the share of the wife, Gervasia Rebaca, who was then
still alive, and over whose interest in the conjugal properties the probate court acquired no
jurisdiction, precisely because her estate could not then be in issue. Be it remembered that prior to
the new Civil Code, a will could not be probated during the testator's lifetime.
It follows that the validity of the joint will, in so far as the estate of the wife was concerned, must be,
on her death, reexamined and adjudicated de novo, since a joint will is considered a separate will of
each testator. Thus regarded, the holding of the court of First Instance of Cebu that the joint will is
one prohibited by law was correct as to the participation of the deceased Gervasia Rebaca in the
properties in question, for the reasons extensively discussed in our decision in Bilbao vs. Bilbao, 87
Phil. 144, that explained the previous holding in Macrohon vs. Saavedra, 51 Phil. 267.
Therefore, the undivided interest of Gervasia Rebaca should pass upon her death to her heirs
intestate, and not exclusively to the testamentary heir, unless some other valid will in her favor is
shown to exist, or unless she be the only heir intestate of said Gervasia.
It is unnecessary to emphasize that the fact that joint wills should be in common usage could not
make them valid when our Civil Codes consistently invalidated them, because laws are only

repealed by other subsequent laws, and no usage to the contrary may prevail against their
observance (Art. 5, Civ. Code of 1889; Art. 7, Civil Code of the Philippines of 1950).
WITH THE FOREGOING MODIFICATION, the judgment of the Court of Appeals in CA-G.R. No.
23763-R is affirmed. No Costs.
Bengzon, C.J., Bautista, Angelo, Concepcion, Barrera, Paredes, Dizon Regala, Makalintal,
Bengzon, J.P., and Zaldivar, JJ., concur.
G.R. No. L-16749

January 31, 1963

IN THE MATTER OF THE TESTATE ESTATE OF EDWARD E. CHRISTENSEN, DECEASED.

ADOLFO C. AZNAR, Executor and LUCY CHRISTENSEN, Heir of the deceased, Executor and
Heir-appellees,
vs.
HELEN CHRISTENSEN GARCIA, oppositor-appellant.
M. R. Sotelo for executor and heir-appellees.
Leopoldo M. Abellera and Jovito Salonga for oppositor-appellant.
LABRADOR, J.:
This is an appeal from a decision of the Court of First Instance of Davao, Hon. Vicente N. Cusi, Jr.,
presiding, in Special Proceeding No. 622 of said court, dated September 14, 1949, approving among
things the final accounts of the executor, directing the executor to reimburse Maria Lucy Christensen
the amount of P3,600 paid by her to Helen Christensen Garcia as her legacy, and declaring Maria
Lucy Christensen entitled to the residue of the property to be enjoyed during her lifetime, and in case
of death without issue, one-half of said residue to be payable to Mrs. Carrie Louise C. Borton, etc., in
accordance with the provisions of the will of the testator Edward E. Christensen. The will was
executed in Manila on March 5, 1951 and contains the following provisions:
3. I declare ... that I have but ONE (1) child, named MARIA LUCY CHRISTENSEN (now Mrs.
Bernard Daney), who was born in the Philippines about twenty-eight years ago, and who is
now residing at No. 665 Rodger Young Village, Los Angeles, California, U.S.A.
4. I further declare that I now have no living ascendants, and no descendants except my
above named daughter, MARIA LUCY CHRISTENSEN DANEY.
xxx

xxx

xxx

7. I give, devise and bequeath unto MARIA HELEN CHRISTENSEN, now married to
Eduardo Garcia, about eighteen years of age and who, notwithstanding the fact that she was
baptized Christensen, is not in any way related to me, nor has she been at any time adopted
by me, and who, from all information I have now resides in Egpit, Digos, Davao, Philippines,
the sum of THREE THOUSAND SIX HUNDRED PESOS (P3,600.00), Philippine Currency
the same to be deposited in trust for the said Maria Helen Christensen with the Davao
Branch of the Philippine National Bank, and paid to her at the rate of One Hundred Pesos
(P100.00), Philippine Currency per month until the principal thereof as well as any interest
which may have accrued thereon, is exhausted..

xxx

xxx

xxx

12. I hereby give, devise and bequeath, unto my well-beloved daughter, the said MARIA
LUCY CHRISTENSEN DANEY (Mrs. Bernard Daney), now residing as aforesaid at No. 665
Rodger Young Village, Los Angeles, California, U.S.A., all the income from the rest,
remainder, and residue of my property and estate, real, personal and/or mixed, of
whatsoever kind or character, and wheresoever situated, of which I may be possessed at my
death and which may have come to me from any source whatsoever, during her lifetime: ....
It is in accordance with the above-quoted provisions that the executor in his final account and project
of partition ratified the payment of only P3,600 to Helen Christensen Garcia and proposed that the
residue of the estate be transferred to his daughter, Maria Lucy Christensen.
Opposition to the approval of the project of partition was filed by Helen Christensen Garcia, insofar
as it deprives her (Helen) of her legitime as an acknowledged natural child, she having been
declared by Us in G.R. Nos. L-11483-84 an acknowledged natural child of the deceased Edward E.
Christensen. The legal grounds of opposition are (a) that the distribution should be governed by the
laws of the Philippines, and (b) that said order of distribution is contrary thereto insofar as it denies to
Helen Christensen, one of two acknowledged natural children, one-half of the estate in full
ownership. In amplification of the above grounds it was alleged that the law that should govern the
estate of the deceased Christensen should not be the internal law of California alone, but the entire
law thereof because several foreign elements are involved, that the forum is the Philippines and
even if the case were decided in California, Section 946 of the California Civil Code, which requires
that the domicile of the decedent should apply, should be applicable. It was also alleged that Maria
Helen Christensen having been declared an acknowledged natural child of the decedent, she is
deemed for all purposes legitimate from the time of her birth.
The court below ruled that as Edward E. Christensen was a citizen of the United States and of the
State of California at the time of his death, the successional rights and intrinsic validity of the
provisions in his will are to be governed by the law of California, in accordance with which a testator
has the right to dispose of his property in the way he desires, because the right of absolute dominion
over his property is sacred and inviolable (In re McDaniel's Estate, 77 Cal. Appl. 2d 877, 176 P. 2d
952, and In re Kaufman, 117 Cal. 286, 49 Pac. 192, cited in page 179, Record on Appeal). Oppositor
Maria Helen Christensen, through counsel, filed various motions for reconsideration, but these were
denied. Hence, this appeal.
The most important assignments of error are as follows:
I
THE LOWER COURT ERRED IN IGNORING THE DECISION OF THE HONORABLE SUPREME
COURT THAT HELEN IS THE ACKNOWLEDGED NATURAL CHILD OF EDWARD E.
CHRISTENSEN AND, CONSEQUENTLY, IN DEPRIVING HER OF HER JUST SHARE IN THE
INHERITANCE.
II

THE LOWER COURT ERRED IN ENTIRELY IGNORING AND/OR FAILING TO RECOGNIZE THE
EXISTENCE OF SEVERAL FACTORS, ELEMENTS AND CIRCUMSTANCES CALLING FOR THE
APPLICATION OF INTERNAL LAW.
III
THE LOWER COURT ERRED IN FAILING TO RECOGNIZE THAT UNDER INTERNATIONAL LAW,
PARTICULARLY UNDER THE RENVOI DOCTRINE, THE INTRINSIC VALIDITY OF THE
TESTAMENTARY DISPOSITION OF THE DISTRIBUTION OF THE ESTATE OF THE DECEASED
EDWARD E. CHRISTENSEN SHOULD BE GOVERNED BY THE LAWS OF THE PHILIPPINES.
IV
THE LOWER COURT ERRED IN NOT DECLARING THAT THE SCHEDULE OF DISTRIBUTION
SUBMITTED BY THE EXECUTOR IS CONTRARY TO THE PHILIPPINE LAWS.
V
THE LOWER COURT ERRED IN NOT DECLARING THAT UNDER THE PHILIPPINE LAWS
HELEN CHRISTENSEN GARCIA IS ENTITLED TO ONE-HALF (1/2) OF THE ESTATE IN FULL
OWNERSHIP.
There is no question that Edward E. Christensen was a citizen of the United States and of the State
of California at the time of his death. But there is also no question that at the time of his death he
was domiciled in the Philippines, as witness the following facts admitted by the executor himself in
appellee's brief:
In the proceedings for admission of the will to probate, the facts of record show that the
deceased Edward E. Christensen was born on November 29, 1875 in New York City, N.Y.,
U.S.A.; his first arrival in the Philippines, as an appointed school teacher, was on July 1,
1901, on board the U.S. Army Transport "Sheridan" with Port of Embarkation as the City of
San Francisco, in the State of California, U.S.A. He stayed in the Philippines until 1904.
In December, 1904, Mr. Christensen returned to the United States and stayed there for the
following nine years until 1913, during which time he resided in, and was teaching school in
Sacramento, California.
Mr. Christensen's next arrival in the Philippines was in July of the year 1913. However, in
1928, he again departed the Philippines for the United States and came back here the
following year, 1929. Some nine years later, in 1938, he again returned to his own country,
and came back to the Philippines the following year, 1939.
Wherefore, the parties respectfully pray that the foregoing stipulation of facts be admitted
and approved by this Honorable Court, without prejudice to the parties adducing other
evidence to prove their case not covered by this stipulation of facts.
1wph1.t

Being an American citizen, Mr. Christensen was interned by the Japanese Military Forces in
the Philippines during World War II. Upon liberation, in April 1945, he left for the United
States but returned to the Philippines in December, 1945. Appellees Collective Exhibits "6",

CFI Davao, Sp. Proc. 622, as Exhibits "AA", "BB" and "CC-Daney"; Exhs. "MM", "MM-l",
"MM-2-Daney" and p. 473, t.s.n., July 21, 1953.)
In April, 1951, Edward E. Christensen returned once more to California shortly after the
making of his last will and testament (now in question herein) which he executed at his
lawyers' offices in Manila on March 5, 1951. He died at the St. Luke's Hospital in the City of
Manila on April 30, 1953. (pp. 2-3)
In arriving at the conclusion that the domicile of the deceased is the Philippines, we are persuaded
by the fact that he was born in New York, migrated to California and resided there for nine years, and
since he came to the Philippines in 1913 he returned to California very rarely and only for short visits
(perhaps to relatives), and considering that he appears never to have owned or acquired a home or
properties in that state, which would indicate that he would ultimately abandon the Philippines and
make home in the State of California.
Sec. 16. Residence is a term used with many shades of meaning from mere temporary
presence to the most permanent abode. Generally, however, it is used to denote something
more than mere physical presence. (Goodrich on Conflict of Laws, p. 29)
As to his citizenship, however, We find that the citizenship that he acquired in California when he
resided in Sacramento, California from 1904 to 1913, was never lost by his stay in the Philippines,
for the latter was a territory of the United States (not a state) until 1946 and the deceased appears to
have considered himself as a citizen of California by the fact that when he executed his will in 1951
he declared that he was a citizen of that State; so that he appears never to have intended to
abandon his California citizenship by acquiring another. This conclusion is in accordance with the
following principle expounded by Goodrich in his Conflict of Laws.
The terms "'residence" and "domicile" might well be taken to mean the same thing, a place of
permanent abode. But domicile, as has been shown, has acquired a technical meaning.
Thus one may be domiciled in a place where he has never been. And he may reside in a
place where he has no domicile. The man with two homes, between which he divides his
time, certainly resides in each one, while living in it. But if he went on business which would
require his presence for several weeks or months, he might properly be said to have
sufficient connection with the place to be called a resident. It is clear, however, that, if he
treated his settlement as continuing only for the particular business in hand, not giving up his
former "home," he could not be a domiciled New Yorker. Acquisition of a domicile of choice
requires the exercise of intention as well as physical presence. "Residence simply requires
bodily presence of an inhabitant in a given place, while domicile requires bodily presence in
that place and also an intention to make it one's domicile." Residence, however, is a term
used with many shades of meaning, from the merest temporary presence to the most
permanent abode, and it is not safe to insist that any one use et the only proper one.
(Goodrich, p. 29)
The law that governs the validity of his testamentary dispositions is defined in Article 16 of the Civil
Code of the Philippines, which is as follows:
ART. 16. Real property as well as personal property is subject to the law of the country
where it is situated.

However, intestate and testamentary successions, both with respect to the order of
succession and to the amount of successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national law of the person whose
succession is under consideration, whatever may be the nature of the property and
regardless of the country where said property may be found.
The application of this article in the case at bar requires the determination of the meaning of the
term "national law" is used therein.
There is no single American law governing the validity of testamentary provisions in the United
States, each state of the Union having its own private law applicable to its citizens only and in force
only within the state. The "national law" indicated in Article 16 of the Civil Code above quoted can
not, therefore, possibly mean or apply to any general American law. So it can refer to no other than
the private law of the State of California.
The next question is: What is the law in California governing the disposition of personal property?
The decision of the court below, sustains the contention of the executor-appellee that under the
California Probate Code, a testator may dispose of his property by will in the form and manner he
desires, citing the case of Estate of McDaniel, 77 Cal. Appl. 2d 877, 176 P. 2d 952. But appellant
invokes the provisions of Article 946 of the Civil Code of California, which is as follows:
If there is no law to the contrary, in the place where personal property is situated, it is
deemed to follow the person of its owner, and is governed by the law of his domicile.
The existence of this provision is alleged in appellant's opposition and is not denied. We have
checked it in the California Civil Code and it is there. Appellee, on the other hand, relies on the case
cited in the decision and testified to by a witness. (Only the case of Kaufman is correctly cited.) It is
argued on executor's behalf that as the deceased Christensen was a citizen of the State of
California, the internal law thereof, which is that given in the abovecited case, should govern the
determination of the validity of the testamentary provisions of Christensen's will, such law being in
force in the State of California of which Christensen was a citizen. Appellant, on the other hand,
insists that Article 946 should be applicable, and in accordance therewith and following the doctrine
of therenvoi, the question of the validity of the testamentary provision in question should be referred
back to the law of the decedent's domicile, which is the Philippines.
The theory of doctrine of renvoi has been defined by various authors, thus:
The problem has been stated in this way: "When the Conflict of Laws rule of the forum refers
a jural matter to a foreign law for decision, is the reference to the purely internal rules of law
of the foreign system; i.e., to the totality of the foreign law minus its Conflict of Laws rules?"
On logic, the solution is not an easy one. The Michigan court chose to accept the renvoi, that
is, applied the Conflict of Laws rule of Illinois which referred the matter back to Michigan law.
But once having determined the the Conflict of Laws principle is the rule looked to, it is
difficult to see why the reference back should not have been to Michigan Conflict of Laws.
This would have resulted in the "endless chain of references" which has so often been
criticized be legal writers. The opponents of the renvoi would have looked merely to the
internal law of Illinois, thus rejecting the renvoi or the reference back. Yet there seems no
compelling logical reason why the original reference should be the internal law rather than to

the Conflict of Laws rule. It is true that such a solution avoids going on a merry-go-round, but
those who have accepted the renvoitheory avoid this inextricabilis circulas by getting off at
the second reference and at that point applying internal law. Perhaps the opponents of
the renvoi are a bit more consistent for they look always to internal law as the rule of
reference.
Strangely enough, both the advocates for and the objectors to the renvoi plead that greater
uniformity will result from adoption of their respective views. And still more strange is the fact
that the only way to achieve uniformity in this choice-of-law problem is if in the dispute the
two states whose laws form the legal basis of the litigation disagree as to whether
the renvoi should be accepted. If both reject, or both accept the doctrine, the result of the
litigation will vary with the choice of the forum. In the case stated above, had the Michigan
court rejected the renvoi, judgment would have been against the woman; if the suit had been
brought in the Illinois courts, and they too rejected the renvoi, judgment would be for the
woman. The same result would happen, though the courts would switch with respect to
which would hold liability, if both courts accepted the renvoi.
The Restatement accepts the renvoi theory in two instances: where the title to land is in
question, and where the validity of a decree of divorce is challenged. In these cases the
Conflict of Laws rule of the situs of the land, or the domicile of the parties in the divorce case,
is applied by the forum, but any further reference goes only to the internal law. Thus, a
person's title to land, recognized by the situs, will be recognized by every court; and every
divorce, valid by the domicile of the parties, will be valid everywhere. (Goodrich, Conflict of
Laws, Sec. 7, pp. 13-14.)
X, a citizen of Massachusetts, dies intestate, domiciled in France, leaving movable property
in Massachusetts, England, and France. The question arises as to how this property is to be
distributed among X's next of kin.
Assume (1) that this question arises in a Massachusetts court. There the rule of the conflict
of laws as to intestate succession to movables calls for an application of the law of the
deceased's last domicile. Since by hypothesis X's last domicile was France, the natural thing
for the Massachusetts court to do would be to turn to French statute of distributions, or
whatever corresponds thereto in French law, and decree a distribution accordingly. An
examination of French law, however, would show that if a French court were called upon to
determine how this property should be distributed, it would refer the distribution to the
national law of the deceased, thus applying the Massachusetts statute of distributions. So on
the surface of things the Massachusetts court has open to it alternative course of action: (a)
either to apply the French law is to intestate succession, or (b) to resolve itself into a French
court and apply the Massachusetts statute of distributions, on the assumption that this is
what a French court would do. If it accepts the so-called renvoidoctrine, it will follow the latter
course, thus applying its own law.
This is one type of renvoi. A jural matter is presented which the conflict-of-laws rule of the
forum refers to a foreign law, the conflict-of-laws rule of which, in turn, refers the matter back
again to the law of the forum. This is renvoi in the narrower sense. The German term for this
judicial process is 'Ruckverweisung.'" (Harvard Law Review, Vol. 31, pp. 523-571.)

After a decision has been arrived at that a foreign law is to be resorted to as governing a
particular case, the further question may arise: Are the rules as to the conflict of laws
contained in such foreign law also to be resorted to? This is a question which, while it has
been considered by the courts in but a few instances, has been the subject of frequent
discussion by textwriters and essayists; and the doctrine involved has been descriptively
designated by them as the "Renvoyer" to send back, or the "Ruchversweisung", or the
"Weiterverweisung", since an affirmative answer to the question postulated and the operation
of the adoption of the foreign law in toto would in many cases result in returning the main
controversy to be decided according to the law of the forum. ... (16 C.J.S. 872.)
Another theory, known as the "doctrine of renvoi", has been advanced. The theory of the
doctrine of renvoiis that the court of the forum, in determining the question before it, must
take into account the whole law of the other jurisdiction, but also its rules as to conflict of
laws, and then apply the law to the actual question which the rules of the other jurisdiction
prescribe. This may be the law of the forum. The doctrine of therenvoi has generally been
repudiated by the American authorities. (2 Am. Jur. 296)
The scope of the theory of renvoi has also been defined and the reasons for its application in a
country explained by Prof. Lorenzen in an article in the Yale Law Journal, Vol. 27, 1917-1918, pp.
529-531. The pertinent parts of the article are quoted herein below:
The recognition of the renvoi theory implies that the rules of the conflict of laws are to be
understood as incorporating not only the ordinary or internal law of the foreign state or
country, but its rules of the conflict of laws as well. According to this theory 'the law of a
country' means the whole of its law.
xxx

xxx

xxx

Von Bar presented his views at the meeting of the Institute of International Law, at
Neuchatel, in 1900, in the form of the following theses:
(1) Every court shall observe the law of its country as regards the application of foreign laws.
(2) Provided that no express provision to the contrary exists, the court shall respect:
(a) The provisions of a foreign law which disclaims the right to bind its nationals
abroad as regards their personal statute, and desires that said personal statute shall
be determined by the law of the domicile, or even by the law of the place where the
act in question occurred.
(b) The decision of two or more foreign systems of law, provided it be certain that one
of them is necessarily competent, which agree in attributing the determination of a
question to the same system of law.
xxx

xxx

xxx

If, for example, the English law directs its judge to distribute the personal estate of an
Englishman who has died domiciled in Belgium in accordance with the law of his domicile,
he must first inquire whether the law of Belgium would distribute personal property upon

death in accordance with the law of domicile, and if he finds that the Belgian law would make
the distribution in accordance with the law of nationality that is the English law he must
accept this reference back to his own law.
We note that Article 946 of the California Civil Code is its conflict of laws rule, while the rule applied
in In re Kaufman, Supra, its internal law. If the law on succession and the conflict of laws rules of
California are to be enforced jointly, each in its own intended and appropriate sphere, the principle
cited In re Kaufman should apply to citizens living in the State, but Article 946 should apply to such
of its citizens as are not domiciled in California but in other jurisdictions. The rule laid down of
resorting to the law of the domicile in the determination of matters with foreign element involved is in
accord with the general principle of American law that the domiciliary law should govern in most
matters or rights which follow the person of the owner.
When a man dies leaving personal property in one or more states, and leaves a will directing
the manner of distribution of the property, the law of the state where he was domiciled at the
time of his death will be looked to in deciding legal questions about the will, almost as
completely as the law of situs is consulted in questions about the devise of land. It is logical
that, since the domiciliary rules control devolution of the personal estate in case of intestate
succession, the same rules should determine the validity of an attempted testamentary
dispostion of the property. Here, also, it is not that the domiciliary has effect beyond the
borders of the domiciliary state. The rules of the domicile are recognized as controlling by the
Conflict of Laws rules at the situs property, and the reason for the recognition as in the case
of intestate succession, is the general convenience of the doctrine. The New York court has
said on the point: 'The general principle that a dispostiton of a personal property, valid at the
domicile of the owner, is valid anywhere, is one of the universal application. It had its origin in
that international comity which was one of the first fruits of civilization, and it this age, when
business intercourse and the process of accumulating property take but little notice of
boundary lines, the practical wisdom and justice of the rule is more apparent than ever.
(Goodrich, Conflict of Laws, Sec. 164, pp. 442-443.)
Appellees argue that what Article 16 of the Civil Code of the Philippines pointed out as the national
law is the internal law of California. But as above explained the laws of California have prescribed
two sets of laws for its citizens, one for residents therein and another for those domiciled in other
jurisdictions. Reason demands that We should enforce the California internal law prescribed for its
citizens residing therein, and enforce the conflict of laws rules for the citizens domiciled abroad. If we
must enforce the law of California as in comity we are bound to go, as so declared in Article 16 of
our Civil Code, then we must enforce the law of California in accordance with the express mandate
thereof and as above explained, i.e., apply the internal law for residents therein, and its conflict-oflaws rule for those domiciled abroad.
It is argued on appellees' behalf that the clause "if there is no law to the contrary in the place where
the property is situated" in Sec. 946 of the California Civil Code refers to Article 16 of the Civil Code
of the Philippines and that the law to the contrary in the Philippines is the provision in said Article 16
that the national law of the deceased should govern. This contention can not be sustained. As
explained in the various authorities cited above the national law mentioned in Article 16 of our Civil
Code is the law on conflict of laws in the California Civil Code, i.e., Article 946, which authorizes the
reference or return of the question to the law of the testator's domicile. The conflict of laws rule in
California, Article 946, Civil Code, precisely refers back the case, when a decedent is not domiciled
in California, to the law of his domicile, the Philippines in the case at bar. The court of the domicile

can not and should not refer the case back to California; such action would leave the issue incapable
of determination because the case will then be like a football, tossed back and forth between the two
states, between the country of which the decedent was a citizen and the country of his domicile. The
Philippine court must apply its own law as directed in the conflict of laws rule of the state of the
decedent, if the question has to be decided, especially as the application of the internal law of
California provides no legitime for children while the Philippine law, Arts. 887(4) and 894, Civil Code
of the Philippines, makes natural children legally acknowledged forced heirs of the parent
recognizing them.
The Philippine cases (In re Estate of Johnson, 39 Phil. 156; Riera vs. Palmaroli, 40 Phil. 105;
Miciano vs. Brimo, 50 Phil. 867; Babcock Templeton vs. Rider Babcock, 52 Phil. 130; and Gibbs vs.
Government, 59 Phil. 293.) cited by appellees to support the decision can not possibly apply in the
case at bar, for two important reasons, i.e., the subject in each case does not appear to be a citizen
of a state in the United States but with domicile in the Philippines, and it does not appear in each
case that there exists in the state of which the subject is a citizen, a law similar to or identical with
Art. 946 of the California Civil Code.
We therefore find that as the domicile of the deceased Christensen, a citizen of California, is the
Philippines, the validity of the provisions of his will depriving his acknowledged natural child, the
appellant, should be governed by the Philippine Law, the domicile, pursuant to Art. 946 of the Civil
Code of California, not by the internal law of California..
WHEREFORE, the decision appealed from is hereby reversed and the case returned to the lower
court with instructions that the partition be made as the Philippine law on succession provides.
Judgment reversed, with costs against appellees.
Padilla, Bautista Angelo, Concepcion, Reyes, Barrera, Paredes, Dizon, Regala and Makalintal, JJ.,
concur.
Bengzon, C.J., took no part.
G.R. No. L-23678

June 6, 1967

TESTATE ESTATE OF AMOS G. BELLIS, deceased.

PEOPLE'S BANK and TRUST COMPANY, executor.
MARIA CRISTINA BELLIS and MIRIAM PALMA BELLIS, oppositors-appellants,
vs.
EDWARD A. BELLIS, ET AL., heirs-appellees.
Vicente R. Macasaet and Jose D. Villena for oppositors appellants.
Paredes, Poblador, Cruz and Nazareno for heirs-appellees E. A. Bellis, et al.
Quijano and Arroyo for heirs-appellees W. S. Bellis, et al.
J. R. Balonkita for appellee People's Bank & Trust Company.
Ozaeta, Gibbs and Ozaeta for appellee A. B. Allsman.
BENGZON, J.P., J.:
This is a direct appeal to Us, upon a question purely of law, from an order of the Court of First
Instance of Manila dated April 30, 1964, approving the project of partition filed by the executor in
Civil Case No. 37089 therein.
1wph1.t

The facts of the case are as follows:

Amos G. Bellis, born in Texas, was "a citizen of the State of Texas and of the United States." By his
first wife, Mary E. Mallen, whom he divorced, he had five legitimate children: Edward A. Bellis,
George Bellis (who pre-deceased him in infancy), Henry A. Bellis, Alexander Bellis and Anna Bellis
Allsman; by his second wife, Violet Kennedy, who survived him, he had three legitimate children:
Edwin G. Bellis, Walter S. Bellis and Dorothy Bellis; and finally, he had three illegitimate children:
Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis.
On August 5, 1952, Amos G. Bellis executed a will in the Philippines, in which he directed that after
all taxes, obligations, and expenses of administration are paid for, his distributable estate should be
divided, in trust, in the following order and manner: (a) $240,000.00 to his first wife, Mary E. Mallen;
(b) P120,000.00 to his three illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis, Miriam
Palma Bellis, or P40,000.00 each and (c) after the foregoing two items have been satisfied, the
remainder shall go to his seven surviving children by his first and second wives, namely: Edward A.
Bellis, Henry A. Bellis, Alexander Bellis and Anna Bellis Allsman, Edwin G. Bellis, Walter S. Bellis,
and Dorothy E. Bellis, in equal shares.
1wph1.t

Subsequently, or on July 8, 1958, Amos G. Bellis died a resident of San Antonio, Texas, U.S.A. His
will was admitted to probate in the Court of First Instance of Manila on September 15, 1958.
The People's Bank and Trust Company, as executor of the will, paid all the bequests therein
including the amount of $240,000.00 in the form of shares of stock to Mary E. Mallen and to the
three (3) illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis, various
amounts totalling P40,000.00 each in satisfaction of their respective legacies, or a total of
P120,000.00, which it released from time to time according as the lower court approved and allowed
the various motions or petitions filed by the latter three requesting partial advances on account of
their respective legacies.
On January 8, 1964, preparatory to closing its administration, the executor submitted and filed its
"Executor's Final Account, Report of Administration and Project of Partition" wherein it reported, inter
alia, the satisfaction of the legacy of Mary E. Mallen by the delivery to her of shares of stock
amounting to $240,000.00, and the legacies of Amos Bellis, Jr., Maria Cristina Bellis and Miriam
Palma Bellis in the amount of P40,000.00 each or a total of P120,000.00. In the project of partition,
the executor pursuant to the "Twelfth" clause of the testator's Last Will and Testament divided
the residuary estate into seven equal portions for the benefit of the testator's seven legitimate
children by his first and second marriages.
On January 17, 1964, Maria Cristina Bellis and Miriam Palma Bellis filed their respective oppositions
to the project of partition on the ground that they were deprived of their legitimes as illegitimate
children and, therefore, compulsory heirs of the deceased.
Amos Bellis, Jr. interposed no opposition despite notice to him, proof of service of which is
evidenced by the registry receipt submitted on April 27, 1964 by the executor.1
After the parties filed their respective memoranda and other pertinent pleadings, the lower court, on
April 30, 1964, issued an order overruling the oppositions and approving the executor's final account,
report and administration and project of partition. Relying upon Art. 16 of the Civil Code, it applied
the national law of the decedent, which in this case is Texas law, which did not provide for legitimes.

Their respective motions for reconsideration having been denied by the lower court on June 11,
1964, oppositors-appellants appealed to this Court to raise the issue of which law must apply
Texas law or Philippine law.
In this regard, the parties do not submit the case on, nor even discuss, the doctrine of renvoi, applied
by this Court in Aznar v. Christensen Garcia, L-16749, January 31, 1963. Said doctrine is usually
pertinent where the decedent is a national of one country, and a domicile of another. In the present
case, it is not disputed that the decedent was both a national of Texas and a domicile thereof at the
time of his death.2 So that even assuming Texas has a conflict of law rule providing that the
domiciliary system (law of the domicile) should govern, the same would not result in a reference
back (renvoi) to Philippine law, but would still refer to Texas law. Nonetheless, if Texas has a conflicts
rule adopting the situs theory (lex rei sitae) calling for the application of the law of the place where
the properties are situated, renvoi would arise, since the properties here involved are found in the
Philippines. In the absence, however, of proof as to the conflict of law rule of Texas, it should not be
presumed different from ours.3 Appellants' position is therefore not rested on the doctrine of renvoi.
As stated, they never invoked nor even mentioned it in their arguments. Rather, they argue that their
case falls under the circumstances mentioned in the third paragraph of Article 17 in relation to Article
16 of the Civil Code.
Article 16, par. 2, and Art. 1039 of the Civil Code, render applicable the national law of the decedent,
in intestate or testamentary successions, with regard to four items: (a) the order of succession; (b)
the amount of successional rights; (e) the intrinsic validity of the provisions of the will; and (d) the
capacity to succeed. They provide that
ART. 16. Real property as well as personal property is subject to the law of the country
where it is situated.
However, intestate and testamentary successions, both with respect to the order of
succession and to the amount of successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national law of the person whose
succession is under consideration, whatever may he the nature of the property and
regardless of the country wherein said property may be found.
ART. 1039. Capacity to succeed is governed by the law of the nation of the decedent.
Appellants would however counter that Art. 17, paragraph three, of the Civil Code, stating that
Prohibitive laws concerning persons, their acts or property, and those which have for their
object public order, public policy and good customs shall not be rendered ineffective by laws
or judgments promulgated, or by determinations or conventions agreed upon in a foreign
country.
prevails as the exception to Art. 16, par. 2 of the Civil Code afore-quoted. This is not correct.
Precisely, Congressdeleted the phrase, "notwithstanding the provisions of this and the next
preceding article" when they incorporated Art. 11 of the old Civil Code as Art. 17 of the new Civil
Code, while reproducing without substantial change the second paragraph of Art. 10 of the old Civil
Code as Art. 16 in the new. It must have been their purpose to make the second paragraph of Art. 16
a specific provision in itself which must be applied in testate and intestate succession. As further

indication of this legislative intent, Congress added a new provision, under Art. 1039, which decrees
that capacity to succeed is to be governed by the national law of the decedent.
It is therefore evident that whatever public policy or good customs may be involved in our System of
legitimes, Congress has not intended to extend the same to the succession of foreign nationals. For
it has specifically chosen to leave, inter alia, the amount of successional rights, to the decedent's
national law. Specific provisions must prevail over general ones.
Appellants would also point out that the decedent executed two wills one to govern his Texas
estate and the other his Philippine estate arguing from this that he intended Philippine law to
govern his Philippine estate. Assuming that such was the decedent's intention in executing a
separate Philippine will, it would not alter the law, for as this Court ruled in Miciano v. Brimo, 50 Phil.
867, 870, a provision in a foreigner's will to the effect that his properties shall be distributed in
accordance with Philippine law and not with his national law, is illegal and void, for his national law
cannot be ignored in regard to those matters that Article 10 now Article 16 of the Civil Code
states said national law should govern.
The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, U.S.A., and
that under the laws of Texas, there are no forced heirs or legitimes. Accordingly, since the intrinsic
validity of the provision of the will and the amount of successional rights are to be determined under
Texas law, the Philippine law on legitimes cannot be applied to the testacy of Amos G. Bellis.
Wherefore, the order of the probate court is hereby affirmed in toto, with costs against appellants. So
ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar, Sanchez and Castro, JJ.,
concur.

Footnotes
He later filed a motion praying that as a legal heir he be included in this case as one of the
oppositors-appellants; to file or adopt the opposition of his sisters to the project of partition;
to submit his brief after paying his proportionate share in the expenses incurred in the
printing of the record on appeal; or to allow him to adopt the briefs filed by his sisters but
this Court resolved to deny the motion.
1

San Antonio, Texas was his legal residence.

Lim vs. Collector, 36 Phil. 472; In re Testate Estate of Suntay, 95 Phil. 500.

G.R. No. L-21993

June 21, 1966

ANGELA RODRIGUEZ, MARIA RODRIGUEZ, ET AL., petitioners,

vs.
HON. JUAN DE BORJA, as Judge of the Court of First Instance of Bulacan, Branch III,
ANATOLIA PANGILINAN and ADELAIDA JACALAN, respondents.

Lorenzo Somulong for petitioners.

Torres and Torres for respondents.
REYES, J.B.L., J.:
Petitioners Angela, Maria, Abelardo and Antonio, surnamed Rodriguez, petition this Court for a writ
of certiorariand prohibition to the Court of First Instance of Bulacan, for its refusal to grant their
motion to dismiss its Special Proceeding No. 1331, which said Court is alleged to have taken
cognizance of without jurisdiction.
The facts and issues are succinctly narrated in the order of the respondent court, dated June 13,
1963 (Petition, Annex 0), in this wise:
It is alleged in the motion to dismiss filed by Angela, Maria, Abelardo and Antonio Rodriguez,
through counsel, that this Court "has no jurisdiction to try the above-entitled case in view of
the pendency of another action for the settlement of the estate of the deceased Rev. Fr.
Celestino Rodriguez in the Court of First Instance of Rizal, namely, Sp. Proceedings No.
3907 entitled 'In the matter of the Intestate Estate of the deceased Rev. Fr. Celestino
Rodriguez which was filed ahead of the instant case".
The records show that Fr. Celestino Rodriguez died on February 12, 1963 in the City of
Manila; that on March 4, 1963, Apolonia Pangilinan and Adelaida Jacalan delivered to the
Clerk of Court of Bulacan a purported last will and testament of Fr. Rodriguez; that on March
8, 1963, Maria Rodriguez and Angela Rodriguez, through counsel filed a petition for leave of
court to allow them to examine the alleged will; that on March 11, 1963 before the Court
could act on the petition, the same was withdrawn; that on March 12, 1963, aforementioned
petitioners filed before the Court of First Instance of Rizal a petition for the settlement of the
intestate estate of Fr. Rodriguez alleging, among other things, that Fr. Rodriguez was a
resident of Paraaque, Rizal, and died without leaving a will and praying that Maria
Rodriguez be appointed as Special Administratrix of the estate; and that on March 12, 1963
Apolonia Pangilinan and Adelaida Jacalan filed a petition in this Court for the probation of the
will delivered by them on March 4, 1963. It was stipulated by the parties that Fr. Rodriguez
was born in Paraaque, Rizal; that he was Parish priest of the Catholic Church of Hagonoy,
Bulacan, from the year 1930 up to the time of his death in 1963; that he was buried in
Paraaque, and that he left real properties in Rizal, Cavite, Quezon City and Bulacan.
The movants contend that since the intestate proceedings in the Court of First Instance of
Rizal was filed at 8:00 A.M. on March 12, 1963 while the petition for probate was filed in the
Court of First Instance of Bulacan at 11:00 A.M. on the same date, the latter Court has no
jurisdiction to entertain the petition for probate, citing as authority in support thereof the case
of Ongsingco Vda. de Borja vs. Tan and De Borja, G.R. No. 7792, July 27, 1955.
The petitioners Pangilinan and Jacalan, on the other hand, take the stand that the Court of
First Instance of Bulacan acquired jurisdiction over the case upon delivery by them of the will
to the Clerk of Court on March 4, 1963, and that the case in this Court therefore has
precedence over the case filed in Rizal on March 12, 1963.
The Court of First Instance, as previously stated denied the motion to dismiss on the ground that a
difference of a few hours did not entitle one proceeding to preference over the other; that, as early

as March 7, movants were aware of the existence of the purported will of Father Rodriguez,
deposited in the Court of Bulacan, since they filed a petition to examine the same, and that movants
clearly filed the intestate proceedings in Rizal "for no other purpose than to prevent this Court (of
Bulacan) from exercising jurisdiction over the probate proceedings". Reconsideration having been
denied, movants, now petitioners, came to this Court, relying principally on Rule 73, section 1 of the
Rules of Court, and invoking our ruling in Ongsingco vs. Tan and De Borja, L-7792, July 27, 1955.
SECTION 1. Where estate of deceased persons settled. If the decedent is an inhabitant of
the Philippines at the time of his death, whether a citizen or an alien, his will shall be proved,
or letters of administration granted, and his estate settled, in the Court of First Instance in the
province in which he resides at the time of his death, and if he is an inhabitant of a foreign
country, the Court of First Instance of any province which he had estate. The court first taking
cognizance of the settlement of the estate of a decedent, shall exercise jurisdiction to the
exclusion of all other courts. The jurisdiction assumed by a court, as far as it depends on the
place of residence of the decedent, or of the location of his estate, shall not be contested in a
suit or proceeding, except in an appeal from that court, in the original case, or when the want
of jurisdiction appears on the record.
We find this recourse to be untenable. The jurisdiction of the Court of First Instance of Bulacan
became vested upon the delivery thereto of the will of the late Father Rodriguez on March 4, 1963,
even if no petition for its allowance was filed until later, because upon the will being deposited the
court could, motu proprio, have taken steps to fix the time and place for proving the will, and issued
the corresponding notices conformably to what is prescribed by section 3, Rule 76, of the Revised
Rules of Court (Section 3, Rule 77, of the old Rules):
SEC. 3. Court to appoint time for proving will. Notice thereof to be published. When a will
is delivered to, or a petition for the allowance of a will is filed in, the Court having jurisdiction,
such Court shall fix a time and place for proving the will when all concerned may appear to
contest the allowance thereof, and shall cause notice of such time and place to be published
three (3) weeks successively, previous to the time appointed, in a newspaper of general
circulation in the province.
But no newspaper publication shall be made where the petition for probate has been filed by
the testator himself.
The use of the disjunctive in the words "when a will is delivered to OR a petition for the allowance of
a will is filed" plainly indicates that the court may act upon the mere deposit therein of a decedent's
testament, even if no petition for its allowance is as yet filed. Where the petition for probate is made
after the deposit of the will, the petition is deemed to relate back to the time when the will was
delivered. Since the testament of Fr. Rodriguez was submitted and delivered to the Court of Bulacan
on March 4, while petitioners initiated intestate proceedings in the Court of First Instance of Rizal
only on March 12, eight days later, the precedence and exclusive jurisdiction of the Bulacan court is
incontestable.
1wph1.t

But, petitioners object, section 3 of revised Rule 76 (old Rule 77) speaks of a will being delivered to
"the Court having jurisdiction," and in the case at bar the Bulacan court did not have it because the
decedent was domiciled in Rizal province. We can not disregard Fr. Rodriguez's 33 years of
residence as parish priest in Hagonoy, Bulacan (1930-1963); but even if we do so, and consider that
he retained throughout some animus revertendi to the place of his birth in Paraaque, Rizal, that

detail would not imply that the Bulacan court lacked jurisdiction. As ruled in previous decisions, the
power to settle decedents' estates is conferred by law upon all courts of first instance, and the
domicile of the testator only affects the venue but not the jurisdiction of the Court (In re Kaw Singco,
74 Phil. 239; Reyes vs. Diaz, 73 Phil. 484; Bernabe vs. Vergara, 73 Phil. 676). Neither party denies
that the late Fr. Rodriguez is deceased, or that he left personal property in Hagonoy, province of
Bulacan (t.s.n. p. 46, hearing of June 11, 1963, Annex "H", Petition, Rec., p. 48). That is sufficient in
the case before us.
In the Kaw Singco case (ante) this Court ruled that:
"... If we consider such question of residence as one affecting the jurisdiction of the trial court
over the subject-matter, the effect shall be that the whole proceedings including all decisions
on the different incidents which have arisen in court will have to be annulled and the same
case will have to be commenced anew before another court of the same rank in another
province. That this is of mischievous effect in the prompt administration of justice is too
obvious to require comment. (Cf. Tanunchuan vs. Dy Buncio & Co., G.R. No. 48206,
December 31, 1942). Furthermore, section 600 of Act No. 190, providing that the estate of a
deceased person shall be settled in the province where he had last resided, could not have
been intended as defining the jurisdiction of the probate court over the subject matter,
because such legal provision is contained in a law of procedure dealing merely with
procedural matters, and, as we have said time and again, procedure is one thing and
jurisdiction over the subject matter is another. (Attorney General vs. Manila Railroad
Company, 20 Phil. 523.) The law of jurisdiction Act No. 136, Section 56, No. 5 confers
upon Courts of First Instance jurisdiction over all probate cases independently of the place of
residence of the deceased.1 Since, however, there are many Courts of First Instance in the
Philippines, the Law of Procedure, Act No. 190, section 600, fixes the venue or the place
where each case shall be brought. Thus, the place of residence of the deceased is not an
element of jurisdiction over the subject matter but merely of venue. And it is upon this ground
that in the new Rules of Court the province where the estate of a deceased person shall be
settled is properly called "venue" (Rule 75, section 1.) Motion for reconsideration is denied.
The estate proceedings having been initiated in the Bulacan Court of First Instance ahead of any
other, that court is entitled to assume jurisdiction to the exclusion of all other courts, even if it were a
case of wrong venue by express provisions of Rule 73 (old Rule 75) of the Rules of Court, since the
same enjoins that:
The Court first taking cognizance of the settlement of the estate of a decedent shall exercise
jurisdiction to the exclusion of all other courts. (Sec. 1)
This disposition presupposes that two or more courts have been asked to take cognizance of the
settlement of the estate. Of them only one could be of proper venue, yet the rule grants precedence
to that Court whose jurisdiction is first invoked, without taking venue into account.
There are two other reasons that militate against the success of petitioners. One is that their
commencing intestate proceedings in Rizal, after they learned of the delivery of the decedent's will to
the Court of Bulacan, was in bad faith, patently done with a view to divesting the latter court of the
precedence awarded it by the Rules. Certainly the order of priority established in Rule 73 (old Rule
75) was not designed to convert the settlement of decedent's estates into a race between applicants,
with the administration of the properties as the price for the fleetest.

The other reason is that, in our system of civil law, intestate succession is only subsidiary or
subordinate to the testate, since intestacy only takes place in the absence of a valid operative will.
Says Article 960 of the Civil Code of the Philippines:
ART. 960. Legal or intestate succession takes place:
(1) If a person dies without a will, or with a void will, or one which has subsequently lost its
validity;
(2) When the will does not institute an heir to, or dispose of all the property belonging to the
testator. In such case, legal succession shall take place only with respect to the property in
which the testator has not disposed;
(3) If the suspensive condition attached to the institution of heir does not happen or is not
fulfilled, or if the heir dies before the testator, or repudiates the inheritance, there being no
substitution, and no right of accretion takes place;
(4) When the heir instituted is incapable of succeeding, except in cases provided in this
Code.
Therefore, as ruled in Castro, et al. vs. Martinez, 10 Phil. 307, "only after final decision as to the
nullity of testate succession could an intestate succession be instituted in the form of pre-established
action". The institution of intestacy proceedings in Rizal may not thus proceed while the probate of
the purported will of Father Rodriguez is pending.
We rule that the Bulacan Court of First Instance was entitled to priority in the settlement of the estate
in question, and that in refusing to dismiss the probate. proceedings, said court did not commit any
abuse of discretion. It is the proceedings in the Rizal Court that should be discontinued.
Wherefore, the writ of certiorari applied for is denied. Costs against petitioners Rodriguez.
Concepcion, C.J., Barrera, Dizon, Regala, Makalintal, Bengzon, J.P., Zaldivar and Sanchez, JJ.,
concur.
Footnotes
1

Now section 44, subpar. (e) of the Judiciary Act (R.A. No. 296).

.R. No. L-54919 May 30, 1984

POLLY CAYETANO, petitioner,
vs.
HON. TOMAS T. LEONIDAS, in his capacity as the Presiding Judge of Branch XXXVIII, Court
of First Instance of Manila and NENITA CAMPOS PAGUIA, respondents.
Ermelo P. Guzman for petitioner.

Armando Z. Gonzales for private respondent.

GUTIERREZ, JR., J.:

This is a petition for review on certiorari, seeking to annul the order of the respondent judge of the
Court of First Instance of Manila, Branch XXXVIII, which admitted to and allowed the probate of the
last will and testament of Adoracion C. Campos, after an ex-parte presentation of evidence by herein
private respondent.
On January 31, 1977, Adoracion C. Campos died, leaving her father, petitioner Hermogenes
Campos and her sisters, private respondent Nenita C. Paguia, Remedios C. Lopez and Marieta C.
Medina as the surviving heirs. As Hermogenes Campos was the only compulsory heir, he executed
an Affidavit of Adjudication under Rule 74, Section I of the Rules of Court whereby he adjudicated
unto himself the ownership of the entire estate of the deceased Adoracion Campos.
Eleven months after, on November 25, 1977, Nenita C. Paguia filed a petition for the reprobate of a
will of the deceased, Adoracion Campos, which was allegedly executed in the United States and for
her appointment as administratrix of the estate of the deceased testatrix.
In her petition, Nenita alleged that the testatrix was an American citizen at the time of her death and
was a permanent resident of 4633 Ditman Street, Philadelphia, Pennsylvania, U.S.A.; that the
testatrix died in Manila on January 31, 1977 while temporarily residing with her sister at 2167
Leveriza, Malate, Manila; that during her lifetime, the testatrix made her last wig and testament on
July 10, 1975, according to the laws of Pennsylvania, U.S.A., nominating Wilfredo Barzaga of New
Jersey as executor; that after the testatrix death, her last will and testament was presented,
probated, allowed, and registered with the Registry of Wins at the County of Philadelphia, U.S.A.,
that Clement L. McLaughlin, the administrator who was appointed after Dr. Barzaga had declined
and waived his appointment as executor in favor of the former, is also a resident of Philadelphia,
U.S.A., and that therefore, there is an urgent need for the appointment of an administratrix to
administer and eventually distribute the properties of the estate located in the Philippines.
On January 11, 1978, an opposition to the reprobate of the will was filed by herein petitioner alleging
among other things, that he has every reason to believe that the will in question is a forgery; that the
intrinsic provisions of the will are null and void; and that even if pertinent American laws on intrinsic
provisions are invoked, the same could not apply inasmuch as they would work injustice and injury
to him.
On December 1, 1978, however, the petitioner through his counsel, Atty. Franco Loyola, filed a
Motion to Dismiss Opposition (With Waiver of Rights or Interests) stating that he "has been able to
verify the veracity thereof (of the will) and now confirms the same to be truly the probated will of his
daughter Adoracion." Hence, an ex-partepresentation of evidence for the reprobate of the
questioned will was made.
On January 10, 1979, the respondent judge issued an order, to wit:
At the hearing, it has been satisfactorily established that Adoracion C. Campos, in
her lifetime, was a citizen of the United States of America with a permanent

residence at 4633 Ditman Street, Philadelphia, PA 19124, (Exhibit D) that when alive,
Adoracion C. Campos executed a Last Will and Testament in the county of
Philadelphia, Pennsylvania, U.S.A., according to the laws thereat (Exhibits E-3 to E3-b) that while in temporary sojourn in the Philippines, Adoracion C. Campos died in
the City of Manila (Exhibit C) leaving property both in the Philippines and in the
United States of America; that the Last Will and Testament of the late Adoracion C.
Campos was admitted and granted probate by the Orphan's Court Division of the
Court of Common Pleas, the probate court of the Commonwealth of Pennsylvania,
County of Philadelphia, U.S.A., and letters of administration were issued in favor of
Clement J. McLaughlin all in accordance with the laws of the said foreign country on
procedure and allowance of wills (Exhibits E to E-10); and that the petitioner is not
suffering from any disqualification which would render her unfit as administratrix of
the estate in the Philippines of the late Adoracion C. Campos.
WHEREFORE, the Last Will and Testament of the late Adoracion C. Campos is
hereby admitted to and allowed probate in the Philippines, and Nenita Campos
Paguia is hereby appointed Administratrix of the estate of said decedent; let Letters
of Administration with the Will annexed issue in favor of said Administratrix upon her
filing of a bond in the amount of P5,000.00 conditioned under the provisions of
Section I, Rule 81 of the Rules of Court.
Another manifestation was filed by the petitioner on April 14, 1979, confirming the withdrawal of his
opposition, acknowledging the same to be his voluntary act and deed.
On May 25, 1979, Hermogenes Campos filed a petition for relief, praying that the order allowing the
will be set aside on the ground that the withdrawal of his opposition to the same was secured
through fraudulent means. According to him, the "Motion to Dismiss Opposition" was inserted among
the papers which he signed in connection with two Deeds of Conditional Sales which he executed
with the Construction and Development Corporation of the Philippines (CDCP). He also alleged that
the lawyer who filed the withdrawal of the opposition was not his counsel-of-record in the special
proceedings case.
The petition for relief was set for hearing but the petitioner failed to appear. He made several
motions for postponement until the hearing was set on May 29, 1980.
On May 18, 1980, petitioner filed another motion entitled "Motion to Vacate and/or Set Aside the
Order of January 10, 1979, and/or dismiss the case for lack of jurisdiction. In this motion, the notice
of hearing provided:
Please include this motion in your calendar for hearing on May 29, 1980 at 8:30 in
the morning for submission for reconsideration and resolution of the Honorable
Court. Until this Motion is resolved, may I also request for the future setting of the
case for hearing on the Oppositor's motion to set aside previously filed.
The hearing of May 29, 1980 was re-set by the court for June 19, 1980. When the case was called
for hearing on this date, the counsel for petitioner tried to argue his motion to vacate instead of
adducing evidence in support of the petition for relief. Thus, the respondent judge issued an order
dismissing the petition for relief for failure to present evidence in support thereof. Petitioner filed a

motion for reconsideration but the same was denied. In the same order, respondent judge also
denied the motion to vacate for lack of merit. Hence, this petition.
Meanwhile, on June 6,1982, petitioner Hermogenes Campos died and left a will, which, incidentally
has been questioned by the respondent, his children and forced heirs as, on its face, patently null
and void, and a fabrication, appointing Polly Cayetano as the executrix of his last will and testament.
Cayetano, therefore, filed a motion to substitute herself as petitioner in the instant case which was
granted by the court on September 13, 1982.
A motion to dismiss the petition on the ground that the rights of the petitioner Hermogenes Campos
merged upon his death with the rights of the respondent and her sisters, only remaining children and
forced heirs was denied on September 12, 1983.
Petitioner Cayetano persists with the allegations that the respondent judge acted without or in
excess of his jurisdiction when:
1) He ruled the petitioner lost his standing in court deprived the Right to Notice (sic)
upon the filing of the Motion to Dismiss opposition with waiver of rights or interests
against the estate of deceased Adoracion C. Campos, thus, paving the way for the
hearing ex-parte of the petition for the probate of decedent will.
2) He ruled that petitioner can waive, renounce or repudiate (not made in a public or
authenticated instrument), or by way of a petition presented to the court but by way
of a motion presented prior to an order for the distribution of the estate-the law
especially providing that repudiation of an inheritance must be presented, within 30
days after it has issued an order for the distribution of the estate in accordance with
the rules of Court.
3) He ruled that the right of a forced heir to his legitime can be divested by a decree
admitting a will to probate in which no provision is made for the forced heir in
complete disregard of Law of Succession
4) He denied petitioner's petition for Relief on the ground that no evidence was
adduced to support the Petition for Relief when no Notice nor hearing was set to
afford petitioner to prove the merit of his petition a denial of the due process and a
grave abuse of discretion amounting to lack of jurisdiction.
5) He acquired no jurisdiction over the testate case, the fact that the Testator at the
time of death was a usual resident of Dasmarias, Cavite, consequently Cavite Court
of First Instance has exclusive jurisdiction over the case (De Borja vs. Tan, G.R. No.
L-7792, July 1955).
The first two issues raised by the petitioner are anchored on the allegation that the respondent judge
acted with grave abuse of discretion when he allowed the withdrawal of the petitioner's opposition to
the reprobate of the will.
We find no grave abuse of discretion on the part of the respondent judge. No proof was adduced to
support petitioner's contention that the motion to withdraw was secured through fraudulent means
and that Atty. Franco Loyola was not his counsel of record. The records show that after the firing of

the contested motion, the petitioner at a later date, filed a manifestation wherein he confirmed that
the Motion to Dismiss Opposition was his voluntary act and deed. Moreover, at the time the motion
was filed, the petitioner's former counsel, Atty. Jose P. Lagrosa had long withdrawn from the case
and had been substituted by Atty. Franco Loyola who in turn filed the motion. The present petitioner
cannot, therefore, maintain that the old man's attorney of record was Atty. Lagrosa at the time of
filing the motion. Since the withdrawal was in order, the respondent judge acted correctly in hearing
the probate of the will ex-parte, there being no other opposition to the same.
The third issue raised deals with the validity of the provisions of the will. As a general rule, the
probate court's authority is limited only to the extrinsic validity of the will, the due execution thereof,
the testatrix's testamentary capacity and the compliance with the requisites or solemnities prescribed
by law. The intrinsic validity of the will normally comes only after the court has declared that the will
has been duly authenticated. However, where practical considerations demand that the intrinsic
validity of the will be passed upon, even before it is probated, the court should meet the issue.
(Maninang vs. Court of Appeals, 114 SCRA 478).
In the case at bar, the petitioner maintains that since the respondent judge allowed the reprobate of
Adoracion's will, Hermogenes C. Campos was divested of his legitime which was reserved by the
law for him.
This contention is without merit.
Although on its face, the will appeared to have preterited the petitioner and thus, the respondent
judge should have denied its reprobate outright, the private respondents have sufficiently
established that Adoracion was, at the time of her death, an American citizen and a permanent
resident of Philadelphia, Pennsylvania, U.S.A. Therefore, under Article 16 par. (2) and 1039 of the
Civil Code which respectively provide:
Art. 16 par. (2).
xxx xxx xxx
However, intestate and testamentary successions, both with respect to the order of
succession and to the amount of successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national law of the person whose
succession is under consideration, whatever may be the nature of the property and
regardless of the country wherein said property may be found.
Art. 1039.
Capacity to succeed is governed by the law of the nation of the decedent.
the law which governs Adoracion Campo's will is the law of Pennsylvania, U.S.A., which is the
national law of the decedent. Although the parties admit that the Pennsylvania law does not provide
for legitimes and that all the estate may be given away by the testatrix to a complete stranger, the
petitioner argues that such law should not apply because it would be contrary to the sound and
established public policy and would run counter to the specific provisions of Philippine Law.

It is a settled rule that as regards the intrinsic validity of the provisions of the will, as provided for by
Article 16(2) and 1039 of the Civil Code, the national law of the decedent must apply. This was
squarely applied in the case ofBellis v. Bellis (20 SCRA 358) wherein we ruled:
It is therefore evident that whatever public policy or good customs may be involved in
our system of legitimes, Congress has not intended to extend the same to the
succession of foreign nationals. For it has specifically chosen to leave, inter alia, the
amount of successional rights, to the decedent's national law. Specific provisions
must prevail over general ones.
xxx xxx xxx
The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of
Texas, U.S.A., and under the law of Texas, there are no forced heirs or legitimes.
Accordingly, since the intrinsic validity of the provision of the will and the amount of
successional rights are to be determined under Texas law, the Philippine Law on
legitimes cannot be applied to the testacy of Amos G. Bellis.
As regards the alleged absence of notice of hearing for the petition for relief, the records wig bear
the fact that what was repeatedly scheduled for hearing on separate dates until June 19, 1980 was
the petitioner's petition for relief and not his motion to vacate the order of January 10, 1979. There is
no reason why the petitioner should have been led to believe otherwise. The court even admonished
the petitioner's failing to adduce evidence when his petition for relief was repeatedly set for hearing.
There was no denial of due process. The fact that he requested "for the future setting of the case for
hearing . . ." did not mean that at the next hearing, the motion to vacate would be heard and given
preference in lieu of the petition for relief. Furthermore, such request should be embodied in a
motion and not in a mere notice of hearing.
Finally, we find the contention of the petition as to the issue of jurisdiction utterly devoid of merit.
Under Rule 73, Section 1, of the Rules of Court, it is provided that:
SECTION 1. Where estate of deceased persons settled. If the decedent is an
inhabitant of the Philippines at the time of his death, whether a citizen or an alien, his
will shall be proved, or letters of administration granted, and his estate settled, in the
Court of First Instance in the province in which he resided at the time of his death,
and if he is an inhabitant of a foreign country, the Court of First Instance of any
province in which he had estate. The court first taking cognizance of the settlement
of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other
courts. The jurisdiction assumed by a court, so far as it depends on the place of
residence of the decedent, or of the location of his estate, shall not be contested in a
suit or proceeding, except in an appeal from that court, in the original case, or when
the want of jurisdiction appears on the record.
Therefore, the settlement of the estate of Adoracion Campos was correctly filed with the Court of
First Instance of Manila where she had an estate since it was alleged and proven that Adoracion at
the time of her death was a citizen and permanent resident of Pennsylvania, United States of
America and not a "usual resident of Cavite" as alleged by the petitioner. Moreover, petitioner is now
estopped from questioning the jurisdiction of the probate court in the petition for relief. It is a settled
rule that a party cannot invoke the jurisdiction of a court to secure affirmative relief, against his

opponent and after failing to obtain such relief, repudiate or question that same jurisdiction. (See
Saulog Transit, Inc. vs. Hon. Manuel Lazaro, et al., G. R. No. 63 284, April 4, 1984).
WHEREFORE, the petition for certiorari and prohibition is hereby dismissed for lack of merit.
SO ORDERED.
Melencio-Herrera, Plana, Relova and De la Fuente, JJ., concur.
Teehankee, J., (Chairman), took no part.

G.R. No. L-22036 April 30, 1979

TESTATE ESTATE OF THE LATE REVEREND FATHER PASCUAL RIGOR. THE PARISH PRIEST
OF THE ROMAN CATHOLIC CHURCH OF VICTORIA, TARLAC, petitioner-appellant,
vs.
BELINA RIGOR, NESTORA RIGOR, FRANCISCA ESCOBAR DE RIGOR and JOVITA ESCOBAR
DE FAUSTO,respondents-appellees.
D. Taedo, Jr. for appellants.
J. Palanca, Sr. for appellee.

AQUINO, J.:
This case is about the efficaciousness or enforceability of a devise of ricelands located at Guimba,
Nueva Ecija, with a total area of around forty- four hectares That devise was made in the will of the
late Father Pascual Rigor, a native of Victoria Tarlac, in favor of his nearest male relative who would
study for the priesthood.
The parish priest of Victoria, who claimed to be a trustee of the said lands, appealed to this Court
from the decision of the Court of Appeals affirming the order of the probate court declaring that the
said devise was inoperative (Rigor vs. Parish Priest of the Roman Catholic Church of Victoria,
Tarlac, CA-G.R. No. 24319-R, August 1, 1963).
The record discloses that Father Rigor, the parish priest of Pulilan, Bulacan, died on August 9, 1935,
leaving a will executed on October 29, 1933 which was probated by the Court of First Instance of
Tarlac in its order of December 5, 1935. Named as devisees in the will were the testators nearest
relatives, namely, his three sisters: Florencia Rigor-Escobar, Belina Rigor-Manaloto and Nestora
Rigor-Quiambao. The testator gave a devise to his cousin, Fortunato Gamalinda.
In addition, the will contained the following controversial bequest (paragraphing supplied to facilitate
comprehension of the testamentary provisions):
Doy y dejo como legado CUATRO (4) PARCELAS de terreno palayeros situados en
el municipiooo de Guimba de la provinciaaa de NUEVA ECIJA, cuyo num. de

CERTIFICADO DE TRANSFERENCIA DE TITULO SON; Titulo Num. 6530, mide

16,249 m. cuadrados de superficie Titulo Num. 6548, mide 242,998 m. cuadrados de
superficie y annual 6525, mide 62,665 m. cuadrados de superficie; y Titulo Num.
6521, mide 119,251 m. cuadrados de superficie; a cualquier pariente mio varon mas
cercano que estudie la carrera eclesiatica hasta ordenarse de Presbiterado o sea
Sacerdote; las condiciones de estate legado son;
(1.a) Prohibe en absoluto la venta de estos terrenos arriba situados objectos de este
legado;
(2.a) Que el legatario pariente mio mas cercano tendra derecho de empezar a gozar
y administrar de este legado al principiar a curzar la Sagrada Teologio, y ordenado
de Sacerdote, hasta su muerte; pero que pierde el legatario este derecho de
administrar y gozar de este legado al dejar de continuar sus estudios para ordenarse
de Presbiterado (Sacerdote).
Que el legatario una vez Sacerdote ya estara obligado a celebrar cada ao VEINTE
(20) Misas rezadas en sufragio de mi alma y de mis padres difuntos, y si el actual
legatario, quedase excomulgado, IPSO FACTO se le despoja este legado, y la
administracion de esto pasara a cargo del actual Parroco y sus sucesores de la
Iglecia Catolica de Victoria, Tarlac.
Y en intervalo de tiempo que no haya legatario acondicionado segun lo arriba queda
expresado, pasara la administracion de este legado a cargo del actual Parroco
Catolico y sus sucesores, de Victoria, Tarlac.
El Parroco administrador de estate legado, acumulara, anualmente todos los
productos que puede tener estate legado, ganando o sacando de los productos
anuales el CINCO (5) por ciento para su administracion, y los derechos
correspondientes de las VEINTE (20) Misas rezadas que debiera el Parroco celebrar
cada ao, depositando todo lo restante de los productos de estate legado, en un
banco, a nombre de estate legado.
To implement the foregoing bequest, the administratix in 1940 submitted a project containing the
following item:
5. LEGACY OF THE CHURCH
That it be adjudicated in favor of the legacy purported to be given to the nearest male
relative who shall take the priesthood, and in the interim to be administered by the
actual Catholic Priest of the Roman Catholic Church of Victoria, Tarlac, Philippines,
or his successors, the real properties hereinbelow indicated, to wit:

Title No.

Lot
No.

Area
in
Has.

Tax
Dec.

Ass.
Valu
e

T6530

3663

1.62
49

1874
0

P
340.
00

T6548

3445C

24.2
998

1873
0

7,29
0.00

T6525

3670

6.26
65

1873
6

1,88
0.00

T6521

3666

11.9
251

1873
3

3,58
0.00

Total amount and value 44.1163 P13,090.00

Judge Roman A. Cruz in his order of August 15, 1940, approving the project of partition, directed that
after payment of the obligations of the estate (including the sum of P3,132.26 due to the church of
the Victoria parish) the administratrix should deliver to the devisees their respective shares.
It may be noted that the administratrix and Judge Cruz did not bother to analyze the meaning and
implications of Father Rigor's bequest to his nearest male relative who would study for the
priesthood. Inasmuch as no nephew of the testator claimed the devise and as the administratrix and
the legal heirs believed that the parish priest of Victoria had no right to administer the ricelands, the
same were not delivered to that ecclesiastic. The testate proceeding remained pending.
About thirteen years after the approval of the project of partition, or on February 19, 1954, the parish
priest of Victoria filed in the pending testate proceeding a petition praying for the appointment of a
new administrator (succeeding the deceased administration Florencia Rigor), who should deliver to
the church the said ricelands, and further praying that the possessors thereof be ordered to render
an accounting of the fruits. The probate court granted the petition. A new administrator was
appointed. On January 31, 1957 the parish priest filed another petition for the delivery of the
ricelands to the church as trustee.
The intestate heirs of Father Rigor countered with a petition dated March 25, 1957 praying that the
bequest be d inoperative and that they be adjudged as the persons entitled to the said ricelands
since, as admitted by the parish priest of Victoria, "no nearest male relative of" the testator "has ever
studied for the priesthood" (pp. 25 and 35, Record on Appeal). That petition was opposed by the
parish priest of Victoria.
Finding that petition to be meritorious, the lower court, through Judge Bernabe de Aquino, declared
the bequest inoperative and adjudicated the ricelands to the testator's legal heirs in his order of June
28, 1957. The parish priest filed two motions for reconsideration.

Judge De Aquino granted the respond motion for reconsideration in his order of December 10, 1957
on the ground that the testator had a grandnephew named Edgardo G. Cunanan (the grandson of
his first cousin) who was a seminarian in the San Jose Seminary of the Jesuit Fathers in Quezon
City. The administrator was directed to deliver the ricelands to the parish priest of Victoria as trustee.
The legal heirs appealed to the Court of Appeals. It reversed that order. It held that Father Rigor had
created a testamentary trust for his nearest male relative who would take the holy orders but that
such trust could exist only for twenty years because to enforce it beyond that period would violate
"the rule against perpetuities. It ruled that since no legatee claimed the ricelands within twenty years
after the testator's death, the same should pass to his legal heirs, citing articles 888 and 912(2) of
the old Civil Code and article 870 of the new Civil Code.
The parish priest in this appeal contends that the Court of Appeals erred in not finding that the
testator created a public charitable trust and in not liberally construing the testamentary provisions
so as to render the trust operative and to prevent intestacy.
As refutation, the legal heirs argue that the Court of Appeals d the bequest inoperative because no
one among the testator's nearest male relatives had studied for the priesthood and not because the
trust was a private charitable trust. According to the legal heirs, that factual finding is binding on this
Court. They point out that appellant priest's change of theory cannot be countenanced in this
appeal .
In this case, as in cases involving the law of contracts and statutory construction, where the intention
of the contracting parties or of the lawmaking body is to be ascertained, the primary issue is the
determination of the testator's intention which is the law of the case (dicat testor et erit lex. Santos
vs. Manarang, 27 Phil. 209, 215; Rodriguez vs. Court of Appeals, L-28734, March 28, 1969, 27
SCRA 546).
The will of the testator is the first and principal law in the matter of testaments. When his intention is
clearly and precisely expressed, any interpretation must be in accord with the plain and literal
meaning of his words, except when it may certainly appear that his intention was different from that
literally expressed (In re Estate of Calderon, 26 Phil. 333).
The intent of the testator is the cardinal rule in the construction of wills." It is "the life and soul of a
will It is "the first greatest rule, the sovereign guide, the polestar, in giving effect to a will". (See
Dissent of Justice Moreland in Santos vs. Manarang, 27 Phil. 209, 223, 237-8.)
One canon in the interpretation of the testamentary provisions is that "the testator's intention is to be
ascertained from the words of the wilt taking into consideration the circumstances under which it was
made", but excluding the testator's oral declarations as to his intention (Art. 789, Civil Code of the
Philippines).
To ascertain Father Rigor's intention, it may be useful to make the following re-statement of the
provisions of his will.
1. that he bequeathed the ricelands to anyone of his nearest male relatives who would pursue an
ecclesiastical career until his ordination as a priest.
2. That the devisee could not sell the ricelands.

3. That the devisee at the inception of his studies in sacred theology could enjoy and administer the
ricelands, and once ordained as a priest, he could continue enjoying and administering the same up
to the time of his death but the devisee would cease to enjoy and administer the ricelands if he
discontinued his studies for the priesthood.
4. That if the devisee became a priest, he would be obligated to celebrate every year twenty masses
with prayers for the repose of the souls of Father Rigor and his parents.
5. That if the devisee is excommunicated, he would be divested of the legacy and the administration
of the riceland would pass to the incumbent parish priest of Victoria and his successors.
6. That during the interval of time that there is no qualified devisee as contemplated above, the
administration of the ricelands would be under the responsibility of the incumbent parish priest of
Victoria and his successors, and
7. That the parish priest-administrator of the ricelands would accumulate annually the products
thereof, obtaining or getting from the annual produce five percent thereof for his administration and
the fees corresponding to the twenty masses with prayers that the parish priest would celebrate for
each year, depositing the balance of the income of the devise in the bank in the name of his
bequest.
From the foregoing testamentary provisions, it may be deduced that the testator intended to devise
the ricelands to his nearest male relative who would become a priest, who was forbidden to sell the
ricelands, who would lose the devise if he discontinued his studies for the priesthood, or having been
ordained a priest, he was excommunicated, and who would be obligated to say annually twenty
masses with prayers for the repose of the souls of the testator and his parents.
On the other hand, it is clear that the parish priest of Victoria would administer the ricelands only in
two situations: one, during the interval of time that no nearest male relative of the testator was
studying for the priesthood and two, in case the testator's nephew became a priest and he was
excommunicated.
What is not clear is the duration of "el intervalo de tiempo que no haya legatario acondicionado", or
how long after the testator's death would it be determined that he had a nephew who would pursue
an ecclesiastical vocation. It is that patent ambiguity that has brought about the controversy between
the parish priest of Victoria and the testator's legal heirs.
Interwoven with that equivocal provision is the time when the nearest male relative who would study
for the priesthood should be determined. Did the testator contemplate only his nearest male
relative at the time of his death? Or did he have in mind any of his nearest male relatives at anytime
after his death?
We hold that the said bequest refers to the testator's nearest male relative living at the time of his
death and not to any indefinite time thereafter. "In order to be capacitated to inherit, the heir, devisee
or legatee must be living at the moment the succession opens, except in case of representation,
when it is proper" (Art. 1025, Civil Code).
The said testamentary provisions should be sensibly or reasonably construed. To construe them as
referring to the testator's nearest male relative at anytime after his death would render the provisions
difficult to apply and create uncertainty as to the disposition of his estate. That could not have been
his intention.

In 1935, when the testator died, his nearest leagal heirs were his three sisters or second-degree
relatives, Mrs. Escobar, Mrs. Manaloto and Mrs. Quiambao. Obviously, when the testator specified
his nearest male relative, he must have had in mind his nephew or a son of his sister, who would be
his third-degree relative, or possibly a grandnephew. But since he could not prognosticate the exact
date of his death or state with certitude what category of nearest male relative would be living at the
time of his death, he could not specify that his nearest male relative would be his nephew or
grandnephews (the son of his nephew or niece) and so he had to use the term "nearest male
relative".
It is contended by the legal heirs that the said devise was in reality intended for Ramon Quiambao,
the testator's nephew and godchild, who was the son of his sister, Mrs. Quiambao. To prove that
contention, the legal heirs presented in the lower court the affidavit of Beatriz Gamalinda, the
maternal grandmother of Edgardo Cunanan, who deposed that after Father Rigor's death her own
son, Valentin Gamalinda, Jr., did not claim the devise, although he was studying for the priesthood at
the San Carlos Seminary, because she (Beatriz) knew that Father Rigor had intended that devise for
his nearest male relative beloning to the Rigor family (pp. 105-114, Record on Appeal).
Mrs. Gamalinda further deposed that her own grandchild, Edgardo G. Cunanan, was not the one
contemplated in Father Rigor's will and that Edgardo's father told her that he was not consulted by
the parish priest of Victoria before the latter filed his second motion for reconsideration which was
based on the ground that the testator's grandnephew, Edgardo, was studying for the priesthood at
the San Jose Seminary.
Parenthetically, it should be stated at this juncture that Edgardo ceased to be a seminarian in 1961.
For that reason, the legal heirs apprised the Court of Appeals that the probate court's order
adjudicating the ricelands to the parish priest of Victoria had no more leg to stand on (p. 84,
Appellant's brief).
Of course, Mrs. Gamalinda's affidavit, which is tantamount to evidence aliunde as to the testator's
intention and which is hearsay, has no probative value. Our opinion that the said bequest refers to
the testator's nephew who was living at the time of his death, when his succession was opened and
the successional rights to his estate became vested, rests on a judicious and unbiased reading of
the terms of the will.
Had the testator intended that the "cualquier pariente mio varon mas cercano que estudie la camera
eclesiatica" would include indefinitely anyone of his nearest male relatives born after his death, he
could have so specified in his will He must have known that such a broad provision would suspend
for an unlimited period of time the efficaciousness of his bequest.
What then did the testator mean by "el intervalo de tiempo que no haya legatario acondicionado"?
The reasonable view is that he was referring to a situation whereby his nephew living at the time of
his death, who would like to become a priest, was still in grade school or in high school or was not
yet in the seminary. In that case, the parish priest of Victoria would administer the ricelands before
the nephew entered the seminary. But the moment the testator's nephew entered the seminary, then
he would be entitled to enjoy and administer the ricelands and receive the fruits thereof. In that
event, the trusteeship would be terminated.
Following that interpretation of the will the inquiry would be whether at the time Father Rigor died in
1935 he had a nephew who was studying for the priesthood or who had manifested his desire to
follow the ecclesiastical career. That query is categorically answered in paragraph 4 of appellant
priest's petitions of February 19, 1954 and January 31, 1957. He unequivocally alleged therein that

"not male relative of the late (Father) Pascual Rigor has ever studied for the priesthood" (pp. 25 and
35, Record on Appeal).
Inasmuch as the testator was not survived by any nephew who became a priest, the unavoidable
conclusion is that the bequest in question was ineffectual or inoperative. Therefore, the
administration of the ricelands by the parish priest of Victoria, as envisaged in the wilt was likewise
inoperative.
The appellant in contending that a public charitable trust was constituted by the testator in is favor
assumes that he was a trustee or a substitute devisee That contention is untenable. A reading of the
testamentary provisions regarding the disputed bequest not support the view that the parish priest of
Victoria was a trustee or a substitute devisee in the event that the testator was not survived by a
nephew who became a priest.
It should be understood that the parish priest of Victoria could become a trustee only when the
testator's nephew living at the time of his death, who desired to become a priest, had not yet entered
the seminary or, having been ordained a priest, he was excommunicated. Those two contingencies
did not arise, and could not have arisen in this case because no nephew of the testator manifested
any intention to enter the seminary or ever became a priest.
The Court of Appeals correctly ruled that this case is covered by article 888 of the old Civil Code,
now article 956, which provides that if "the bequest for any reason should be inoperative, it shall be
merged into the estate, except in cases of substitution and those in which the right of accretion
exists" ("el legado ... por qualquier causa, no tenga efecto se refundira en la masa de la herencia,
fuera de los casos de sustitucion y derecho de acrecer").
This case is also covered by article 912(2) of the old Civil Code, now article 960 (2), which provides
that legal succession takes place when the will "does not dispose of all that belongs to the testator."
There being no substitution nor accretion as to the said ricelands the same should be distributed
among the testator's legal heirs. The effect is as if the testator had made no disposition as to the
said ricelands.
The Civil Code recognizes that a person may die partly testate and partly intestate, or that there may
be mixed succession. The old rule as to the indivisibility of the testator's win is no longer valid. Thus,
if a conditional legacy does not take effect, there will be intestate succession as to the property
recovered by the said legacy (Macrohon Ong Ham vs. Saavedra, 51 Phil. 267).
We find no merit in the appeal The Appellate Court's decision is affirmed. Costs against the
petitioner.
SO ORDERED
Fernando, C.J.(Actg. ), Barredo (Actg. Chairman), Antonio, Concepcion, Jr., and Santos, JJ., concur.
Abad Santos, J., took no part.
G.R. No. L-4963

January 29, 1953

MARIA USON, plaintiff-appellee,

vs.

MARIA DEL ROSARIO, CONCEPCION NEBREDA, CONRADO NEBREDA, DOMINADOR

NEBREDA, AND FAUSTINO NEBREDA, Jr., defendants-appellants.
Priscilo Evangelista for appellee.
Brigido G. Estrada for appellant.
BAUTISTA ANGELO, J.:
This is an action for recovery of the ownership and possession of five (5) parcels of land situated in
the Municipality of Labrador, Province of Pangasinan, filed by Maria Uson against Maria del Rosario
and her four children named Concepcion, Conrado, Dominador, and Faustino, surnamed Nebreda,
who are all of minor age, before the Court of First Instance of Pangasinan.
Maria Uson was the lawful wife of Faustino Nebreda who upon his death in 1945 left the lands
involved in this litigation. Faustino Nebreda left no other heir except his widow Maria Uson. However,
plaintiff claims that when Faustino Nebreda died in 1945, his common-law wife Maria del Rosario
took possession illegally of said lands thus depriving her of their possession and enjoyment.
Defendants in their answer set up as special defense that on February 21, 1931, Maria Uson and
her husband, the late Faustino Nebreda, executed a public document whereby they agreed to
separate as husband and wife and, in consideration of their separation, Maria Uson was given a
parcel of land by way of alimony and in return she renounced her right to inherit any other property
that may be left by her husband upon his death (Exhibit 1).
After trial, at which both parties presented their respective evidence, the court rendered decision
ordering the defendants to restore to the plaintiff the ownership and possession of the lands in
dispute without special pronouncement as to costs. Defendants interposed the present appeal.
There is no dispute that Maria Uson, plaintiff-appellee, is the lawful wife of Faustino Nebreda, former
owner of the five parcels of lands litigated in the present case. There is likewise no dispute that
Maria del Rosario, one of the defendants-appellants, was merely a common-law wife of the late
Faustino Nebreda with whom she had four illegitimate children, her now co-defendants. It likewise
appears that Faustino Nebreda died in 1945 much prior to the effectivity of the new Civil Code. With
this background, it is evident that when Faustino Nebreda died in 1945 the five parcels of land he
was seized of at the time passed from the moment of his death to his only heir, his widow Maria
Uson (Article 657, old Civil Code).As this Court aptly said, "The property belongs to the heirs at the
moment of the death of the ancestor as completely as if the ancestor had executed and delivered to
them a deed for the same before his death" (Ilustre vs. Alaras Frondosa, 17 Phil., 321). From that
moment, therefore, the rights of inheritance of Maria Uson over the lands in question became
vested.
The claim of the defendants that Maria Uson had relinquished her right over the lands in question
because she expressly renounced to inherit any future property that her husband may acquire and
leave upon his death in the deed of separation they had entered into on February 21, 1931, cannot
be entertained for the simple reason that future inheritance cannot be the subject of a contract nor
can it be renounced (1 Manresa, 123, sixth edition; Tolentino on Civil Code, p. 12; Osorio vs. Osorio
and Ynchausti Steamship Co., 41 Phil., 531).

But defendants contend that, while it is true that the four minor defendants are illegitimate children of
the late Faustino Nebreda and under the old Civil Code are not entitled to any successional rights,
however, under the new Civil Code which became in force in June, 1950, they are given the status
and rights of natural children and are entitled to the successional rights which the law accords to the
latter (article 2264 and article 287, new Civil Code), and because these successional rights were
declared for the first time in the new code, they shall be given retroactive effect even though the
event which gave rise to them may have occurred under the prior legislation (Article 2253, new Civil
Code).
There is no merit in this claim. Article 2253 above referred to provides indeed that rights which are
declared for the first time shall have retroactive effect even though the event which gave rise to them
may have occurred under the former legislation, but this is so only when the new rights do not
prejudice any vested or acquired right of the same origin. Thus, said article provides that "if a right
should be declared for the first time in this Code, it shall be effective at once, even though the act or
event which gives rise thereto may have been done or may have occurred under the prior legislation,
provided said new right does not prejudice or impair any vested or acquired right, of the same
origin." As already stated in the early part of this decision, the right of ownership of Maria Uson over
the lands in question became vested in 1945 upon the death of her late husband and this is so
because of the imperative provision of the law which commands that the rights to succession are
transmitted from the moment of death (Article 657, old Civil Code). The new right recognized by the
new Civil Code in favor of the illegitimate children of the deceased cannot, therefore, be asserted to
the impairment of the vested right of Maria Uson over the lands in dispute.
As regards the claim that Maria Uson, while her deceased husband was lying in state, in a gesture of
pity or compassion, agreed to assign the lands in question to the minor children for the reason that
they were acquired while the deceased was living with their mother and Maria Uson wanted to
assuage somewhat the wrong she has done to them, this much can be said; apart from the fact that
this claim is disputed, we are of the opinion that said assignment, if any, partakes of the nature of a
donation of real property, inasmuch as it involves no material consideration, and in order that it may
be valid it shall be made in a public document and must be accepted either in the same document or
in a separate one (Article 633, old Civil Code). Inasmuch as this essential formality has not been
followed, it results that the alleged assignment or donation has no valid effect.
WHEREFORE, the decision appealed from is affirmed, without costs.
Paras, C.J., Pablo, Bengzon, Padilla, Tuason, Montemayor, Reyes, Jugo and Labrador, JJ., concur.
G.R. No. L-6622

July 31, 1957

Intestate Estate of the deceased MARCELO DE BORJA. CRISANTO DE BORJA, administratorappellant,

vs.
JUAN DE BORJA, ET AL., oppositors-appellees.
E. V. Filamor for appellant.
Juan de Borja for himself and co-appellees.
FELIX, J.:

The case. Quintin, Francisco, Crisanta and Juliana, all surnamed de Borja, are legitimate children
of Marcelo de Borja who, upon his demise sometime in 1924 or 1925, left a considerable amount of
property. Intestate proceedings must have followed, and the pre-war records of the case either
burned, lost or destroyed during the last war, because the record shows that in 1930 Quintin de
Borja was already the administrator of the Intestate Estate of Marcelo de Borja.
In the early part of 1938, Quintin de Borja died and Crisanto de Borja, son of Francisco de Borja,
was appointed and took over as administrator of the Estate. Francisco de Borja, on the other hand,
assumed his duties as executor of the will of Quintin de Borja, but upon petition of the heirs of said
deceased on the ground that his interests were conflicting with that of his brother's estate he was
later required by the Court to resign as such executor and was succeeded by Rogelio Limaco, a sonin-law of Quintin de Borja.
It also appears that on February 16, 1940, at the hearing set for the approval of the statement of
accounts of the late administrator of the Intestate Estate of Marcelo de Borja, then being opposed by
Francisco de Borja, the parties submitted an agreement, which was approved by the Court (Exh. A).
Said agreement, translated into English, reads as follows:
1. All the accounts submitted and those that are to be submitted corresponding to this year
will be considered approved;
2. No heir shall claim anything of the harvests from the lands in Cainta that came from
Exequiel Ampil, deceased, nor from the land in Tabuatin, Nueva Ecija;
3. That the amounts of money taken by each heir shall be considered as deposited in
conjunction with the other properties of the intestate and shall form part of the mass without
drawing any interest;
4. That it shall be understood as included in this mass the sum of twelve thousand pesos
(P12,000) that the sisters Crisanta and Juliana de Borja paid of their own money as part of
the price the lands and three thousand pesos (P3,000) the price of the machinery for
irrigation;
5. The right, interests or participation that the deceased Quintin de Borja has or may have in
Civil Case No. 6190 of the Court of First Instance of Nueva Ecija, shall be likewise included
in the total mass of the inheritance of the Intestate;
6. Not only the lands in Tabuatin but also those in Cainta coming from the now deceased
Exequiel Ampil shall also from part of the total mass of the inheritance of the Intestate of the
late Marcelo de Borja;
7. Once the total of the inheritance of the intestate is made up as specified before in this
Agreement, partition thereof will be made as follows:
From the total mass shall be deducted in case or in kind, Twelve Thousand Pesos (P12,000)
that shall be delivered to Da. Juliana de Borja and Da. Crisanta de Borja in equal shares,
and the rest shall be divided among the four heirs, i. e., Don Francisco de Borja, the heirs of
Quintin de Borja, Da. Juliana de Borja, and Da. Crisanta de Borja, in equal parts.
(TRANSLATION)

The Intestate remained under the administration of Crisanto de Borja until the then outbreak of the
war. From then on and until the termination of the war, there was a lull and state of inaction in
Special proceeding No. 2414 of the Court of First Instance of Rizal, Pasig branch (In the Matter of
the Intestate Estate of Marcelo de Borja), until upon petition filed by Miguel B. Dayco, as
administrator of the estate of his deceased mother, Crisanta de Borja, who is one of heirs, for
reconstitution of the records of this case, the Court on December 11, 1945, ordered the
reconstitution of the same, requiring the administrator to submit his report and a copy of the project
of partition.
On January 3, 1946, the administrator, Dr. Crisanto de Borja, filed his accounts for the period
ranging from March 1 to December 22, 1945, which according to the heirs of Quintin de Borja were
so inadequate and general that on February 28, 1946, they filed a motion for specification. On April
30, 1946, they also filed their opposition to said statement of accounts alleging that the income
reported in said statement was very much less than the true and actual income of the estate and that
the expenses appearing therein were exaggerated and/or not actually incurred, and prayed that the
statement of accounts submitted by the administrator be disapproved.
The administrator later filed another report of his administration, dated August 9, 1949,
corresponding to the period lapsed from December 23, 1945, to July 31, 1949, showing a cash
balance of P71.96, but with pending obligation amounting to P35,415.
On August 22, 1949, Juan de Borja and sisters, heirs of the deceased Quintin de Borja, filed their
opposition to the statement of accounts filed by the administrator on the ground that same was not
detailed enough to enable the interested parties to verify the same; that they cannot understand why
the Intestate could suffer any loss considering that during the administration of the same by Quintin
de Borja, the Estate accumulated gains of more than P100,000 in the form of advances to the heirs
as well as cash balance; that they desired to examine the accounts of Dr. Crisanto de Borja to verify
the loss and therefore prayed that the administrator be ordered to deposit with the Clerk of Court all
books, receipts, accounts and other papers pertaining to the Estate of Marcelo de Borja. This motion
was answered by the administrator contending that the Report referred to was already clear and
enough, the income as well as the expenditures being specified therein; that he had to spend for the
repairs of the properties of the Estate damaged during the Japanese occupation; that the allegation
that during the administration of Quintin de Boria the Estate realized a profit of P100,000 was not
true, because instead of gain there was even a shortage in the funds although said administrator
had collected all his fees (honorarios) and commissions corresponding to the entire period of his
incumbency; that the obligations mentioned in said report will be liquidated before the termination of
the proceedings in the same manner as it is done in any other intestate case; that he was willing to
submit all the receipts of the accounts for the examination of the interested parties before the Clerk
or before the Court itself; that this Intestate could be terminated, the project of partition having been
allowed and confirmed by the Supreme Court and that the Administrator was also desirous of
terminating it definitely for the benefit of all the parties.
On September 14, 1949, the administrator filed another statement of accounts covering the period of
from March 1, 1945, to July 31, 1949, which showed a cash balance of P71.95, with pending
obligations in the sum of P35,810.
The heirs of Quintin de Borja, Juan de Borja and his sisters, registered their opposition said
statement of accounts and prayed the Court to disapprove the same and to appoint an account to go
over the books of the administrator and to submit a report thereon as soon as possible. The heir
Juliana de Borja also formally offered her objection to the approval of the accounts submitted by the
administrator and prayed further that said administrator be required to submit a complete accounting
of his administration of the Estate from 1937 to 1949. On the other hand, Francisco de Borja and

Miguel B. Dayco, as the only heir of the deceased Crisanta de Borja, submitted to the Court an
agreement to relieve the administrator from accounting for the period of the Japanese occupation;
that as to the accounting from 1937 to 1941, they affirmed their conformity with the agreement
entered into by all the heirs appearing in the Bill of Exceptions of Juliana de Borja; and they have no
objection to the approval of the statement of accounts submitted by the administrator covering of the
years 1945 to 1949.
On December 6, 1949, the administrator, answered the opposition of the heir Juliana de Borja,
alleging that the corresponding statement of accounts for the years 1937, 1938, 1939, 1940 and
1941 were presented and approved by the Court before and during the Japanese occupation, but
the records of the same were destroyed in the Office of the Clerk of that Court during the liberation of
the province of Rizal, and his personal records were also lost during the Japanese occupation, when
his house was burned; that Judge Pea who was presiding over the Court in 1945 impliedly denied
the petition of heirs to require him to render an accounting for the period from 1942 to the early part
of 1945, for the reason that whatever money obtained from the Estate during said period could not
be made the subject of any adjudication it having been declared fiat money and without value, and
ordered that the statement of accounts be presented only for the period starting from March 1, 1945.
The administrator further stated that he was anxious to terminate this administration but some of the
heirs had not yet complied with the conditions imposed in the project of partition which was approved
by the Supreme Court; that in accordance with said partition agreement, Juliana de Borja must
deliver to the administrator all the jewelry, objects of value, utensils and other personal belongings of
the deceased spouses Marcelo de Borja and Tircila Quiogue, which said heir had kept and
continued to retain in her possession; that the heirs of Quintin de Borja should deliver to the
administrator all the lands and a document transferring in favor of the Intestate the two parcels of
land with a total area of 71 hectares of cultivated land in Cabanatuan, Nueva Ecija which were in the
possession of said heirs, together with the house of Feliciana Mariano Vda. de Sarangaya, which
were the objects of Civil Case No. 6190 mentioned in Paragraph 11 of the project of partition; that as
consequence of the said dispossession the heirs of Quintin de Borja must deliver to the
administrator the products of the 71 hectares of land in Cabanatuan, Nueva Ecija, and the rentals of
the house of Feliciana Mariano or else render to the Court an accounting of the products of these
properties from the time they took possession of the same in 1937 to the present; that there was a
pending obligation amounting to P36,000 as of September 14, 1949, which the heirs should pay
before the properties adjudicated to them would be delivered. The Court, however, ordered the
administrator on December 10, 1949, to show and prove by evidence why he should not be
accounts the proceeds of his administration from 1937.
Meantime, Juliana de Borja filed a Constancia denying possession of any jewelry belonging to the
deceased spouses Marcelo de Borja and Tarcilla Quiogue or any other personal belonging of said
spouses, and signified her willingness to turn over to the administrator the silver wares mentioned in
Paragraph III of the project of partition, which were the only property in her care, on the date that she
would expect the delivery to her of her share in the inheritance from her deceased parents.
On July 6, 1950, Juan de Borja and his sisters Marcela, Saturnina, Eufracia, Jacoba and Olimpia, all
surnamed de Borja, as heirs of Quintin de Borja, filed a motion for the delivery to them of their
inheritance in the estate, tendering to the administrator a document ceding and transferring to the
latter all the rights, interests and participation of Quintin de Borja in Civil Case No. 7190 of the Court
of First Instance of Nueva Ecija, pursuant to the provisions of the project of Partition, and expressing
their willingness to put up a bond if required to do so by the Court, and on July 18, 1950, the Court
ordered the administrator to deliver to Marcela, Juan, Saturniana, Eufracia, Jacoba and Olimpia, all
surnamed de Borja, all the properties adjudicated to them in the Project of Partition dated February
8, 1944, upon the latter's filing a bond in the sum of P10,000 conditioned upon the payment of such
obligation as may be ordered by the Court after a hearing on the controverted accounts of the
administrator. The Court considered the fact that the heirs had complied with the requirement

imposed by the Project of Partition when they tendered the document ceding and transferring the
rights and interests of Quintin de Borja in the aforementioned lands and expressed the necessity of
terminating the proceedings as soon as practicable, observing that the Estate had been under
administration for over twenty-five years already. The Court, however, deferred action on the petition
filed by the special administratrix of the Intestate Estate of Juliana de Borja until after compliance
with the conditions imposed by the project of partition. But on July 20, 1950, apparently before the
properties were delivered to the heirs, Francisco de Borja and Miguel B. Dayco filed a motion
informing the Court that the two parcels of land located in Cabanatuan, Nueva Ecija, produced some
21,300 cavans of palay, amounting to P213,000 at P10 per cavan, which were enjoyed by some
heirs; that the administrator Crisanto de Borja had not taken possession of the same for
circumstances beyond his control; and that there also existed the sum of P70,204 which the former
administrator, Quintin de Borja, received from properties that were redeemed, but which amount did
not come into the hands of the present, administrator because according to reliable information,
same was delivered to the heir Juliana de Borja who deposited it in her name at the Philippine
National Bank. It was, therefore prayed that the administrator be required to exert the necessary
effort to ascertain the identity of the person or persons who were in possession of the same amount
and of the value of the products of the lands in Mayapyap, Cabanatuan, Nueva Ecija, and to recover
the same for the Intestate Estate.
On July 28, 1950, the special administratrix of the estate of Juliana de Borja, then deceased, filed an
answer to the motion of these two heirs, denying the allegation that said heir any product of the
lands mentioned from Quintin de Borja, and informed the Court that the Mayapyap property had
always been in the possession of Francisco de Borja himself and prayed the court that the
administrator be instructed to demand all the fruits and products of said property from Francisco de
Borja.
On July 28, 1950, the heirs of Quintin de Borja also filed their opposition to the said motion of
Francisco de Borja and Miguel B. Dayco on the ground that the petition was superfluous because
the present proceeding was only for the approval of the statement of accounts filed by the
administrator; that said motion was improper because it was asking the Court to order the
administrator to perform what he was duty bound to do; and that said heirs were already barred or
stopped from raising that question in view of their absolute ratification of and assent to the statement
of accounts submitted by the administrator.
On August 16, 1950, by order of the Court, the properties adjudicated to Juliana de Borja in the
project of Partition were finally delivered to the estate of said heir upon the filing of a bond for
P20,000. In that same order, the Court denied the administrator's motion to reconsider the order of
July 18, 1950, requiring him to deliver to the heirs of Quintin de Borja the properties corresponding to
them, on the ground that there existed no sufficient reason to disturb said order. It also ruled that as
the petition of Francisco de Borja and Miguel B. Dayco made mention of certain properties allegedly
belonging to the Intestate, said petition should properly be considered to gather with the final
accounts of the administrator.
The administrator raised the matter by certiorari to this Tribunal, which was, docketed as G.R. No. L4179, and on May 30, 1951, We rendered decision affirming the order complained of, finding that the
Juan de Borja and sisters have complied with the requirement imposed in the Project of Partition
upon the tender of the document of cession of rights and quit-claim executed by Marcela de Borja,
the administratrix of the Estate of Quintin de Borja, and holding that the reasons advanced by the
administrator in opposing the execution of the order of delivery were trivial.
On August 27, 1951, the administrator filed his amended statement of accounts covering the period
from March 1, 1945, to July 31, 1949, which showed a cash balance of P36,660. An additional

statement of accounts filed on August 31, 1961 for the period of from August 1, 1949, to August 31,
1951, showed a cash balance of P5,851.17 and pending obligations in the amount of P6,165.03.
The heirs of Quintin de Borja again opposed the approval of the statements of accounts charging the
administrator with having failed to include the fruits which the estate should have accrued from 1941
to 1951 amounting to P479,429.70, but as the other heirs seemed satisfied with the accounts
presented by said administrator and as their group was only one of the 4 heirs of Intestate Estate,
they prayed that the administrator be held liable for only P119,932.42 which was 1/4 of the amount
alleged to have been omitted. On October 4, 1951, the administrator filed a reply to said opposition
containing a counterclaim for moral damages against all the heirs of Quintin de Borja in the sum of
P30,000 which was admitted by the Court over the objection of the heirs of Quintin de Borja that the
said pleading was filed out of time.
The oppositors, the heirs of Quintin de Borja, then filed their answer to the counterclaim denying the
charges therein, but later served interrogatories on the administrator relative to the averments of
said counterclaim. Upon receipt of the answer to said interrogatories specifying the acts upon which
the claim for moral damages was based, the oppositors filed an amended answer contending that
inasmuch as the acts, manifestations and pleadings referred to therein were admittedly committed
and prepared by their lawyer, Atty. Amador E. Gomez, same cannot be made the basis of a
counterclaim, said lawyer not being a party to the action, and furthermore, as the acts upon which
the claim for moral damages were based had been committed prior to the effectivity of the new Civil
Code, the provisions of said Code on moral damages could not be invoked. On January 15, 1952,
the administrator filed an amended counterclaim including the counsel for the oppositors as
defendant.
There followed a momentary respite in the proceedings until another judge was assigned to preside
over said court to dispose of the old case pending therein. On August 15, 1952, Judge Encarnacion
issued an order denying admission to administrator's amended counterclaim directed against the
lawyer, Atty. Amador E. Gomez, holding that a lawyer, not being a party to the action, cannot be
made answerable for counterclaims. Another order was also issued on the same date dismissing the
administrator's counterclaim for moral damages against the heirs of Quintin de Borja and their
counsel for the alleged defamatory acts, manifestation and utterances, and stating that granting the
same to be meritorious, yet it was a strictly private controversy between said heirs and the
administrator which would not in any way affect the interest of the Intestate, and, therefore, not
proper in an intestate proceedings. The Court stressed that to allow the ventilation of such personal
controversies would further delay the proceedings in the case which had already lagged for almost
30 years, a situation which the Court would not countenance.
Having disposed of these pending incidents which arose out of the principal issue, that is, the
disputed statement of accounts submitted by the administrator, the Court rendered judgment on
September 5, 1952, ordering the administrator to distribute the funds in his possession to the heirs
as follows: P1,395.90 to the heirs of Quintin de Borja; P314.99 to Francisco de Borja; P314.99 to the
Estate of Juliana de Borja and P314.99 to Miguel B. Dayco, but as the latter still owed the intestate
the sum of P900, said heirs was ordered to pay instead the 3 others the sum of P146.05 each. After
considering the testimonies of the witnesses presented by both parties and the available records on
hand, the Court found the administrator guilty of maladministration and sentenced Crisanto de Borja
to pay to the oppositors, the heirs of Quintin de Borja, the sum of P83,337.31, which was 1/4 of the
amount which the state lost, with legal interest from the date of the judgment. On the same day, the
Court also issued an order requiring the administrator to deliver to the Clerk of that Court PNB
Certificate of Deposit No. 211649 for P978.50 which was issued in the name of Quintin de Borja.

The administrator, Dr. Crisanto de Borja, gave notice to appeal from the lower Court's orders of
August 15, 1952, the decision of September 5, 1952, and the order of even date, but when the
Record on Appeal was finally approved, the Court ordered the exclusion of the appeal from the order
of September 5, 1952, requiring the administrator to deposit the PNB Certificate of Deposit No.
2114649 with the Clerk of Court, after the oppositors had shown that during the hearing of that
incident, the parties agreed to abide by whatever resolution the Court would make on the ownership
of the funds covered by that deposit.
The issues. Reducing the issues to bare essentials, the questions left for our determination are:
(1) whether the counsel for a party in a case may be included as a defendant in a counterclaim; (2)
whether a claim for moral damages may be entertained in a proceeding for the settlement of an
estate; (3) what may be considered as acts of maladministration and whether an administrator, as
the one in the case at bar, may be held accountable for any loss or damage that the estate under his
administration may incur by reason of his negligence, bad faith or acts of maladministration; and (4)
in the case at bar has the Intestate or any of the heirs suffered any loss or damage by reason of the
administrator's negligence, bad faith or maladministration? If so, what is the amount of such loss or
damage?
I. Section 1, Rule 10, of the Rules of Court defines a counterclaim as:
SECTION 1. Counterclaim Defined. A counterclaim is any claim, whether for money or
otherwise, which a party may have against the opposing party. A counterclaim need not
dismiss or defeat the recovery sought by the opposing party, but may claim relief exceeding
in amount or different in kind from that sought by the opposing party's claim.
It is an elementary rule of procedure that a counterclaim is a relief available to a party-defendant
against the adverse party which may or may not be independent from the main issue. There is no
controversy in the case at bar, that the acts, manifestations and actuations alleged to be defamatory
and upon which the counterclaim was based were done or prepared by counsel for oppositors; and
the administrator contends that as the very oppositors manifested that whatever civil liability arising
from acts, actuations, pleadings and manifestations attributable to their lawyer is enforceable against
said lawyer, the amended counterclaim was filed against the latter not in his individual or personal
capacity but as counsel for the oppositors. It is his stand, therefore, that the lower erred in denying
admission to said pleading. We differ from the view taken by the administrator. The appearance of a
lawyer as counsel for a party and his participation in a case as such counsel does not make him a
party to the action. The fact that he represents the interests of his client or that he acts in their behalf
will not hold him liable for or make him entitled to any award that the Court may adjudicate to the
parties, other than his professional fees. The principle that a counterclaim cannot be filed against
persons who are acting in representation of another such as trustees in their individual
capacities (Chambers vs. Cameron, 2 Fed. Rules Service, p. 155; 29 F. Supp. 742) could be applied
with more force and effect in the case of a counsel whose participation in the action is merely
confined to the preparation of the defense of his client. Appellant, however, asserted that he filed the
counterclaim against said lawyer not in his individual capacity but as counsel for the heirs of Quintin
de Borja. But as we have already stated that the existence of a lawyer-client relationship does not
make the former a party to the action, even this allegation of appellant will not alter the result We
have arrived at.
Granting that the lawyer really employed intemperate language in the course of the hearings or in
the preparation of the pleadings filed in connection with this case, the remedy against said counsel
would be to have him cited for contempt of court or take other administrative measures that may be
proper in the case, but certainly not a counterclaim for moral damages.

II. Special Proceedings No. 6414 of the Court of First Instance of Rizal (Pasig branch) was
instituted for the purpose of settling the Intestate Estate of Marcelo de Borja. In taking cognizance of
the case, the Court was clothed with a limited jurisdiction which cannot expand to collateral matters
not arising out of or in any way related to the settlement and adjudication of the properties of the
deceased, for it is a settled rule that the jurisdiction of a probate court is limited and special
(Guzman vs. Anog, 37 Phil. 361). Although there is a tendency now to relax this rule and extend the
jurisdiction of the probate court in respect to matters incidental and collateral to the exercise of its
recognized powers (14 Am. Jur. 251-252), this should be understood to comprehend only cases
related to those powers specifically allowed by the statutes. For it was even said that:
Probate proceedings are purely statutory and their functions limited to the control of the
property upon the death of its owner, and cannot extend to the adjudication of collateral
questions (Woesmes, The American Law of Administration, Vol. I, p. 514, 662-663).
It was in the acknowledgment of its limited jurisdiction that the lower court dismissed the
administrator's counterclaim for moral damages against the oppositors, particularly against Marcela
de Borja who allegedly uttered derogatory remarks intended to cast dishonor to said administrator
sometime in 1950 or 1951, his Honor's ground being that the court exercising limited jurisdiction
cannot entertain claims of this kind which should properly belong to a court general jurisdiction. From
what ever angle it may be looked at, a counterclaim for moral damages demanded by an
administrator against the heirs for alleged utterances, pleadings and actuations made in the course
of the proceeding, is an extraneous matter in a testate or intestate proceedings. The injection into
the action of incidental questions entirely foreign in probate proceedings should not be encouraged
for to do otherwise would run counter to the clear intention of the law, for it was held that:
The speedy settlement of the estate of deceased persons for the benefit of the creditors and
those entitled to the residue by way of inheritance or legacy after the debts and expenses of
administration have been paid, is the ruling spirit of our probate law (Magabanua vs. Akel, 72
Phil., 567, 40 Off Gaz., 1871).
III. and IV. This appeal arose from the opposition of the heirs of Quintin de Borja to the approval of
the statements of accounts rendered by the administrator of the Intestate Estate of Marcelo de Borja,
on the ground that certain fruits which should have been accrued to the estate were unaccounted
for, which charge the administrator denied. After a protracted and extensive hearing on the matter,
the Court, finding the administrator, Dr. Crisanto de Borja, guilty of certain acts of maladministration,
held him liable for the payment to the oppositors, the heirs of Quintin de Borja, of 1/4 of the
unreported income which the estate should have received. The evidence presented in the court
below bear out the following facts:
(a) The estate owns a 6-door building, Nos. 1541, 1543, 1545, 1547, 1549 and 1551 in Azcarraga
Street, Manila, situated in front of the Arranque market. Of this property, the administrator reported to
have received for the estate the following rentals:

Period of time

March to December, 1945

Annual
Total
monthly
rentals
rental

P3,085.00

P51.42

January to December, 1946

4,980.00

69.17

January to December, 1947

8,330.00

115.70

January to December, 1948

9,000.00

125.00

January to December, 1949

8,840.00

122.77

January to December, 1950

6,060.00

184.16

Total

P40,295.00

The oppositors, in disputing this record income, presented at the witness stand Lauro Aguila, a
lawyer who occupied the basement of Door No. 1541 and the whole of Door No. 1543 from 1945 to
November 15, 1949, and who testified that he paid rentals on said apartments as follows:
1945
Door No. 1541 (basement)
Door No. 1543
February

P20.00

March

20.00 For 7 months at

P300

April

60.00 a month

May-December

Total

P2,100.0
0

800.00

P900.00
1946

January-December P1,200.00 January-December

P4,080.0

0
1947
January

P100.00 January

P380.00

February

100.00 February

380.00

March

180.00 March 1-15

190.00

April-December

1,140.00 March 16December

P1,820.00

4,085.00

P5,035.0
0

1948
January-December P1,920.00 January-December

P5,150.0
0

1949
January-November P1,680.00 January-December
15

P4,315.0
0

From the testimony of said witness, it appears that from 1945 to November 15,1949, he paid a total
of P28,200 for the lease of Door No. 1543 and the basement of Door No. 1541. These figures were
not controverted or disputed by the administrator but claim that said tenant subleased the
apartments occupied by Pedro Enriquez and Soledad Sodora and paid the said rentals, not to the
administrator, but to said Enriquez. The transcript of the testimony of this witness really bolster this
contention that Lauro Aguila talked with said Pedro Enriquez when he leased the aforementioned
apartments and admitted paying the rentals to the latter and not to the administrator. It is interesting
to note that Pedro Enriquez is the same person who appeared to be the administrator's collector,
duly authorized to receive the rentals from this Azcarraga property and for which services, said
Enriquez received 5 per cent of the amount he might be able to collect as commission. If we are to
believe appellant's contention, aside from the commission that Pedro Enriquez received he also
sublet the apartments he was occupying at a very much higher rate than that he actually paid the
estate without the knowledge of the administrator or with his approval. As the administrator also
seemed to possess that peculiar habit of giving little importance to bookkeeping methods, for he
never kept a ledger or book of entry for amounts received for the estate, We find no record of the
rentals the lessees of the other doors were paying. It was, however, brought about at the hearing

that the 6 doors of this building are of the same sizes and construction and the lower Court based its
computation of the amount this property should have earned for the estate on the rental paid by Atty.
Aguila for the 1 1/2 doors that he occupied. We see no excuse why the administrator could not have
taken cognizance of these rates and received the same for the benefit of the estate he was
administering, considering the fact that he used to make trips to Manila usually once a month and for
which he charged to the estate P8 as transportation expenses for every trip.
Basing on the rentals paid by Atty. Aguila for 1 1/2 doors, the estate received P112,800 from
February 1, 1945, to November 15, 1949, for the 6 doors, but the lower Court held him accountable
not only for the sum of P34,235 reported for the period ranging from March 1, 1945, to December
31, 1949, but also for a deficit of P90,525 or a total of P124,760. The record shows, however that the
upper floor of Door No. 1549 was vacant in September, 1949, and as Atty. Aguila used to pay P390 a
month for the use of an entire apartment from September to November, 1949, and he also paid P160
for the use of the basement of an apartment (Door No. 1541), the use, therefore, of said upper floor
would cost P230 which should be deducted, even if the computation of the lower Court would have
to be followed.
There being no proper evidence to show that the administrator collected more rentals than those
reported by him, except in the instance already mentioned, We are reluctant to bold him accountable
in the amount for which he was held liable by the lower Court, and We think that under the
circumstances it would be more just to add to the sum reported by the administrator as received by
him as rents for 1945-1949 only, the difference between the sum reported as paid by Atty. Aguila and
the sum actually paid by the latter as rents of 1 1/2 of the apartments during the said period, or
P25,457.09 1/4 of which is P6,364.27 which shall be paid to the oppositors.
The record also shows that in July, 1950, the administrator delivered to the other heirs Doors Nos.
1545, 1547, 1549 and 1551 although Doors Nos. 1541 and 1543 adjudicated to the oppositors
remained under his administration. For the period from January to June, 1950, that the entire
property was still administered by him, the administrator reported to have received for the 2
oppositors' apartments for said period of six months at P168.33 a month, the sum of P1,010 which
belongs to the oppositors and should be taken from the amount reported by the administrator.
The lower Court computed at P40 a month the pre-war rental admittedly received for every
apartment, the income that said property would have earned from 1941 to 1944, or a total of
P11,520, but as We have to exclude the period covered by the Japanese occupation, the estate
should receive only P2,880 1/4 of which P720 the administrator should pay to the oppositors for the
year 1941.
(b) The Intestate estate also owned a parcel of land in Mayapyap, Nueva Ecija, with an area of 71
hectares, 95 ares and 4 centares, acquired by Quintin de Borja the spouses Cornelio Sarangaya and
Feliciana Mariano in Civil Case NO. 6190 of the Court of First Instance of said province, In virtue of
the agreement entered into by the heirs, this property was turned over by the estate of Quintin de
Borja to the intestate and formed part of the general mass of said estate. The report of the
administrator failed to disclose any return from this property alleging that he had not taken
possession of the same. He does not deny however that he knew of the existence of this land but
claimed that when he demanded the delivery of the Certificate of Title covering this property, Rogelio
Limaco, then administrator of the estate of Quintin de Borja, refused to surrender the same and he
did not take any further action to recover the same.
To counteract the insinuation that the Estate of Quintin de Borja was in possession of this property
from 1940 to 1950, the oppositors presented several witnesses, among them was an old man,
Narciso Punzal, who testified that he knew both Quintin and Francisco de Borja; that before the war

or sometime in 1937, the former administrator of the Intestate, Quintin de Borja, offered him the
position of overseer (encargado) of this land but he was notable to assume the same due to the
death of said administrator; that on July 7, 1951, herein appellant invited him to go to his house in
Pateros, Rizal, and while in said house, he was instructed by appellant to testify in court next day
that he was the overseer of the Mayapyap property for Quintin de Borja from 1937-1944, delivering
the yearly proceeds of 1,000 cavanes of Palay to Rogelio Limaco; that he did not need to be afraid
because both Quintin de Borja and Rogelio Limaco were already dead. But as he knew that the facts
on which he was to testify were false, he went instead to the house of one of the daughters of
Quintin de Borja, who, together with her brother, Atty. Juan de Borja, accompanied him to the house
of the counsel for said oppositors before whom his sworn declaration was taken (Exh. 3).
Other witnesses, i.e., Isidro Benuya, Federico Cojo, Emilio de la Cruz and Ernesto Mangulabnan,
testified that they were some of the tenants of the Mayapyap property; that they were paying their
shares to the overseers of Francisco de Borja and sometimes to his wife, which the administrator
was not able to contradict, and the lower Court found no reason why the administrator would fail to
take possession of this property considering that this was even the subject of the agreement of
February 16, 1940, executed by the heirs of the Intestate.
The lower Court, giving due credence to the testimonies of the witnesses for the oppositors,
computed the loss the estate suffered in the form of unreported income from the rice lands for 10
years at P67,000 (6,700 a year)and the amount of P4,000 from the remaining portion of the land not
devoted to rice cultivation which was being leased at P20 per hectare. Consequently, the Court held
the administrator liable to appellees in the sum of P17,750 which is 1/4 of the total amount which
should have accrued to the estate for this item.
But if We exclude the 3 years of occupation, the income for 7 years would be P46,900 for the
ricelands and P2,800 (at P400 a year) for the remaining portion not developed to rice cultivation or a
total of P48,700, 1/4 of which is P12,175 which We hold the administrator liable to the oppositors.
(c) The Hacienda Jalajala located in said town of Rizal, was divided into 3 parts: the Punta section
belonged to Marcelo de Borja, the Bagombong pertained to Bernardo de Borja and Francisco de
Borja got the Jalajala proper. For the purpose of this case, we will just deal with that part called
Junta. This property has an area of 1,345, hectares, 29 ares and 2 centares (Exh. 36) of which,
according to the surveyor who measured the same, 200 hectares were of cultivated rice fields and
100 hectares dedicated to the planting of upland rice. It has also timberland and forest which
produce considerable amount of trees and firewoods. From the said property which has an assessed
value of P115,000 and for which the estates pay real estate tax of P1,500 annually, the administrator
reported the following:

Year

Income

Expenditure
(not including
administration's
fees

1945...........

P625.00

P1,310.42

1946.............

1,800.00

3,471.00

1947.............

2,550.00

2,912.91

1948.............

1,828.00

3,311.88

1949.............

3,204.50

4,792.09

1950.............

2,082.00

2,940.91

P12,089.50

P18,739.21

This statement was assailed by the oppositors and to substantiate their charge that the administrator
did not file the true income of the property, they presented several witnesses who testified that there
were about 200 tenants working therein; that these tenants paid to Crisanto de Borja rentals at the
rate of 6 cavanes of palay per hectare; that in the years of 1943 and 1944, the Japanese were the
ones who collected their rentals, and that the estate could have received no less than 1,000 cavanes
of palay yearly. After the administrator had presented witnesses to refute the facts previously
testified to by the witnesses for the oppositors, the Court held that the report of the administrator did
not contain the real income of the property devoted to rice cultivation, which was fixed at 1,000
cavanes every year for 1941, 1942, 1945, 1946, 1947, 1948, 1949 and 1950, or a total of 8,000
cavanes valued at P73,000. But as the administrator accounted for the sum of P11,155 collected
from rice harvests and if to this amount we add the sum of P8,739.20 for expenses, this will make a
total of P19,894.20, thus leaving a deficit of P53,105.80, of which will be P13,276.45 which the
administrator is held liable to pay the heirs of Quintin de Borja.
It was also proved during the hearing that the forest land of this property yields considerable amount
of marketable firewoods. Taking into consideration the testimonies of witnesses for both parties, the
Court arrived at the conclusion that the administrator sold to Gregorio Santos firewoods worth P600
in 1941, P3,500 in 1945 and P4,200 in 1946 or a total of P8,300. As the report included only the
amount of P625, there was a balance of P7,675 in favor of the estate. The oppositors were not able
to present any proof of sales made after these years, if there were any and the administrator was
held accountable to the oppositors for only P1,918.75.
(d) The estate also, owned ricefields in Cainta, Rizal, with a total area of 22 hectares, 76 ares and 66
centares. Of this particular item, the administrator reported an income of P12,104 from 1945 to 1951.
The oppositors protested against this report and presented witnesses to disprove the same.
Basilio Javier worked as a tenant in the land of Juliana de Borja which is near the land belonging to
the Intestate, the 2 properties being separated only by a river. As tenant of Juliana de Borja, he knew
the tenants working on the property and also knows that both lands are of the same class, and that
an area accommodating one cavan of seedlings yields at most 100 cavanes and 60 cavanes at the
least. The administrator failed to overcome this testimony. The lower Court considering the facts
testified to by this witness made a finding that the property belonging to this Intestate was actually
occupied by several persons accommodating 13 cavanes of seedlings; that as for every cavan of
seedlings, the land produces 60 cavanes of palay, the whole area under cultivation would have

yielded 810 cavanes a year and under the 50-50 sharing system (which was testified by witness
Javier), the estate would have received no less than 405 cavanes every year. Now, for the period of
7 years from 1941 to 1950, excluding the 3 years of war the corresponding earning of the
estate should be 2,835 cavanes, out of which the 405 cavanes from the harvest of 1941 is valued at
P1,215 and the rest 2,430 cavanes at P10 is valued at P24,300, or all in all P25,515. If from this
amount the reported income of P12,104 is deducted, there will be a balance of P13,411.10 1/4 of
which or P3,352.75 the administrator is held liable to pay to the oppositors.
(e) The records show that the administrator paid surcharges and penalties with a total of P988.75 for
his failure to pay on time the taxes imposed on the properties under his administration. He advanced
the reason that he lagged in the payment of those tax obligations because of lack of cash balance
for the estate. The oppositors, however, presented evidence that on October 29, 1939, the
administrator received from Juliana de Borja the sum of P20,475.17 together with certain papers
pertaining to the intestate (Exh. 4),aside from the checks in the name of Quintin de Borja. Likewise,
for his failure to pay the taxes on the building at Azcarraga for 1947, 1948 and 1949, said property
was sold at public auction and the administrator had to redeem the same at P3,295.48, although the
amount that should have been paid was only P2,917.26. The estate therefore suffered a loss
ofP378.22. Attributing these surcharges and penalties to the negligence of the administrator, the
lower Court adjudged him liable to pay the oppositors of P1,366.97, the total loss suffered by the
Intestate, or P341.74.
(f) Sometime in 1942, a big fire razed numerous houses in Pateros, Rizal, including that of Dr.
Crisanto de Borja. Thereafter, he claimed that among the properties burned therein was his safe
containing P15,000 belonging to the estate under his administration. The administrator contended
that this loss was already proved to the satisfaction of the Court who, approved the same by order of
January 8, 1943, purportedly issued by Judge Servillano Platon(Exh. B). The oppositors contested
the genuineness of this order and presented on April 21, 1950, an expert witness who conducted
several tests to determine the probable age of the questioned document, and arrived at the
conclusion that the questioned ink writing "(Fdo)" appearing at the bottom of Exhibit B cannot be
more than 4 years old (Exh. 39). However, another expert witness presented by the administrator
contradicted this finding and testified that this conclusion arrived at by expert witness Mr. Pedro
Manzaares was not supported by authorities and was merely the result of his own theory, as there
was no method yet discovered that would determine the age of a document, for every document has
its own reaction to different chemicals used in the tests. There is, however, another fact that called
the attention of the lower Court: the administrator testified that the money and other papers delivered
by Juliana de Borja to him on October 29, 1939, were saved from said fire. The administrator
justified the existence of these valuables by asserting that these properties were locked by Juliana
de Borja in her drawer in the "casa solariega" in Pateros and hence was not in his safe when his
house, together with the safe, was burned. This line of reasoning is really subject to doubt and the
lower Court opined, that it runs counter to the ordinary course of human behaviour for an
administrator to leave in the drawer of the "aparador" of Juliana de Borja the money and other
documents belonging to the estate under his administration, which delivery has receipted for, rather
than to keep it in his safe together with the alleged P15,000 also belonging to the Intestate. The
subsequent orders of Judge Platon also put the defense of appellant to bad light, for on February 6,
1943, the Court required Crisanto de Borja to appear before the Court of examination of the other
heirs in connection with the reported loss, and on March 1, 1943, authorized the lawyers for the
other parties to inspect the safe allegedly burned (Exh. 35). It is inconceivable that Judge Platon
would still order the inspection of the safe if there was really an order approving the loss of those
P15,000. We must not forget, in this connection, that the records of this case were burned and that
at the time of the hearing of this incident in 1951, Judge Platon was already dead. The lower Court
also found no reason why the administrator should keep in his such amount of money, for ordinary
prudence would dictate that as an administration funds that come into his possession in a fiduciary
capacity should not be mingled with his personal funds and should have been deposited in the Bank

in the name of the intestate. The administrator was held responsible for this loss and ordered to pay
thereof, or the sum of P3,750.
(g) Unauthorized expenditures
1. The report of the administrator contained certain sums amounting to P2,130 paid to and receipted
by Juanita V. Jarencio the administrator's wife, as his private secretary. In explaining this item, the
administrator alleged that he needed her services to keep receipts and records for him, and that he
did not secure first the authorization from the court before making these disbursements because it
was merely a pure administrative function.
The keeping of receipts and retaining in his custody records connected with the management of the
properties under administration is a duty that properly belongs to the administrator, necessary to
support the statement of accounts that he is obliged to submit to the court for approval. If ever his
wife took charge of the safekeeping of these receipts and for which she should be compensated, the
same should be taken from his fee. This disbursement was disallowed by the Court for being
unauthorized and the administrator required to pay the oppositors , thereof or P532.50.
2. The salaries of Pedro Enriquez, as collector of the Azcarraga property; of Briccio Matienzo and
Leoncio Perez, as encargados, and of Vicente Panganiban and Herminigildo Macetas as forestguards were found justified, although un authorized, as they appear to be reasonable and necessary
for the care and preservation of the Intestate.
3. The lower Court disallowed as unjustified and unnecessary the expenses for salaries paid to
special policemen amounting to P1,509. Appellant contended that he sought for the services of
Macario Kamungol and others to act as special policemen during harvest time because most of the
workers tilting the Punta property were not natives of Jalajala but of the neighboring towns and they
were likely to run away with the harvest without giving the share of the estate if they were not
policed. This kind of reasoning did not appear to be convincing to the trial judge as the cause for
such fear seemed to exist only in the imagination. Granting that such kind of situation existed, the
proper thing for the administrator to do would have been to secure the previous authorization from
the Court if he failed to secure the help of the local police. He should be held liable for this
unauthorized expenditure and pay the heirs of Quintin de Borja thereof or P377.25.
4. From the year 1942 when his house was burned, the administrator and his family took shelter at
the house belonging to the Intestate known as "casa solariega" which, in the Project of Partition was
adjudicated to his father, Francisco de Borja. This property, however, remained under his
administration and for its repairs he spent from 1945-1950, P1465,14, duly receipted.
None of these repairs appear to be extraordinary for the receipts were for nipa, for carpenters and
thatchers. Although it is true that Rule 85, section 2 provides that:
SEC. 2. EXECUTOR OR ADMINISTRATOR TO KEEP BUILDINGS IN REPAIR. An
executor or administrator shall maintain in tenant able repair the houses and other structures
and fences belonging to the estate, and deliver the same in such repair to the heirs or
devisees when directed so to do by the court.
yet considering that during his occupancy of the said "casa solariega" he was not paying any rental
at all, it is but reasonable that he should take care of the expenses for the ordinary repair of said
house. Appellant asserted that had he and his family not occupied the same, they would have to pay
someone to watch and take care of said house. But this will not excuse him from this responsibility
for the disbursements he made in connection with the aforementioned repairs because even if he

stayed in another house, he would have had to pay rentals or else take charge also of expenses for
the repairs of his residence. The administrator should be held liable to the oppositors in the amount
of P366.28.
5. Appellant reported to have incurred expenses amounting to P6,304.75 for alleged repairs on the
rice mill in Pateros, also belonging to the Intestate. Of the disbursements made therein, the items
corresponding, to Exhibits I, I-1, I-21, L-26, L-15, L-64 and L-65, in the total sum of P570.70 were
rejected by the lower court on the ground that they were all unsigned although some were dated.
The lower Court, however, made an oversight in including the sum of P150 covered by Exhibit L-26
which was duly signed by Claudio Reyes because this does not refer to the repair of the rice-mill but
for the roofing of the house and another building and shall be allowed. Consequently, the sum of
P570.70 shall be reduced to P420.70 which added to the sum of P3,059 representing expenditures
rejected as unauthorized to wit:

Exhibit L-59 .............

P500.00

Yek Wing

Exhibit L-60 .............

616.00

Yek Wing

Exhibit L-61 .............

600.00

Yek Wing

Exhibit L-62 .............

840.00

Yek Wing

Exhibit L-63 .............

180.00

Yek Wing

Exhibit Q-2 .............

scale
323.00 "Howe"

Total ......................

P3,059.0
0

will give a total of P3,479 1/4 of which is P869.92 that belongs to the oppositors.
6. On the expenses for planting in the Cainta ricefields: In his statement of accounts, appellant
reported to have incurred a total expense of P5,977 for the planting of the ricefields in Cainta, Rizal,
from the agricultural year 1945-46 to 1950-51. It was proved that the prevailing sharing system in
this part of the country was on 50-50 basis. Appellant admitted that expenses for planting were
advanced by the estate and liquidated after each harvest. But the report, except for the agricultural
year 1950 contained nothing of the payments that the tenants should have made. If the total
expenses for said planting amounted to P5,977, thereof or P2,988.50 should have been paid by
the tenants as their share of such expenditures, and as P965 was reported by the administrator as

paid back in 1950, there still remains a balance of P2,023.50 unaccounted for. For this shortage, the
administrator is responsible and should pay the oppositors thereof or P505.87.
7. On the transportation expenses of the administrator: It appears that from the year 1945 to
1951, the administrator charged the estate with a total of P5,170 for transportation expenses. The un
receipted disbursements were correspondingly itemized, a typical example of which is as follows:
1950
Gastos de viaje del administrador From
Pateros
To Pasig ................

50 x P4.00 =

P200.00

To Manila ...............

50 x
P10.00 =

P500.00

To Cainta ................

8 x P8.00 =

P64.00

To Jalajala ............... 5 x P35.00 =

P175.00

P399.00

(Exhibit W-54).
From the report of the administrator, We are being made to believe that the Intestate estate is a
losing proposition and assuming arguendo that this is true, that precarious financial condition which
he, as administrator, should know, did not deter Crisanto de Borja from charging to the depleted
funds of the estate comparatively big amounts for his transportation expenses. Appellant tried to
justify these charges by contending that he used his own car in making those trips to Manila, Pasig
and Cainta and a launch in visiting the properties in Jalajala, and they were for the gasoline
consumed. This rather unreasonable spending of the estate's fund prompted the Court to observe
that one will have to spend only P0.40 for transportation in making a trip from Pateros to Manila and
practically the same amount in going to Pasig. From his report for 1949 alone, appellant made a total
of 97 trips to these places or an average of one trip for every 3 1/2 days. Yet We must not forget that
it was during this period that the administrator failed or refused to take cognizance of the prevailing
rentals of commercial places in Manila that caused certain loss to the estate and for which he was
accordingly held responsible. For the reason that the alleged disbursements made for transportation
expenses cannot be said to be economical, the lower Court held that the administrator should be
held liable to the oppositors for thereof or the sum of P1,292.50, though We think that this sum
should still be reduced to P500.
8. Other expenses:

The administrator also ordered 40 booklets of printed contracts of lease in the name of the Hacienda
Jalajala which cost P150. As the said hacienda was divided into 3 parts one belonging to this
Intestate and the other two parts to Francisco de Boria and Bernardo de Borja, ordinarily the
Intestate should only shoulder /3 of the said expense, but as the tenants who testified

during the hearing of the matter testified that those printed forms were not
being used, the Court adjudged the administrator personally responsible for
this amount. The records reveal, that this printed form was not utilized
because the tenants refused to sign any, and We can presume that when the
administrator ordered for the printing of the same, he did not foresee this
situation. As there is no showing that said printed contracts were used by
another and that they are still in the possession of the administrator which
could be utilized anytime, this disbursement may be allowed.
The report also contains a receipt of payment made to Mr. Severo Abellera in the sum of P375 for
his transportation expenses as one of the two commissioners who prepared the Project of Partition.
The oppositors were able to prove that on May 24, 1941, the Court authorized the administrator to
withdraw from the funds of the intestate the sum of P300 to defray the transportation expenses of
the commissioners. The administrator, however, alleged that he used this amount for the payment of
certain fees necessary in connection with the approval of the proposed plan of the Azcarraga
property which was then being processed in the City Engineer's Office. From that testimony, it would
seem that appellant could even go to the extent of disobeying the order of the Court specifying for
what purpose that amount should be appropriated and took upon himself the task of judging for what
it will serve best. Since he was not able to show or prove that the money intended and ordered by
the Court to be paid for the transportation expenses of the commissioners was spent for the benefit
of the estate as claimed, the administrator should be held responsible therefor and pay to the
oppositors of P375 or the sum of P93.75.
The records reveal that for the service of summons to the defendants in Civil Case No. 84 of the
Court of First Instance of Rizal, P104 was paid to the Provincial Sheriff of the same province (Exhibit
H-7). However, an item for P40 appeared to have been paid to the Chief of Police on Jalajala
allegedly for the service of the same summons. Appellant claimed that as the defendants in said civil
case lived in remote barrios, the services of the Chief of Police as delegate or agent of the Provincial
Sheriff were necessary. He forgot probably the fact that the local chiefs of police are deputy
sheriffs ex-officio. The administrator was therefore ordered by the lower Court to pay of said
amount or P10 to the oppositors.
The administrator included in his Report the sum of P550 paid to Atty. Filamor for his professional
services rendered for the defense of the administrator in G.R. No. L-4179, which was decided
against him, with costs. The lower Court disallowed this disbursement on the ground that this Court
provided that the costs of that litigation should not be borne by the estate but by the administrator
himself, personally.
Costs of a litigation in the Supreme Court taxed by the Clerk of Court, after a verified petition has
been filed by the prevailing party, shall be awarded to said party and will only include his fee and that
of his attorney for their appearance which shall not be more than P40; expenses for the printing and
the copies of the record on appeal; all lawful charges imposed by the Clerk of Court; fees for the
taking of depositions and other expenses connected with the appearance of witnesses or for lawful
fees of a commissioner (De la Cruz, Philippine Supreme Court Practice, p. 70-71). If the costs
provided for in that case, which this Court ordered to be chargeable personally against the
administrator are not recoverable by the latter, with more reason this item could not be charged

against the Intestate. Consequently, the administrator should pay the oppositors of the sum of
P550 or P137.50.
(e) The lower Court in its decision required appellant to pay the oppositors the sum of P1,395 out of
the funds still in the possession of the administrator.
In the statement of accounts submitted by the administrator, there appeared a cash balance of
P5,851.17 as of August 31, 1961. From this amount, the sum of P1,002.96 representing the
Certificate of Deposit No. 21619 and Check No. 57338, both of the Philippine National Bank and in
the name of Quintin de Borja, was deducted leaving a balance of P4,848. As Judge Zulueta ordered
the delivery to the oppositors of the amount of P1,890 in his order of October 8, 1951; the delivery of
the amount of P810 to the estate of Juliana de Borja in his order of October 23, 1951, and the sum
of P932.32 to the same estate of Juliana de Borja by order of the Court of February 29, 1952, or a
total of P3,632.32 after deducting the same from the cash in the possession of the administrator,
there will only be a remainder of P134.98.
The Intestate is also the creditor of Miguel B. Dayco, heir and administrator of the estate of Crisanta
de Borja, in the sum of P900 (Exhibits S and S-1). Adding this credit to the actual cash on hand,
there will be a total of P1,034.98, , of which or P258.74 properly belongs to the oppositors.
However, as there is only a residue of P134.98 in the hands of the administrator and dividing it
among the 3 groups of heirs who are not indebted to the Intestate, each group will receive P44.99,
and Miguel B. Dayco is under obligation to reimburse P213.76 to each of them.
The lower Court ordered the administrator to deliver to the oppositors the amount of P1,395.90 and
P314.99 each to Francisco de Borja and the estate of Juliana de Borja, but as We have arrived at
the computation that the three heirs not idebted to the Intestate ought to receive P44.99 each out of
the amount of P134.98, the oppositors are entitled to the sum of P1,080.91 the amount deducted
from them as taxes but which the Court ordered to be returned to them plus P44.99 or a total of
P1,125.90. It appearing however, that ina Joint Motion dated November 27, 1952, duly approved by
the Court, the parties agreed to fix the amount at P1,125.58, as the amount due and said heirs have
already received this amount in satisfaction of this item, no other sum can be chargeable against the
administrator.
(f) The probate Court also ordered the administrator to render an accounting of his administration
during the Japanese occupation on the ground that although appellant maintained that whatever
money he received during that period is worthless, same having been declared without any value,
yet during the early years of the war, or during 1942-43, the Philippine peso was still in circulation,
and articles of prime necessity as rice and firewood commanded high prices and were paid with
jewels or other valuables.
But We must not forget that in his order of December 11, 1945, Judge Pea required the
administrator to render an accounting of his administration only from March 1, 1945, to December of
the same year without ordering said administrator to include therein the occupation period. Although
the Court below mentioned the condition then prevailing during the war-years, We cannot simply
presume, in the absence of proof to that effect, that the administrator received such valuables or
properties for the use or in exchange of any asset or produce of the Intestate, and in view of the
aforementioned order of Judge Pea, which We find no reason to disturb, We see no practical
reason for requiring appellant to account for those occupation years when everything was affected
by the abnormal conditions created by the war. The records of the Philippine National Bank show
that there was a current account jointly in the names of Crisanto de Borja and Juanita V. Jarencio,
his wife, with a balance of P36,750.35 in Japanese military notes and admittedly belonging to the

Intestate and We do not believe that the oppositors or any of the heirs would be interested in an
accounting for the purpose of dividing or distributing this deposit.
(g) On the sum of P13,294 for administrator's fees:
It is not disputed that the administrator set aside for himself and collected from the estate the sum of
P13,294 as his fees from 1945 to 1951 at the rate of P2,400 a year. There is no controversy as to
the fact that this appropriated amount was taken without the order or previous approval by the
probate Court. Neither is there any doubt that the administration of the Intestate estate by Crisanto
de Borja is far from satisfactory.
Yet it is a fact that Crisanto de Borja exercised the functions of an administrator and is entitled also
to a certain amount as compensation for the work and services he has rendered as such. Now,
considering the extent and size of the estate, the amount involved and the nature of the properties
under administration, the amount collected by the administrator for his compensation at P200 a
month is not unreasonable and should therefore be allowed.
It might be argued against this disbursement that the records are replete with instances of highly
irregular practices of the administrator, such as the pretended ignorance of the necessity of a book
or ledger or at least a list of chronological and dated entries of money or produce the Intestate
acquired and the amount of disbursements made for the same properties; that admittedly he did not
have even a list of the names of the lessees to the properties under his administration, nor even a
list of those who owed back rentals, and although We certainly agree with the probate Court in
finding appellant guilty of acts of maladministration, specifically in mixing the funds of the estate
under his administration with his personal funds instead of keeping a current account for the
Intestate in his capacity as administrator, We are of the opinion that despite these irregular practices
for which he was held already liable and made in some instances to reimburse the Intestate for
amounts that were not properly accounted for, his claim for compensation as administrator's fees
shall be as they are hereby allowed.
Recapitulation. Taking all the matters threshed herein together, the administrator is held liable to
pay to the heirs of Quintin de Borja the following:
Under Paragraphs III and IV:

(a) ....................................................... P7,084.

........................
27

(b) .......................................................
........................

12,175.
00

(c) ....................................................... 16,113.9

........................
5

(d) .......................................................
........................

3,352.7
5

(e) .......................................................
........................

341.74

(f) ........................................................
........................

3,750.0
0

(g)
1 ..........................................................
...........

532.50

377.25
2 ..........................................................
...........

366.28
3 ..........................................................
...........

869.92
4 ..........................................................
...........

505.87
5 ..........................................................
...........

500.00
6 ..........................................................
...........

7-a

93.75

b ..........................................................
........

10.00
c ..........................................................
........

d ..........................................................
.........

137.50

P46,210
.00

In view of the foregoing, the decision appealed from is modified by reducing the amount that the
administrator was sentenced to pay the oppositors to the sum of P46,210.78 (instead of
P83,337.31), plus legal interests on this amount from the date of the decision appealed from, which
is hereby affirmed in all other respects. Without pronouncement as to costs. It is so ordered.
Paras, C.J., Bengzon, Montemayor, Reyes, A., Bautista Angelo, Labrador and Endencia, JJ., concur.
G.R. No. L-41715 June 18, 1976
ROSALIO BONILLA (a minor) SALVACION BONILLA (a minor) and PONCIANO BONILLA (their
father) who represents the minors, petitioners,
vs.
LEON BARCENA, MAXIMA ARIAS BALLENA, ESPERANZA BARCENA, MANUEL BARCENA,
AGUSTINA NERI, widow of JULIAN TAMAYO and HON. LEOPOLDO GIRONELLA of the Court
of First Instance of Abra, respondents.
Federico Paredes for petitioners.
Demetrio V. Pre for private respondents.

MARTIN, J:
This is a petition for review 1 of the Order of the Court of First Instance of Abra in Civil Case No. 856,
entitled Fortunata Barcena vs. Leon Barcena, et al., denying the motions for reconsideration of its order
dismissing the complaint in the aforementioned case.

On March 31, 1975 Fortunata Barcena, mother of minors Rosalio Bonilla and Salvacion Bonilla and
wife of Ponciano Bonilla, instituted a civil action in the Court of First Instance of Abra, to quiet title
over certain parcels of land located in Abra.
On May 9, 1975, defendants filed a written motion to dismiss the complaint, but before the hearing of
the motion to dismiss, the counsel for the plaintiff moved to amend the complaint in order to include
certain allegations therein. The motion to amend the complaint was granted and on July 17, 1975,
plaintiffs filed their amended complaint.
On August 4, 1975, the defendants filed another motion to dismiss the complaint on the ground that
Fortunata Barcena is dead and, therefore, has no legal capacity to sue. Said motion to dismiss was
heard on August 14, 1975. In said hearing, counsel for the plaintiff confirmed the death of Fortunata
Barcena, and asked for substitution by her minor children and her husband, the petitioners herein;
but the court after the hearing immediately dismissed the case on the ground that a dead person
cannot be a real party in interest and has no legal personality to sue.
On August 19, 1975, counsel for the plaintiff received a copy of the order dismissing the complaint
and on August 23, 1975, he moved to set aside the order of the dismissal pursuant to Sections 16
and 17 of Rule 3 of the Rules of Court. 2
On August 28, 1975, the court denied the motion for reconsideration filed by counsel for the plaintiff
for lack of merit. On September 1, 1975, counsel for deceased plaintiff filed a written manifestation
praying that the minors Rosalio Bonilla and Salvacion Bonilla be allowed to substitute their deceased
mother, but the court denied the counsel's prayer for lack of merit. From the order, counsel for the
deceased plaintiff filed a second motion for reconsideration of the order dismissing the complaint
claiming that the same is in violation of Sections 16 and 17 of Rule 3 of the Rules of Court but the
same was denied.
Hence, this petition for review.
The Court reverses the respondent Court and sets aside its order dismissing the complaint in Civil
Case No. 856 and its orders denying the motion for reconsideration of said order of dismissal. While
it is true that a person who is dead cannot sue in court, yet he can be substituted by his heirs in
pursuing the case up to its completion. The records of this case show that the death of Fortunata
Barcena took place on July 9, 1975 while the complaint was filed on March 31, 1975. This means
that when the complaint was filed on March 31, 1975, Fortunata Barcena was still alive, and
therefore, the court had acquired jurisdiction over her person. If thereafter she died, the Rules of
Court prescribes the procedure whereby a party who died during the pendency of the proceeding
can be substituted. Under Section 16, Rule 3 of the Rules of Court "whenever a party to a pending
case dies ... it shall be the duty of his attorney to inform the court promptly of such death ... and to
give the name and residence of his executor, administrator, guardian or other legal representatives."
This duty was complied with by the counsel for the deceased plaintiff when he manifested before the
respondent Court that Fortunata Barcena died on July 9, 1975 and asked for the proper substitution
of parties in the case. The respondent Court, however, instead of allowing the substitution,
dismissed the complaint on the ground that a dead person has no legal personality to sue. This is a
grave error. Article 777 of the Civil Code provides "that the rights to the succession are transmitted
from the moment of the death of the decedent." From the moment of the death of the decedent, the
heirs become the absolute owners of his property, subject to the rights and obligations of the
decedent, and they cannot be deprived of their rights thereto except by the methods provided for by
law. 3 The moment of death is the determining factor when the heirs acquire a definite right to the
inheritance whether such right be pure or contingent. 4 The right of the heirs to the property of the
deceased vests in them even before judicial declaration of their being heirs in the testate or intestate

proceedings. 5 When Fortunata Barcena, therefore, died her claim or right to the parcels of land in
litigation in Civil Case No. 856, was not extinguished by her death but was transmitted to her heirs upon
her death. Her heirs have thus acquired interest in the properties in litigation and became parties in
interest in the case. There is, therefore, no reason for the respondent Court not to allow their substitution
as parties in interest for the deceased plaintiff.

Under Section 17, Rule 3 of the Rules of Court "after a party dies and the claim is not thereby
extinguished, the court shall order, upon proper notice, the legal representative of the deceased to
appear and be substituted for the deceased, within such time as may be granted ... ." The question
as to whether an action survives or not depends on the nature of the action and the damage sued
for. 6 In the causes of action which survive the wrong complained affects primarily and principally property
and property rights, the injuries to the person being merely incidental, while in the causes of action which
do not survive the injury complained of is to the person, the property and rights of property affected being
incidental. 7 Following the foregoing criterion the claim of the deceased plaintiff which is an action to quiet
title over the parcels of land in litigation affects primarily and principally property and property rights and
therefore is one that survives even after her death. It is, therefore, the duty of the respondent Court to
order the legal representative of the deceased plaintiff to appear and to be substituted for her. But what
the respondent Court did, upon being informed by the counsel for the deceased plaintiff that the latter was
dead, was to dismiss the complaint. This should not have been done for under the same Section 17, Rule
3 of the Rules of Court, it is even the duty of the court, if the legal representative fails to appear, to order
the opposing party to procure the appointment of a legal representative of the deceased. In the instant
case the respondent Court did not have to bother ordering the opposing party to procure the appointment
of a legal representative of the deceased because her counsel has not only asked that the minor children
be substituted for her but also suggested that their uncle be appointed as guardian ad litem for them
because their father is busy in Manila earning a living for the family. But the respondent Court refused the
request for substitution on the ground that the children were still minors and cannot sue in court. This is
another grave error because the respondent Court ought to have known that under the same Section 17,
Rule 3 of the Rules of Court, the court is directed to appoint a guardian ad litem for the minor heirs.
Precisely in the instant case, the counsel for the deceased plaintiff has suggested to the respondent Court
that the uncle of the minors be appointed to act as guardian ad litem for them. Unquestionably, the
respondent Court has gravely abused its discretion in not complying with the clear provision of the Rules
of Court in dismissing the complaint of the plaintiff in Civil Case No. 856 and refusing the substitution of
parties in the case.
IN VIEW OF THE FOREGOING, the order of the respondent Court dismissing the complaint in Civil
Case No. 856 of the Court of First Instance of Abra and the motions for reconsideration of the order
of dismissal of said complaint are set aside and the respondent Court is hereby directed to allow the
substitution of the minor children, who are the petitioners therein for the deceased plaintiff and to
appoint a qualified person as guardianad litem for them. Without pronouncement as to costs.
SO ORDERED.
Teehankee (Chairman), Makasiar, Esguerra and Muoz Palma, JJ., concur.
Footnotes

1 Which this Court treats as special civil action as per its Resolution dated February
11, 1976.
2 Section 16. Duty of Attorney upon which death, incapacity or incompetency of
party. - Whenever a party to a pending case dies, becomes incapacitated or
incompetent, it shall be the duty of his attorney to inform the court promptly of such

death, incapacity or incompetency, and to give the name and residence of his
executor, administrator, guardian or other legal representative.
Section 17. Death of party.After a party dies and the claim is not thereby
extinguished, the court shall order, upon proper notice, the legal representative of the
deceased to appear and to be substituted for deceased, within a period of thirty (30)
days, or within such time as may be granted. If the legal representative fails to
appear within said time, the court may order the opposing party to procure the
appointment of a legal representative of the within a time to be specified by the court,
and the representative shall immediately appear for and on behalf of the interest of
the deceased. The court charges involved in procuring such appointment, if defrayed
by the opposing party, may be recovered as costs. The heirs of the deceased may be
allowed to be substituted for the deceased, without requiring the appointment of an
executor or administrator and the court may appoint guardian ad litem for the minor
heirs.
3 Buan vs. Heirs of Buan, 53 Phil. 654.
4 Ibarle vs. Po, 92 Phil. 721.
5 Morales, et al. vs. Ybanez, 98 Phil. 677.
6 Iron Gate Bank vs. Brady, 184 U.S. 665, 22 SCT 529, 46 L. ed. 739.
7 Wenber vs. St. Paul City Co., 97 Feb. 140 R. 39 C.C.A. 79.
G.R. No. L-23224 November 29, 1971
TARCELA VDA. DE BOUGH, plaintiff appellee,
vs.
NARCISO ROCHA, JOSE RAMIREZ and REMEDIOS RAMIREZ, defendants-appellants.
TARCELA VDA. DE BOUGH plaintiff-appellee, vs. NARCISO ROCHA, administrador de los
bienes relictos de la finada Matilde Cantiveros and PONCIANO LLOREN, defendantsappellants.
Julio Siayungco for plaintiff-appellee.
Antonio Montilla for defendants-appellants.

MAKALINTAL, J.:
This appeal from the decision of the Court of First Instance of Leyte, rendered jointly in its Civil
Cases 161 and 163, was originally taken to the Court of Appeals but subsequently certified to this
Court, only question of law being involved.
Sometime in July of 1935 one Matilde Cantiveros died intestate in Carigara, Leyte. She was survived
by husband, Bruno Modesto, but left neither ascendant nor descendant. On October 12 of the same
year Bruno Modesto filed an interstate proceeding in the Court of First Instance of Leyte (Sp. Proc.

No. 2515), praying that he be named administrator of the estate and eventually declared the
deceased's only heir. Before the petition could be finally resolved one Zosima de la Cruz presented
for probate in the same proceeding a document purporting to be the last will and testament of the
deceased. For lack of sufficient funds in that time to meet the considerable expense to be incurred in
opposing Zosima de la Cruz's petition, Bruno Modesto entered into a contract with several other
parties on March 4, 1936, the pertinent portions of which provide:
SEPAN TODOS LOS QUE LA PRESENTED VIEREN
Que nosotros Bruno Modesto, esposo de la difunta Da. Matilde Cantiveros y de
Tanauan, Leyte, Restituto Anopol, y I. Gustavus Bough* representante de los
herederos de la difunta Basilia Anopol, todos de Carigara Leyte, y Carmen Anopol de
Tacloban, Leyte, por la presente irrevocablemente hacemos constar que en la
reparticion de los bienes de la difunta Da. Matilde Cantiveros hecha por el Sr.
Bruno Modesto en el sentido que una tercera parte quede con el; y una tercera parte
sea dividida entre los arriba mencionados Restituto Anopol, I. Gustavus Bough,
Sergio Anopol y Carmen Anopol; y que una tercera parte sea usada para pagar los
gastos ocasionados en la litigacion motivada por un alegado testamento presentado
por el Abogado Salazar en la Corte de la Primera Instancia de Tacloban, Leyte; y con
esta reparticion estamos conformes.
Esta tercera parte se entiende es para pagar los gastos solamente que ocasionara
en la litigacion de la una tercera parte perteneciente y que corresponde a Restituto
Anopol, I. Gustavus Bough, Sergio Anopol y Carmen Anopol; y como nadie de los
herederos dispone suficientes fondos para sufragar los gastos que necesariamente
va a ocurrir, y para pagar dichos gastos; nosotros todos los herederos hemos
suplicado, ofrecido y entregado bajo esta escritura al Dr. I. Gustavus Bough de
Carigara Leyte, la una tercera parte do todos los bienes de la difunta Da. Matilde
Cantiveros en consideracion y en compensacion para los gastos de esta litigacion
que el Dr. Bough ha comprometido de pagar en favor de los arriba mencionados
Restituto Anopol, I. Gustavus Bough, Sergio Anopol y Carmen Anopol.
Se entiende ademas que la parte que sera entregada al mencionado Dr. I. Gustavus
Bough, en compensacion de sus gastos sera una tercera parte de todos los bienes
de la difunta Da. Matilde Cantiveros, sin reserva de cualquiera naturaleza; caso que
el asunto se decide el Jusgado en favor del solicitante del abintestado Sr. Bruno
Modesto; y que esta tercera parte sera entregada al arriba dicho Dr. I. Gustavus
Bough immediatamente despues de haber dictado sentencia favorable las cortes
competentes.
In time the Court of First Instance of Leyte denied the probate of the document presented by Zosima
de la Cruz and declared Bruno Modesto the sole heir of his deceased wife. Upon appeal to the Court
of Appeals (CA-G.R. No. 3247), the decision of the lower court was affirmed on February 29, 1940.
This decision has long become final.
Sometime in May of 1941 I. Gustavus Bough and Carmen Anopol commenced suit in the Court of
First Instance of Leyte (Civil Case No. 5285), praying that Bruno Modesto be ordered to partition the
properties left by Matilde Cantiveros in accordance with the contract above-quoted. Judgment was
rendered by said court in favor of plaintiffs Bough and Anopol, and upon appeal to the Court of

Appeals (CA-G.R, No. 2224-R), the same was modified in a decision promulgated on June 16, 1949.
Considering the decision not as one for partition strictly but only as an action intended to determine
the rights of the parties under the terms of the private contract, the Court of Appeals ruled:
1. The contract Exhibit B is declared valid and binding upon all parties thereto, with
the understanding that the same shall be effective and enforceable only upon the net
estate of the deceased Matilde Cantiveros adjudicated to her only intestate heir,
Bruno Modesto. For the purpose of making said contract effective, a copy of this
judgment shall be served upon the administrator of the estate of said deceased
Matilde Cantiveros and another copy should be filed in the record of Special
Proceeding No. 2515, where the interested parties may ask for the corresponding
order of delivery of their respective shares;
2. The plaintiff, Tarcela R. Vda. de Bough, in her capacity as an administratrix of the
intestate estate of the deceased I. Gustavus Bough, is hereby ordered to pay the
sum of P4,250.00 to the administrator of the intestate estate of the deceased Matilde
Cantiveros as reimbursement of an equal amount paid by the latter to the heirs of the
deceased Ruperto Kapunan. Thus modified, the appealed judgment is affirmed in all
other respects, with costs.
This decision has also long become final.
In the meantime, during the pendency of Civil Case No. 5285 certain transactions took place with
respect to portions of the 61 parcels of land which comprise the estate of the deceased Matilde
Cantiveros. It appears that on September 12, 1943 Bruno Modesto sold to the spouses Jose and
Remedios Ramirez a 566.46 sq. m. parcel of land situated at District Bayabay, Carigara, Leyte (Exh.
"1"). This sale was subsequently confirmed in a more formal document (Exh. "2") drawn up and
signed anew by Bruno Modesto on January 21, 1947. And in another separate transaction, Bruno
Modesto, in a document dated January 7, 1946 and entitled "VENTA CON PACTO DE RETRO"
(Exh. "4"), conveyed to Juan Lloren a 1,200 sq. m. residential lot located in Carigara, Leyte.
It was against the foregoing backdrop that Tarcela Vda. de Bough, in her capacity as administratrix
of the estate of the late I. Gustavus Bough, who had died before then, as well as his children by his
first wife, the deceased Basilia Anopol, commenced in the court a quo Civil Case Nos. 161 and 163
against the spouses Jose and Remedios Ramirez and against Ponciano Lloren, respectively. The
administrator of the estate of Bruno Modesto, who had likewise died in the interim, was also
impleaded as party defendant. The complaints in the two cases are similarly worded and contain a
common plea: to order the respective defendants to deliver to the plaintiffs the parcels of land
disposed of by Bruno Modesto, allegedly without judicial authority, during the pendency of the
special proceeding for the settlement of the estate of Matilde Cantiveros.
Eventually, and in view of the fact that the plaintiffs had the same evidence in both cases, a joint trial
was agreed to by the parties although the defendants were allowed to present their respective
evidence separately. In time the court a quo rendered the joint decision now on appeal, the
dispositive portion of which reads:
FOR ALL THE FOREGOING, the Court declares that the property in Civil Case No.
161 and the properties in Civil Case No. 163 pertain to the Intestate Estate of Matilde
Cantiveros, Sp. Proceeding 2515, and the defendants are therefore ordered to

deliver the said properties to the administrator of the said estate subject to a refund
to Ponciano Lloren of the necessary improvements he may have made on the house
built on one of the parcels in Civil Case 163 which the Court conservatively estimates
at P1,500.00, considering that the house is 60% depreciated due to lack of painting;
without costs and without damages; the plaintiffs may file their claim for a partition of
the estate in the Special Proceedings 2515 before this Court as required in Exhibit A,
and the defendants may intervene in said Special Proceedings 2515 to claim for a
reimbursement from the share pertaining to Bruno Modesto.
Unable to secure a reconsideration of the decision, the defendants interposed this appeal, alleging
that the trial court erred: (1) in not dismissing the two cases notwithstanding its finding that the
plaintiffs had not acquired ownership of the properties in question nor were they entitled to the
possession of the same; (2) in holding that the sales made to the defendants were null and void; and
(3) in not holding that the defendants are owners of the parcels of land in question.
The defendants submit that the two cases should have been dismissed on the basis of the following
findings of the court below, to wit:
... The amended as well as the original complaint in both cases is captioned "Sobre
Propiedad" yet in the same, the plaintiffs do not pretend to have proprietary rights
over the parcels of land described in the two cases, but they seek that the said
properties be delivered to them ... . If the purpose of the plaintiffs is to recover the
possession of these properties, this Court cannot in these civil cases originally filed
before it to recover such possession pass judgment on the legality of said
possession, it appearing admitted by the plaintiffs that the defendants Ramirez in
Civil Case 161 had been in possession of the property in said case since 1947 while
the defendant Lloren in Civil Case 163 had possessed the lands described in the
complaint in 1945, it not appearing in the complaint that the plaintiffs had for once
been in possession of the respective properties in each of the civil case. The plaintiffs
neither have a cause of action to recover the ownership of the property it not
appearing in the complaint that they claim rights of ownership over the specific
properties described in each of the Civil Case 161 and 163. Neither had it been
proven that the plaintiffs in the two cases have ever possessed the land that they
have sought to recover. ...
Considering the foregoing findings in relation to the relief sought in the complaints, the cases should
indeed have been dismissed. Said relief, which is identical in both cases, is for judgment ordering
the defendants to deliver the lands in question to the plaintiffs. Since the latter are not the owners
thereof, nor even the previous possessors the trial court correctly ruled that they have no cause of
action to recover either ownership or possession. The same court, however, disregarded the
plaintiffs' lack of a cause of action and, proceeding upon a theory that alleged or relied upon in the
complaints, annulled the sales of the lands in favor of the defendants on the ground that they had
been executed by Bruno Modesto without authority of the probate court in the intestate of the
deceased Matilde Cantiveros, and ordered that they be returned to the administrator thereof so that
they may be the object of partition to be claimed therein by the plaintiffs.
Aside from the fact that the relief thus granted is not the relief prayed for, it does not appear justified
by the facts of record and is at best premature. It should be noted that in Civil Case No. 5285 filed by
the spouses I. Gustavus Bough and Carmen Anopol in 1941 and then appealed to the Court of

Appeals (CA-G.R. No. 2224-R) the said court, in its decision of June 16, 1949, spelled out the rights
of the plaintiffs under the contract of March 4, 1936 and the procedure that should be followed "for
the purpose of making said contract effective," namely:
... a copy of this judgment shall be served upon the administrator of the estate of said
deceased Matilde Cantiveros and another copy should be filed in the record of
Special Proceeding No. 2515, where the interested parties may ask for the
corresponding order of delivery of their respective shares.
The plaintiffs did not follow the procedure indicated by the Court of Appeals. No judicial partition
appears to have been made in the intestate proceeding of the deceased Matilde Cantiveros. What
does appear, however, and is in fact alleged in the complaints in these two cases, is that the
plaintiffs received from Bruno Modesto a number of parcels of land corresponding to their share in
the estate, although they say that the same is less than the entirety of such share. Neither the
complaints nor the decision appealed from nor the briefs for the parties show that the delivery of the
said parcels to the plaintiffs was with the authority or subsequent approval of the court in the
intestate case, or how much of their share remains unsatisfied. And although there is an allegation in
the complaints that the properties still in the hands of the administrator are insufficient to cover the
unsatisfied portion, such allegation has not been established.
We gather from the record that until now in Interstate Proceeding No. 2515 has not been closed and
the estate of the deceased Matilde Cantiveros has not been definitely settled. What the plaintiffs
should have done was to enforce the judgment of the Court of Appeals in CA-G.R. No. 2224 by
presenting their claim for partition in the said proceeding instead of filing the present action for
recovery in their own behalf. Considering that without having presented such claim and without
authority of the court they received from the then administrator, Bruno Modesto, a number of parcels
pertaining to their share in the estate, they are in no position to complain that Bruno Modesto, as
such administrator or as the universal heir (to the estate of his wife) could only dispose of his rights
and interest in aliquot portion thereof not of specific properties as he did in favor of the herein
defendants. Thus, until it can be shown that the parcels of land already received by the plaintiffs are
indeed short of the share to which they are entitled, as adjudged by the Court of Appeals, and that
the properties still remaining in the hands of the administrator are insufficient to cover the shortage,
the judgment appealed from, ordering the defendants to return to the estate the properties they have
purchased, is premature. And such showing can be made by the plaintiffs only by enforcing the
judgment of the Court of Appeals, namely, by filing a claim in the intestate proceeding for the
completion of their share. For the defendants to be singled out and compelled to return the
properties in question to the estate in advance of such showing would be unfair to them, since other
properties fifteen parcels out of the 61 comprising the estate, according to the record were
similarly disposed of by Bruno Modesto in favor of other persons, against whom no actions for
recovery appear to have been filed by the plaintiffs.
WHEREFORE, the judgment appealed from is hereby reversed insofar as it declares that the
properties subject of these two cases pertain to the Intestate Estate of Matilde Cantiveros, Sp.
Proceeding No. 2515, and orders their delivery to the administration thereof; and affirmed insofar as
it directs the plaintiffs to file their claim for partition in said proceeding, subject to the right of
defendants to intervene therein for the protection of their interests. This judgment is without
prejudice to the right of plaintiffs to pursue the corresponding remedies and file such actions as may
be proper against the herein defendants should the properties remaining in the estate of the
deceased Matilde Cantiveros turn out to be insufficient to justify the portions pertaining to plaintiffs in

accordance with the decisions of the Court of Appeals in CA-G.R. No. 2224-R. No pronouncement
as to costs.
Concepcion, C.J., Zaldivar, Castro, Fernando, Teehankee, Barredo, Villamor and Makasiar, JJ.,
concur.
Reyes, J.B.L., J., concurs in the result.

Footnotes
* I. Gustavus Bough was married twice: first to Basilia Anopol and later to Carmen
Anopol.
G.R. No. L-41171

July 23, 1987

INTESTATE ESTATE OF THE LATE VITO BORROMEO, PATROCINIO BORROMEOHERRERA, petitioner,

vs.
FORTUNATO BORROMEO and HON. FRANCISCO P. BURGOS, Judge of the Court of First
Instance of Cebu, Branch II, respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
No. L-55000

July 23, 1987

IN THE MATTER OF THE ESTATE OF VITO BORROMEO, DECEASED, PILAR N. BORROMEO,

MARIA B. PUTONG, FEDERICO V. BORROMEO, JOSE BORROMEO, CONSUELO B.
MORALES, AND CANUTO V. BORROMEO, JR., heirs-appellants,
vs.
FORTUNATO BORROMEO, claimant-appellee.
x - - - - - - - - - - - - - - - - - - - - - - -x
No. L-62895

July 23, 1987

JOSE CUENCO BORROMEO, petitioner,

vs.
HONORABLE COURT OF APPEALS, HON. FRANCISCO P. BURGOS, As presiding Judge of
the (now) Regional Trial Court, Branch XV, Region VII, RICARDO V. REYES, as Administrator
of the Estate of Vito Borromeo in Sp. Proc. No. 916-R, NUMERIANO G. ESTENZO and
DOMINGO L. ANTIGUA, respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x

No. L-63818

July 23, 1987

DOMINGO ANTIGUA AND RICARDO V. REYES, as Administrator of the Intestate Estate of

VITO BORROMEO, Sp. Proceedings No. 916-R, Regional Trial Court of Cebu, joined by HON.
JUDGE FRANCISCO P. BURGOS, as Presiding Judge of Branch XV of the Regional Trial Court
of Cebu, as a formal party, and ATTYS. FRANCIS M. ZOSA, GAUDIOSO RUIZ and NUMERIANO
ESTENZO, petitioners,
vs.
HONORABLE INTERMEDIATE APPELLATE COURT, JOSE CUENCO BORROMEO, and PETRA
O. BORROMEO, respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
No. L-65995

July 23, 1987

PETRA BORROMEO, VITALIANA BORROMEO, AMELINDA BORROMEO, and JOSE CUENCO

BORROMEO,petitioners,
vs.
HONORABLE FRANCISCO P. BURGOS, Presiding Judge of Branch XV, Regional Trial Court of
Cebu; RICARDO V. REYES, Administrator of the Estate of VITO BORROMEO in Sp. Proc. No.
916-R; and DOMINGO L. ANTIGUA, respondents.
GUTIERREZ, JR., J.:
These cases before us all stem from SP. PROC. NO. 916-R of the then Court of First Instance of
Cebu.
G.R. No. 41171
Vito Borromeo, a widower and permanent resident of Cebu City, died on March 13, 1952, in
Paranaque, Rizal at the age of 88 years, without forced heirs but leaving extensive properties in the
province of Cebu.
On April 19, 1952, Jose Junquera filed with the Court of First Instance of Cebu a petition for the
probate of a one page document as the last will and testament left by the said deceased, devising all
his properties to Tomas, Fortunato and Amelia, all surnamed Borromeo, in equal and undivided
shares, and designating Junquera as executor thereof. The case was docketed as Special
Proceedings No. 916-R. The document, drafted in Spanish, was allegedly signed and thumbmarked
by the deceased in the presence of Cornelio Gandionco, Eusebio Cabiluna, and Felixberto Leonardo
who acted as witnesses.
Oppositions to the probate of the will were filed. On May 28, 1960, after due trial, the probate court
held that the document presented as the will of the deceased was a forgery.
On appeal to this Court, the decision of the probate court disallowing the probate of the will was
affirmed inTestate Estate of Vito Borromeo, Jose H. Junquera et al. v. Crispin Borromeo et al. (19
SCRA 656).

The testate proceedings was converted into an intestate proceedings. Several parties came before
the court filing claims or petitions alleging themselves as heirs of the intestate estate of Vito
Borromeo.
The following petitions or claims were filed:
1. On August 29, 1967, the heirs of Jose Ma. Borromeo and Cosme Borromeo filed a petition
for declaration of heirs and determination of heirship. There was no opposition filed against
said petition.
2. On November 26, 1967, Vitaliana Borromeo also filed a petition for declaration as heir.
The heirs of Jose Ma. Borromeo and Cosme Borromeo filed an opposition to this petition.
3. On December 13, 1967, Jose Barcenilla, Jr., Anecita Ocampo de Castro, Ramon Ocampo,
Lourdes Ocampo, Elena Ocampo, Isagani Morre, Rosario Morre, Aurora Morre, Lila Morre,
Lamberto Morre, and Patricia Morre, filed a petition for declaration of heirs and determination
of shares. The petition was opposed by the heirs of Jose and Cosme Borromeo.
4. On December 2, 1968, Maria Borromeo Atega, Luz Borromeo, Hermenegilda Borromeo
Nonnenkamp, Rosario Borromeo, and Fe Borromeo Queroz filed a claim. Jose Cuenco
Borromeo, Crispin Borromeo, Vitaliana Borromeo and the heirs of Carlos Borromeo
represented by Jose Talam filed oppositions to this claim.
When the aforementioned petitions and claims were heard jointly, the following facts were
established:
1. Maximo Borromeo and Hermenegilda Galan, husband and wife (the latter having predeceased the
former), were survived by their eight (8) children, namely,
Jose Ma. Borromeo
Cosme Borromeo
Pantaleon Borromeo
Vito Borromeo
Paulo Borromeo
Anecita Borromeo
Quirino Borromeo and
Julian Borromeo
2. Vito Borromeo died a widower on March 13, 1952, without any issue, and all his brothers and
sisters predeceased him.

3. Vito's brother Pantaleon Borromeo died leaving the following children:

a. Ismaela Borromeo,who died on Oct. 16, 1939
b. Teofilo Borromeo, who died on Aug. 1, 1955, or 3 years after the death of Vito Borromeo.
He was married to Remedios Cuenco Borromeo, who died on March 28, 1968. He had an
only son-Atty. Jose Cuenco Borromeo one of the petitioners herein.
c. Crispin Borromeo, who is still alive.
4. Anecita Borromeo, sister of Vito Borromeo, died ahead of him and left an only daughter, Aurora B.
Ocampo, who died on Jan. 30, 1950 leaving the following children:
a. Anecita Ocampo Castro
b. Ramon Ocampo
c. Lourdes Ocampo
d. Elena Ocampo, all living, and
e. Antonieta Ocampo Barcenilla (deceased), survived by claimant Jose Barcenilla, Jr.
5. Cosme Borromeo, another brother of Vito Borromeo, died before the war and left the following
children:
a. Marcial Borromeo
b. Carlos Borromeo,who died on Jan. 18, 1965,survived by his wife, Remedios Alfonso, and
his only daughter, Amelinda Borromeo Talam
c. Asuncion Borromeo
d. Florentina Borromeo, who died in 1948.
e. Amilio Borromeo, who died in 1944.
f. Carmen Borromeo, who died in 1925.
The last three died leaving no issue.
6. Jose Ma. Borromeo, another brother of Vito Borromeo, died before the war and left the following
children:
a. Exequiel Borromeo,who died on December 29, 1949
b. Canuto Borromeo, who died on Dec. 31, 1959, leaving the following children:

aa. Federico Borromeo

bb. Marisol Borromeo (Maria B. Putong, Rec. p. 85)
cc. Canuto Borromeo, Jr.
dd. Jose Borromeo
ee. Consuelo Borromeo
ff. Pilar Borromeo
gg. Salud Borromeo
hh. Patrocinio Borromeo Herrera
c. Maximo Borromeo, who died in July, 1948
d. Matilde Borromeo, who died on Aug. 6, 1946
e. Andres Borromeo, who died on Jan. 3, 1923, but survived by his children:
aa. Maria Borromeo Atega
bb. Luz Borromeo
cc. Hermenegilda Borromeo Nonnenkamp
dd. Rosario Borromeo
ee. Fe Borromeo Queroz
On April 10, 1969, the trial court, invoking Art. 972 of the Civil Code, issued an order declaring the
following, to the exclusion of all others, as the intestate heirs of the deceased Vito Borromeo:
1. Jose Cuenco Borromeo
2. Judge Crispin Borromeo
3. Vitaliana Borromeo
4. Patrocinio Borromeo Herrera
5. Salud Borromeo
6. Asuncion Borromeo
7. Marcial Borromeo

8. Amelinda Borromeo de Talam, and

9. The heirs of Canuto Borromeo
The court also ordered that the assets of the intestate estate of Vito Borromeo shall be divided into
4/9 and 5/9 groups and distributed in equal and equitable shares among the 9 abovenamed declared
intestate heirs.
On April 21 and 30, 1969, the declared heirs, with the exception of Patrocinio B. Herrera, signed an
agreement of partition of the properties of the deceased Vito Borromeo which was approved by the
trial court, in its order of August 15, 1969. In this same order, the trial court ordered the administrator,
Atty Jesus Gaboya, Jr., to partition the properties of the deceased in the way and manner they are
divided and partitioned in the said Agreement of Partition and further ordered that 40% of the market
value of the 4/9 and 5/9 of the estate shall be segregated. All attorney's fees shall be taken and paid
from this segregated portion.
On August 25, 1972, respondent Fortunato Borromeo, who had earlier claimed as heir under the
forged will, filed a motion before the trial court praying that he be declared as one of the heirs of the
deceased Vito Borromeo, alleging that he is an illegitimate son of the deceased and that in the
declaration of heirs made by the trial court, he was omitted, in disregard of the law making him a
forced heir entitled to receive a legitime like all other forced heirs. As an acknowledged illegitimate
child, he stated that he was entitled to a legitime equal in every case to four-fifths of the legitime of
an acknowledged natural child.
Finding that the motion of Fortunato Borromeo was already barred by the order of the court dated
April 12, 1969 declaring the persons named therein as the legal heirs of the deceased Vito
Borromeo, the court dismissed the motion on June 25, 1973.
Fortunato Borromeo filed a motion for reconsideration. In the memorandum he submitted to support
his motion for reconsideration, Fortunato changed the basis for his claim to a portion of the estate.
He asserted and incorporated a Waiver of Hereditary Rights dated July 31, 1967, supposedly signed
by Pilar N. Borromeo, Maria B. Putong, Jose Borromeo, Canuto V. Borromeo, Jr., Salud Borromeo,
Patrocinio Borromeo-Herrera, Marcial Borromeo, Asuncion Borromeo, Federico V. Borromeo,
Consuelo B. Morales, Remedios Alfonso and Amelinda B. Talam In the waiver, five of the nine heirs
relinquished to Fortunato their shares in the disputed estate. The motion was opposed on the ground
that the trial court, acting as a probate court, had no jurisdiction to take cognizance of the claim; that
respondent Fortunato Borromeo is estopped from asserting the waiver agreement; that the waiver
agreement is void as it was executed before the declaration of heirs; that the same is void having
been executed before the distribution of the estate and before the acceptance of the inheritance; and
that it is void ab initio and inexistent for lack of subject matter.
On December 24, 1974, after due hearing, the trial court concluding that the five declared heirs who
signed the waiver agreement assigning their hereditary rights to Fortunato Borromeo had lost the
same rights, declared the latter as entitled to 5/9 of the estate of Vito Borromeo.
A motion for reconsideration of this order was denied on July 7, 1975.

In the present petition, the petitioner seeks to annul and set aside the trial court's order dated
December 24, 1974, declaring respondent Fortunato Borromeo entitled to 5/9 of the estate of Vito
Borromeo and the July 7, 1975 order, denying the motion for reconsideration.
The petitioner argues that the trial court had no jurisdiction to take cognizance of the claim of
respondent Fortunato Borromeo because it is not a money claim against the decedent but a claim
for properties, real and personal, which constitute all of the shares of the heirs in the decedent's
estate, heirs who allegedly waived their rights in his favor. The claim of the private respondent under
the waiver agreement, according to the petitioner, may be likened to that of a creditor of the heirs
which is improper. He alleges that the claim of the private respondent under the waiver agreement
was filed beyond the time allowed for filing of claims as it was filed only sometime in 1973, after
there had been a declaration of heirs (April 10, 1969), an agreement of partition (April 30, 1969), the
approval of the agreement of partition and an order directing the administrator to partition the estate
(August 15, 1969), when in a mere memorandum, the existence of the waiver agreement was
brought out.
It is further argued by the petitioner that the document entitled " waiver of Hereditary Rights"
executed on July 31, 1967, aside from having been cancelled and revoked on June 29, 1968, by
Tomas L. Borromeo, Fortunato Borromeo and Amelia Borromeo, is without force and effect because
there can be no effective waiver of hereditary rights before there has been a valid acceptance of the
inheritance the heirs intend to transfer. Pursuant to Article 1043 of the Civil Code, to make
acceptance or repudiation of inheritance valid, the person must be certain of the death of the one
from whom he is to inherit and of his right to the inheritance. Since the petitioner and her co-heirs
were not certain of their right to the inheritance until they were declared heirs, their rights were,
therefore, uncertain. This view, according to the petitioner, is also supported by Article 1057 of the
same Code which directs heirs, devicees, and legatees to signify their acceptance or repudiation
within thirty days after the court has issued an order for the distribution of the estate.
Respondent Fortunato Borromeo on the other hand, contends that under Article 1043 of the Civil
Code there is no need for a person to be first declared as heir before he can accept or repudiate an
inheritance. What is required is that he must first be certain of the death of the person from whom he
is to inherit and that he must be certain of his right to the inheritance. He points out that at the time of
the signing of the waiver document on July 31, 1967, the signatories to the waiver document were
certain that Vito Borromeo was already dead as well as of their rights to the inheritance as shown in
the waiver document itself.
With respect to the issue of jurisdiction of the trial court to pass upon the validity of the waiver of
hereditary rights, respondent Borromeo asserts that since the waiver or renunciation of hereditary
rights took place after the court assumed jurisdiction over the properties of the estate it partakes of
the nature of a partition of the properties of the estate needing approval of the court because it was
executed in the course of the proceedings. lie further maintains that the probate court loses
jurisdiction of the estate only after the payment of all the debts of the estate and the remaining estate
is distributed to those entitled to the same.
The prevailing jurisprudence on waiver of hereditary rights is that "the properties included in an
existing inheritance cannot be considered as belonging to third persons with respect to the heirs,
who by fiction of law continue the personality of the former. Nor do such properties have the
character of future property, because the heirs acquire a right to succession from the moment of the
death of the deceased, by principle established in article 657 and applied by article 661 of the Civil

Code, according to which the heirs succeed the deceased by the mere fact of death. More or less,
time may elapse from the moment of the death of the deceased until the heirs enter into possession
of the hereditary property, but the acceptance in any event retroacts to the moment of the death, in
accordance with article 989 of the Civil Code. The right is vested, although conditioned upon the
adjudication of the corresponding hereditary portion." (Osorio v. Osorio and Ynchausti Steamship
Co., 41 Phil., 531). The heirs, therefore, could waive their hereditary rights in 1967 even if the order
to partition the estate was issued only in 1969.
In this case, however, the purported "Waiver of Hereditary Rights" cannot be considered to be
effective. For a waiver to exist, three elements are essential: (1) the existence of a right; (2) the
knowledge of the existence thereof; and (3) an intention to relinquish such right. (People v. Salvador,
(CA) 53 O.G. No. 22, p. 8116, 8120). The intention to waive a right or advantage must be shown
clearly and convincingly, and when the only proof of intention rests in what a party does, his act
should be so manifestly consistent with, and indicative of an intent to, voluntarily relinquish the
particular right or advantage that no other reasonable explanation of his conduct is possible (67 C.J.,
311). (Fernandez v. Sebido, et al., 70 Phil., 151, 159).
The circumstances of this case show that the signatories to the waiver document did not have the
clear and convincing intention to relinquish their rights, Thus: (1) On October 27, 1967. Fortunato,
Tomas, and Amelia Borromeo filed a pleading entitled "Compliance" wherein they submitted a
proposal for the amicable settlement of the case. In that Compliance, they proposed to concede to
all the eight (8) intestate heirs of Vito Borromeo all properties, personal and real, including all cash
and sums of money in the hands of the Special Administrator, as of October 31, 1967, not contested
or claimed by them in any action then pending in the Court of First Instance of Cebu. In turn, the
heirs would waive and concede to them all the 14 contested lots. In this document, the respondent
recognizes and concedes that the petitioner, like the other signatories to the waiver document, is an
heir of the deceased Vito Borromeo, entitled to share in the estate. This shows that the "Waiver of
Hereditary Rights" was never meant to be what the respondent now purports it to be. Had the intent
been otherwise, there would not be any reason for Fortunato, Tomas, and Amelia Borromeo to
mention the heirs in the offer to settle the case amicably, and offer to concede to them parts of the
estate of the deceased; (2) On April 21 and 30, 1969, the majority of the declared heirs executed an
Agreement on how the estate they inherited shall be distributed. This Agreement of Partition was
approved by the trial court on August 15, 1969; (3) On June 29, 1968, the petitioner, among others,
signed a document entitled Deed of Assignment" purporting to transfer and assign in favor of the
respondent and Tomas and Amelia Borromeo all her (Patrocinio B. Herrera's) rights, interests, and
participation as an intestate heir in the estate of the deceased Vito Borromeo. The stated
consideration for said assignment was P100,000.00; (4) On the same date, June 29, 1968, the
respondent Tomas, and Amelia Borromeo (assignees in the aforementioned deed of assignment) in
turn executed a "Deed of Reconveyance" in favor of the heirs-assignors named in the same deed of
assignment. The stated consideration was P50,000.00; (5) A Cancellation of Deed of Assignment
and Deed of Reconveyance was signed by Tomas Borromeo and Amelia Borromeo on October 15,
1968, while Fortunato Borromeo signed this document on March 24, 1969.
With respect to the issue of jurisdiction, we hold that the trial court had jurisdiction to pass upon the
validity of the waiver agreement. It must be noted that in Special Proceedings No. 916-R the lower
court disallowed the probate of the will and declared it as fake. Upon appeal, this Court affirmed the
decision of the lower court on March 30, 1967, in G.R. No. L-18498. Subsequently, several parties
came before the lower court filing claims or petitions alleging themselves as heirs of the intestate
estate of Vito Borromeo. We see no impediment to the trial court in exercising jurisdiction and trying

the said claims or petitions. Moreover, the jurisdiction of the trial court extends to matters incidental
and collateral to the exercise of its recognized powers in handling the settlement of the estate.
In view of the foregoing, the questioned order of the trial court dated December 24, 1974, is hereby
SET ASIDE.
G.R. No. 55000
This case was originally an appeal to the Court of Appeals from an order of the Court of First
Instance of Cebu, Branch 11, dated December 24, 1974, declaring the waiver document earlier
discussed in G.R. No. 41171 valid. The appellate court certified this case to this Court as the
questions raised are all of law.
The appellants not only assail the validity of the waiver agreement but they also question the
jurisdiction of the lower court to hear and decide the action filed by claimant Fortunato Borromeo.
The appellants argue that when the waiver of hereditary right was executed on July 31, 1967, Pilar
Borromeo and her children did not yet possess or own any hereditary right in the intestate estate of
the deceased Vito Borromeo because said hereditary right was only acquired and owned by them on
April 10, 1969, when the estate was ordered distributed.
They further argue that in contemplation of law, there is no such contract of waiver of hereditary right
in the present case because there was no object, which is hereditary right, that could be the subject
matter of said waiver, and, therefore, said waiver of hereditary right was not only null and void ab
initio but was inexistent.
With respect to the issue of jurisdiction, the appellants contend that without any formal pleading filed
by the lawyers of Fortunato Borromeo for the approval of the waiver agreement and without notice to
the parties concerned, two things which are necessary so that the lower court would be vested with
authority and jurisdiction to hear and decide the validity of said waiver agreement, nevertheless, the
lower court set the hearing on September 25, 1973 and without asking for the requisite pleading.
This resulted in the issuance of the appealed order of December 24, 1974, which approved the
validity of the waiver agreement. The appellants contend that this constitutes an error in the exercise
of jurisdiction.
The appellee on the other hand, maintains that by waiving their hereditary rights in favor of Fortunato
Borromeo, the signatories to the waiver document tacitly and irrevocably accepted the inheritance
and by virtue of the same act, they lost their rights because the rights from that moment on became
vested in Fortunato Borromeo.
It is also argued by the appellee that under Article 1043 of the Civil Code there is no need for a
person to be declared as heir first before he can accept or repudiate an inheritance. What is required
is that he is certain of the death of the person from whom he is to inherit, and of his right to the
inheritance. At the time of the signing of the waiver document on July 31, 1967, the signatories to the
waiver document were certain that Vito Borromeo was already dead and they were also certain of
their right to the inheritance as shown by the waiver document itself.
On the allegation of the appellants that the lower court did not acquire jurisdiction over the claim
because of the alleged lack of a pleading invoking its jurisdiction to decide the claim, the appellee

asserts that on August 23, 1973, the lower court issued an order specifically calling on all oppositors
to the waiver document to submit their comments within ten days from notice and setting the same
for hearing on September 25, 1973. The appellee also avers that the claim as to a 5/9 share in the
inheritance involves no question of title to property and, therefore, the probate court can decide the
question.
The issues in this case are similar to the issues raised in G.R. No. 41171. The appellants in this
case, who are all declared heirs of the late Vito Borromeo are contesting the validity of the trial
court's order dated December 24, 1974, declaring Fortunato Borromeo entitled to 5/9 of the estate of
Vito Borromeo under the waiver agreement.
As stated in G.R. No. 41171, the supposed waiver of hereditary rights can not be validated. The
essential elements of a waiver, especially the clear and convincing intention to relinquish hereditary
rights, are not found in this case.
The October 27, 1967 proposal for an amicable settlement conceding to all the eight (8) intestate
heirs various properties in consideration for the heirs giving to the respondent and to Tomas, and
Amelia Borromeo the fourteen (14) contested lots was filed inspite of the fact that on July 31, 1967,
some of the heirs had allegedly already waived or sold their hereditary rights to the respondent.
The agreement on how the estate is to be distributed, the June 29, 1968 deed of assignment, the
deed of reconveyance, and the subsequent cancellation of the deed of assignment and deed of
reconveyance all argue against the purported waiver of hereditary rights.
Concerning the issue of jurisdiction, we have already stated in G.R. No. 41171 that the trial court
acquired jurisdiction to pass upon the validity of the waiver agreement because the trial court's
jurisdiction extends to matters incidental and collateral to the exercise of its recognized powers in
handling the settlement of the estate.
The questioned order is, therefore, SET ASIDE.
G.R. No. 62895
A motion dated April 28, 1972, was filed by Atty. Raul M. Sesbreno, representative of some of the
heirs-distributees, praying for the immediate closure of Special Proceeding No. 916-R. A similar
motion dated May 29, 1979 was filed by Atty. Jose Amadora. Both motions were grounded on the
fact that there was nothing more to be done after the payment of all the obligations of the estate
since the order of partition and distribution had long become final.
Alleging that respondent Judge Francisco P. Burgos failed or refused to resolve the aforesaid
motions, petitioner Jose Cuenco Borromeo-filed a petition for mandamus before the Court of
Appeals to compel the respondent judge to terminate and close Special Proceedings No. 916-R.
Finding that the inaction of the respondent judge was due to pending motions to compel the
petitioner, as co-administrator, to submit an inventory of the real properties of the estate and an
accounting of the cash in his hands, pending claims for attorney's fees, and that mandamus will not
lie to compel the performance of a discretionary function, the appellate court denied the petition on
May 14, 1982. The petitioner's motion for reconsideration was likewise denied for lack of merit.
Hence, this petition.

The petitioner's stand is that the inaction of the respondent judge on the motion filed on April 28,
1972 for the closure of the administration proceeding cannot be justified by the filing of the motion for
inventory and accounting because the latter motion was filed only on March 2, 1979. He claimed that
under the then Constitution, it is the duty of the respondent judge to decide or resolve a case or
matter within three months from the date of its submission.
The respondents contend that the motion to close the administration had already been resolved
when the respondent judge cancelled all settings of all incidents previously set in his court in an
order dated June 4, 1979, pursuant to the resolution and restraining order issued by the Court of
Appeals enjoining him to maintain status quo on the case.
As stated in G.R. No. 41171, on April 21 and 30, 1969, the declared heirs, with the exception of
Patrocinio B. Herrera, signed an agreement of partition of the properties of the deceased Vito
Borromeo which was approved by the trial court, in its order dated August 15, 1969. In this same
order, the trial court ordered the administrator, Atty. Jesus Gaboya, Jr., to partition the properties of
the deceased in the way and manner they are divided and partitioned in the said Agreement of
Partition and further ordered that 40% of the market value of the 4/9 and 5/9 of the estate shall be
segregated and reserved for attorney's fees.
According to the manifestation of Judge Francisco Burgos dated July 5, 1982, (p. 197, Rollo, G. R.
No. 41171) his court has not finally distributed to the nine (9) declared heirs the properties due to the
following circumstances:
1. The court's determination of the market value of the estate in order to segregate the 40%
reserved for attorney's fees;
2. The order of December 24, 1974, declaring Fortunato Borromeo as beneficiary of the 5/9
of the estate because of the waiver agreement signed by the heirs representing the 5/9
group which is still pending resolution by this Court (G.R. No. 4117 1);
3. The refusal of administrator Jose Cuenco Borromeo to render his accounting; and
4. The claim of Marcela Villegas for 1/2 of the estate causing annotations of notices of lis
pendens on the different titles of the properties of the estate.
Since there are still real properties of the estate that were not vet distributed to some of the declared
heirs, particularly the 5/9 group of heirs due to the pending resolution of the waiver agreement, this
Court in its resolution of June 15, 1983, required the judge of the Court of First Instance of Cebu,
Branch 11, to expedite the determination of Special Proceedings No. 916-R and ordered the coadministrator Jose Cuenco Borromeo to submit an inventory of real properties of the estate and to
render an accounting of cash and bank deposits realized from rents of several properties.
The matter of attorney's fees shall be discussed in G.R. No. 65995.
Considering the pronouncements stated in:
1. G.R. No. 41171 & G.R. No. 55000, setting aside the Order of the trial court dated
December 24, 1974;

2. G.R. No. 63818, denying the petition for review seeking to modify the decision of the
Intermediate Appellate Court insofar as it disqualifies and inhibits Judge Francisco P. Burgos
from further hearing the Intestate Estate of Vito Borromeo and ordering the remand of the
case to the Executive,Judge of the Regional trial Court of Cebu for re-raffling; and
3. G.R. No. 65995, granting the petition to restrain the respondents from further acting on
any and all incidents in Special proceedings No. 916-11 because of the affirmation of the
decision of the Intermediate Appellate Court in G.R. No. 63818.
the trial court may now terminate and close Special Proceedings No. 916-R, subject to the
submission of an inventory of the real properties of the estate and an accounting of the call and bank
deposits of the petitioner, as co-administrator of the estate, if he has not vet done so, as required by
this Court in its Resolution dated June 15, 1983. This must be effected with all deliberate speed.
G.R. No. 63818
On June 9, 1979, respondents Jose Cuenco Borromeo and Petra 0. Borromeo filed a motion for
inhibition in the Court of First Instance of Cebu, Branch 11, presided over by Judge Francisco P.
Burgos to inhibit the judge from further acting in Special Proceedings No. 916-R. 'The movants
alleged, among others, the following:
xxx

xxx

xxx

6. To keep the agitation to sell moving, Atty. Antigua filed a motion for the production of the
certificates of title and to deposit the same with the Branch Clerk of Court, presumably for the
ready inspection of interested buyers. Said motion was granted by the Hon. Court in its order
of October 2, 1978 which, however, became the subject of various motions for
reconsideration from heirs-distributees who contended that as owners they cannot be
deprived of their titles for the flimsy reasons advanced by Atty, Antigua. In view of the
motions for reconsideration, Atty Antigua ultimately withdraw his motions for production of
titles.
7. The incident concerning the production of titles triggered another incident involving Atty.
Raul H. Sesbreno who was then the counsel of herein movants Petra O. Borromeo and
Amelinda B. Talam In connection with said incident, Atty. Sesbreno filed a pleading which the
tion. presiding, Judge Considered direct contempt because among others, Atty. Sesbreno
insinuated that the Hon. Presiding Judge stands to receive "fat commission" from the sale of
the entire property. Indeed, Atty. Sesbreno was seriously in danger of being declared in
contempt of court with the dim prospect of suspension from the practice of his profession.
But obviously to extricate himself from the prospect of contempt and suspension. Atty.
Sesbreno chose rapproachment and ultimately joined forces with Atty. Antigua, et al., who,
together, continued to harass administrator
xxx

xxx

xxx

9. The herein movants are informed and so they allege, that a brother of the Hon. Presiding
Judge is married to a sister of Atty. Domingo L. Antigua.

10. There is now a clear tug of war bet ween Atty. Antigua, et al. who are agitating for the
sale of the entire estate or to buy out the individual heirs, on the one hand, and the herein
movants, on the other, who are not willing to sell their distributive shares under the terms and
conditions presently proposed. In this tug of war, a pattern of harassment has become
apparent against the herein movants, especially Jose Cuenco Borromeo. Among the
harassments employed by Atty Antigua et al. are the pending motions for the removal of
administrator Jose Cuenco Borromeo, the subpoena duces tecum issued to the bank which
seeks to invade into the privacy of the personal account of Jose Cuenco Borromeo, and the
other matters mentioned in paragraph 8 hereof. More harassment motions are expected until
the herein movants shall finally yield to the proposed sale. In such a situation, the herein
movants beg for an entirely independent and impartial judge to pass upon the merits of said
incidents.
11. Should the Hon. Presiding Judge continue to sit and take cognizance of this proceeding,
including the incidents above-mentioned, he is liable to be misunderstood as being biased in
favor of Atty Antigua, et al. and prejudiced against the herein movants. Incidents which may
create this impression need not be enumerated herein. (pp. 39-41, Rollo)
The motion for inhibition was denied by Judge Francisco P. Burgos. Their motion for reconsideration
having been denied, the private respondents filed a petition for certiorari and/or prohibition with
preliminary injunction before the Intermediate Appellate Court.
In the appellate court, the private respondents alleged, among others, the following:
xxx

xxx

xxx

16. With all due respect, petitioners regret the necessity of having to state herein that
respondent Hon. Francisco P. Burgos has shown undue interest in pursing the sale initiated
by Atty. Domingo L. Antigua, et al. Significantly, a brother of respondent Hon. Francisco P.
Burgos is married to a sister of Atty. Domingo L. Antigua.
17. Evidence the proposed sale of the entire properties of the estate cannot be legally done
without the conformity of the heirs-distributees because the certificates of title are already
registered in their names Hence, in pursuit of the agitation to sell, respondent Hon. Francisco
P. Burgos urged the heirs-distributees to sell the entire property based on the rationale that
proceeds thereof deposited in the bank will earn interest more than the present income of
the so called estate. Most of the heirs-distributees, however. have been petitioner timid to
say their piece. Only the 4/9 group of heirs led by Jose Cuenco Borromeo have had the
courage to stand up and refuse the proposal to sell clearly favored by respondent Hon.
Francisco P. Burgos.
xxx

xxx

xxx

20. Petitioners will refrain from discussing herein the merits of the shotgun motion of Atty.
Domingo L. Antigua as well as other incidents now pending in the court below which smack
of harassment against the herein petitioners. For, regardless of the merits of said incidents,
petitioners respectfully contend that it is highly improper for respondent Hon. Francisco P.
Burgos to continue to preside over Sp. Proc. No. 916-R by reason of the following
circumstances:

(a) He has shown undue interest in the sale of the properties as initiated by Atty.
Domingo L. Antigua whose sister is married to a brother of respondent.
(b) The proposed sale cannot be legally done without the conformity of the heirsdistributees, and petitioners have openly refused the sale, to the great
disappointment of respondent.
(c) The shot gun motion of Atty. Antigua and similar incidents are clearly intended to
harass and embarrass administrator Jose Cuenco Borromeo in order to pressure him
into acceding to the proposed sale.
(d) Respondent has shown bias and prejudice against petitioners by failing to resolve
the claim for attorney's fees filed by Jose Cuenco Borromeo and the late Crispin
Borromeo. Similar claims by the other lawyers were resolved by respondent after
petitioners refused the proposed sale. (pp. 41-43, Rollo)
On March 1, 1983, the appellate court rendered its decision granting the petition for certiorari and/or
prohibition and disqualifying Judge Francisco P. Burgos from taking further cognizance of Special
Proceedings No. 916-R. The court also ordered the transmission of the records of the case to the
Executive Judge of the Regional Trial Court of Region VII for re-raffling.
A motion for reconsideration of the decision was denied by the appellate court on April 11, 1983.
Hence, the present petition for review seeking to modify the decision of the Intermediate Appellate
Court insofar as it disqualifies and inhibits Judge Francisco P. Burgos from further hearing the case
of Intestate Estate of Vito Borromeo and orders the remand of the case to the Executive Judge of the
Regional Trial Court of Cebu for re-raffling.
The principal issue in this case has become moot and academic because Judge Francisco P.
Burgos decided to retire from the Regional Trial Court of Cebu sometime before the latest
reorganization of the judiciary. However, we decide the petition on its merits for the guidance of the
judge to whom this case will be reassigned and others concerned.
The petitioners deny that respondent Jose Cuenco Borromeo has been harassed. They contend that
Judge Burgos has benn shown unusual interest in the proposed sale of the entire estate for
P6,700,000.00 in favor of the buyers of Atty. Antigua. They claim that this disinterest is shown by the
judge's order of March 2, 1979 assessing the property of the estate at P15,000,000.00. They add
that he only ordered the administrator to sell so much of the properties of the estate to pay the
attorney's fees of the lawyers-claimants. To them, the inhibition of Judge Burgos would have been
unreasonable because his orders against the failure of Jose Cuenco Borromeo, as administrator, to
give an accounting and inventory of the estate were all affirmed by the appellate court. They claim
that the respondent court, should also have taken judicial notice of the resolution of this Court
directing the said judge to "expedite the settlement and adjudication of the case" in G.R. No. 54232.
And finally, they state that the disqualification of judge Burgos would delay further the closing of the
administration proceeding as he is the only judge who is conversant with the 47 volumes of the
records of the case.
Respondent Jose Cuenco Borromeo, to show that he had been harassed. countered that Judge
Burgos appointed Ricardo V. Reyes as co-administrator of the estate on October 11, 1972, yet
Borromeo was singled out to make an accounting of what t he was supposed to have received as

rentals for the land upon which the Juliana Trade Center is erected, from January, 1977 to February
1982, inclusive, without mentioning the withholding tax for the Bureau of Internal Revenue. In order
to bolster the agitation to sell as proposed by Domingo L. Antigua, Judge Burgos invited Antonio
Barredo, Jr., to a series of conferences from February 26 to 28, 1979. During the conferences, Atty.
Antonio Barredo, Jr., offered to buy the shares of the heirs-distributees presumably to cover up the
projected sale initiated by Atty. Antigua.
On March 2, 1979, or two days after the conferences, a motion was filed by petitioner Domingo L.
Antigua praying that Jose Cuenco Borromeo be required to file an inventory when he has already
filed one to account for cash, a report on which the administrators had already rendered: and to
appear and be examined under oath in a proceeding conducted by Judge Burgos lt was also prayed
that subpoena duces tecum be issued for the appearance of the Manager of the Consolidated Bank
and Trust Co., bringing all the bank records in the name of Jose Cuenco Borromeo jointly with his
wife as well as the appearance of heirs-distributees Amelinda Borromeo Talam and another heir
distributee Vitaliana Borromeo. Simultaneously with the filing of the motion of Domingo Antigua, Atty.
Raul H. Sesbreno filed a request for the issuance of subpoena duces tecum to the Manager of
Consolidated Bank and 'Trust Co., Inc.; Register of Deeds of Cebu City; Register of Deeds for the
Province of Cebu and another subpoena duces tecum to Atty. Jose Cuenco Borromeo.
On the same date, the Branch Clerk of Court issued a subpoena duces tecum to the Managert of the
bank, the Register of deeds for the City of Cebu, the Register of Deeds for the Province, of Cebu.
and to Jose Cuenco Borromeo.
On the following day, March 3, 1979, Atty Gaudioso v. Villagonzalo in behalf of the heirs of Marcial
Borromeo who had a common cause with Atty Barredo, Jr., joined petitioner Domingo L. Antigua by
filing a motion for relief of the administrator.
On March 5, 1979, Atty. Villagonzalo filed a request for the issuance of a subpoena duces tecum to
private respondent Jose Cuenco Borromeo to bring and produce all the owners" copies of the titles
in the court presided order by Judge Burgos.
Consequently. the Branch Clerk of Court issued a subpoena duces tecum commanding Atty. Jose
Cuenco Borromeo to bring and produce the titles in court.
All the above-incidents were set for hearing on June 7, 1979 but on June 14, 1979, before the date
of the hearing, Judge Burgos issued an order denying the private respondents' motion for
reconsideration and the motion to quash the subpoena.
1avvphi1

It was further argued by the private respondents that if ,judge Francisco P. Burgos is not inhibited or
disqualified from trying Sp. Proc. No. 916-R, there would be a miscarriage of justice Because for the
past twelve years, he had not done anything towards the closure of the estate proceedings except to
sell the properties of the heirs-distributees as initiated by petitioner Domingo L. Antigua at 6.7 million
pesos while the Intestate Court had already evaluated it at 15 million pesos.
The allegations of the private respondents in their motion for inhibition, more specifically, the
insistence of the trial judge to sell the entire estate at P6,700,000.00, where 4/9 group of heirs
objected, cannot easily be ignored. Suspicion of partiality on the part of a trial judge must be avoided
at all costs. In the case of Bautista v. Rebeuno(81 SCRA 535), this Court stated:

... The Judge must maintain and preserve the trust and faith of the parties litigants. He must
hold himself above reproach and suspicion. At the very first sign of lack of faith and trust to
his actions, whether well grounded or not, the Judge has no other alternative but inhibit
himself from the case. A judge may not be legally Prohibited from sitting in a litigation, but
when circumstances appear that will induce doubt to his honest actuations and probity in
favor or of either partly or incite such state of mind, he should conduct a careful selfexamination. He should exercise his discretion in a way that the people's faith in the Courts
of Justice is not impaired, "The better course for the Judge under such circumstances is to
disqualify himself "That way he avoids being misunderstood, his reputation for probity and
objectivity is preserve ed. what is more important, the Ideal of impartial administration of
justice is lived up to.
In this case, the fervent distrust of the private respondents is based on sound reasons. As Earlier
stated, however, the petition for review seeking to modify the decision of the Intermediate Appellate
Court insofar as it disqualifies and inhibits Judge Francisco P. Burgos from further hearing the
Intestate Estate of Vito Borromeo case and ordering the remand of the case to the Executive Judge
of the Regional Trial Court for re-raffling should be DENIED for the decision is not only valid but the
issue itself has become moot and academic.
G.R. No. 65995
The petitioners seek to restrain the respondents from further acting on any and all incidents in
Special Proceedings No. 916-R during the pendency of this petition and No. 63818. They also pray
that all acts of the respondents related to the said special proceedings after March 1, 1983 when the
respondent Judge was disqualified by the appellate court be declared null and void and without force
and effect whatsoever.
The petitioners state that the respondent Judge has set for hearing all incidents in Special
Proceedings No. 916-R, including the reversion from the heirs-distributees to the estate, of the
distributed properties already titled in their names as early as 1970, notwithstanding the pending
inhibition case elevated before this Court which is docketed as G.R. No. 63818.
The petitioners further argue that the present status of Special Proceeding No. 916-R requires only
the appraisal of the attorney's fees of the lawyers-claimants who were individually hired by their
respective heirs-clients, so their attorney's fees should be legally charged against their respective
clients and not against the estate.
On the other hand, the respondents maintain that the petition is a dilatory one and barred by res
judicata because this Court on July 8, 1981, in G.R. No. 54232 directed the respondent Judge to
expedite the settlement and liquidation of the decedent's estate. They claim that this resolution,
which was already final and executory, was in effect reversed and nullified by the Intermediate
Appellate Court in its case-AC G.R.-No. SP - 11145 when it granted the petition for certiorari and
or prohibition and disqualified Judge Francisco P. Burgos from taking further cognizance of Special
Proceedings No. 916R as well as ordering the transmission of the records of the case to the
Executive Judge of the Regional Trial Court of Region VII for re-raffling on March 1, 1983, which was
appealed to this Court by means of a Petition for Review (G.R. No. 63818).
We agree with the petitioners' contention that attorney's fees are not the obligation of the estate but
of the individual heirs who individually hired their respective lawyers. The portion, therefore, of the

Order of August 15, 1969, segregating the exhorbitantly excessive amount of 40% of the market
value of the estate from which attorney's fees shall be taken and paid should be deleted.
Due to our affirmance of the decision of the Intermediate Appellate Court in G.R. No. 63818, we
grant the petition.
WHEREFORE,
(1) In G.R. No. 41171, the order of the respondent judge dated December 24, 1974,
declaring the respondent entitled to 5/9 of the estate of the late Vito Borromeo and the order
dated July 7, 1975, denying the petitioner's motion for reconsideration of the aforementioned
order are hereby SET ASIDE for being NULL and VOID;
(2) In G.R. No. 55000, the order of the trial court declaring the waiver document valid is
hereby SET ASIDE;
(3) In G.R. No. 63818, the petition is hereby DENIED. The issue in the decision of the
Intermediate Appellate Court disqualifying and ordering the inhibition of Judge Francisco P.
Burgos from further hearing Special Proceedings No. 916-R is declared moot and academic.
The judge who has taken over the sala of retired Judge Francisco P. Burgos shall
immediately conduct hearings with a view to terminating the proceedings. In the event that
the successor-judge is likewise disqualified, the order of the Intermediate Appellate Court
directing the Executive Judge of the Regional Trial Court of Cebu to re-raffle the case shall
be implemented:
(4) In G.R. No. 65995, the petition is hereby GRANTED. 'The issue seeking to restrain Judge
Francisco P. Burgos from further acting in G.R. No. 63818 is MOOT and ACADEMIC:
(5) In G.R, No, 62895, the trial court is hereby ordered to speedily terminate the close
Special Proceedings No. 916-R, subject to the submission of an inventory of the real
properties of the estate and an accounting of the cash and bank deposits by the petitioneradministrator of the estate as required by this Court in its Resolution dated June 15, 1983;
and
(6) The portion of the Order of August 15, 1969, segregating 40% of the market value of the
estate from which attorney's fees shall be taken and paid should be, as it is hereby
DELETED. The lawyers should collect from the heirs-distributees who individually hired
them, attorney's fees according to the nature of the services rendered but in amounts which
should not exceed more than 20% of the market value of the property the latter acquired
from the estate as beneficiaries.
SO ORDERED.
Feliciano, Bidin and Cortes, JJ., concur.
Fernan (Chairman), took no part.