1 property that her husband may acquire and leave
[No. L-4963. January 29, 1953] upon his death, such renunciation cannot be
1. MARIA USON, plaintiff and appellee, vs. MARIA
DEL ROSARIO, CONCEPCION NEBREDA, CONRADO
NEBREDA, DOMINADOR NEBREDA, and FAUSTINO
NEBREDA, JR., defendants and appellants.
1.DESCENT AND DISTRIBUTION; HUSBAND AND WIFE;
RIGHTS OF LAWFUL WIFE AS AFFECTED BY THE NEW
CIVIL CODE.—The right of ownership of the lawful
wife of a decedent who had died before the new Civil
Code took effect became vested in her upon his
death, and this is so because of the imperative
provision of the law which commands that the
rights of succession are transmitted from the
moment of death (Art. 657, old Civil Code;
Ilustre vs. Frondosa, 17 Phil., 321). The new right
recognized by the new Civil Code in favor of the
illegitimate children of the deceased can not be
asserted to the
impairment of the vested right of the lawful wife
over the lands in dispute. While article 2253 of the
new Civil Code provides 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, yet this is so
only when the new rights do not prejudice any vested
or acquired right of the same origin.
2.ID.; ID.; RENUNCIATION OF INHERITANCE MADE BY
LAWFUL WIFE; FUTURE INHERITANCE, NOT SUBJECT
TO CONTRACT.—Although the lawful wife has
expressly renounced her right to inherit any future
entertained for the simple reason that future
inheritance cannot be the subject of a contract nor
can it be renounced (1 Manresa, 6th ed.,
123; Osorio vs. Osorio, et al., 41 Phil., 531).
3.ID.; ID.; DONATIONS BY
DECEASED; ESSENTIAL FORMALITIES
OF DONATION.—Assignments, if any, made by the
deceased of real property for which there was no
material consideration, should be made in a public
document and must be accepted either in the same
document or in a separate one (Art. 633, old Civil
Code). Assignments or donations which lack this
essential formality have no valid effect.
APPEAL from a judgment of the Court of First
Instance of Pangasinan. Martinez, J.
The facts are stated in the opinion of the Court.
Priscilo Evangelista for appellee.
Brigido G. Estrada for appellant.
BAUTISTA ANGELO, J.:
This is an action for the 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 agakist 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
532
532 PHILIPPINE REPORTS ANNOTATED
Uson vs. Del Rosario, et al.
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 de-
ceased 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,
Monte-mayor, Reyes, Jugo and Labrador, J J., concur.
Judgment affirmed.
2 577
VOL. 46, AUGUST 18, 1972
De Borja vs. Vda. de de Borja
No. L-28040. August 18, 1972.
TESTATE ESTATE OF JOSEFA TANGCO,JOSE DE
BORJA, admin-istrator-appellee; JOSE DE BORJA, as
administrator, CAYETANO DE BORJA,MATILDE DE
BORJA and CRISANTO DE BORJA (deceased) as
Children of Josefa Tangco, appellees, vs. TASIANA
VDA. DE DE BORJA, Special Ad-ministratrix of the
Testate Estate of Francisco de Bor-ja, appellant.
No. L-28568. August 18, 1972.
TESTATE ESTATE OF THE LATE F RANCISCO DE
B ORJA,TA-SIANA O. VDA. DE DE BORJA, special
Administratrix appellee, vs. JOSE DE BORJA,
oppositor-appellant.
No. L-28611. August 18, 1972.
TASIANA O. VDA. DE DE BORJA, as Administratrix
of the Tes-tate Estate of the late Francisco de Borja,
plaintiff-appellee, vs. JOSE DE BORJA, as
Administrator of the Testate Estate of the late Josefa
Tangco, defendant-appellant.
578
578 SUPREME COURT REPORTS ANNOTATED
De Borja vs. Vda. de de Borja
Civil law; Wills; Remedial law; Testate and
intestate pro. ceedings; Rule of nullity of extrajudicial
settlement prior to probate of will inapplicable to case
at bar.—The doctrine of Guevarra vs. Guevarra, 74
Phil. 479, which holds that the presentation of a will
for probate is mandatory and that the settlement and
distribution of an estate on the basis of intestacy when
the decedent left a will is against the law and public
policy, is not applicable where the clear abject of the
settlement was merely the conveyance by the heir of
any and all her individual share and interest, actual or
eventual, in the estate of the decedent and not the
distribution of the said estate among the heirs before
the probate of the will.
Remedial law; Testate and intestate
proceedings; Settlement entered into by heir in his
individual capacity does not need court approval.—
Where the compromise agreement entered into by and
between the various heirs in the personal capacity, the
same is binding upon them as individuals, upon the
perfection of the contract, even without previous
authority of the Court to enter into such agreement.
The only difference between an extrajudicial
compromise and one that is submitted and approved
by the Court, is that the latter can be enforced by
execu-tion proceedings.
Civil law; Succession; Heir may sell her hereditary
rights to co-heir.—As owner of her individual share, an
heir could dispose of it in favor of whomsoever she
chose, including another heir of the same defendant.
Such alienation is expressly recognized and provided
for by Article 1088 of the present Civil Code.
Same; Same; Case at bar, agreement does not
compromise status of heir and her marriage.—A
contract which describes one of the heirs as “the heir
and surviving spouse of Francisco de Borja by his
second marriage, Tasiana Ongsingco Vda. de Borja,” in
itself is a definite admission of such heir’s civil status
in relation to the decedent. There is nothing in the text
of the agreement that would show that this recognition
of Ong-singco’s status as the surviving spouse of
Francisco de Borja was only made in consideration of
the cession of her hereditary rights.
 Remedial law; Compromise; Inability of parties to
draw new agreement does not annul a prior one.—The
inability among the heirs to reach a novatory accord
can not invalidate the original compromise among
them and any of the latter is justified in finally
seeking a court order for the approval and enforcement
of such compromise.
Civil law; Contracts; Party who caused the delay in
the enforcement of a contract cannot complain of
subsequent devaluation of currency amd increase of
price of land.—In her brief, Ongsingco also pleads that
the time elapsed in the appeal has affected her
unfavorably, in that while the purchasing power of the
agreed price of P800,000 has diminished, the value of
the Jalajala property has increased. But the fact is
that her delay in receiving the payment of the agreed
price for her hereditary interest was primarily due to
her attempts to nullify the agreements she had
formally entered into with the advice of her counsel.
And as to the devaluation of our currency, what we
said in Dizon Rivera vs. Dizon, 33 SCRA, 554, that
“estates would never be settled if there were to be a
revaluation with every subsequent fluctuation in the
values of currency and properties of the estate,” is
particularly apposite in the present case.
Remedial law; Evidence; Case at bar. self-serving
statement of decedent overpowered by several
admissions against interest.—It may be true that the
inventories relied upon by defendant-appellant are not
conclusive on the conjugal character of the property in
question; but as already noted, they are clear
admissions against the pecuniary interest of the
declarants Fran-cisco de Borja and his executor-widow,
Tasiana Ongsingco, and as such of much greater
probative weight than the self-serving statement of
Francisco. Plainly, the legal presumption in favor of
the conjugal character of the Hacienda now in dispute
has not been rebutted but actually confirmed by proof.
L-28040
APPEAL from an order of the Court of First Instance
of Rizal (Branch I). Cecilio Muñoz-Palma, J.
The facts are stated in the opinion of the Court.
Pelaez, Jalandoni & Jamir for administrator-
appellee.
Quiogue & Quiogue for appellee Matilde de
Borja.
Andres Matias for appellee Cayetano de Borja.
Sevilla & Aquino for appellant.
L-28568
APPEAL from an order of the Court of First Instance
of Nueva Ecija. Cuevas, J .
The facts are stated in the opinion of the Court.
Sevilla & Aquino for special administratrix-
appellee.
Pelaez, Jdtandoni & Jamir for oppositor-
appellant.
580
580 SUPREME COURT REPORTS ANNOTATED
De Borja vs. Vda. de de Borja
L-28611
APPEAL from a decision of the Court of First Instance
of Rizal (Branch X). Mariano, J.
The facts are stated in the opinion of the Court.
Sevilla & Aquino for plaintiff-appellee.
Pelaez, Jalandoni & Jamir and David
Guevara for de-fendant-appellant.
REYES, J.B.L., J.:
Of these cases, the first, numbered L-28040 is an
appeal by Tasiana Ongsingco Vda. de de Borja, special
adminis-tratrix of the testate estate of Francisco de
Borja,1 from the approval of a compromise agreement
by the Court of First Instance of Rizal, Branch I, in its
Special Proceeding No. R-7866, entitled, “Testate
Estate of Josefa Tang-co, Jose de Borja,
Administrator”.
Case No. L-28568 is an appeal by administrator
Jose de Borja from the disapproval of the same
compromise agreement by the Court of First Instance
of Nueva Ecija, Branch II, in its Special Proceeding
No. 832, entitled, “Testate Estate of Francisco de
Borja, Tasiana O. Vda. de de Borja, Special
Administratrix”.
And Case No. L-28611 is an appeal by
administrator Jose de Borja from the decision of the
Court of First Instance of Rizal, Branch X, in its Civil
Case No. 7452, declaring the Hacienda Jalajala
Poblacion, which is the main object of the aforesaid
compromise agreement, as the separate and exclusive
property of the late Francisco de Borja and not a
conjugal asset of the community with his first wife,
Josefa Tangco, and that said hacienda pertains
exclusively to his testate estate, which is under
administration in Special Proceeding No. 832 of the
Court of First Instance of Nueva Ecija, Branch II.
_______________
1 She died during the pendency of these appeals,
being substituted by Atty. Luis Panaguiton, Jr.,
administrator of her estate (S. C. Resolution, 27
February 1970). It is uncontested that Francisco de
Borja, upon the death of his wife Josef a Tangco on 6
October 1940, filed a petition for the probate of her will
which was docketed as Special Proceeding No. R-7866
of the Court of First Instance of Rizal, Branch I. The
will was probated on 2 April 1941. In 1946, Francisco
de Borja was appointed executor and administrator: in
1952, their son, Jose de Borja, was appointed co-
administrator. When Francisco died, on 14 April 1954,
Jose became the sole administrator of the testate
estate of his mother, Jose Tangco. While a widower
Francisco de Borja allegedly took unto himself a
second wife, Tasiana Ongsingco. Upon Francisco’s
death, Tasiana instituted testate proceedings in the
Court of First Instance of Nueva Ecija, where, in 1955,
she was appointed special administratrix. The validity
of Tasiana’s marriage to Fran-cisco was questioned in
said proceeding.
The relationship between the children of the first
marriage and Tasiana Ongsingco has been plagued
with several court suits and counter-suits; including
the three cases at bar, some eighteen (18) cases remain
pending determination in the courts. The testate
estate of Josefa Tangco alone has been unsettled for
more than a quarter of a century. In order to put an
end to all these litigations, a compromise agreement
was entered into on 12 October 1963,2 by and between
“[T]he heir and son of Francisco de Borja by his first
marriage, namely, Jose de Borja personally and as
administrator of the Testate Estate of Josefa Tang-co,”
and “[T]he heir and surviving spouse of Francisco de
Borja by his second marriage, Tasiana Ongsingco Vda.
de Borja, assisted by her lawyer, Atty. Luis
Panaguiton, Jr.” The terms and conditions of the
compromise agreement are as follows:
“AGREEMENT
THIS AGREEMENT made and entered into by and
between
The heir and son of Francisco de Borja by his first
marriage, namely, Jose de Borja personally and as
administrator of the Testate Estate of Josefa Tangco,
_________________
2 Annex A, Record on Appeal, G.R. No. L-28040, pp.
16-21. AND
The heir and surviving spouse of Francisco de Borja
by his second marriage, Tasiana Ongsingco Vda. de
Borja, assisted by her lawyer, Atty. Luis Panaguiton,
Jr.
WITNESSETH
THAT it is the mutual desire of all the parties
herein to terminate and settle, with finality, the
various court litigations, controversies, claims,
counterclaims, etc., between them in connection with
the administration, settlement, partition, adjudication
and distribution of the assets as well as liabilities of
the estates of Francisco de Borja and Josefa Tangco,
first spouse of Francisco de Borja.
THAT with this end in view, the parties herein have
agreed voluntarily and without any reservations to
enter into and execute this agreement under the
following terms and conditions:
1. That the parties agree to sell the Poblacion
portion of the Jalajala properties situated in Jalajala,
Rizal, presently under administration in the Testate
Estate of Josefa Tangco (Sp. Proc. No. 7866, Rizal),
more specifically described as follows:
‘Linda al Norte con el Rio Puwang que la separa de la
jurisdiccion del Municipio de Pililla de la Provincia de
Rizal, y con el pico del Monte Zambrano; al Oeste con
la Laguna de Bay; por el Sur con los herederos de
Marcelo de Borja; y por el Este con los terrenos de la
Familia Maronilla’
with a segregated area of approximately 1,313
hectares at the amount of P0.30 per square meter.
2. That Jose de Borja agrees and obligates himself
to pay Tasiana Ongsingco Vda. de de Borja the total
amount of Eight Hundred Thousand Pesos (P800,000)
Philippine Currency, in cash, which represent
P200,000 as his share in the payment and P600,000 as
pro-rata shares of the heirs Crisanto, Cayetano, and
Matilde, all surnamed de Borja and this shall be
considered as full and complete payment and
settlement of her hereditary share in the estate of the
late Francisco de Borja as well as the estate of Josefa
Tangco, Sp. Proc. No. 832-Nueva Ecija and Sp. Proc.
No. 7866-Rizal, respectively, and to any properties
bequeathed or devised in her favor by the late
Francisco de Borja by Last Will and Testament or by
Doñation Inter Vivos or Mortis Causa or purportedly
conveyed to her for consideration or otherwise. The
funds for this payment shall be taken from and shall
depend upon the receipt of full payment
of the proceeds of the sale of Jalajala, ‘Poblacion.’ 3.
That Tasiana Ongsinco Vda. de de Borja hereby
assumes payment of that particular obligation
incurred by the late Francisco de Borja in favor of the
Rehabilitation Finance Corporation, now Development
Bank of the Philippines, amounting to approximately
P30,000.00 and also assumes payment of her 1/5 share
of the Estate and Inheritance taxes on the Estate of
the late Francisco de Borja or the sum of P3,500.00,
more or less, which shall be deducted by the buyer of
Jalajala, ‘Poblacion’ from the payment to be made to
Tasiana Ongsingco Vda. de Borja under paragraph 2 of
this Agreement and paid directly to the Development
Bank of the Philippines and the heirs-children of
Francisco de Borja.
4. Thereafter, the buyer of Jalajala ‘Poblacion’ is
hereby authorized to pay directly Tasiana Ongsingco
Vda. de de Borja the balance of the payment due her
under paragraph 2 of this Agreement (approximately
P766,500.00) and issue in the name of Tasiana
Ongsingco Vda. de de Borja, corresponding certified
checks/treasury warrants, who, in turn, will issue the
corresponding receipt to Jose de Borja.
5. In consideration of above payment to Tasiana
Ongsingco Vda. de de Borja, Jose de Borja personally
and as administrator of the Testate Estate of Josefa
Tangco, and Tasiana Ongsingco Vda. de de Borja, for
themselves and for their heirs, successors, executors,
administrators, and assigns, hereby forever mutually
renounce, withdraw, waive, remise, release and
discharge any and all manner of action or actions,
cause or causes of action, suits, debts, sum or sums of
money, accounts, damages, claims and demands
whatsoever, in law or in equity, which they ever had,
or now have or may have against each other, more
specifically Sp. Proceedings Nos. 7866 and 1955, CFI-
Rizal, and Sp. Proc. No. 832-Nueva Ecija, Civil Case
No. 3033, CFI-Nueva Ecija and Civil Case No. 7452-
CFI, Rizal, as well as the case filed against Manuel
Quijal for perjury with the Provincial Fistal of Rizal,
the intention being to completely, absolutely and
finally release each other, their heirs, successors, and
assigns, from any and all liability, arising wholly or
partially, directly or indirectly, from the
administration, settlement, and distribution of the
assets as well &s liabilities of the estates of Francisco
de Borja and Josefa Tangco, first spouse of Francisco
de Borja, and lastly, Tasiana Ongsingco Vda. de de
Borja expressly and specifically renounce absolutely
her rights as heir over any hereditary share in the
estate of Francisco de Borja.
 6. That Tasiana Ongsingco Vda. de de Borja, upon
receipt of the payment under paragraph 4 hereof, shall
deliver to the heir Jose de Borja all the papers, titles
and documents belong-ing to Francisco de Borja which
are in her possession and said heir Jose de Borja shall
issue in turn the corresponding receipt thereof.
7. That this agreement shall take effect only upon
the fulfillment of the sale of the properties mentioned
under paragraph 1 of this agreement and upon receipt
of the total and full payment of the proceeds of the sale
of the Jalajala property ‘Poblacion’, otherwise, the non-
fulfillment of the said sale will render this instrument
NULL AND VOID AND WITHOUT EFFECT
THEREAFTER.
IN WITNESS WHEREOF, the parties hereto have
here-unto set their hands in the City of Manila,
Philippines, this 12th of October, 1963.”
On 16 May 1968, Jose de Borja submitted for Court
approval the agreement of 12 October 1963 to the
Court of First Instance of Rizal, in Special Proceeding
No. R-7866; and again, on 8 August 1966, to the Court
of First Instance of Nueva Ecija, in Special Proceeding
No. 832. Tasiana Ongsingco Vda. de de Borja opposed
in both instances. The Rizal court approved the
compromise agreement, but the Nueva Ecija court
declared it void and unenforceable Special
administratrix Tasiana Ongsingco Vda. de de Borja
appealed the Rizal Court’s order of approval (now
Supreme Court G.R. case No. L-28040), while
administrator Jose de Borja appealed the order of
disapproval (G.R. case No. L-28568) by the Court of
First Instance of Nueva Ecija.
The genuineness and due execution of the
compromise agreement of 12 October 1963 is not
disputed, but its validity is, nevertheless, attacked by
Tasiana Ongsingco on the ground that: (1) the heirs
cannot enter into such kind of agreement without first
probating the will of Francisco de Borja; (2) that the
same involves a compromise on the validity of the
marriage between Francisco de Borja and Tasiana
Ongsingco; and (3) that even if it were valid, it has
ceased to have force and effect.
In assailing the validity of the agreement of 12
October 1963, Tasiana Ongsingco and the Probate
Court of Nueva Ecija rely on this Court’s decision in
Guevara vs. Guevara, 74 PhiL 479, wherein the
Court’s majority held the view that the presentation of
a will for probate is mandatory and that the
settlement and distribution of an estate on the basis of
intestacy when the decedent left a will, is against the
law and public policy. It is likewise pointed out by
appellant Tasiana Ongsingco that Section 1 of Rule 74
of the Revised Rules explicitly conditions the validity
of an extrajudicial settlement of a decedent’s estate by
agreement between heirs, upon the facts that “(if) the
decedent left no will and no debts, and the heirs are all
of age, or the minors are represented by their judicial
and legal representatives . . .” The will of Francisco de
Borja having been submitted to the Nueva Ecija Court
and still pending probate when the 1963 agreement
was made, those circumstances, it is argued, bar the
validity of the agreement.
 Upon the other hand, in claiming the validity of the
compromise agreement, Jose de Borja stresses that at
the time it was entered into, on 12 October 1963, the
governing provision was Section 1, Rule 74 of the
original Rules of Court of 1940, which allowed the
extrajudicial settlement of the estate of a deceased
person regardless of whether he left a will or not. He
also relies on the dissenting opinion of Justice Moran,
in Guevara vs. Guevara, 74 Phil. 479, wherein was
expressed the view that if the parties have already
divided the estate in accordance with a decedent’s will,
the probate of the will is a useless ceremony; and if
they have divided the estate in a different manner, the
probate of the will is worse than useless.
The doctrine of Guevara vs. Guevara, ante, is not
applicable to the case at bar. This is apparent from an
examination of the terms of the agreement between
Jose de Borja and Tasiana Ongsingco. Paragraph 2 of
said agreement specifically stipulates that the sum of
P800,000 payable to Tasiana Ongsingco—
“shall be considered as full—complete payment—
settlement of her hereditary share in the estate of the
late Francisco de Borja as well as the estate of Josefa
Tangco, xxx and to any properties bequeathed or
devised in her favor by the late Francisco de Borja by
Last Will and Testament or by Donation Inter Vivos or
Mortis Causa or purportedly conveyed to her for
consideration or otherwise.” This provision evidences
beyond doubt that the ruling in the Guevara case is
not applicable to the cases at bar. There was here no
attempt to settle or distribute the estate of Francisco
de Borja among the heirs thereto before the probate of
his will. The clear object of the contract was merely the
conveyance by Tasiana Ongsingco of any and all her
individual share and interest, actual or eventual, in
the estate of Francisco de Borja and Josefa Tangco.
There is no stipulation as to any other claimant,
creditor or legatee And as a hereditary share in a
decedent’s estate is transmitted or vested immediately
from the moment of the death of such causante or
predecessor in interest (Civil Code of the Philippines,
Art. 777)3 there is no legal bar to a successor (with
requisite contracting capacity) disposing of her or his
hereditary share immediately after such death, even if
the actual extent of such share is not determined until
the subsequent liquidation of the estate.4 Of course,
the effect of such alienation is to be deemed limited to
what is ultimately adjudicated to the vendor heir.
However, the aleatory character of the contract does
not affect the validity of the transaction; neither does
the coetaneous agreement that the numerous
litigations between the parties (the approving order of
the Rizal Court enumerates fourteen of them, Rec.
App. pp. 79-82) are to be considered settled and should
be dismissed, although such stipulation, as noted by
the Rizal Court, gives the contract the character of a
compromise that the law favors, for obvious reasons, if
only because it serves to avoid a multiplicity of suits.
It is likewise worthy of note in this connection that
as the surviving spouse of Francisco de Borja, Tasiana
Ong-singco was his compulsory heir under article
995 et seq. of the present Civil Code. Wherefore,
barring unworthiness or valid disinheritance, her
successional interest existed independent of Francisco
de Borja’s last will and tes-
_______________
3 Also: Osorio vs. Osorio Steamship Co., 41 Phil.
531; Baun vs. Heirs of Baun, 53 Phil. 654; Barretto vs.
Tuason, 59 Phil 845; Cuevas vs. Abesamis, 71 Phil.
147; Jayme vs. Gamboa, 75 Phil. 479; Iballe vs. Po.
4 Garcia vs. David, 67 Phil. 279; Jakosalem vs.
Rafols 73 Phil. 628. tament, and would exist even if
such will were not probated at all. Thus, the
prerequisite of a previous probate of the will, as
established in the Guevara and analogous cases, can
not apply to the case of Tasiana Ongsingco Vda. de de
Borja.
Since the compromise contract Annex A was
entered into by and between “Jose de Borja personally
and as administrator of the Testate Estate of Josefa
Tangco” on the one hand, and on the other, “the heir
and surviving spouse of Francisco de Borja by his
second marriage, Tasiana Ongsingco Vda. de de
Borja”, it is clear that the transaction was binding on
both in their individual capacities, upon the perfection
of the contract, even without previous authority of the
Court to enter into the same. The only difference
between an extrajudicial compromise and one that is
submitted and approved by the Court, is that the
latter can be enforced by execution proceedings. Art.
2037 of the Civil Code is explicit on the point:
Art. 2037. A compromise has upon the parties the
effect and authority of res judicata; but there shall be
no execution except in compliance with a judicial
compromise.
It is argued by Tasiana Ongsingco that while the
agreement Annex A expressed no definite period for its
performance, the same was intended to have a
resolutory period of 60 days for its effectiveness. In
support of such contention, it is averred that such a
limit was expressly stipulated in an agreement in
similar terms entered into by said Ongsingco with the
brothers and sister of Jose de Borja, to wit, Crisanto,
Matilde and Cayetano, all surnamed de Borja, except
that the consideration was fixed at P600,-000
(Opposition, Annex/Rec. of Appeal, L-28040, pp. 39-46)
and which contained the following clause:
“III. That this agreement, shall take effect only upon
the consummation of the sale of the property
mentioned herein and upon receipt of the total and full
payment of the proceeds of the sale by the herein
owner heirs-children of Francisco de Borja, namely,
Crisanto, Cayetano and Matilde, all surnamed de
Borja; Provided that if no sale of the said property
mentioned herein is consummated, or the non-receipt
of the purchase price thereof by the said owners within
the period of sixty (60) days from the date hereof, this
agreement will become null and void and of no further
effect.”
Ongsingco’s argument loses validity when it is
considered that Jose de Borja was not a party to this
particular contract (Annex 1), and that the same
appears not to have been finalized, since it bears no
date, the day being left blank “this d ay of O ctober
1963”; and while signed by the parties, it was not
notarized, although plainly intended to be so done,
since it carries a proposed notarial ratification clause.
Furthermore, the compromise contract with Jose de
Borja (Annex A), provides in its par. 2 heretofore
transcribed that of the total consideration of P800,-000
to be paid to Ongsingco, P600,000 represent the “pro
rata share of the heirs Crisanto, Cayetano and
Matilde, all surnamed de Borja’’ which corresponds to
the consideration of P600,000 recited in Annex 1, and
that circumstance is proof that the duly notarized
contract entered into with Jose de Borja under date 12
October 1963 (Annex A), was designed to absorb and
supersede the separate unformalized agreement with
the other three Borja heirs. Hence, the 60 days
resolutory term in the contract with the latter (Annex
1) not being repeated in Annex A, can not apply to the
formal compromise with Jose de Borja. It is moreover
manifest that the stipulation that the sale of the
Hacienda de Jalajala was to be made within sixty days
from the date of the agreement with Jose de Borja’s
coheirs (Annex 1) was plainly omitted in Annex A as
improper and ineffective, since the Hacienda de
Jalajala (Poblacion) that was to be sold to raise the
P800,000 to be paid to Ongsingco for her share formed
part of the estate of Francisco de Borja and could not
be sold until authorized by the Probate Court. The
Court of First Instance of Rizal so understood it, and
in approving the compromise it fixed a term of 120
days counted from the finality of the order now under
appeal, for the carrying out by the parties of the terms
of the contract.
This brings us to the plea that the Court of First
Instance of Rizal had no jurisdiction to approve the
compromise with Jose de Borja (Annex A) because
Tasiana Ongsingco was not an heir in the estate of
Josefa Tangco pend-ing settlement in the Rizal Court,
but she was an heir of Francisco de Borja, whose
estate was the object of Special Proceeding No. 832 of
the Court of First Instance of Nueva Ecija. This
circumstance is irrelevant, since what was sold by
Tasiana Ongsingco was only her eventual share in the
estate of her late husband, not the estate itself; and as
already shown, that eventual share she owned from
the time of Francisco’s death and the Court of Nueva
Ecija could not bar her selling it. As owner of her
undivided hereditary share, Tasiana could dispose of it
in favor of whomsoever she chose. Such alienation is
expressly recognized and provided for by article 1088
of the present Civil Code:
Art. 1088. Should any of the heirs sell his hereditary
rights to a stranger before the partition, any or all of
the coheirs may be subrogated to the rights of the
purchaser by reimbursing him for the price of the sale,
provided they do so within the period of one month
from the time they were notified in writing of the sale
of the vendor.”
If a sale of a hereditary right can be made to a
stranger, then a fortiori sale thereof to a coheir could
not be forbidden.
Tasiana Ongsingco further argues that her contract
with Jose de Borja (Annex “A”) is void because it
amounts to a compromise as to her status and
marriage with the late Francisco de Borja. The point is
without merit, for the very opening paragraph of the
agreement with Jose de Borja (Annex “A”) describes
her as “the heir and surviving spouse of Francisco de
Borja by his second marriage, Tasiana Ongsingco Vda.
de de Borja”, which is in itself definite admission of her
civil status. There is nothing in the text of the
agreement that would show that this recognition of
Ongsingco’s status as the surviving spouse of
Francisco de Borja was only made in consideration of
the cession of her hereditary rights.
It is finally charged by appellant Ongsingco, as well
as by the Court of First Instance of Nueva Ecija in its
order of 21 September 1964, in Special Proceedings No.
832 (Amended Record on Appeal in L-28568, page
157), that the compromise agreement of 13 October
1963 (Annex “A”) had been abandoned, as shown by
the fact that, after its execution, the Court of First
Instance of Nueva Ecija, in its order of 21 September
1964, had declared that “no amicable settlement had
been arrived at by the parties’’, and that Jose de Borja
himself, in a motion of 17 June 1964, had stated that
the proposed amicable settlement “had failed to
materialize”.
It is difficult to believe, however, that the amicable
settlement referred to in the order and motion above-
mentioned was the compromise agreement of 13
October 1963, which already had been formally signed
and executed by the parties and duly notarized. What
the record discloses is that some time after its
formalization, Ongsingco had unilaterally attempted to
back out from the compromise agreement, pleading
various reasons restated in the opposition to the
Court’s approval of Annex “A” (Record on Appeal, L-
20840, page 23): that the same was invalid because of
the lapse of the allegedly intended resolutory period of
60 days and because the contract was not preceded by
the probate of Francisco de Borja’s will, as required by
this Court’s Guevarra vs. Guevara ruling; that Annex
“A” involved a compromise affecting Ongsingco’s status
as wife and widow of Francisco de Borja, etc., all of
which objections have been already discussed. It was
natural that in view of the widow’s attitude, Jose de
Borja should attempt to reach a new settlement or
novatory agreement before seeking judicial sanction
and enforcement of Annex “A”, since the latter step
might ultimately entail a longer delay in attaining
final remedy. That the attempt to reach another
settlement failed is apparent from the letter of
Ongsingco’s counsel to Jose de Borja quoted in pages
35-36 of the brief for appellant Ongsingco in G.R. No.
L-28040; and it is more than probable that the order of
21 September 1964 and the motion of 17 June 1964
referred to the failure of the parties’ quest for a more
satisfactory compromise, But the inability to reach a
novatory accord can not invalidate the original
compromise ‘(Annex “A”) and justifies the act of Jose
de Borja in finally seeking a court order for its
approval and enforcement from the Court of First
Instance of Rizal, which, as heretofore described,
decreed that the agreement be ultimately performed
within 120 days from the finality of the order, now
under appeal.
 We conclude that in so doing, the Rizal court acted
in accordance with law, and, therefore, its order should
be upheld, while the contrary resolution of the Court of
First Instance of Nueva Ecija should be, and is,
reversed.
In her brief, Tasiana Ongsingco also pleads that the
time elapsed in the appeal has affected her
unfavorably, in that while the purchasing power of the
agreed price of P800,000 has diminished, the value of
the Jalajala property has increased. But the fact is
that her delay in receiving tha payment of the agreed
price for her hereditary interest was primarily due to
her attempts to nullify the agreement (Annex “A”) she
had formally entered into with the advice of her
counsel, Attorney Panaguiton. And as to the
devaluation de facto of our currency, what We said in
Di-zon Rivera vs. Dizon, L-24561, 30 June 1970, 33
SCRA 554, that “estates would never be settled if there
were to be a revaluation with every subsequent
fluctuation in the values of currency and properties of
the estate”, is particularly opposite in the present case.
Coming now to Case G.R. No. L-28611, the issue is
whether the Hacienda de Jalajala (Poblacion),
concededly acquired by Francisco de Borja during his
marriage to his first wife, Josefa Tangco, is the
husband’s private property (as contended by his second
spouse, Tasiana Ongsingco), or whether it forms part
of the conjugal (ganancial) partnership with Josefa
Tangco. The Court of First Instance of Rizal (Judge
Herminio Mariano, presiding) declared that there was
adequate evidence to overcome the presumption in
favor of its conjugal character established by Article
160 of the Civil Code.
We are of the opinion that this question as between
Tasiana Ongsingco and Jose de Borja has become moot
and academic, in view of the conclusion reached by this
Court in the two preceding cases (G.R. No. L-28568),
upholding as valid the cession of Tasiana Ongsingco’s
eventual share in the estate of her late husband,
Francisco de Borja, for the sum of P800,000 with the
accompanying reciprocal quitclaims between the
parties. But as the question may affect the rights of
possible creditors and legatees, its resolution is still
imperative.
It is undisputed that the Hacienda Jalajala, of
around 4,363 hectares, had been originally acquired
jointly by Fran-cisco de Borja, Bernardo de Borja and
Marcelo de Borja, and their title thereto was duly
registered in their names as co-owners in Land
Registration Case No. 528 of the province of Rizal,
G.L.R.O. Rec. No. 26403 (De Barjo vs. Jugo, 54 Phil.
465). Subsequently, in 1931, the Hacienda was
partitioned among the co-owners: the Punta section
went to Marcelo de Borja; the Bagombong section to
Bernardo de Borja, and the part in Jalajala proper
(Poblacion) corresponded to Francisco de Borja (V. De
Borja vs. De Borja, 101 Phil. 911, 932).
The lot allotted to Francisco was described as—
“Una Parcela de terreno en Poblacion, Jalajala: N.
Puang River; E. Hermogena Romero; S. Heirs of
Marcelo de Borja, O. Laguna de Bay; containing an
area of 13,488,870 sq. m. more or less, assessed at
P297,410.” (Record on Appeal, pages 7 and 105)
On 20 November 1962, Tasiana O. Vda. de Borja, as
Administratrix of the Testate Estate of Francisco de
Borja, instituted a complaint in the Court of First
Instance of Rizal (Civil Case No. 7452) against Jose de
Borja, in his capacity as Administrator of Josef a
Tangco (Francisco de Borja’s first wife), seeking to
have the Hacienda above described declared exclusive
private property of Francisco, while in his answer
defendant (now appellant) Jose de Borja claimed that
it was conjugal property of his parents (Francisco de
Borja and Josefa Tangco), conformably to the
presumption established by Article 160 of the
Philippine Civil Code (reproducing Article 1407 of the
Civil Code of 1889), to the effect that:
“Art. 160. All property of the marriage is presumed to
belong to the conjugal partnership, unless it be proved
that it pertains exclusively to the husband or to the
wife.”
Defendant Jose de Borja further counterclaimed for
damages, compensatory, moral and exemplary, as well
as for attorney’s fees. After trial, the Court of First
Instance of Rizal, per Judge Herminio Mariano, held
that the plaintiff had adduced sufficient evidence to
rebut the presumption, and declared the Hacienda de
Jalajala (Poblacion) to be the exclusive private
property of the late Francisco de Borja, and his
Administratrix, Tasiana Ongsingco Vda. de Borja, to
be entitled to its possession. Defendant Jose de Borja
then appealed to this Court.
The evidence reveals, and the appealed order
admits, that the character of the Hacienda in question
as owned by the conjugal partnership De Borja-Tangco
was solemnly admitted by the late Francisco de Borja
no less than two times: first, in the Reamended
Inventory that, as executor of ihe estate of his
deceased wife Josefa Tangco, he filed in the Special
Proceedings No. 7866 of the Court of First Instance of
Rizal on 23 July 1953 (Exhibit “2”); and again, in the
Reamended Accounting of the same date, also filed in
the proceedings aforesaid (Exhibit “7”). Similarly, the
plaintiff Tasiana O. Vda. de Borja, herself, as oppositor
in the Estate of Josefa Tangco, submitted therein an
inventory dated 7 September 1954 (Exhibit “3”) listing
the Jalajala property among the “Conjugal Properties
of the Spouses Francisco de Borja and Josefa Tangco”.
And once more, Tasiana Ongsingco, as administratrix
of the Estate of Francisco de Borja, in Special
Proceedings No. 832 of the Court of First Instance of
Nueva Ecija, submitted therein in December, 1955, an
inventory wherein she listed the Jalajala Hacienda
under the heading “Conjugal Property of the Deceased
Spouses Francisco de Borja and Josefa Tangco, which
are in the possession of the Administrator of the
Testate Estate of the Deceased Josefa Tangco in
Special Proceedings No. 7866 of the Court of First
Instance of Rizal” (Exhibit “4”).
Notwithstanding the four statements aforesaid, and
the fact that they are plain admissions against interest
made by both Francisco de Borja and the
Administratrix of his estate, in the course of judicial
proceedings in the Rizal and Nueva Ecija Courts,
supporting the legal presumption in favor of the
conjugal community, the Court below declared that the
Hacienda de Jalajala (Poblacion) was not conjugal
property, but the private exclusive property of the late
Francisco de Borja. It did so on the strength of the
following evidences: (a) the sworn statement by
Francisco de Borja on 6 August 1951 (Exhibit “F”)
that—
“He tornado posesion del pedazo de terreno ya
delimitado (equivalente a 1/4 parte, 337 hectareas)
adjunto a mi terreno personal y exclusivo (Poblacion de
Jalajala, Rizal).”
and (b) the testimony of Gregorio de Borja, son of
Bernardo de Borja, that the entire Hacienda had been
bought at a foreclosure sale for P40,100.00, of which
amount P25,-100 was contributed by Bernardo de
Borja and P15,000.00 by Marcelo de Borja; that upon
receipt of a subsequent demand from the provincial
treasurer for realty taxes in the sum of P17,000,
Marcelo told his brother Bernardo that Francisco (son
of Marcelo) wanted also to be a co-owner, and upon
Bernardo’s assent to the proposal, Marcelo issued a
check for P17,000.00 to pay the back taxes and said
that the amount would represent Francisco’s
contribution in the purchase of the Hacienda. The
witness further testified that—
“Marcelo de Borja said that that money was entrusted
to him by Francisco de Borja when he was still a
bachelor and which he derived from his business
transactions.” (Hearing, 2 February 1965, t.s.n., pages
13-15) (Italics supplied)
The Court below, reasoning that not only Francisco’s
sworn statement overweighed the admissions in the
inventories relied upon by defendant-appellant Jose de
Borja, since probate courts can not finally determine
questions of ownership of inventoried property, but
that the testimony of Gregorio de Borja showed that
Francisco de Borja acquired his share of the original
Hacienda with his own private funds, for which reason
that share can not be regarded as conjugal partnership
property, but as exclusive property of the buyer,
pursuant to Article 1396 (4) of the Civil Code of 1889
and Article 148(4) of the Civil Code of the Philippines.
“The following shall be the exclusive property of each
spouse:
xxxxx xxxxx xxxxx
“(4) That which is purchased with exclusive money
of the wife or of the husband.” We find the conclusions
of the lower court to be untenable. In the first place,
witness Gregorio de Borja’s testimony as to the source
of the money paid by Francisco for his share was plain
hearsay, hence inadmissible and of no probative value,
since he was merely repeating what Marcelo de Borja
had told him (Gregorio). There is no way of
ascertaining the truth of the statement, since both
Marcelo and Francisco de Borja were already dead
when Gregorio testified. In addition, the statement
itself is improbable, since there was no need or
occasion for Marcelo de Borja to explain to Gregorio
how and when Francisco de Borja had earned the
P17,000.00 entrusted to Marcelo. A ring of artificiality
is clearly discernible in this portion of Gregorio’s
testimony.
 As to Francisco de Borja’s affidavit, Exhibit “F”, the
quoted portion thereof (ante, page 14) does not clearly
demonstrate that the “mi terreno personal y exclusivo
(Poblacion de Jalajala, Rizal)” refers precisely to the
Hacienda in question. The inventories (Exhibits 3 and
4) disclose that there were two real properties in
Jalajala owned by Francisco de Borja, one of 72.038 sq.
m., assessed at P44-600, and a much bigger one of
1,357.260.70 sq. m., which is evidently the Hacienda
de Jalajala (Poblacion). To which of these lands did the
affidavit of Francisco de Borja (Exhibit “F”) refer to? In
addition, Francisco’s characterization of the land as
“mi terreno personal y exclusivo” is plainly self-
serving, and not admissible in the absence of cross
examination.
It may be true that the inventories relied upon by
defendant-appellant (Exhibits “2”, “3”, “4” and “7”) are
not conclusive on the conjugal character of the
property in question ; but as already noted, they are
clear admissions against the pecuniary interest of the
declarants, Francisco de Borja and his executor-widow,
Tasiana Ongsingco, and as such of much greater
probative weight than the self-serving statement of
Francisco (Exhibit “F”). Plainly, the legal presumption
in favor of the conjugal character of the Hacienda de
Jalajala (Poblacion) now in dispute has not been
rebutted but actually confirmed by proof. Hence, the
appealed order should be reversed and the Hacienda
de Jala-jala (Poblacion) declared property of the
conjugal partnership of Francisco de Borja and Josef a
Tangco.
No error having been assigned against the ruling of
the lower court that claims for damages should be
ventilated in the corresponding special proceedings for
the settlement of the estates of the deceased, the same
requires no pronouncement from this Court.
IN VIEW OF THE FOREGOING, the appealed
order of the Court of First Instance of Rizal in Case
No. L-28040 is hereby affirmed; while those involved
in Cases Nos. L-28568 and L-28611 are reversed and
set aside. Costs against the appellant Tasiana
Ongsingco Vda. de Borja in all three (3) cases.
Concepcion,
C.J., Makalintal, Zaldivar, Castro, Teehankee, Barredo
, Makasiar, Antonio and Esguerra,
JJ.,concur. Fernando, J., did not take part.
Order in Case No. L-28040 affirmed; those in Cases
Nos. L-28568 and L-28611 reversed and set aside.
Notes.—On the matter of the share of the heir before
fined liquidation of the estate.—The participation of an
heir in an estate under judicial administration,
although indeterminable before the final liquidation of
the estate, may be attached and sold. While ordinary
execution of property in custodia legis is prohibited in
order to avoid interference with the possession by the
court, yet the sale made by an heir of his share in an
inheritance, subject to the result of the pending
administration, in no wise stands in the way of such
administration and, is therefore, valid, with the
understanding, however, that it would be effective only
as to the portion to be adjudicated to the vendor upon
the partition of the property under
administration. Borja vs. Mencias, L-20609, November
29, 1967, 21 SCRA 11331135.
Whatever rights, interest, and participation belong
to respondent in the real properties under judicial
administration in the special proceedings—which have
been properly levied upon pursuant to the writ of
execution issued in the civil case—may be sold in
accordance with law, with the understanding that the
sale is not of any definite and fixed share in any
particular property, but only of what might be
adjudicated to respondent upon the final liquidation of
the estate. The sale, once made, shall be submitted to
the probate court with jurisdiction over the special
proceedings for proper consideration upon the final
liquidation of said estate. Id., p. 1135.
3 *
VOL. 71, JUNE 18, 1976
Bonilla vs. Barcena
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.
Pleadings and practice; Parties; Substitution of
parties in case of death of plaintiff during pendency of
proceedings in action which survives death of said
plaintiff.—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.
Same; Same; Duty of attorney upon death of
party.—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 party to a pending
case dies x x x it shall be the duty of his attorney to
inform the court promptly of such death x x x and to
give the name and residence of his executor,
administrator, guardian or other legal
representatives.”
___________________
FIRST DIVISION
491 492
4 SUPREME COURT REPORTS ANNOTATED
92
Bonilla vs. Barcena
Same; Same; Duty of court upon death of party.—
Under section 17, Rule 3 of the Rule 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 x x x.”
Same; Same; Duty of court where legal
representative of deceased party fails to appear.—
Under 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.
Same; Same; Duty of court where representative of
deceased party minors.—Under Section 17, Rule 3 of
the Rules of Court, the court is directed to appoint a
guardian ad litem for the minor heirs.
Same; Same; Action to quiet title to property as
action which survives death of a party; Test to
determine whether action survives or not.—The
question as to whether an action survives or not
depends on the nature of the action and the damage
sued for. 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. 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.
Succession; Rights to succession transmitted from
the moment of death of decedent.—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. 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. 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.
PETITION for review of the order of the Court of First
Instance of Abra, Gironella, J.
493
VOL. 71, JUNE 18, 1976 493
Bonilla vs. Barcena
The facts are stated in the opinion of the Court.
Federico Paredes for petitioners.
Demetrio V. Pre for private respondents.
MARTIN, J.:
This is a petition for review1 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
___________________
1 Which this Court treats as special civil action as
per its Resolution dated February 11, 1976.
2 Section 16. Duty of Attorney upon 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
494
494 SUPREME COURT REPORTS ANNOTATED
Bonilla vs. Barcena
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.
___________________
 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 deceased
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.
495
VOL. 71, JUNE 18, 1976 495 extinguished by her death but was transmitted to her
Bonilla vs. Barcena
Under Section 16, Rule 3 of the Rules of Court
“whenever a party to a pending case dies x x x it shall
be the duty of his attorney to inform the court
promptly of such death x x x 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
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 x x x.” The question as to whether an
action survives or not depends on the nature of the
action
___________________
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.
496
496 SUPREME COURT REPORTS ANNOTATED
Bonilla vs. Barcena
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
___________________
 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
CCA. 79.
497
VOL. 71, JUNE 18, 1976 497
Bonilla vs. Barcena
and refusing the substitution of parties in the case.
IN VIEW OF THE FOREGOING, the order of the
respondent Court dismissing the complaint in Civil
Case No. 856 of the Court of First Instance of Abra and
the motions for reconsideration of the order of
dismissal of said complaint are set aside and the
respondent Court is hereby directed to allow the
substitution of the minor children, who are the
petitioners therein for the deceased plaintiff and to
appoint a qualified person as guardian ad litem for
them. Without pronouncement as to costs.
SO ORDERED.”
Teehankee (Chairman), Makasiar, Esguerra an
d Muñoz Palma, JJ., concur.
Orders set aside.
Notes.—a) Duty of attorney for deceased party—
Under Sec. Rule 3 of the Rules of Court it is the duty of
the attorney for the deceased defendant to inform the
Court of his client’s death and furnish it with the name
and residence of the executor, administrator, or legal
representative of the deceased. This rule must have
taken into consideration the fact that the attorney for
the deceased party is in a better position than the
attorney for the other party to ascertain who are the
legal representative or heirs of his deceased client.
This duty should not be shifted to the plaintiff or his
attorney. (Barrameda vs. Barbara, L-4227, January
28, 1952).
1. b)Legal representative takes place of deceased
party.—When the trial court is apprised of the
death of a party, it should order, not the
amendment of the complaint, but then
appearance of the legal representative of the
deceased as provided in section 17, Rule 3 of
the Rules of Court. An order to amend the
complaint, before the proper substitution of the
deceased parties has been effected, is void. In
such a case the order of the court, dismissing
the complaint, for plaintiff’s noncompliance
with the order to amend it, is likewise void.
(Casenas vs. Rosales, L-18707, February 28,
1967).
——o0o——
4
VOL. 152, JULY 23, 1987 171
Borromeo-Herrera vs. Borromeo
No. L-41171. July 23, 1987.*
INTESTATE ESTATE OF THE LATE VITO
BORROMEO, PATROCINIO BORROMEO-
HERRERA, petitioner, vs.FORTUNATO BORROMEO
and HON. FRANCISCO P. BURGOS, Judge of the
Court of First Instance of Cebu, Branch II,
respondents.
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.
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.
No. L-63818. July 23, 1987.*
DOMINGO ANTIGUA AND RICARDO V. REYES, as
Administrator of the Intestate Estate of VITO
BORROMEO, Sp. Proc. No. 916-R, Regional Trial
Court of Cebu, joined by HON.
_______________
* THIRD DIVISION.
172
172 SUPREME COURT REPORTS ANNOTATED
Borromeo-Herrera vs. Borromeo
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.
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.
Civil Law; Succession; Heirs acquire a right to
succession from the moment of the death of the
deceased.—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 retro acts 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.
Same; Same; Waiver of hereditary rights,
requisites.—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 ex-
173
VOL. 152, JULY 23, 1987
Borromeo-Herrera vs. Borromeo
istence 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.
Jurisdiction; Trial Court has jurisdiction to pass
upon the validity of the waiver agreement.—
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.
Legal and Judicial Ethics; Judges; Suspicion of
partiality on the part of a trial judge must be avoided
at all costs.—The allegations of the private
173 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. Rebueno (81
SCRA 535), this Court stated: "x x x 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 of either party, or incite such state
of mind, he should conduct a careful self-examination.
He should exercise his discretion in a way that the
people's faith in the Courts of Justice is not impaired.
The better course for the Judge under such
circumstances is to disqualify himself. That way, he
avoids being misunderstood, his reputation for probity
and objectivity is pre-
174
1 SUPREME COURT REPORTS ANNOTATED
74
Borromeo-Herrera vs. Borromeo
served. What is more important, the ideal of
impartial administration of justice is lived up to."
PETITION to review the order of the Court of First
Instance of Cebu, Br. II. Burgos, J.
The facts are stated in the opinion of the Court.
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 Parañaque,
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 in Testate Estate of Vito
Borromeo, Jose H. Junquera, et al. v. Crispin
Borromeo, et al. (19 SCRA 656).
The testate proceedings was converted into an
intestate proceedings. Several parties came before the
court filing claims or petitions alleging themselves as
heirs of the intestate estate of Vito Borromeo.
175
VOL. 152, JULY 23, 1987 175
Borromeo-Herrera vs. Borromeo
The following petitions or claims were filed:
1. 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. 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. 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. 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.
176
176 SUPREME COURTS REPORTS ANNOTED
Borromeo-Herrera vs. Borromeo
3. Vito's brother Pantaleon Borromeo died leaving the
following children:
1. a.Ismaela Borromeo, who died on Oct. 16, 1939
2. 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.
3. c.Crispin Borromeo, who is still alive.
4. Aniceta 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:
1. a.Aniceta Ocampo Castro
2. b.Ramon Ocampo
3. c.Lourdes Ocampo
4. d.Elena Ocampo, all living, and
5. 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:
 1. a.Marcial Borromeo
2. b.Carlos Borromeo, who died on Jan. 18, 1965,
survived by his wife, Remedios Alfonso, and his
only daughter, Amelinda Borromeo Talam.
3. c.Asuncion Borromeo
4. d.Florentina Borromeo, who died in 1948.
5. e.Amilio Borromeo, who died in 1944.
6. 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:
1. a.Exequiel Borromeo, who died on December
29,1949
2. b.Canuto Borromeo, who died on Dec. 31, 1959,
leaving the following children:
1. aa.Federico Borromeo
177
VOL. 152, JULY 23, 1987
Borromeo-Herrera vs. Borromeo
1. bb.Marisol Borromeo (Maria B. Putong, Rec. p.
85)
2. cc.Canuto Borromeo, Jr.
3. dd.Jose Borromeo
4. ee.Consuelo Borromeo
5. ff.Pilar Borromeo
6. gg.Salud Borromeo
7. hh.Patrocinio Borromeo Herrera
1. c.Maximo Borromeo, who died in July, 1948
2. d.Matilde Borromeo, who died on Aug. 6,1946
3. e.Andres Borromeo, who died on Jan. 3, 1923,
but survived by his children:
1. aa.Maria Borromeo Atega
2. bb.Luz Borromeo
3. cc.Hermenegilda Borromeo Nonnenkamp
4. dd.Rosario Borromeo
5. 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. 1.Jose Cuenco Borromeo
2. 2.Judge Crispin Borromeo
3. 3.Vitaliana Borromeo
4. 4.Patrocinio Borromeo Herrera
177 5. 5.Salud Borromeo
6. 6.Asuncion Borromeo
7. 7.Marcial Borromeo
8. 8.Amelinda Borromeo de Talam, and
9. 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,
At-
178
178 SUPREME COURT REPORTS ANNOTATED
Borromeo-Herrera vs. Borromeo
ty. 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 BorromeoHerrera, 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 distribu-
179
VOL. 152, JULY 23, 1987 179
Borromeo-Herrera vs. Borromeo
tion 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 f or
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
180
180 SUPREME COURT REPORTS ANNOTATED
Borromeo-Herrera vs. Borromeo
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, devisees, 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. He 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
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VOL. 152, JULY 23, 1987
Borromeo-Herrera vs. Borromeo
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
retro acts 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.
181 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
182
182 SUPREME COURT REPORTS ANNOTATED
Borromeo-Herrera vs. Borromeo
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
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Borromeo-Herrera vs. Borromeo
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 II, 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
183 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.
184
184 SUPREME COURT REPORTS ANNOTATED
Borromeo-Herrera vs. Borromeo
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
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VOL. 152, JULY 23, 1987 185
Borromeo-Herrera vs. Borromeo
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
186
186 SUPREME COURT REPORTS ANNOTATED
Borromeo-Herrera vs. Borromeo
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. 1.The court's determination of the market value
of the estate in order to segregate the 40%
reserved for attorney's fees;
2. 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. 41171);
3. 3.The refusal of administrator Jose Cuenco
Borromeo to
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VOL. 152, JULY 23, 1987
Borromeo-Herrera vs. Borromeo
1. render his accounting; and
2. 4.The claim of Tarcela 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 yet 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 II, to expedite
the determination of Special Proceedings No. 916-R
and ordered the co-administrator Jose Cuenco
Borromeo to submit an inventory of real properties of
the estate and to render an accounting of cash and
bank deposits realized from rents of several properties.
The matter of attorney's fees shall be discussed
in G.R. No. 65995.
Considering the pronouncements stated in:
1. 1.G.R. No. 41171 & G.R. No. 55000, setting
aside the Order of the trial court dated
December 24, 1974;
2. 2.G.R. No. 63818, denying the petition for
review seeking to modify the decision of the
Intermediate Appellate Court insofar as it
187 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. 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-R 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 cash and bank
deposits by the petitioner, as co-administrator
of the estate, if he has not yet done so, as
required by this Court in its Resolution dated
June 15, 1983. This must be effected with all
deliberate speed.
188
188 SUPREME COURT REPORTS ANNOTATED
Borromeo-Herrera vs. Borromeo
G.R. No. 63818
On June 9, 1979, respondents Jose Cuenco Borromeo
and Petra O. Borromeo filed a motion for inhibition in
the Court of First Instance of Cebu, Branch II,
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
1. "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.
2. "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 Hon. 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 repproachment and
ultimately joined forces with Atty. Antigua, et
al., who, together, continued to harass
administrator Jose Cuenco Borromeo.
xxx xxx xxx
1. "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.
2. "10.There is now a clear tug of war between
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
189
VOL. 152, JULY 23, 1987 189
Borromeo-Herrera vs. Borromeo
1. 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.
2. "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
1. "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.
2. "17.Evidently, the proposed sale of the entire
properties of the estate cannot be legally done
without the conformity of the heirsdistributees
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 timid to say
their piece. Only the 4/9 group of heirs led by
petitioner
190
190 SUPREME COURT REPORTS ANNOTATED
Borromeo-Herrera vs. Borromeo
Jose Cuenco Borromeo have had the courage to stand
up and refusethe 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:
1. "(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.
2. "(b)The proposed sale cannot be legally done
without the conformity of the heirs-
distributees, and petitioners have openly
refused the sale, to the great disappointment of
respondent.
3. "(c)The shotgun 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.
4. "(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
reraffling.
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 in-
191
VOL. 152, JULY 23, 1987 191
Borromeo-Herrera vs. Borromeo
hibits 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 never 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 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. An-
192
192 SUPREME COURT REPORTS ANNOTATED
Borromeo-Herrera vs. Borromeo
tigua, 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. It 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 Manager 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 over 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.
193
VOL. 152, JULY 23, 1987
Borromeo-Herrera vs. Borromeo
All the above-incidents were set for hearing on June 7,
1979 but on May 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.
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. Rebueno (81 SCRA 535), this Court
stated:
"x x x 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
193 circumstances appear that will induce doubt to his
honest actuations and probity in favor of either party,
or incite such state of mind, he should conduct a
careful self-examination. He should exercise his
discretion in a way that the people's faith in the Courts
of Justice is not impaired. The better course for the
Judge under such circumstances is to disqualify
himself. That way, he avoids being misunderstood, his
reputation for probity and objectivity is preserved.
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 In-
194
194 SUPREME COURT REPORTS ANNOTATED
Borromeo-Herrera vs. Borromeo
testate 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 G.R. 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
judicatabecause this Court on July 8, 1981, in G.R. No.
54232directed 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—ACG.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 ap-
195
VOL. 152, JULY 23, 1987 195
Borromeo-Herrera vs. Borromeo
pealed 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. (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. (2)In G.R. No. 55000, the order of the trial court
declaring the waiver document valid is hereby
SET ASIDE;
3. (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 reraffle the case shall be
implemented;
4. (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. (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
196
196 SUPREME COURT REPORTS ANNOTATED
Borromeo-Herrera vs. Borromeo
1. by the petitioner-administrator of the estate as
required by this Court in its Resolution dated
June 15, 1983; and
2. (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
heirsdistributees 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 Cortés, JJ., concur.
Fernan (Chairman), No part. I appeared as
counsel for one of the parties.
In G.R. Nos. 41171 and 55000, orders set aside; G.R.
No. 63818, petition denied; G.R. No. 65995, petition
granted.
Notes.—Although it is true that final orders in
probate cases partake the nature of a judgment in
rem, binding upon the whole world, it does not follow
therefrom that said final orders, like any other
judgment or final order, cannot within the statutory
period of prescription, be annulled upon the ground of
extrinsic fraud. (Vda. de Serrano us. Court of
Appeals, 33 SCRA 865.)
In extrajudicial partition, court approved is
imperative, and the heirs cannot just divest the court
of its jurisdiction over the estate and over their
persons, by the mere act of assignment and
desistance. (Gutierrez us. Villegas, 5 SCRA 313.)
——o0o——
SUPREME COURT REPORTS ANNOTATED
Rioferio vs. Court of Appeals
G.R. No. 129008. January 13, 2004.*
TEODORA A. RIOFERIO, VERONICA O.
EVANGELISTA assisted by her husband ZALDY
EVANGELISTA, ALBERTO ORFINADA, and
ROWENA O. UNGOS, assisted by her husband BEDA
UNGOS, petitioners, vs. COURT OF APPEALS,
ESPERANZA P. ORFINADA, LOURDES P.
ORFINADA, ALFONSO ORFINADA, NANCY P.
ORFINADA, ALFONSO JAMES P. ORFINADA,
CHRISTOPHER P. ORFINADA and ANGELO P.
ORFINADA, respondents.
Remedial Law; Actions; Party-in-interest; Pending
the filing of administration proceedings, the heirs
without doubt have legal personality to bring suit in
behalf of the estate of the decedent in accordance with
the provision of Article 777 of the New Civil Code.—
Pending the filing of administration proceedings, the
heirs without doubt have legal personality to bring
suit in behalf of the estate of the decedent in
accordance with the provision of Article 777 of the New
Civil Code “that (t)he rights to succession are
transmitted from the moment of the death of the
decedent.” The provision in turn is the foundation of
the principle that the property, rights and obligations
to the extent and value of the inheritance of a person
are transmitted through his death to another or others
by his will or by operation of law.
Same; Same; Same; Court recognized the legal
standing of the heirs to represent the rights and
properties of the decedent under administration
pending the appointment of an administrator.—Even if
administration proceedings have already been
commenced, the heirs may still bring the suit if an
administrator has not yet been appointed. This is the
proper modality despite the total lack of advertence to
the heirs in the rules on party representation, namely
Section 3, Rule 3 and Section 2, Rule 87 of the Rules of
Court. In fact, in the case of Gochan v. Young, this
Court recognized the legal standing of the heirs to
represent the rights and properties of the decedent
under administration pending the appointment of an
administrator.
PETITION for review on certiorari of the decision and
resolution of the Court of Appeals.
The facts are stated in the opinion of the Court. Albino
V. Gonzales for petitioners.
_______________
* SECOND DIVISION.
55
VOL. 419, JANUARY 13, 2004
Rioferio vs. Court of Appeals
Rivera, Perico & David Law Office for private
respondents.
TINGA, J.:
Whether the heirs may bring suit to recover property
of the estate pending the appointment of an
administrator is the issue in this case.
This Petition for Review on Certiorari, under Rule
45 of the Rules of Court, seeks to set aside the
Decision1 of the Court of Appeals in CA-G.R. SP No.
42053 dated January 31, 1997, as well as
itsResolution2 dated March 26, 1997, denying
petitioners’ motion for reconsideration.
On May 13, 1995, Alfonso P. Orfinada, Jr. died
without a will in Angeles City leaving several personal
and real properties located in Angeles City, Dagupan
City and Kalookan City.3 He also left a widow,
respondent Esperanza P. Orfinada, whom he married
on July 11, 1960 and with whom he had seven children
who are the herein respondents, namely: Lourdes P.
Orfinada, Alfonso “Clyde” P. Orfinada, Nancy P.
Orfinada-Happenden, Alfonso James P. Orfinada,
Christopher P. Orfinada, Alfonso Mike P. Orfinada
(deceased) and Angelo P. Orfinada.4
Apart from the respondents, the demise of the
decedent left in mourning his paramour and their
children. They are petitioner Teodora Riofero, who
became a part of his life when he entered into an
extra-marital relationship with her during the
55 subsistence of his marriage to Esperanza sometime in
1965, and co-petitioners Veronica,5 Alberto and
Rowena.6
On November 14, 1995, respondents Alfonso James
and Lourdes Orfinada discovered that on June 29,
1995, petitioner Teodora Rioferio and her children
executed an Extrajudicial Settlement of
_______________
1 Rollo, pp. 17-20.
2Id., at pp. 21-22.
3Id., at p. 95.
4Ibid.
5 The Complaint for Annulment/Rescission of the
Extrajudicial Settlement of the Estate of a Deceased
Person dated December 2, 1995 contains an allegation
under paragraph 9 that Veronica is not one of the
illegitimate children of the decedent Alfonso P.
Orfinada, Jr. by Teodora Riofero but of one Alonzo City before the Regional Trial Court, Branch 42,
Orfinada. Dagupan City.9
6 Rollo, p. 95. On February 5, 1996, petitioners filed
56 their Answer to the aforesaid complaint interposing
56 SUPREME COURT REPORTS ANNOTATED the defense that the property subject of the contested
Rioferio vs. Court of Appeals deed of extra-judicial settlement pertained to the
Estate of a Deceased Person with Quitclaim involving properties originally belonging to the parents of
the properties of the estate of the decedent located in Teodora Riofero10 and that the titles thereof were
Dagupan City and that accordingly, the Registry of delivered to her as an advance inheritance but the
Deeds in Dagupan issued Certificates of Titles Nos. decedent had managed to register them in his
63983, 63984 and 63985 in favor of petitioners Teodora name.11Petitioners also raised the affirmative defense
Rioferio, Veronica Orfinada-Evangelista, Alberto that respondents are not the real parties-in-interest
Orfinada and Rowena Orfinada-Ungos. Respondents but rather the Estate of Alfonso O. Orfinada, Jr. in
also found out that petitioners were able to obtain a view of the pendency of the administration
loan of P700,000.00 from the Rural Bank of proceedings.12 On April 29, 1996, petitioners filed
Mangaldan Inc. by executing a Real Estate a Motion to Set Affirmative Defenses for Hearing13 on
Mortgage over the properties subject of the the aforesaid ground.
extrajudicial settlement.7
On December 1, 1995, respondent Alfonso “Clyde” _______________
P. Orfinada III filed a Petition for Letters of 7Id., at pp. 95-96.
Administrationdocketed as S.P. Case No. 5118 before 8Id., at p. 96.
the Regional Trial Court of Angeles City, praying that 9Id., at pp. 28-37.
letters of administration encompassing the estate of 10 CA Rollo, p. 38.
Alfonso P. Orfinada, Jr. be issued to him.8 11Id., at p. 10.
On December 4, 1995, respondents filed 12Id., at p. 38.
a Complaint for the Annulment/Rescission of Extra 13 Rollo, pp. 107-108.
Judicial Settlement of Estate of a Deceased Person with
57
Quitclaim, Real Estate Mortgage and Cancellation of
VOL. 419, JANUARY 13, 2004 57
Transfer Certificate of Titles with Nos. 63983, 63985
Rioferio vs. Court of Appeals
and 63984 and Other Related Documents with
Damages against petitioners, the Rural Bank of The lower court denied the motion in its Order14 dated
Mangaldan, Inc. and the Register of Deeds of Dagupan June 27, 1996, on the ground that respondents, as
heirs, are the real parties-in-interest especially in the
absence of an administrator who is yet to be appointed
in S.P. Case No. 5118. Petitioners moved for its
reconsideration15 but the motion was likewise denied.16
This prompted petitioners to file before the Court of
Appeals their Petition for Certiorari under Rule 65 of
the Rules of Court docketed as CA G.R. S.P. No.
42053.17Petitioners averred that the RTC committed
grave abuse of discretion in issuing the assailed order
which denied the dismissal of the case on the ground
that the proper party to file the complaint for the
annulment of the extrajudicial settlement of the estate
of the deceased is the estate of the decedent and not
the respondents.18
The Court of Appeals rendered the
assailed Decision dated January 31, 1997, stating
19
that it discerned no grave abuse of discretion
amounting to lack or excess of jurisdiction by the
public respondent judge when he denied petitioners’
motion to set affirmative defenses for hearing in view
of its discretionary nature.
AMotion for Reconsideration was filed by petitioners
but it was denied.20 Hence, the petition before this
Court.
The issue presented by the petitioners before this
Court is whether the heirs have legal standing to
prosecute the rights belonging to the deceased
subsequent to the commencement of the
administration proceedings.21
Petitioners vehemently fault the lower court for
denying their motion to set the case for preliminary
hearing on their affirmative defense that the proper
party to bring the action is the estate of the decedent
and not the respondents. It must be stressed that the
holding of a preliminary hearing on an affirmative
defense lies in the discretion of the court. This is clear
from the Rules of Court, thus:
_______________
14 CA Rollo, pp. 113-116.
15Id., at pp. 32-34.
16Id., at pp. 39-40.
17Id., at pp. 1-12.
18Id., at p. 7.
19 Rollo, pp. 17-20.
20Id., at pp. 21-22.
21Id., at p. 124.
58
58 SUPREME COURT REPORTS ANNOTATED
Rioferio vs. Court of Appeals
SEC. 5. Pleadings grounds as affirmative defenses.—
Any of the grounds for dismissal provided for in this
rule, except improper venue, may be pleaded as an
affirmative defense, and a preliminary hearing may be
had thereon as if a motion to dismiss had been
filed.22 (Emphasis supplied.)
Certainly, the incorporation of the word “may” in the
provision is clearly indicative of the optional character
of the preliminary hearing. The word denotes
discretion and cannot be construed as having a
mandatory effect.23Subsequently, the electivity of the
proceeding was firmed up beyond cavil by the 1997
Rules of Civil Procedure with the inclusion of the
phrase “in the discretion of the Court,” apart from the
retention of the word “may” in Section 6,24 in Rule 16
thereof.
Just as no blame of abuse of discretion can be laid
on the lower court’s doorstep for not hearing
petitioners’ affirmative defense, it cannot likewise be
faulted for recognizing the legal standing of the
respondents as heirs to bring the suit.
Pending the filing of administration proceedings,
the heirs without doubt have legal personality to bring
suit in behalf of the estate of the decedent in
accordance with the provision of Article 777 of the New
Civil Code “that (t)he rights to succession are
transmitted from the moment of the death of the
decedent.” The provision in turn is the foundation of
the principle that the property, rights and obligations
to the extent and value of the inheritance of a person
_______________
22 Rule 16 of the Rules of Court. It is Section 6, Rule
16 of the 1997 Rules of Civil Procedure which reads:
Section 6. Pleading grounds as affirmative defenses.—
If no motion to dismiss has been filed, any of the
grounds for dismissal provided for in this Rule may be
pleaded as an affirmative defense in the answer
and, in the discretion of the court, a preliminary
hearing may be had thereon as if a motion to dismiss
had been filed.
The dismissal of the complaint under this section
shall be without prejudice to the prosecution in the
same or separate action of a counterclaim pleaded in
the answer. (Emphasis supplied)
23 Republic Planters Bank v. Agana, Sr., G.R. No.
51765, 269 SCRA 1, 12 (1997).
24Supranote 22.
59
VOL. 419, JANUARY 13, 2004 59
Rioferio vs. Court of Appeals
are transmitted through his death to another or others
by his will or by operation of law.25
Even if administration proceedings have already
been commenced, the heirs may still bring the suit if
an administrator has not yet been appointed. This is
the proper modality despite the total lack of
advertence to the heirs in the rules on party
representation, namely Section 3, Rule 326 and Section
2, Rule 8727 of the Rules of Court. In fact, in the case
of Gochan v. Young,28 this Court recognized the legal
standing of the heirs to represent the rights and
properties of the decedent under administration
pending the appointment of an administrator. Thus:
The above-quoted rules,29 while permitting an executor
or administrator to represent or to bring suits on
behalf of the deceased, do not prohibit the heirs from
representing the deceased. These rules are easily
applicable to cases in which an administrator has
already been appointed. But no rule categorically
addresses the situation in which special proceedings for
the settlement of an estate have already been instituted,
yet no administrator has been appointed. In such
instances, the heirs cannot be expected to wait for the
appointment of an administrator; then wait further to
see if the administrator appointed would care enough
to file a suit to protect the rights and the interests of
the deceased; and in the mean-
_______________
25 Coronel v. Court of Appeals, G.R. No. 103577,
October 7, 1996, 263 SCRA 15.
26 Section 3 of Rule 3 of the Rules of Court:
Sec. 3. Representatives as parties.—Where the action is
allowed to be prosecuted or defended by a
representative or someone acting in a fiduciary
capacity, the beneficiary shall be included in the title
of the case and shall be deemed to be the real party in
interest. A representative may be a trustee of an
express trust, a guardian, an executor or
administrator, or a party authorized by law or these
Rules. An agent acting in his own name and for the
benefit of an undisclosed principal may sue or be sued
without joining the principal except when the contract
involves things belonging to the principal.
27 Section 2 of Rule 87:
Sec. 2. Executor or administrator may bring or defend
actions which survive.—For the recovery or protection
of the property or rights of the deceased, an executor
or administrator may bring or defend, in the right of
the deceased, actions for causes which survive.”
28 G.R. No. 131889, March 12, 2001, 354 SCRA 207.
29Supra, note 26.
60
60 SUPREME COURT REPORTS ANNOTATED
Rioferio vs. Court of Appeals
time do nothing while the rights and the properties of
the decedent are violated or dissipated.
Even if there is an appointed administrator,
jurisprudence recognizes two exceptions, viz. (1) if the
executor or administrator is unwilling or refuses to
bring suit;30 and (2) when the administrator is alleged
to have participated in the act complained of31 and he
is made a party defendant.32Evidently, the necessity
for the heirs to seek judicial relief to recover property
of the estate is as compelling when there is no
appointed administrator, if not more, as where there is
an appointed administrator but he is either disinclined
to bring suit or is one of the guilty parties himself.
All told, therefore, the rule that the heirs have no
legal standing to sue for the recovery of property of the
estate during the pendency of administration
proceedings has three exceptions, the third being when
there is no appointed administrator such as in this
case.
As the appellate court did not commit an error of
law in upholding the order of the lower court, recourse
to this Court is not warranted.
WHEREFORE, the petition for review is DENIED.
The assailed decision and resolution of the Court of
Appeals are hereby AFFIRMED. No costs.
SO ORDERED.
Puno (Chairman), Quisumbing, Austria-
Martinezand Callejo, Sr., JJ., concur.
Petition denied, judgment affirmed.
Note.—Successional rights are transmitted from
the moment of death of the decedent and compulsory
heirs are called to succeed by operation of law.
(Rabadilla vs. Court of Appeals, 334 SCRA 522 [2000])
——o0o——
SUPREME COURT REPORTS ANNOTATED
Cayetano vs. Leonidas
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.
Succession; Due Process; Attorneys; There being a
proper substitution of attorneys where the Motion to
Dismiss Opposition to reprobate of will was filed, trial
judge acted properly in hearing evidence ex parte on
probate of will in question.—We find no grave abuse of
discretion on the part of the respondent judge. No
proof was adduced to support petitioner’s contention
that the motion to withdraw was secured through
fraudulent means and that Atty. Franco Loyola was
not his counsel of record. The records show that after
the filing of the contested motion, the petitioner at a
later date, filed a manifestation wherein he confirmed
that the Motion to Dismiss Opposition was his
voluntary act and deed. Moreover, at the time the
motion was filed, the petitioner’s former counsel, Atty.
Jose P. Lagrosa had long withdrawn from the case and
had been substituted by Atty. Franco Loyola who in
turn filed the motion. The present petitioner cannot,
therefore, maintain that the old man’s attorney of
record was Atty. Lagrosa at the time of filing the
motion. Since the withdrawal was in order, the
respondent judge acted correctly in hearing the
probate of the will ex-parte, there being no other
opposition to the same.
Same; Where circumstances demand that intrinsic
validity of testamentary provisions be passed upon even
before the extrinsic validity of will is resolved, probate
court should meet the issue.—The third issue raised
deals with the validity of the provisions of the will. As
a general rule, the probate court’s authority is limited
only to the extrinsic validity of the will, the due
execution thereof, the testatrix’s testamentary
capacity and the compliance with the requisites or
solemnities prescribed by law. The intrinsic validity of
the will normally comes only after the court has
declared that the will has been duly authenticated.
However, where practical considerations demand that
the intrinsic validity of the will be passed upon, even
before it is probated, the court should meet the issue.
(Maninang v. Court of Appeals, 114 SCRA 478).
________________
* FIRST DIVISION.
523
VOL. 129, MAY 30, 1984 523
Cayetano vs. Leonidas
Same; The U.S. law on succession in the state of
Pennsylvania applies to the intrinsic and extrinsic
validity of the last will and testament of a U.S.
national and resident of Pennsylvania under whose
laws a person may give his entire estate to a complete
stranger.—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: x x x x 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.
Same; Same.—It is a settled rule that as regards
the intrinsic validity of the provisions of the will, as
provided for by Article 16 (2) and 1039 of the Civil
Code, the national law of the decedent must apply.
This was squarely applied in the case of Bellis v.
Bellis (20 SCRA 358).
Motions; Due Process; There was no denial of due
process as what the court repeatedly set for hearing was
the Petition for Relief, not the Motion to Vacate Order
of Jan. 10, 1979.—As regards the alleged absence of
notice of hearing for the petition for relief, the records
will bear the fact that what was repeatedly scheduled
for hearing on separate dates until June 19, 1980 was
the petitioner’s petition for relief and not his motion to
vacate the order of January 10, 1979. There is no
reason why the petitioner should have been led to
believe otherwise. The court even admonished the
petitioner’s failing to adduce evidence when his
petition for relief was repeatedly set for hearing. There
was no denial of due process. The fact that he
requested “for the future setting of the case for hearing
x x x” 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.
524
5 SUPREME COURT REPORTS ANNOTATED
24
Cayetano vs. Leonidas
Succession; Jurisdiction; Probate of Will of
American citizen who left an estate in the Philippines
was properly filed in the City of Manila where estate is
located.—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.
PETITION for review on certiorari the order of the
Court of First Instance of Manila, Br. XXXVIII.
Leonidas, J.
The facts are stated in the opinion of the Court.
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
525
VOL. 129, MAY 30, 1984 525
Cayetano vs. Leonidas
the United States and for her appointment as
administratrix of the estate of the deceased testatrix.
In her petition, Nenita alleged that the testatrix
was an American citizen at the time of her death and
was a permanent resident of 4633 Ditman Street,
Philadelphia, Pennsylvania, U.S.A.; that the testatrix
died in Manila on January 31, 1977 while temporarily
residing with her sister at 2167 Leveriza, Malate,
Manila; that during her lifetime, the testatrix made
her last will and testament on July 10, 1975, according
to the laws of Pennsylvania, U.S.A., nominating
Wilfredo Barzaga of New Jersey as executor; that after
the testatrix’ death, her last will and testament was
presented, probated, allowed, and registered with the
Registry of Wills at the County of Philadelphia, U.S.A.,
that Clement L. McLaughlin, the administrator who
was appointed after Dr. Barzaga had declined and
waived his appointment as executor in favor of the
former, is also a resident of Philadelphia, U.S.A., and
that therefore, there is an urgent need for the
appointment of an administratrix to administer and
eventually distribute the properties of the estate
located in the Philippines.
On January 11, 1978, an opposition to the reprobate
of the will was filed by herein petitioner alleging
among other things, that he has every reason to
believe that the will in question is a forgery; that the
intrinsic provisions of the will are null and void; and
that even if pertinent American laws on intrinsic
provisions are invoked, the same could not apply
inasmuch as they would work injustice and injury to
him.
On December 1, 1978, however, the petitioner
through his counsel, Atty. Franco Loyola, filed a
Motion to Dismiss Opposition (With Waiver of Rights
or Interests) stating that he “has been able to verify
the veracity thereof (of the will) and now confirms the
same to be truly the probated will of his daughter
Adoracion.” Hence, an ex-parte presentation of
evidence for the reprobate of the questioned will was
made.
On January 10, 1979, the respondent judge issued
an order, to wit:
“At the hearing, it has been satisfactorily established
that Adoracion C. Campos, in her lifetime, was a
citizen of the United States of America with a
permanent residence at 4633 Ditman
526
526 SUPREME COURT REPORTS ANNOTATED
Cayetano vs. Leonidas
Street, Philadelphia, PA 19124, (Exhibit D); that when
alive, Adoracion C. Campos executed a Last Will and
Testament in the county of Philadelphia,
Pennsylvania, U.S.A., according to the laws thereat
(Exhibits E-3 to E-3-b); that while in temporary
sojourn in the Philippines, Adoracion C. Campos died
in the City of Manila (Exhibit C) leaving property both
in the Philippines and in the United States of America;
that the Last Will and Testament of the late Adoracion
C. Campos was admitted and granted probate by the
Orphan’s Court Division of the Court of Common
Pleas, the probate court of the Commonwealth of
Pennsylvania, County of Philadelphia, U.S.A., and
letters of administration were issued in favor of
Clement J. McLaughlin, all in accordance with the
laws of the said foreign country on procedure and
allowance of wills (Exhibits E to E-10); and that the
petitioner is not suffering from any disqualification
which would render her unfit as administratrix of the
estate in the Philippines of the late Adoracion C.
Campos.
“WHEREFORE, the Last Will and Testament of the
late Adoracion C. Campos is hereby admitted to and
allowed probate in the Philippines, and Nenita
Campos Paguia is hereby appointed Administratrix of
the estate of said decedent; let Letters of
Administration with the Will annexed issue in favor of
said Administratrix upon her filing of a bond in the
amount of P5,000.00 conditioned under the provisions
of Section I, Rule 81 of the Rules of Court.
Another manifestation was filed by the petitioner on
April 14, 1979, confirming the withdrawal of his
opposition, acknowledging the same to be his
voluntary act and deed.
On May 25, 1979, Hermogenes Campos filed a petition
for relief, praying that the order allowing the will be
set aside on the ground that the withdrawal of his
opposition to the same was secured through fraudulent
means. According to him, the “Motion to Dismiss
Opposition” was inserted among the papers which he
signed in connection with two Deeds of Conditional
Sales which he executed with the Construction and
Development Corporation of the Philippines (CDCP).
He also alleged that the lawyer who filed the
withdrawal of the opposition was not his counsel-of-
record in the special proceedings case.
The petition for relief was set for hearing but the
petitioner failed to appear. He made several motions
for postponement until the hearing was set on May 29,
1980.
527
VOL. 129, MAY 30, 1984
Cayetano vs. Leonidas
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
527 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. “1)He ruled the petitioner lost his standing in
court deprived the Right to Notice (sic) upon
the filing of the Motion to Dismiss op-
528
528 SUPREME COURT REPORTS ANNOTATED
Cayetano vs. Leonidas
1. position with waiver of rights or interests
against the estate of deceased Adoracion C.
Campos, thus, paving the way for the ex-
 parte hearing of the petition for the probate of
decedent will.
2. “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. “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. “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. “5)He acquired no jurisdiction over the testate
case, the fact that the Testator at the time of
death was a usual resident of Dasmariñas,
Cavite, consequently Cavite Court of First
Instance has exclusive jurisdiction over the
case (De Borja vs. Tan, G.R. No. L-7792, July
1955).”
The first two issues raised by the petitioner are
anchored on the allegation that the respondent judge
acted with grave abuse of discretion when he allowed
the withdrawal of the petitioner’s opposition to the
reprobate of the will.
We find no grave abuse of discretion on the part of
the respondent judge. No proof was adduced to support
petitioner’s contention that the motion to withdraw
was secured through fraudulent means and that Atty.
Franco Loyola was not his counsel of record. The
records show that after the filing of the contested
motion, the petitioner at a later date, filed a
manifestation wherein he confirmed that the Motion to
Dismiss Opposition was his voluntary act and deed.
Moreover, at the time the motion was filed, the
petitioner’s former counsel, Atty. Jose P. Lagrosa had
long withdrawn from the case and had been
substituted by Atty. Franco Loyola who in turn filed
the motion. The present petitioner cannot, therefore,
529
VOL. 129, MAY 30, 1984 529
Cayetano vs. Leonidas
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 v. Court of
Appeals, 114 SCRA 478).
In the case at bar, the petitioner maintains that
since the respondent judge allowed the reprobate of
Adoracion’s will, Hermogenes C. Campos was divested
of his legitime which was reserved by the law for him.
This contention is without merit.
Although on its face, the will appeared to have
preterited the petitioner and thus, the respondent
judge should have denied its reprobate outright, the
private respondents have sufficiently established that
Adoracion was, at the time of her death, an American
citizen and a permanent resident of Philadelphia,
Pennsylvania, U.S.A. Therefore, under Article 16 par.
(2) and 1039 of the Civil Code which respectively
provide:
Art. 16 par. (2).
xxx xxx xxx
“However, intestate and testamentary successions,
both with respect to the order of succession and to the
amount of successional rights and to the intrinsic
validity of testamentary provisions, shall be regulated
by the national law of the person whose succession is
under consideration, whatever may be the nature of
the property and regardless of the country wherein
said property may be found.”
Art. 1039.
530
530 SUPREME COURT REPORTS ANNOTATED
Cayetano vs. Leonidas
“Capacity to succeed is governed by the law of the
nation of the decedent.”
the law which governs Adoracion Campo’s will is the
law of Pennsylvania, U.S.A., which is the national law
of the decedent. Although the parties admit that the
Pennsylvania law does not provide for legitimes and
that all the estate may be given away by the testatrix
to a complete stranger, the petitioner argues that such
law should not apply because it would be contrary to
the sound and established public policy and would run
counter to the specific provisions of Philippine Law.
It is a settled rule that as regards the intrinsic
validity of the provisions of the will, as provided for by
Article 16 (2) and 1039 of the Civil Code, the national
law of the decedent must apply. This was squarely
applied in the case of Bellis v. Bellis (20 SCRA 358)
wherein we ruled:
“It is therefore evident that whatever public policy or
good customs may be involved in our system of
legitimes, Congress has not intended to extend the
same to the succession of foreign nationals. For it has
specifically chosen to leave, inter alia, the amount of
successional rights, to the decedent’s national law.
Specific provisions must prevail over general ones.
xxx xxx xxx
“The parties admit that the decedent, Amos G.
Bellis, was a citizen of the State of Texas, U.S.A., and
under the law of Texas, there are no forced heirs or
legitimes. Accordingly, since the intrinsic validity of
the provision of the will and the amount of
successional rights are to be determined under Texas
law, the Philippine Law on legitimes cannot be applied
to the testacy of Amos G. Bellis.”
As regards the alleged absence of notice of hearing for
the petition for relief, the records will bear the fact
that what was repeatedly scheduled for hearing on
separate dates until June 19, 1980 was the petitioner’s
petition for relief and not his motion to vacate the
order of January 10, 1979. There is no reason why the
petitioner should have been led to believe otherwise.
The court even admonished the petitioner’s failing to
adduce evidence when his petition for relief was
repeatedly set for hearing. There was no denial of due
process. The fact that he
531
VOL. 129, MAY 30, 1984
Cayetano vs. Leonidas
requested “for the future setting of the case for hearing
x x x” 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
531 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. v. Hon. Manuel Lazaro, et
al., G.R. No. 63284, April 4, 1984).
WHEREFORE, the petition for certiorari and
prohibition is hereby dismissed for lack of merit.
 SO ORDERED.
532
532 SUPREME COURT REPORTS ANNOTATED
Aquino vs. Mariano
Melencio-Herrera, Plana, Relova and De la
Fuente, JJ., concur.
Teehankee, J., (Chairman), no part.
Petition dismissed.
Notes.—For petition for certiorari to prosper, the
grave abuse of discretion committed by the Tribunal
must be shown. (Ignacio vs. Court of Appeals, 96 SCRA
648.)
For certiorari to lie there must be a capricious,
arbitrary and whimsical exercise of power, the very
antithesis of the judicial prerogative in accordance
with centuries of both civil law and common law
tradition. (People vs. Vallarta, 77 SCRA 476.)
Disregard of available facts by a judge constitutes
grave abuse of discretion. (Commissioner of Customs
vs. Geronimo, 80 SCRA 74.)
——o0o——
VOL. 89, APRIL 30, 1979 493
Parish Priest of Roman Catholic Church of Victoria, Tarlac vs.
Rigor
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.
Settlement of Estate; Will of Testator is the first
and principal law in the matter of Testaments.—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 when it may certainly appear that his intention
was different from that literally expressed (In
re Estate of Caldero, 26 Phil. 237-8).
Same; Same.—One canon in the interpretation of
the testamentary provisions is that “the testator’s
intention is to be ascertained from the words of the
will, taking into consideration the circumstances as
this intention” (Art. 789, Civil Code of the Philippines).
_______________
* SECOND DIVISION.
494
4 SUPREME COURT REPORTS ANNOTATED
94
Parish Priest of Roman Catholic Church of Victoria, Tarlac
vs. Rigor
Same; A bequest of land to the nearest male
relative of the grantor who would study for the
priesthood construed to mean the grantor’s nearest
male relative living at the time of his death and not any
indefinite time thereafter.—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.” The said
testamentary provisions should be sensibly or
reasonably construed. To construe them as referring to
the testator’s nearest male relative at any time 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.
Same; Same.—In 1935, when the testator died, his
nearest legal 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 grandnephew (the son of his
nephew or niece) and so he had to use the term
“nearest male relative.”
Same; Evidence; Evidence aliunde has no
probative value.—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.
Same; As the testator was not survived by a
nephew who became a priest the bequest became
inoperative and the administration of the ricelands of
the parish priest of Victoria, Tarlac also became
inoperative.—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 ad-
495
VOL. 89, APRIL 30, 1979 495
Parish Priest of Roman Catholic Church of Victoria, Tarlac
vs. Rigor
ministration of the ricelands by the parish priest
of Victoria, as envisaged in the will, was likewise
inoperative.
Same; Where the parish priest of Victoria, Tarlac,
could, under the bequest, become a trustee only when
any of the testator’s nephews living at the time of his
death had not yet entered the seminary or being a priest
was excommunicated, and these contingencies never
arose, said parish priest cannot be deemed a substitute
devisee.—The appellant in contending that a public
charitable trust was constituted by the testator in his
favor assumes that he was a trustee or substitute
devisee. That contention is untenable. A reading of the
testamentary provisions regarding the disputed
bequest does 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 underscored
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 manifest
any intention to enter the seminary or ever became a
priest.
Same; Where a bequest is inoperative the same
shall be merged, as a rule, to the testator’s estate.—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 x x x por
qualquier causa, no tenga efecto, se refundira en la
masa de la herencia, fuera, de los cases de sustitucion
y derecho de acrecer”).
Same; A person may die partly testate and partly
intestate.—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 will is no longer valid.
Thus, if a conditional legacy does not take effect, there
will be intestate succession as to the property covered
by the said legacy (Macrahon Ong Ham vs. Saavedra,
51 Phil. 267).
496
496 SUPREME COURT REPORTS ANNOTATED
Parish Priest of Roman Catholic Church of Victoria, Tarlac vs.
Rigor
APPEAL from the decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
D. Tañedo, Jr. for appellants.
J. Palanca Sr. for appellee.
AQUINO, J.:
This case is about the efficaciousness or enforceability
of a devise of ricelands located at Guimba, Nueva
Ecija, with a total area of around forty-four hectares.
That devise was made in the will of the late Father
Pascual Rigor, a native of Victoria, Tarlac, in favor of
his nearest male relative who would study for the
priesthood.
The parish priest of Victoria, who claimed to be a
trustee of the said lands, appealed to this Court from
the decision of the Court of Appeals affirming the
order of the probate court declaring that the said
devise was inoperative (Rigor vs. Parish Priest of the
Roman Catholic Church of Victoria, Tarlac, CA-G.R.
No. 24319 R, August 1, 1963).
The record discloses that Father Rigor, the parish
priest of Pulilan, Bulacan, died on August 9, 1935,
leaving a will executed on October 29, 1933 which was
probated by the Court of First Instance of Tarlac in its
order of December 5, 1935. Named as devisees in the
will were the testator’s 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 municipio de Guimba
de la provincia 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; Titulo Num. 6525, mide
62,665 m. cuadrados de superficie; y Titulo Num. 6521,
mide 119,251 m.
497
VOL. 89, APRIL 30, 1979 497
Parish Priest of Roman Catholic Church of Victoria, Tarlac vs.
Rigor
cuadrados de superficie; a cualquier pariente mio
varon mas cercano que estudie la carrera eclesiastica
hasta ordenarse de Presbiterado o sea Sacerdote; las
condiciones de estate legado son:
1. “(1.a)Prohibe en absoluto la venta de estos
terrenos arriba situados objectos de este
legado;
2. “(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 Teologia, y ordenado de
Sacerdote, hasta su muerte; pero que pierde el
legatario este derecho de administrar y gozar
de este legado al dejar de continuar sus
estudios para ordenarse de Presbiterado
(Sacerdote).
“Que el legatario una vez Sacerdote ya estara
obligado a celebrar cada año VEINTE (20) Misas
rezadas en sufragio de mi alma y de mis padres
difuntos, y si el actual legatario, quedase excomulgado,
IPSO FACTO se le despoja este legado, y la
administracion de esto pasara a cargo del actual
Parroco y sus sucesores de la Iglesia Catolica de
Victoria, Tarlac.
“Y en intervalo de tiempo que no haya legatario
acondicionado segun lo arriba queda expresado, pasara
la administracion de este legado a cargo del actual
Parroco Catolico y sus sucesores, de Victoria, Tarlac.
“El Parroco administrador de estate legado,
acumulara anualmente todos los productos que puede
tener estate legado, ganando o sacando de los
productos anuales el CINCO (5) por ciento para su
administracion, y los derechos correspondientes de las
VEINTE (20) Misas rezadas que debiera el Parroco
celebrar cada año, depositando todo lo restante de los
productos de estate legado, en un banco, a nombre de
estate legado.”
To implement the foregoing bequest, the
administratrix in 1940 submitted a project of partition
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, parish priest of Victoria filed in the pending testate
Philippines, or his successors, the real properties proceeding a petition praying for the appointment of a
hereinbelow indicated, to wit: new administrator (succeeding the deceased
498 administratrix, Florencia Rigor), who should deliver to
498 SUPREME COURT REPORTS ANNOTATED the church the said ricelands, and further praying that
Parish Priest of Roman Catholic Church of Victoria, Tarlac vs. the possessors thereof be ordered to render an
Rigor accounting of the fruits. The probate court granted the
“Title No. Lot No. Area in Has. Tax Dec. Ass. Value petition, A new administrator was appointed. On
T-6530 3663 1.6249 18740 P340.00 January 31, 1957 the parish priest filed another
T-6548 3445-C 24.2998 18730 7,290.00 petition for the delivery of the ricelands to the church
T-6525 3670 6.2665 18736 1,880.00 as trustee.
T-6521 3666 11.9251 18733 3,580.00 The intestate heirs of Father Rigor countered with a
“Total area and 44.1163 P13,090.00” petition dated March 25, 1957 praying that the
value— bequest be declared inoperative and that they be
Judge Roman A. Cruz in his order of August 15, 1940, adjudged as the persons entitled to the said ricelands
approving the project of partition, directed that after since, as admitted by the parish priest of Victoria, “no
payment of the obligations of the estate (including the nearest male relative of” the testator “has ever studied
sum of P3,132.26 due to the church of the Victoria for the priesthood” (pp. 25 and 35, Record on Appeal).
parish) the administratrix should deliver to the 499
devisees their respective shares. VOL. 89, APRIL 30, 1979 499
It may be noted that the administratrix and Judge Parish Priest of Roman Catholic Church of Victoria, Tarlac vs.
Cruz did not bother to analyze the meaning and Rigor
implications of Father Rigor’s bequest to his nearest That petition was opposed by the parish priest of
male relative who would study for the priesthood. Victoria.
Inasmuch as no nephew of the testator claimed the Finding that petition to be meritorious, the lower
devise and as the administratrix and the legal heirs court, through Judge Bernabe de Aquino, declared the
believed that the parish priest of Victoria had no right bequest inoperative and adjudicated the ricelands to
to administer the ricelands, the same were not the testator’s legal heirs in his order of June 28, 1957.
delivered to that ecclesiastic. The testate proceeding The parish priest filed two motions for reconsideration.
remained pending. Judge De Aquino granted the second motion for
About thirteen years after the approval of the reconsideration in his order of December 10, 1957 on
project of partition, or on February 19, 1954, the 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 Coda
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 declared 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
500
500 SUPREME COURT REPORTS ANNOTATED
Parish Priest of Roman Catholic Church of Victoria, Tarlac vs.
Rigor
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 will, 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 restatement of the
provisions of his will:
1. 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. 2.That the devisee could not sell the ricelands.
3. 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. 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.
501
VOL. 89, APRIL 30, 1979
Parish Priest of Roman Catholic Church of Victoria, Tarlac vs.
Rigor
1. 5.That if the devisee is excommunicated, he
would be divested of the legacy and the
administration of the ricelands would pass to
the incumbent parish priest of Victoria and his
successors.
2. 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
3. 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 names 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
501 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
502
502 SUPREME COURT REPORTS ANNOTATED
Parish Priest of Roman Catholic Church of Victoria, Tarlac vs.
Rigor
should he 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 deathwould 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 legal
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 sone 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
503
VOL. 89, APRIL 30, 1979 503
Parish Priest of Roman Catholic Church of Victoria, Tarlac vs.
Rigor
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 carrera
eclesiastica” 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 acondidonado”? 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.
504
504 SUPREME COUBT REPORTS ANNOTATED
Parish Priest of Roman Catholic Church of Victoria, Tarlac vs.
Rigor
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 “no nearest 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 will, 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 x x x por
qualquier causa, no tenga efecto, se refundirá en la
masa de la herencia, fuera de los casos de sustitución y
derecho de acrecer”).
505
VOL. 89, APRIL 30, 1979
Parish Priest of Roman Catholic Church of Victoria, Tarlac vs.
Rigor
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 will is no longer valid. Thus, if a
conditional legacy does not take effect, there will be
intestate succession as to the property covered 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 (Actg. C.J.), Barredo (Actg.
Chairman), Antonio, Concepcion Jr., and Santos, JJ.,
concur.
Abad Santos, J., did not take part.
Decision affirmed.
Notes.—It is essentially the duty of every person
dealing at arms’ length with the administrator of an
estate subject of settlement and liquidation to inquire
about the existence of claims against, or of persons
505 having an interest in the estate subject to probate and
settlement proceedings. (Dolor vs. Sundiam, 39 SCRA
616).
The better practice for the heir who has not received
his share is to demand his share through a proper
motion in the same probate or administration
proceedings if it had already been closed, and through
an independent action which would be tried by another
Court or Judge which may thus reverse a decision or
order of the probate or intestate court already final
506
506 SUPREME COURT REPORTS ANNOTATED
Parish Priest of Roman Catholic Church of Victoria, Tarlac vs.
Rigor
and executed. (Guilas vs. Judge of Court of First
Instance, 43 SCRA 111; Macias vs. Uy Kim, 45 SCRA
251.)
A will may be allowed even if some witnesses do not
remember having attested to it, if other evidence
satisfactorily show due execution. Failure of a witness
to identify his signature will not necessarily bar
probate. (Maravilla vs. Maravilla, 37 SCRA 672).
Testate proceedings for the settlement of the estate of
a deceased person take precedence over intestate
proceedings for the same purpose. (Uriarte vs. Court of
First Instance of Negros Occidental, 33 SCRA 252.)
The power to settle decedent’s estate 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. (Rodriguez vs. Borja, 17 SCRA
418.)
In a special proceeding for the settlement of an
estate, the court has no jurisdiction to determine who
are the heirs of the brother of the deceased and who
should inherit his estate. (Bacani vs. Galauran, 4
SCRA 1063.)
The probate court acted correctly in holding a
hearing to determine the amount and the manner in
which an heir, in possession of a portion of the
decedent’s estate, should contribute for the payment of
the creditor’s claims and taxes. (Ignacio vs. Elchico, 20
SCRA 100.)
Every act intended to put an end to in division
among coheirs and legatees and divisees is deemed to
be a partition, although it should purport to be a sale,
an exchange, a compromise, or any other transaction
(Art. 1082, New Civil Code). (Gutierrez vs. Villegas, 5
SCRA 313.)
The intention and wishes of the testator, when
clearly expressed in his will, constitute the fixed law of
interpretation, and all questions raised at the trial,
relative to its execution and fulfillment, must be settled
in accordance therewith, following the plain and literal
meaning of the testators words, unless it clearly
appears that his intention was otherwise. (Vda. de
Villanueva vs. Juico, 4 SCRA 550.)
——o0o——
G.R. No. 145545. June 30, 2008.*
PAZ SAMANIEGO-CELADA,
petitioner, vs. LUCIA D. ABENA, respondent.
Wills and Succession; While it is true that the
attestation clause is not a part of the will, the court,
after examining the totality of the will, is of the
considered opinion that error in the number of pages of
the will as stated in the attestation clause is not
material to invalidate the subject will.—Anent the
contestants’ submission that the will is fatally
defective for the reason that its attestation clause
states that the will is composed of three (3) pages
while in truth and in fact, the will consists of two (2)
pages only because the attestation
_______________
* SECOND DIVISION.
570
5 SUPREME COURT REPORTS ANNOTATED
70
Samaniego-Celada vs. Abena
is not a part of the notarial will, the same is not
accurate. While it is true that the attestation clause is
not a part of the will, the court, after examining the
totality of the will, is of the considered opinion that
error in the number of pages of the will as stated in
the attestation clause is not material to invalidate the
subject will. It must be noted that the subject
instrument is consecutively lettered with pages A, B,
and C which is a sufficient safeguard from the
possibility of an omission of some of the pages. The
error must have been brought about by the honest
belief that the will is the whole instrument consisting
of three (3) pages inclusive of the attestation clause
and the acknowledgement. The position of the court is
in consonance with the “doctrine of liberal
interpretation” enunciated in Article 809 of the Civil
Code which reads: “In the absence of bad faith,
forgery or fraud, or undue [and] improper
pressure and influence, defects and
imperfections in the form of attestation or in the
language used therein shall not render the will
invalid if it is proved that the will was in fact
executed and attested in substantial compliance
with all the requirements of Article 805.”
Same; Petitioner and her siblings are not
compulsory heirs of the decedent under Article 887 of
the Civil Code and as the decedent validly disposed of
her properties in a will duly executed and probated,
petitioner has no legal right to claim any part of the
decedent’s estate.—We find no reason to disturb the
abovementioned findings of the RTC. Since, petitioner
and her siblings are not compulsory heirs of the
decedent under Article 887 of the Civil Code and as the
decedent validly disposed of her properties in a will
duly executed and probated, petitioner has no legal
right to claim any part of the decedent’s estate.
PETITION for review on certiorari of a decision of the
Court of Appeals.
The facts are stated in the opinion of the Court.
Francisco L. Rosario, Jr. for petitioner.
Nazario B. Regino for respondent.
571
VOL. 556, JUNE 30, 2008 571
Samaniego-Celada vs. Abena
QUISUMBING, J.:
This is a petition for review under Rule 45 of the
1997 Rules of Civil Procedure seeking to reverse the
Decision1dated October 13, 2000 of the Court of
Appeals in CA-G.R. CV No. 41756, which affirmed the
Decision2 dated March 2, 1993 of the Regional Trial
Court (RTC), Branch 66, Makati City. The RTC had
declared the last will and testament of Margarita S.
Mayores probated and designated respondent Lucia D.
Abena as the executor of her will. It also ordered the
issuance of letters testamentary in favor of
respondent.
The facts are as follows:
Petitioner Paz Samaniego-Celada was the first
cousin of decedent Margarita S. Mayores (Margarita)
while respondent was the decedent’s lifelong
companion since 1929.
On April 27, 1987, Margarita died single and
without any ascending nor descending heirs as her
parents, grandparents and siblings predeceased her.
She was survived by her first cousins Catalina
Samaniego-Bombay, Manuelita Samaniego Sajonia,
Feliza Samaniego, and petitioner.
Before her death, Margarita executed a Last Will
and Testament3 on February 2, 1987 where she
bequeathed one-half of her undivided share of a real
property located at Singalong Manila, consisting of
209.8 square meters, and covered by Transfer
Certificate of Title (TCT) No. 1343 to respondent,
Norma A. Pahingalo, and Florentino M. Abena in
equal shares or one-third portion each. She likewise
bequeathed one-half of her undivided share of a real
property located at San Antonio Village, Makati,
consisting of 225 square meters, and covered by TCT
No. 68920 to respondent, Isabelo M.
_______________
1 Rollo, pp. 41-48. Penned by Associate Justice Jose
L. Sabio, Jr., with Associate Justices Salvador J.
Valdez, Jr. and Eliezer R. delos Santos concurring.
2 Id., at pp. 34-40. Penned by Judge Eriberto U.
Rosario, Jr.
3 Id., at pp. 31-33.
572
572 SUPREME COURT REPORTS ANNOTATED
Samaniego-Celada vs. Abena
Abena, and Amanda M. Abena in equal shares or one-
third portion each. Margarita also left all her personal
properties to respondent whom she likewise
designated as sole executor of her will.
On August 11, 1987, petitioner filed a petition for
letters of administration of the estate of Margarita
before the RTC of Makati. The case was docketed as
SP Proc. No. M-1531.
On October 27, 1987, respondent filed a petition for
probate of the will of Margarita before the RTC of
Makati. The case was docketed as SP Proc. No. M-1607
and consolidated with SP Proc. No. M-1531.
On March 2, 1993, the RTC rendered a decision
declaring the last will and testament of Margarita
probated and respondent as the executor of the will.
The dispositive portion of the decision states:
In view of the foregoing, judgment is hereby
rendered:
1) declaring the will as probated;
 2) declaring Lucia Abena as the executor of the II.
will who will serve as such without a bond as stated in WHETHER OR NOT THE COURT OF APPEALS
paragraph VI of the probated will; COMMITTED ERROR IN NOT INVALIDATING THE
3) ordering the issuance of letters testamentary in WILL BECAUSE IT WAS PROCURED THROUGH
favor of Lucia Abena. UNDUE INFLUENCE AND PRESSURE[;] AND
So ordered.”4 III.
Petitioner appealed the RTC decision to the Court of WHETHER OR NOT THE COURT OF APPEALS
Appeals. But the Court of Appeals, in a decision dated GRAVELY ERRED IN NOT DECLARING
October 13, 2000, affirmed in toto the RTC ruling. The PETITIONER, HER SIBLINGS AND COUSIN AS
dispositive portion of the Court of Appeals’ decision THE LEGAL HEIRS OF MARGARITA S. MAYORES
states: AND IN NOT ISSUING LETTERS OF
“WHEREFORE, foregoing premises considered, the ADMINISTRATION TO HER.6
appeal having no merit in fact and in law, is Briefly stated, the issues are (1) whether the Court
hereby ORDERED DISMISSED and the appealed of Appeals erred in not declaring the will invalid for
Decision of the trial court AFFIRMED IN TOTO, with failure to comply with the formalities required by law,
cost to oppositors-appellants. (2) whether said court erred in not declaring the will
invalid because it was procured through undue
_______________ influence and pressure, and (3) whether it erred in not
declaring petitioner and her siblings as the legal heirs
4 Id., at p. 40. of Margarita, and in not issuing letters of
573 administration to petitioner.
VOL. 556, JUNE 30, 2008 573 Petitioner, in her Memorandum,7 argues that
Samaniego-Celada vs. Abena Margarita’s will failed to comply with the formalities
SO ORDERED.”5 required under Arti-
Hence, the instant petition citing the following
issues: _______________
I.
WHETHER OR NOT THE COURT OF APPEALS 5 Id., at p. 47.
COMMITTED A REVERSIBLE ERROR IN NOT 6 Id., at p. 85.
INVALIDATING THE WILL SINCE IT DID NOT 7 Id., at pp. 82-102.
CONFORM TO THE FORMALITIES REQUIRED BY 574
LAW; 574 SUPREME COURT REPORTS ANNOTATED
 Samaniego-Celada vs. Abena
cle8058 of the Civil Code because the will was not
signed by the testator in the presence of the
instrumental witnesses and in the presence of one
another. She also argues that the signatures of the
testator on pages A, B, and C of the will are not the
same or similar, indicating that they were not signed
on the same day. She further argues that the will was
procured through undue influence and pressure
because at the time of execution of the will, Margarita
was weak, sickly, jobless and entirely dependent upon
respondent and her nephews for support, and these
alleged handicaps allegedly affected her freedom and
willpower to decide on her own. Petitioner thus
concludes that Margarita’s total dependence on
respondent and her nephews compelled her to sign the
will. Petitioner likewise argues that the Court of
Appeals should have declared her and her siblings as
the legal heirs of Margarita
_______________
8 Art. 805. Every will, other than a holographic
will, must be subscribed at the end thereof by the
testator himself or by the testator’s name written by
some other person in his presence, and by his express
direction, and attested and subscribed by three or
more credible witnesses in the presence of the testator
and of one another.
The testator or the person requested by him to write
his name and the instrumental witnesses of the will,
shall also sign, as aforesaid, each and every page
thereof, except the last, on the left margin, and all the
pages shall be numbered correlatively in letters placed
on the upper part of each page.
The attestation shall state the number of pages
used upon which the will is written, and the fact that
the testator signed the will and every page thereof, or
caused some other person to write his name, under his
express direction, in the presence of the instrumental
witnesses, and that the latter witnessed and signed
the will and all the pages thereof in the presence of the
testator and of one another.
If the attestation clause is in a language not known
to the witnesses, it shall be interpreted to them.
575
VOL. 556, JUNE 30, 2008 575
Samaniego-Celada vs. Abena
since they are her only living collateral relatives in
accordance with Articles 10099 and 101010 of the Civil
Code.
Respondent, for her part, argues in her
Memorandum11that the petition for review raises
questions of fact, not of law and as a rule, findings of
fact of the Court of Appeals are final and conclusive
and cannot be reviewed on appeal to the Supreme
Court. She also points out that although the Court of
Appeals at the outset opined there was no compelling
reason to review the petition, the Court of Appeals
proceeded to tackle the assigned errors and rule that
the will was validly executed, sustaining the findings
of the trial court that the formalities required by law
were duly complied with. The Court of Appeals also
concurred with the findings of the trial court that the
testator, Margarita, was of sound mind when she
executed the will.
After careful consideration of the parties’
contentions, we rule in favor of respondent.
We find that the issues raised by petitioner concern
pure questions of fact, which may not be the subject of
a petition for review on certiorari under Rule 45 of the
Rules of Civil Procedure.
The issues that petitioner is raising now i.e.,
whether or not the will was signed by the testator in
the presence of the witnesses and of one another,
whether or not the signatures of the witnesses on the
pages of the will were signed on the same day, and
whether or not undue influence was exerted
_______________
9 Art. 1009. Should there be neither brothers nor
sisters nor children of brothers or sisters, the other
collateral relatives shall succeed to the estate.
The latter shall succeed without distinction of lines
or preference among them by reason of relationship by
the whole blood.
10 Art. 1010. The right to inherit ab
intestato shall not extend beyond the fifth degree of
relationship in the collateral line.
11 Rollo, pp. 108-111.
576
576 SUPREME COURT REPORTS ANNOTATED
Samaniego-Celada vs. Abena
upon the testator which compelled her to sign the will,
are all questions of fact.
This Court does not resolve questions of fact in a
petition for review under Rule 45 of the 1997 Rules of
Civil Procedure. Section 112 of Rule 45 limits this
Court’s review to questions of law only.
Well-settled is the rule that the Supreme Court is
not a trier of facts. When supported by substantial
evidence, the findings of fact of the Court of Appeals
are conclusive and binding on the parties and are not
reviewable by this Court, unless the case falls under
any of the following recognized exceptions:
(1) When the conclusion is a finding grounded
entirely on speculation, surmises and conjectures;
(2) When the inference made is manifestly
mistaken, absurd or impossible;
(3) Where there is a grave abuse of discretion;
(4) When the judgment is based on a
misapprehension of facts;
(5) When the findings of fact are conflicting;
(6) When the Court of Appeals, in making its
findings, went beyond the issues of the case and the
same is contrary to the admissions of both appellant
and appellee;
(7) When the findings are contrary to those of the
trial court;
(8) When the findings of fact are conclusions
without citation of specific evidence on which they are
based;
_______________
12 SECTION 1. Filing of petition with Supreme
Court.—A party desiring to appeal by certiorari from a
judgment or final order or resolution of the Court of
Appeals, the Sandiganbayan, the Regional Trial Court
or other courts whenever authorized by law, may file
with the Supreme Court a verified petition for review
on certiorari. The petition shall raise only questions of
law which must be distinctly set forth.
577
VOL. 556, JUNE 30, 2008
Samaniego-Celada vs. Abena
(9) When the facts set forth in the petition as well
as in the petitioners’ main and reply briefs are not
disputed by the respondents; and
(10) When the findings of fact of the Court of
Appeals are premised on the supposed absence of
evidence and contradicted by the evidence on record.13
We find that this case does not involve any of the
abovementioned exceptions.
Nonetheless, a review of the findings of the RTC as
upheld by the Court of Appeals, reveal that petitioner’s
arguments lack basis. The RTC correctly held:
“With [regard] to the contention of the oppositors
[Paz Samaniego-Celada, et al.] that the testator
[Margarita Mayores] was not mentally capable of
making a will at the time of the execution thereof, the
same is without merit. The oppositors failed to
establish, by preponderance of evidence, said
allegation and contradict the presumption that the
testator was of sound mind (See Article 800 of the Civil
Code). In fact, witness for the oppositors, Dr. Ramon
Lamberte, who, in some occasions, attended to the
testator months before her death, testified that
Margarita Mayores could engage in a normal
conversation and he even stated that the illness of the
testator does not warrant hospitalization…. Not one of
the oppositor’s witnesses has mentioned any instance
that they observed act/s of the testator during her
lifetime that could be construed as a manifestation of
mental incapacity. The testator may be admitted to be
physically weak but it does not necessarily follow that
577 she was not of sound mind. [The] testimonies of
contestant witnesses are pure aforethought.
Anent the contestants’ submission that the will is
fatally defective for the reason that its attestation
clause states that the will is composed of three (3)
pages while in truth and in fact, the will consists of
two (2) pages only because the attestation is not a part
of the notarial will, the same is not accurate. While it
is true that the attestation clause is not a part of the
will, the court, after examining
_______________
13 Ontimare, Jr. v. Elep, G.R. No. 159224, January
20, 2006, 479 SCRA 257, 265.
578
578 SUPREME COURT REPORTS ANNOTATED
Samaniego-Celada vs. Abena
the totality of the will, is of the considered opinion that
error in the number of pages of the will as stated in
the attestation clause is not material to invalidate the
subject will. It must be noted that the subject
instrument is consecutively lettered with pages A, B,
and C which is a sufficient safeguard from the
possibility of an omission of some of the pages. The
error must have been brought about by the honest
belief that the will is the whole instrument consisting
of three (3) pages inclusive of the attestation clause
and the acknowledgement. The position of the court is
in consonance with the “doctrine of liberal
interpretation” enunciated in Article 809 of the Civil
Code which reads:
“In the absence of bad faith, forgery or
fraud, or undue [and] improper pressure
and influence, defects and imperfections in
the form of attestation or in the language
used therein shall not render the will
invalid if it is proved that the will was in
fact executed and attested in substantial
compliance with all the requirements of
Article 805.”
The court also rejects the contention of the
oppositors that the signatures of the testator were
affixed on different occasions based on their
observation that the signature on the first page is
allegedly different in size, texture and appearance as
compared with the signatures in the succeeding pages.
After examination of the signatures, the court does not
share the same observation as the oppositors. The
picture (Exhibit “H-3”) shows that the testator was
affixing her signature in the presence of the
instrumental witnesses and the notary. There is no
evidence to show that the first signature was procured
earlier than February 2, 1987.
Finally, the court finds that no pressure nor undue
influence was exerted on the testator to execute the
subject will. In fact, the picture reveals that the
testator was in a good mood and smiling with the other
witnesses while executing the subject will (See Exhibit
“H”).
In fine, the court finds that the testator was
mentally capable of making the will at the time of its
execution, that the notarial will presented to the court
is the same notarial will that was executed and that
all the formal requirements (See Article 805 of the
Civil
579
VOL. 556, JUNE 30, 2008 579
Samaniego-Celada vs. Abena
Code) in the execution of a will have been substantially
complied with in the subject notarial
will.”14 (Emphasis supplied.)
Thus, we find no reason to disturb the
abovementioned findings of the RTC. Since, petitioner
and her siblings are not compulsory heirs of the
decedent under Article 88715 of the Civil Code and as
the decedent validly disposed of her properties in a will
duly executed and probated, petitioner has no legal
right to claim any part of the decedent’s estate.
WHEREFORE, the petition is DENIED. The
assailed Decision dated October 13, 2000 of the Court
of Appeals in CA-G.R. CV No. 41756 is AFFIRMED.
Costs against petitioner.
SO ORDERED.
Carpio-Morales, Tinga, Velasco, Jr. and Brion,
JJ.,concur.
Petition denied, assailed decision affirmed.
_______________
 14 Rollo, pp. 38-40.
15 Art. 887. The following are compulsory heirs:
(1) Legitimate children and descendants, with
respect to their legitimate parents and ascendants;
(2) In default of the foregoing, legitimate parents
and ascendants, with respect to their legitimate
children and descendants;
(3) The widow or widower;
(4) Acknowledged natural children, and natural
children by legal fiction;
(5) Other illegitimate children referred to in
article 287.
Compulsory heirs mentioned in Nos. 3, 4 and 5 are
not excluded by those in Nos. 1 and 2; neither do they
exclude one another.
In all cases of illegitimate children, their filiation
must be duly proved.
The father or mother of illegitimate children of the
three classes mentioned, shall inherit from them in the
manner and to the extent established by this Code.
[No. 32636. March 17, 1930]
In the matter of the Estate of Edward Randolph Hix,
deceased. A. W. FLUEMER, petitioner and
appellant, vs.ANNIE COUSINS Hix, oppositor
and appellee.
1. 1.WlLLS; EXECUTORS AND
ADMINISTRATORS; CODE OF ClVIL
PROCEDURE, SECTION 781, AS AMENDED,
APPLIED; RIGHT OF SPECIAL
ADMINISTRATOR TO APPEAL FROM
DlSALLOWANCE OF A WlLL.—The special
administrator of an estate is a "person
interested in the allowance or disallowance of a
will by a Court of First Instance," within the
meaning of section 781, as amended, of the
Code of Civil Procedure, and so may be
permitted to appeal to the Supreme Court from
the disallowance of a will.
1. 2.ID. ; ID.; CONFLICT OF LAWS; CODE OF
CIVIL PROCEDURE, SECTIONS 300 AND
301, APPLIED.—The laws of a foreign
jurisdiction do not prove themselves in our
courts. The courts of the Philippine Islands are
not authorized to take judicial notice of the
laws of the various States of the American
Union. Such laws must be proved as facts. The
requirements of sections 300 and 301 of the
Code of Civil Procedure must be met.
1. 3.ID. ; ID.; ID.; CODE OF CIVIL PROCEDURE,
SECTION 633, APPLIED.—The due execution
of a will alleged to have been executed in
another jurisdiction must be established.
Where the witnesses to the will reside without
the Philippine Islands, it is the duty of the
petitioner to prove execution by some other
means.
1. 4.ID,; ID.; ID.; DOMICILE.—Where it is desired
to establish the execution of a will in another
 jurisdiction, it is necessary to prove that the
testator had his domicile in that jurisdiction
and not in the Philippine Islands.
1. 5.ID. ; ID. ; ID. ; CODE OF CIVIL
PROCEDURE, SECTIONS 637, 638, AND 639,
APPLIED.—Where it is desired to prove the
probate of a will in another jurisdiction and the
appointment in that jurisdiction of an
administrator for the estate of the deceased,
the moving party must comply with the
provisions of sections 637, 638, and 639 of the
Code of Civil Procedure by requesting a
hearing on the question of the allowance of a
will said to have been proved and allowed in
another jurisdiction.
APPEAL from a judgment of the Court of First
Instance of Manila. Tuason, J.
The facts are stated in the opinion of the court.
C. A. Sobral for appellant.
Harvey & O'Brien and Gibbs & McDonough for
appellee.
611
VOL. 54, MARCH 17, 1930
Fluemer vs. Hix
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 be the last will and testament of the
deceased. Appellee contends that the appellant as a
mere special administrator 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], 47 Phil., 780).
It is the theory of the petitioner that the alleged will
was executed in Elkins, West Virginia, on November 3,
1925, by Hix who had his residence in that
jurisdiction, and that the laws of West Virginia govern.
To this end, there was submitted a copy of section 3868
of Acts 1882, c. 84 as found in West Virginia Code,
Annotated, by Hogg, Charles E., vol. 2, 1914, p. 1690,
and as certified to by the Director of the National
Library. But this was far from a compliance with the
law. The laws of a foreign jurisdiction do not prove
themselves in our courts. The courts of the Philippine
Islands are not authorized to take judicial notice of the
laws of the various States of the American Union.
Such laws must be proved as facts. (In re Estate of
Johnson[1918], 39 Phil., 156.) Here the requirements
611 of the law were not met. There was no showing that
the book from which an extract was taken was printed
or published under the authority of the State of West
Virginia, as provided in section 300 of the Code of Civil
Procedure. Nor was the extract from the law attested
by the certificate of the officer having charge of the
original, under the seal of the State of West Virginia,
as provided in section 301 of the Code of Civil
Procedure. No evidence Was introduced to show that
the extract from
612
612 PHILIPPINE REPORTS ANNOTATED
Fluemer vs. Hix
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, or 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 be 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
in the Philippine Islands. The only evidence introduced
to establish this fact consisted of the recitals in the
alleged will and the testimony of the petitioner. Also in
beginning administration proceedings originally in the
Philippine Islands, the petitioner violated his own
theory by attempting to have the principal
administration in the Philippine Islands.
While the appeal was pending submission in this
court, the attorney for the appellant presented an
unverified petition asking the court to accept as part of
the evidence the documents attached to the petition.
One of these documents discloses that a paper writing
purporting to be the last will and testament of Edward
Randolph Hix, deceased, was presented for probate on
June 8, 1929, to the clerk of Randolph County, State of
West Virginia, in vacation, and was duly proven by the
oaths of Dana 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 County, West Virginia, appointed Claude W;
Maxwell as administrator, cum testamento annexo, of
the estate of Edward Randolph Hix, deceased. In this
connection, it
613is to be noted that the application f or 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
the provisions of sections 637, 638, and 639 of the Code
of Civil Procedure, for no hearing on the question of
the allowance of a will said to have been proved and
allowed in West Virginia has been requested. 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 Virginia. The present proceedings do not
call for any specific pronouncements on the validity or
invalidity 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.
Judgment affirmed.
_______________
SUPREME COURT REPORTS ANNOTATED
De la Cerna vs. Rebaca-Potot
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.
Judgments; Probate courts; Error of law does not
affect jurisdiction, of probate court nor conclusive effect
of its decision.—An error of law committed in
admitting a joint will to probate does not affect the
jurisdiction of the probate court nor the conclusive
effect of its final decision.
Same; Same; Probate decree of joint will affects
only share of deceased spouse.—A final probate decree
of a joint will of husband and wife affects only the
share of the deceased spouse and cannot include the
disposition of said joint will, in so far as the estate of
the latter spouse is concerned, must be, on her death,
reexamined and adjudicated de novo.
Wills; Effects of validity of joint will as to share of
wife who dies later than the husband.—Where a
husband and wife executed a joint will and upon the
death of the husband said will was admitted to probate
by a final decree of the court although erroneous, and
the wife dies later, it is held that said first decree of
probate affects only the estate of the husband but
cannot affect the estate of the wife, considering that a
joint will is a separate will of each testator; and a joint
will being prohibited by law, the estate of the wife
should pass upon her death to her intestate heirs and
not to the testamentary heir, unless some other valid
will is shown to exist in favor of the latter or unless the
testamentary heir is the only heir of said wife.
APPEAL from a decision of the Court of Appeals.
The facts are stated in the opinion of the Court.
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
577
VOL. 12, DECEMBER 23, 1964 577
De la Cerna vs. Rebaca-Potot
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 de
la 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 documento; y habido
consideracion de la 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 reclamaciones que
se presentare contra los bienes del finado Bernabe de
la Serna de los años 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,
578
578 SUPREME COURT REPORTS ANNOTATED
De la Cerna vs. Rebaca-Potot
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:
“x x x. 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 Estate of Johnson, 39 Phil. 156); and
public policy and sound practice demand that at the
risk of occasional errors judgment of courts should
become final at some definite date fixed by
law. Interest rei publicae ut finis 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).
579
VOL. 12, DECEMBER 23, 1964 579
De la Cerna vs. Rebaca-Potot
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 1939 could only affect the share
of the deceased husband, Bernabe de la Cerna. It could
not include the disposition of the share of the wife,
Gervasia Rebaca, who was then still alive, and over
whose interest in the conjugal properties the probate
court acquired no jurisdiction, precisely because her
estate could not then be in issue. Be it remembered
that prior to the 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
580
580 SUPREME COURT REPORTS ANNOTATED
Go Uan vs. Galang
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.
Judgment affirmed with modification.
_____________
SUPREME COURT REPORTS ANNOTATED
Bellis vs. Bellis
No. L-23678. June 6, 1967.
TESTATE ESTATE OF AMOS G. BELLIS, deceased.
PEOPLE'S BANK & TRUST COMPANY, executor.
MARIA CRISTINA BELLIS and MIRIAM PALMA
BELLIS, oppositors-appellants, vs. EDWARD A.
BELLIS, ET AL., heirs-appellees.
Wills; Succession; Conflict of laws; Renvoi
doctrine.—The doctrine of renvoi is usually pertinent
where the decedent is a national of one country and is
domiciled in another. It does not apply to a case where
the decedent was a citizen of Texas and was domiciled
therein at the time of his death. So that, even
assuming that Texas has a conflicts rule providing
that the domiciliary law should govern successional
rights, the same would not result in a reference
back (renvoi) to Philippine law, but it would still refer
to Texas law. Nonetheless, if Texas has a conflicts rule,
adopting the rule of lex rei sitae, which calls for the
application of the law of the place where the properties
are situated, renvoi would arise, where the properties
involved are found in the Philippines.
Same; Foreign laws.—In the absence of proof as to
the conflicts rule of Texas, it would be presumed to be
the same as our local conflicts rule.
Same; Applicability of national law to
succession; Capacity to succeed—The decedent's
national law governs the order of succession, the
amount of successional rights, the intrinsic validity of
the provisions of the will and capacity to succeed.
Same; Third paragraph of article 17 of New Civil
Code does not modify article 16.—The third paragraph
of article 17 of the New Civil Code is not an exception
to the second paragraph of article 16. Precisely,
Congress deleted the phrase, "notwithstanding the
provisions of this and the next preceding article," when
it incorporated article 11 of the old Civil Code as
article 17, while reproducing without substantial
change the second paragraph of article 10 of the old
Civil Code, as article 16. The legislative intent must
have been to make the second paragraph of article 176
a specific provision in itself which must be applied in
testate and intestate succession. As a further
indication of this legislative intent, Congress added a
new provision, under article 1039, which decrees that
capacity to succeed is governed by the decedent's
national law,
Same; Legitimes; Statutes; Special and general
provisions.—Whatever public policy and good customs
may be involved in our system of legitimes, Congres
has not intended to extend the same to the succession
of foreign nationals. It has specifically chosen the
decedent's national law to govern, inter alia,
359
VOL. 20, JUNE 6, 1967 359
Bellis vs. Bellis
the amount of successional rights. Specific
provisions must prevail over general ones.
Same; Testamentary provision that successional
right to decedent's estate would be governed by law
other than his national law is void.—A provision in a
foreigner's will that his properties should be
distributed in accordance with Philippine law and not
in accordance with his national law is void, being
contrary to article 16 of the New Civil Code.
Same; System of legitimes does not apply to estate
of a citizen of Texas.—Where the decedent was a
citizen of Texas and under Texas laws there are no
forced heirs, the system of legitimes in Philippine law
cannot be applied to the succession to the decedent's
testate because the intrinsic validity of the provisions
of the decedent's will and the amount of successional
rights are to be determined under Texas law.
APPEAL from an order of the Court of First Instance
of Manila.
The facts are stated in the opinion of the Court.
Vicente R. Macasaet and Jose D. Villena for
oppositorsappellants.
Paredes, Poblador, Cruz & 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 & 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 f iled by the executor in 'Civil Case No.
37089 therein.
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.
360
360 SUPREME COURT REPORTS ANNOTATED
Bellis vs. 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 f or, 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 and 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.
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 accordingly 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 ?120,000.00. 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.
361
VOL. 20, JUNE 6, 1967 361
 Bellis vs. Bellis
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,
oppositorsappellants 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
________________
1 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.
2 San Antonio, Texas was his legal residence.
362
362 SUPREME COURT REPORTS ANNOTATED
Bellis vs. Bellis
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; (c) 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 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."
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,
Congress deleted 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,
_______________
3 Lim vs. Collector, 36 Phil. 472; In re Testate
Estate of Suntay, 95 Phil. 500.
363
VOL. 20, JUNE 6, 1967 363
Bellis vs. Bellis
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 succes-sions. 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 and children of what should be their legitimes under
distributed in accordance with Philippine law and not Philippine law should be respected and the project of
with his national law, is illegal and void. for his partition made in accordance with. his will should be
national law cannot be ignored in regard to those approved,
matters that Article 10—now Article 16—of the Civil In Aznar vs. Christensen Garcia, 61 O.G. 7302, it
Code states said national law should govern. was held that, where the deceased citizen of California
The parties admit that the decedent, Amos G. was domiciled in the Philippines, the validity of the
Bellis, was a citizen of the State of Texas, U.S.A., and provisions of his will should be governed by Philippine
that under the laws of Texas, there are no forced heirs law, pursuant to article 946 of the California Civil
or legitimes. Accordingly, since the intrinsic validity of Code, and not by the internal law of California.
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.
364
364 SUPREME COURT REPORTS ANNOTATED
Allied Workers' Association of the Philippines vs. Court of
Industrial Relations
Concepcion, C.J., Reyes,
J.B.L., Dizon, Regala, Makalintal, Zaldivar, Sanchez a
nd Castro, JJ., concur.
Judgment affirmed.
Notes.—In Philippine Trust Company vs.
Bohanan, 60 O.G. 4615, it was held that the validity of
the provisions of the will of a citizen of Nevada should
be governed by his national law, the law of Nevada.
Since the Nevada law allows a citizen of Nevada to
dispose of all his property according to his will, the
testamentary provisions therein, depriving his wife