1. Tayag vS. Benguet Consolidated Inc.

26 SCRA 242
2. Vda. de Perez vs. Tolete 232 SCRA 722
3. Re Estate of Sunday 95 Phil 500
4. Testate Estate of Bellis vs. Bellis 20 SCRA 358
5. Testate Estate of Bohanan vs Bohanan 106 Phil 997
6. Miciano vs Brimo 50 Phil 867
7. Ramirez vs Vda. De Ramirez 111 SCRA 704
8. Sarsosa Vda de Barbosia vs Cuenco 113 SCRA 547
9. Vasquez vs Giap 96 Phil 447
10.Holy See vs Rosario 238 SCRA 524
11.Laurel vs Garcia 187 SCRA 797
12. Therkelsen vs Republic 12 SCRA 400
 G.R. No. L-23145 November 29, 1968
TESTATE ESTATE OF IDONAH SLADE PERKINS, deceased. RENATO D. TAYAG, ancillary administrator-
appellee, vs. BENGUET CONSOLIDATED, INC., oppositor-appellant.

Confronted by an obstinate and adamant refusal of the domiciliary administrator, the County Trust Company of New
York, United States of America, of the estate of the deceased Idonah Slade Perkins, who died in New York City on March
27, 1960, to surrender to the ancillary administrator in the Philippines the stock certificates owned by her in a Philippine
corporation, Benguet Consolidated, Inc., to satisfy the legitimate claims of local creditors, the lower court, then presided
by the Honorable Arsenio Santos, now retired, issued on May 18, 1964, an order of this tenor: "After considering the
motion of the ancillary administrator, dated February 11, 1964, as well as the opposition filed by the Benguet
Consolidated, Inc., the Court hereby (1) considers as lost for all purposes in connection with the administration and
liquidation of the Philippine estate of Idonah Slade Perkins the stock certificates covering the 33,002 shares of stock
standing in her name in the books of the Benguet Consolidated, Inc., (2) orders said certificates cancelled, and (3) directs
said corporation to issue new certificates in lieu thereof, the same to be delivered by said corporation to either the
incumbent ancillary administrator or to the Probate Division of this Court."1

From such an order, an appeal was taken to this Court not by the domiciliary administrator, the County Trust Company of
New York, but by the Philippine corporation, the Benguet Consolidated, Inc. The appeal cannot possibly prosper. The
challenged order represents a response and expresses a policy, to paraphrase Frankfurter, arising out of a specific
problem, addressed to the attainment of specific ends by the use of specific remedies, with full and ample support from
legal doctrines of weight and significance.

The facts will explain why. As set forth in the brief of appellant Benguet Consolidated, Inc., Idonah Slade Perkins, who
died on March 27, 1960 in New York City, left among others, two stock certificates covering 33,002 shares of appellant,
the certificates being in the possession of the County Trust Company of New York, which as noted, is the domiciliary
administrator of the estate of the deceased.2 Then came this portion of the appellant's brief: "On August 12, 1960,
Prospero Sanidad instituted ancillary administration proceedings in the Court of First Instance of Manila; Lazaro A.
Marquez was appointed ancillary administrator, and on January 22, 1963, he was substituted by the appellee Renato D.
Tayag. A dispute arose between the domiciary administrator in New York and the ancillary administrator in the
Philippines as to which of them was entitled to the possession of the stock certificates in question. On January 27, 1964,
the Court of First Instance of Manila ordered the domiciliary administrator, County Trust Company, to "produce and
deposit" them with the ancillary administrator or with the Clerk of Court. The domiciliary administrator did not comply
with the order, and on February 11, 1964, the ancillary administrator petitioned the court to "issue an order declaring the
certificate or certificates of stocks covering the 33,002 shares issued in the name of Idonah Slade Perkins by Benguet
Consolidated, Inc., be declared [or] considered as lost."3

It is to be noted further that appellant Benguet Consolidated, Inc. admits that "it is immaterial" as far as it is concerned as
to "who is entitled to the possession of the stock certificates in question; appellant opposed the petition of the ancillary
administrator because the said stock certificates are in existence, they are today in the possession of the domiciliary
administrator, the County Trust Company, in New York, U.S.A...."4

It is its view, therefore, that under the circumstances, the stock certificates cannot be declared or considered as lost.
Moreover, it would allege that there was a failure to observe certain requirements of its by-laws before new stock
certificates could be issued. Hence, its appeal.

As was made clear at the outset of this opinion, the appeal lacks merit. The challenged order constitutes an emphatic
affirmation of judicial authority sought to be emasculated by the wilful conduct of the domiciliary administrator in
refusing to accord obedience to a court decree. How, then, can this order be stigmatized as illegal?

As is true of many problems confronting the judiciary, such a response was called for by the realities of the situation.
What cannot be ignored is that conduct bordering on wilful defiance, if it had not actually reached it, cannot without
undue loss of judicial prestige, be condoned or tolerated. For the law is not so lacking in flexibility and resourcefulness as
to preclude such a solution, the more so as deeper reflection would make clear its being buttressed by indisputable
principles and supported by the strongest policy considerations.

It can truly be said then that the result arrived at upheld and vindicated the honor of the judiciary no less than that of the
country. Through this challenged order, there is thus dispelled the atmosphere of contingent frustration brought about by
the persistence of the domiciliary administrator to hold on to the stock certificates after it had, as admitted, voluntarily
submitted itself to the jurisdiction of the lower court by entering its appearance through counsel on June 27, 1963, and
filing a petition for relief from a previous order of March 15, 1963.

Thus did the lower court, in the order now on appeal, impart vitality and effectiveness to what was decreed. For without
it, what it had been decided would be set at naught and nullified. Unless such a blatant disregard by the domiciliary
administrator, with residence abroad, of what was previously ordained by a court order could be thus remedied, it would
have entailed, insofar as this matter was concerned, not a partial but a well-nigh complete paralysis of judicial authority.

1. Appellant Benguet Consolidated, Inc. did not dispute the power of the appellee ancillary administrator to gain control
and possession of all assets of the decedent within the jurisdiction of the Philippines. Nor could it. Such a power is
inherent in his duty to settle her estate and satisfy the claims of local creditors.5 As Justice Tuason speaking for this Court
made clear, it is a "general rule universally recognized" that administration, whether principal or ancillary, certainly
"extends to the assets of a decedent found within the state or country where it was granted," the corollary being "that an
administrator appointed in one state or country has no power over property in another state or country."6

It is to be noted that the scope of the power of the ancillary administrator was, in an earlier case, set forth by Justice
Malcolm. Thus: "It is often necessary to have more than one administration of an estate. When a person dies intestate
owning property in the country of his domicile as well as in a foreign country, administration is had in both countries.
That which is granted in the jurisdiction of decedent's last domicile is termed the principal administration, while any other
administration is termed the ancillary administration. The reason for the latter is because a grant of administration does
not ex proprio vigore have any effect beyond the limits of the country in which it is granted. Hence, an administrator
appointed in a foreign state has no authority in the [Philippines]. The ancillary administration is proper, whenever a
person dies, leaving in a country other than that of his last domicile, property to be administered in the nature of assets of
the deceased liable for his individual debts or to be distributed among his heirs."7

It would follow then that the authority of the probate court to require that ancillary administrator's right to "the stock
certificates covering the 33,002 shares ... standing in her name in the books of [appellant] Benguet Consolidated, Inc...."
be respected is equally beyond question. For appellant is a Philippine corporation owing full allegiance and subject to the
unrestricted jurisdiction of local courts. Its shares of stock cannot therefore be considered in any wise as immune from
lawful court orders.

Our holding in Wells Fargo Bank and Union v. Collector of Internal Revenue8 finds application. "In the instant case, the
actual situs of the shares of stock is in the Philippines, the corporation being domiciled [here]." To the force of the above
undeniable proposition, not even appellant is insensible. It does not dispute it. Nor could it successfully do so even if it
were so minded.

2. In the face of such incontrovertible doctrines that argue in a rather conclusive fashion for the legality of the challenged
order, how does appellant, Benguet Consolidated, Inc. propose to carry the extremely heavy burden of persuasion of
precisely demonstrating the contrary? It would assign as the basic error allegedly committed by the lower court its
"considering as lost the stock certificates covering 33,002 shares of Benguet belonging to the deceased Idonah Slade
Perkins, ..."9 More specifically, appellant would stress that the "lower court could not "consider as lost" the stock
certificates in question when, as a matter of fact, his Honor the trial Judge knew, and does know, and it is admitted by the
appellee, that the said stock certificates are in existence and are today in the possession of the domiciliary administrator in
New York."10

There may be an element of fiction in the above view of the lower court. That certainly does not suffice to call for the
reversal of the appealed order. Since there is a refusal, persistently adhered to by the domiciliary administrator in New
York, to deliver the shares of stocks of appellant corporation owned by the decedent to the ancillary administrator in the
Philippines, there was nothing unreasonable or arbitrary in considering them as lost and requiring the appellant to issue
new certificates in lieu thereof. Thereby, the task incumbent under the law on the ancillary administrator could be
discharged and his responsibility fulfilled.

Any other view would result in the compliance to a valid judicial order being made to depend on the uncontrolled
discretion of the party or entity, in this case domiciled abroad, which thus far has shown the utmost persistence in refusing
to yield obedience. Certainly, appellant would not be heard to contend in all seriousness that a judicial decree could be
treated as a mere scrap of paper, the court issuing it being powerless to remedy its flagrant disregard.

It may be admitted of course that such alleged loss as found by the lower court did not correspond exactly with the facts.
To be more blunt, the quality of truth may be lacking in such a conclusion arrived at. It is to be remembered however,
again to borrow from Frankfurter, "that fictions which the law may rely upon in the pursuit of legitimate ends have played
an important part in its development."11

Speaking of the common law in its earlier period, Cardozo could state fictions "were devices to advance the ends of
justice, [even if] clumsy and at times offensive."12 Some of them have persisted even to the present, that eminent jurist,
noting "the quasi contract, the adopted child, the constructive trust, all of flourishing vitality, to attest the empire of "as if"
today."13 He likewise noted "a class of fictions of another order, the fiction which is a working tool of thought, but which
at times hides itself from view till reflection and analysis have brought it to the light."14

What cannot be disputed, therefore, is the at times indispensable role that fictions as such played in the law. There should
be then on the part of the appellant a further refinement in the catholicity of its condemnation of such judicial technique.
If ever an occasion did call for the employment of a legal fiction to put an end to the anomalous situation of a valid
judicial order being disregarded with apparent impunity, this is it. What is thus most obvious is that this particular alleged
error does not carry persuasion.

3. Appellant Benguet Consolidated, Inc. would seek to bolster the above contention by its invoking one of the provisions
of its by-laws which would set forth the procedure to be followed in case of a lost, stolen or destroyed stock certificate; it
would stress that in the event of a contest or the pendency of an action regarding ownership of such certificate or
certificates of stock allegedly lost, stolen or destroyed, the issuance of a new certificate or certificates would await the
"final decision by [a] court regarding the ownership [thereof]."15
Such reliance is misplaced. In the first place, there is no such occasion to apply such by-law. It is admitted that the foreign
domiciliary administrator did not appeal from the order now in question. Moreover, there is likewise the express
admission of appellant that as far as it is concerned, "it is immaterial ... who is entitled to the possession of the stock
certificates ..." Even if such were not the case, it would be a legal absurdity to impart to such a provision conclusiveness
and finality. Assuming that a contrariety exists between the above by-law and the command of a court decree, the latter is
to be followed.

It is understandable, as Cardozo pointed out, that the Constitution overrides a statute, to which, however, the judiciary
must yield deference, when appropriately invoked and deemed applicable. It would be most highly unorthodox, however,
if a corporate by-law would be accorded such a high estate in the jural order that a court must not only take note of it but
yield to its alleged controlling force.

The fear of appellant of a contingent liability with which it could be saddled unless the appealed order be set aside for its
inconsistency with one of its by-laws does not impress us. Its obedience to a lawful court order certainly constitutes a
valid defense, assuming that such apprehension of a possible court action against it could possibly materialize. Thus far,
nothing in the circumstances as they have developed gives substance to such a fear. Gossamer possibilities of a future
prejudice to appellant do not suffice to nullify the lawful exercise of judicial authority.

4. What is more the view adopted by appellant Benguet Consolidated, Inc. is fraught with implications at war with the
basic postulates of corporate theory.

We start with the undeniable premise that, "a corporation is an artificial being created by operation of law...." 16 It owes its
life to the state, its birth being purely dependent on its will. As Berle so aptly stated: "Classically, a corporation was
conceived as an artificial person, owing its existence through creation by a sovereign power." 17 As a matter of fact, the
statutory language employed owes much to Chief Justice Marshall, who in the Dartmouth College decision defined a
corporation precisely as "an artificial being, invisible, intangible, and existing only in contemplation of law." 18

The well-known authority Fletcher could summarize the matter thus: "A corporation is not in fact and in reality a person,
but the law treats it as though it were a person by process of fiction, or by regarding it as an artificial person distinct and
separate from its individual stockholders.... It owes its existence to law. It is an artificial person created by law for certain
specific purposes, the extent of whose existence, powers and liberties is fixed by its charter." 19Dean Pound's terse
summary, a juristic person, resulting from an association of human beings granted legal personality by the state, puts the
matter neatly.20

There is thus a rejection of Gierke's genossenchaft theory, the basic theme of which to quote from Friedmann, "is the
reality of the group as a social and legal entity, independent of state recognition and concession." 21 A corporation as
known to Philippine jurisprudence is a creature without any existence until it has received the imprimatur of the state
according to law. It is logically inconceivable therefore that it will have rights and privileges of a higher priority than that
of its creator. More than that, it cannot legitimately refuse to yield obedience to acts of its state organs, certainly not
excluding the judiciary, whenever called upon to do so.

As a matter of fact, a corporation once it comes into being, following American law still of persuasive authority in our
jurisdiction, comes more often within the ken of the judiciary than the other two coordinate branches. It institutes the
appropriate court action to enforce its right. Correlatively, it is not immune from judicial control in those instances, where
a duty under the law as ascertained in an appropriate legal proceeding is cast upon it.

To assert that it can choose which court order to follow and which to disregard is to confer upon it not autonomy which
may be conceded but license which cannot be tolerated. It is to argue that it may, when so minded, overrule the state, the
source of its very existence; it is to contend that what any of its governmental organs may lawfully require could be
ignored at will. So extravagant a claim cannot possibly merit approval.

5. One last point. In Viloria v. Administrator of Veterans Affairs, 22 it was shown that in a guardianship proceedings then
pending in a lower court, the United States Veterans Administration filed a motion for the refund of a certain sum of
money paid to the minor under guardianship, alleging that the lower court had previously granted its petition to consider
the deceased father as not entitled to guerilla benefits according to a determination arrived at by its main office in the
United States. The motion was denied. In seeking a reconsideration of such order, the Administrator relied on an
American federal statute making his decisions "final and conclusive on all questions of law or fact" precluding any other
American official to examine the matter anew, "except a judge or judges of the United States court." 23 Reconsideration
was denied, and the Administrator appealed.

In an opinion by Justice J.B.L. Reyes, we sustained the lower court. Thus: "We are of the opinion that the appeal should
be rejected. The provisions of the U.S. Code, invoked by the appellant, make the decisions of the U.S. Veterans'
Administrator final and conclusive when made on claims property submitted to him for resolution; but they are not
applicable to the present case, where the Administrator is not acting as a judge but as a litigant. There is a great difference
between actions against the Administrator (which must be filed strictly in accordance with the conditions that are imposed
by the Veterans' Act, including the exclusive review by United States courts), and those actions where the Veterans'
Administrator seeks a remedy from our courts and submits to their jurisdiction by filing actions therein. Our attention has
not been called to any law or treaty that would make the findings of the Veterans' Administrator, in actions where he is a
party, conclusive on our courts. That, in effect, would deprive our tribunals of judicial discretion and render them mere
subordinate instrumentalities of the Veterans' Administrator."
It is bad enough as the Viloria decision made patent for our judiciary to accept as final and conclusive, determinations
made by foreign governmental agencies. It is infinitely worse if through the absence of any coercive power by our courts
over juridical persons within our jurisdiction, the force and effectivity of their orders could be made to depend on the
whim or caprice of alien entities. It is difficult to imagine of a situation more offensive to the dignity of the bench or the
honor of the country.

Yet that would be the effect, even if unintended, of the proposition to which appellant Benguet Consolidated seems to be
firmly committed as shown by its failure to accept the validity of the order complained of; it seeks its reversal. Certainly
we must at all pains see to it that it does not succeed. The deplorable consequences attendant on appellant prevailing attest
to the necessity of negative response from us. That is what appellant will get.

That is all then that this case presents. It is obvious why the appeal cannot succeed. It is always easy to conjure extreme
and even oppressive possibilities. That is not decisive. It does not settle the issue. What carries weight and conviction is
the result arrived at, the just solution obtained, grounded in the soundest of legal doctrines and distinguished by its
correspondence with what a sense of realism requires. For through the appealed order, the imperative requirement of
justice according to law is satisfied and national dignity and honor maintained.

WHEREFORE, the appealed order of the Honorable Arsenio Santos, the Judge of the Court of First Instance, dated May
18, 1964, is affirmed. With costs against oppositor-appelant Benguet Consolidated, Inc.
 G.R. No. 76714 June 2, 1994
SALUD TEODORO VDA. DE PEREZ, petitioner, vs.
HON. ZOTICO A. TOLETE in his capacity as Presiding Judge, Branch 18, RTC, Bulacan, respondent.

This is a petition for certiorari under Rule 65 of the Revised Rules of Court to set aside the Order dated November 19,
1986 of the Regional Trial Court, Branch 18, Bulacan presided by respondent Judge Zotico A. Tolete, in Special
Proceedings No. 1793-M.

We grant the petition.

II Dr. Jose F. Cunanan and his wife, Dr. Evelyn Perez-Cunanan, who became American citizens,
established a successful medical practice in New York, U.S.A. The Cunanans lived at No. 2896 Citation Drive,
Pompey, Syracuse, New York, with their children, Jocelyn, 18; Jacqueline, 16; and Josephine, 14.

On August 23, 1979, Dr. Cunanan executed a last will and testament, bequeathing to his wife "all the remainder" of his
real and personal property at the time of his death "wheresoever situated" (Rollo, p. 35). In the event he would survive his
wife, he bequeathed all his property to his children and grandchildren with Dr. Rafael G. Cunanan, Jr. as trustee. He
appointed his wife as executrix of his last will and testament and Dr. Rafael G. Cunanan, Jr. as substitute executor. Article
VIII of his will states:

If my wife, EVELYN PEREZ-CUNANAN, and I shall die under such circumstances that there is not
sufficient evidence to determine the order of our deaths, then it shall be presumed that I predeceased her,
and my estate shall be administered and distributed, in all respects, in accordance with such presumption

Four days later, on August 27, Dr. Evelyn P. Cunanan executed her own last will and testament containing the same
provisions as that of the will of her husband. Article VIII of her will states:

If my husband, JOSE F. CUNANAN, and I shall die under such circumstances that there is not sufficient
evidence to determine the order of our deaths, then it shall be presumed that he predeceased me, and my
estate shall be administered and distributed in all respects, in accordance with such presumption.

On January 9, 1982, Dr. Cunanan and his entire family perished when they were trapped by fire that gutted their home.
Thereafter, Dr. Rafael G. Cunanan, Jr. as trustee and substitute executor of the two wills, filed separate proceedings for
the probate thereof with the Surrogate Court of the County of Onondaga, New York. On April 7, these two wills were
admitted to probate and letters testamentary were issued in his favor.

On February 21, 1983, Salud Teodoro Perez, the mother of Dr. Evelyn P. Cunanan, and petitioner herein, filed with the
Regional P. Cunanan, and petitioner herein, filed with the Regional Trial Court, Malolos, Bulacan a petition for the
reprobate of the two bills ancillary to the probate proceedings in New York. She also asked that she be appointed the
special administratrix of the estate of the deceased couple consisting primarily of a farm land in San Miguel, Bulacan.

On March 9, the Regional Trial Court, Branch 16, Malolos, Bulacan, presided by Judge Gualberto J. de la Llana, issued
an order, directing the issuance of letters of special administration in favor of petitioner upon her filing of a P10,000.00
bond. The following day, petitioner posted the bond and took her oath as special administration.

As her first act of administration, petitioner filed a motion, praying that the Philippine Life Insurance Company be
directed to deliver the proceeds in the amount of P50,000.00 of the life insurance policy taken by Dr. Jose F. Cunanan
with Dr. Evelyn Perez-Cunanan and their daughter Jocelyn as beneficiaries. The trial court granted the motion.

Counsel for the Philippine American Life Insurance Company then filed a manifestation, stating that said company then
filed a manifestation, stating that said company had delivered to petitioner the amount of P49,765.85, representing the
proceeds of the life insurance policy of Dr. Jose F. Cunanan.

In a motion dated May 19, 1983, petitioner asked that Dr. Rafael Cunanan, Sr. be ordered to deliver to her a Philippine
Trust Company passbook with P25,594.00 in savings deposit, and the Family Savings Bank time deposit certificates in
the total amount of P12,412.52.

On May 31, Atty. Federico Alday filed a notice of appearance as counsel for the heirs of Dr. Jose F. Cunanan, namely,
Dr. Rafael Cunanan, Sr., Priscilla Cunanan Bautista, Lydia Cunanan Ignacio, Felipe F. Cunanan and Loreto Cunanan
Concepcion (Cunanan heirs). He also manifested that before receiving petitioner's motion of May 19, 1983, his clients
were unaware of the filing of the testate estate case and therefore, "in the interest of simple fair play," they should be
notified of the proceedings (Records, p. 110). He prayed for deferment of the hearing on the motions of May 19, 1983.

Petitioner then filed a counter manifestation dated June 13, 1983, asserting: (1) that the "Cunanan collaterals are neither
heirs nor creditors of the late Dr. Jose F. Cunanan" and therefore, they had "no legal or proprietary interests to protect"
and "no right to intervene"; (2) that the wills of Dr. Jose F. Cunanan and Dr. Evelyn Perez-Cunanan, being American
citizens, were executed in accordance with the solemnities and formalities of New York laws, and produced "effects in
this jurisdiction in accordance with Art. 16 in relation to Art. 816 of the Civil Code"; (3) that under Article VIII of the two
wills, it was presumed that the husband predeceased the wife; and (4) that "the Cunanan collaterals are neither
distributees, legatees or beneficiaries, much less, heirs as heirship is only by institution" under a will or by operation of
the law of New York (Records, pp. 112-113).

On June 23, the probate court granted petitioner's motion of May 19, 1983. However, on July 21, the Cunanan heirs filed
a motion to nullify the proceedings and to set aside the appointment of, or to disqualify, petitioner as special
administratrix of the estates of Dr. Jose F. Cunanan and Dr. Evelyn Perez-Cunanan. The motion stated: (1) that being the
"brothers and sisters and the legal and surviving heirs" of Dr. Jose F. Cunanan, they had been "deliberately excluded" in
the petition for the probate of the separate wills of the Cunanan spouses thereby misleading the Bulacan court to believe
that petitioner was the sole heir of the spouses; that such "misrepresentation" deprived them of their right to "due process
in violation of Section 4, Rule 76 of the Revised Rules of Court; (2) that Dr. Rafael G. Cunanan, Jr., the executor of the
estate of the Cunanan spouses, was likewise not notified of the hearings in the Bulacan court; (3) that the
"misrepresentation and concealment committed by" petitioner rendered her unfit to be a special administratrix; (4) that
Dr. Rafael G. Cunanan, Jr. had, by virtue of a verified power of attorney, authorized his father,
Dr. Rafael Cunanan, Sr., to be his attorney-in-fact; and (5) that Dr. Rafael Cunanan, Sr. is qualified to be a regular
administrator "as practically all of the subject estate in the Philippines belongs to their brother, Dr. Jose F. Cunanan"
(Records, pp. 118-122). Hence, they prayed: (1) that the proceedings in the case be declared null and void; (2) that the
appointment of petitioner as special administratrix be set aside; and (3) that Dr. Rafael Cunanan, Sr. be appointed the
regular administrator of the estate of the deceased spouses.

Thereafter, the Cunanan heirs filed a motion requiring petitioner to submit an inventory or accounting of all monies
received by her in trust for the estate.

In her opposition, petitioner asserted: (1) that she was the "sole and only heir" of her daughter, Dr. Evelyn Perez-Cunanan
to the exclusion of the "Cunanan collaterals"; hence they were complete strangers to the proceedings and were not entitled
to notice; (2) that she could not have "concealed" the name and address of Dr. Rafael G. Cunanan, Jr. because his name
was prominently mentioned not only in the two wills but also in the decrees of the American surrogate court; (3) that the
rule applicable to the case is Rule 77, not Rule 76, because it involved the allowance of wills proved outside of the
Philippines and that nowhere in Section 2 of Rule 77 is there a mention of notice being given to the executor who, by the
same provision, should himself file the necessary ancillary proceedings in this country; (4) that even if the Bulacan estate
came from the "capital" of Dr. Jose F. Cunanan, he had willed all his worldly goods to his wife and nothing to his
brothers and sisters; and (5) that Dr. Rafael G. Cunanan, Jr. had unlawfully disbursed $215,000.00 to the Cunanan heirs,
misappropriated $15,000.00 for himself and irregularly assigned assets of the estates to his American lawyer (Records,
pp. 151-160).

In their reply, the Cunanan heirs stressed that on November 24, 1982, petitioner and the Cunanan heirs had entered into
an agreement in the United States "to settle and divide equally the estates," and that under Section 2 of Rule 77 the "court
shall fix a time and place for the hearing and cause notice thereof to be given as in case of an original will presented for
allowance" (Records, pp. 184-185).

Petitioner asked that Dr. Rafael G. Cunanan, Jr. be cited for contempt of court for failure to comply with the Order of
June 23, 1983 and for appropriating money of the estate for his own benefit. She also alleged that she had impugned the
agreement of November 24, 1982 before the Surrogate Court of Onondaga, New York which rendered a decision on April
13, 1983, finding that "all assets are payable to Dr. Evelyn P. Cunanan’s executor to be then distributed pursuant to
EPTL4-1.1 subd [a] par [4]" (Rollo, p. 52).

On their part, the Cunanan heirs replied that petitioner was estopped from claiming that they were heirs by the agreement
to divide equally the estates. They asserted that by virtue of Section 2 of Rule 77 of the Rules of Court, the provisions of
Sections 3, 4 and 5 of Rule 76 on the requirement of notice to all heirs, executors, devisees and legatees must be complied
with. They reiterated their prayer: (1) that the proceedings in the case be nullified; (2) that petitioner be disqualified as
special administratrix; (3) that she be ordered to submit an inventory of all goods, chattels and monies which she had
received and to surrender the same to the court; and (4) that Dr. Rafael Cunanan, Sr. be appointed the regular
administrator.

Petitioner filed a rejoinder, stating that in violation of the April 13, 1983 decision of the American court Dr. Rafael G.
Cunanan, Jr. made "unauthorized disbursements from the estates as early as July 7, 1982" (Records, p. 231). Thereafter,
petitioner moved for the suspension of the proceedings as she had "to attend to the settlement proceedings" of the estate
of the Cunanan spouses in New York (Records, p. 242). The Cunanans heirs opposed this motion and filed a
manifestation, stating that petitioner had received $215,000.00 "from the Surrogate’s Court as part of legacy" based on
the aforesaid agreement of November 24, 1982 (Records, p. 248).

On February 21, 1984, Judge de la Llana issued an order, disallowing the reprobate of the two wills, recalling the
appointment of petitioner as special administratrix, requiring the submission of petitioner of an inventory of the property
received by her as special administratrix and declaring all pending incidents moot and academic. Judge de la Llana
reasoned out that petitioner failed to prove the law of New York on procedure and allowance of wills and the court had no
way of telling whether the wills were executed in accordance with the law of New York. In the absence of such evidence,
the presumption is that the law of succession of the foreign country is the same as the law of the Philippines. However, he
noted, that there were only two witnesses to the wills of the Cunanan spouses and the Philippine law requires three
witnesses and that the wills were not signed on each and every page, a requirement of the Philippine law.
On August 27, 1985, petitioner filed a motion for reconsideration of the Order dated February 21, 1984, where she had
sufficiently proven the applicable laws of New York governing the execution of last wills and testaments.

On the same day, Judge de la Llana issued another order, denying the motion of petitioner for the suspension of the
proceedings but gave her 15 days upon arrival in the country within which to act on the other order issued that same day.
Contending that the second portion of the second order left its finality to the discretion of counsel for petitioner, the
Cunanans filed a motion for the reconsideration of the objectionable portion of the said order so that it would conform
with the pertinent provisions of the Judiciary Reorganization Act of 1980 and the Interim Rules of Court.

On April 30, 1985, the respondent Judge of Branch 18 of the Regional Trial Court, Malolos, to which the reprobate case
was reassigned, issued an order stating that "(W)hen the last will and testament . . . was denied probate," the case was
terminated and therefore all orders theretofore issued should be given finality. The same Order amended the February 21,
1984 Order by requiring petitioner to turn over to the estate the inventoried property. It considered the proceedings for all
intents and purposes, closed (Records, p. 302).

On August 12, petitioner filed a motion to resume proceedings on account of the final settlement and termination of the
probate cases in New York. Three days later, petitioner filed a motion praying for the reconsideration of the Order of
April 30, 1985 on the strength of the February 21, 1984 Order granting her a period of 15 days upon arrival in the country
within which to act on the denial of probate of the wills of the Cunanan spouses. On August 19, respondent Judge granted
the motion and reconsidered the Order of April 30, 1985.

On August 29, counsel for petitioner, who happens to be her daughter, Natividad, filed a motion praying that since
petitioner was ailing in Fort Lee, New Jersey, U.S.A. and therefore incapacitated to act as special administratrix, she (the
counsel) should be named substitute special administratrix. She also filed a motion for the reconsideration of the Order of
February 21, 1984, denying probate to the wills of the Cunanan spouses, alleging that respondent Judge "failed to
appreciate the significant probative value of the exhibits . . . which all refer to the offer and admission to probate of the
last wills of the Cunanan spouses including all procedures undertaken and decrees issued in connection with the said
probate" (Records, pp. 313-323).

Thereafter, the Cunanans heirs filed a motion for reconsideration of the Order of August 19, 1985, alleging lack of notice
to their counsel.

On March 31, 1986, respondent Judge to which the case was reassigned denied the motion for reconsideration holding
that the documents submitted by petitioner proved "that the wills of the testator domiciled abroad were properly executed,
genuine and sufficient to possess real and personal property; that letters testamentary were issued; and that proceedings
were held on a foreign tribunal and proofs taken by a competent judge who inquired into all the facts and circumstances
and being satisfied with his findings issued a decree admitting to probate the wills in question." However, respondent
Judge said that the documents did not establish the law of New York on the procedure and allowance of wills.

On April 9, 1986, petitioner filed a motion to allow her to present further evidence on the foreign law. After the hearing
of the motion on April 25, 1986, respondent Judge issued an order wherein he conceded that insufficiency of evidence to
prove the foreign law was not a fatal defect and was curable by adducing additional evidence. He granted petitioner 45
days to submit the evidence to that effect.

However, without waiting for petitioner to adduce the additional evidence, respondent Judge ruled in his order dated June
20, 1986 that he found "no compelling reason to disturb its ruling of March 31, 1986" but allowed petitioner to "file anew
the appropriate probate proceedings for each of the testator" (Records, p. 391).

The Order dated June 20, 1986 prompted petitioner to file a second motion for reconsideration stating that she was "ready
to submit further evidence on the law obtaining in the State of New York" and praying that she be granted "the
opportunity to present evidence on what the law of the State of New York has on the probate and allowance of wills"

On July 18, respondent Judge denied the motion holding that to allow the probate of two wills in a single proceeding
"would be a departure from the typical and established mode of probate where one petition takes care of one will." He
pointed out that even in New York "where the wills in question were first submitted for probate, they were dealt with in
separate proceedings" (Records, p. 395).

On August 13, 1986, petitioner filed a motion for the reconsideration of the Order of July 18, 1986, citing Section 3, Rule
2 of the Rules of Court, which provides that no party may institute more than one suit for a single cause of action. She
pointed out that separate proceedings for the wills of the spouses which contain basically the same provisions as they
even named each other as a beneficiary in their respective wills, would go against "the grain of inexpensive, just and
speedy determination of the proceedings" (Records, pp. 405-407).

On September 11, 1986, petitioner filed a supplement to the motion for reconsideration, citing Benigno v. De La Peña, 57
Phil. 305 (1932) (Records, p. 411), but respondent Judge found that this pleading had been filed out of time and that the
adverse party had not been furnished with a copy thereof. In her compliance, petitioner stated that she had furnished a
copy of the motion to the counsel of the Cunanan heirs and reiterated her motion for a "final ruling on her supplemental
motion" (Records, p. 421).
On November 19, respondent Judge issued an order, denying the motion for reconsideration filed by petitioner on the
grounds that "the probate of separate wills of two or more different persons even if they are husband and wife cannot be
undertaken in a single petition" (Records, pp. 376-378).

Hence, petitioner instituted the instant petition, arguing that the evidence offered at the hearing of April 11, 1983
sufficiently proved the laws of the State of New York on the allowance of wills, and that the separate wills of the
Cunanan spouses need not be probated in separate proceedings.

II Petitioner contends that the following pieces of evidence she had submitted before respondent Judge are
sufficient to warrant the allowance of the wills:

(a) two certificates of authentication of the respective wills of Evelyn and Jose by the Consulate General
of the Philippines (Exhs. "F" and "G");

(b) two certifications from the Secretary of State of New York and Custodian of the Great Seal on the
facts that Judge Bernard L. Reagan is the Surrogate of the Country of Onondaga which is a court of
record, that his signature and seal of office are genuine, and that the Surrogate is duly authorized to grant
copy of the respective wills of Evelyn and Jose
(Exhs. "F-1" and "G-1");

(c) two certificates of Judge Reagan and Chief Clerk Donald E. Moore stating that they have in their
records and files the said wills which were recorded on April 7, 1982 (Exhs. "F-2" and "G-2");

(d) the respective wills of Evelyn and Jose (Exhs. "F-3", "F-6" and Exh. "G-3" — "G-6");

(e) certificates of Judge Reagan and the Chief Clerk certifying to the genuineness and authenticity of the
exemplified copies of the two wills (Exhs. "F-7" and "F-7");

(f) two certificates of authentication from the Consulate General of the Philippines in New York (Exh.
"H" and "F").

(g) certifications from the Secretary of State that Judge Reagan is duly authorized to grant exemplified
copies of the decree of probate, letters testamentary and all proceedings had and proofs duly taken
(Exhs. "H-1" and "I-1");

(h) certificates of Judge Reagan and the Chief Clerk that letters testamentary were issued to Rafael G.
Cunanan (Exhs. "H-2" and "I-2");

(i) certification to the effect that it was during the term of Judge Reagan that a decree admitting the wills
to probate had been issued and appointing Rafael G. Cunanan as alternate executor (Exhs. "H-3" and
"I-10");

(j) the decrees on probate of the two wills specifying that proceedings were held and proofs duly taken
(Exhs. "H-4" and "I-5");

(k) decrees on probate of the two wills stating that they were properly executed, genuine and valid and
that the said instruments were admitted to probate and established as wills valid to pass real and personal
property (Exhs. "H-5" and "I-5"); and

(l) certificates of Judge Reagan and the Chief Clerk on the genuineness and authenticity of each other’s
signatures in the exemplified copies of the decrees of probate, letters testamentary and proceedings held
in their court (Exhs. "H-6" and "I-6") (Rollo, pp. 13-16).

Petitioner adds that the wills had been admitted to probate in the Surrogate Court’s Decision of April 13, 1983 and that
the proceedings were terminated on November 29, 1984.

The respective wills of the Cunanan spouses, who were American citizens, will only be effective in this country upon
compliance with the following provision of the Civil Code of the Philippines:

Art. 816. The will of an alien who is abroad produces effect in the Philippines if made with the
formalities prescribed by the law of the place in which he resides, or according to the formalities
observed in his country, or in conformity with those which this Code prescribes.

Thus, proof that both wills conform with the formalities prescribed by New York laws or by Philippine laws is
imperative.

The evidence necessary for the reprobate or allowance of wills which have been probated outside of the Philippines are as
follows: (1) the due execution of the will in accordance with the foreign laws; (2) the testator has his domicile in the
foreign country and not in the Philippines; (3) the will has been admitted to probate in such country; (4) the fact that the
foreign tribunal is a probate court, and (5) the laws of a foreign country on procedure and allowance of wills (III Moran
Commentaries on the Rules of Court, 1970 ed., pp. 419-429; Suntay v. Suntay, 95 Phil. 500 [1954]; Fluemer v. Hix, 54
Phil. 610 [1930]). Except for the first and last requirements, the petitioner submitted all the needed evidence.

The necessity of presenting evidence on the foreign laws upon which the probate in the foreign country is based is
impelled by the fact that our courts cannot take judicial notice of them (Philippine Commercial and Industrial Bank v.
Escolin, 56 SCRA 266 [1974]).

Petitioner must have perceived this omission as in fact she moved for more time to submit the pertinent procedural and
substantive New York laws but which request respondent Judge just glossed over. While the probate of a will is a special
proceeding wherein courts should relax the rules on evidence, the goal is to receive the best evidence of which the matter
is susceptible before a purported will is probated or denied probate (Vda. de Ramos v. Court of Appeals, 81 SCRA 393
[1978]).

There is merit in petitioner’s insistence that the separate wills of the Cunanan spouses should be probated jointly.
Respondent Judge’s view that the Rules on allowance of wills is couched in singular terms and therefore should be
interpreted to mean that there should be separate probate proceedings for the wills of the Cunanan spouses is too literal
and simplistic an approach. Such view overlooks the provisions of Section 2, Rule 1 of the Revised Rules of Court, which
advise that the rules shall be "liberally construed in order to promote their object and to assist the parties in obtaining just,
speedy, and inexpensive determination of every action and proceeding."

A literal application of the Rules should be avoided if they would only result in the delay in the administration of justice
(Acain v. Intermediate Appellate Court, 155 SCRA 100 [1987]; Roberts v. Leonidas, 129 SCRA 33 [1984]).

What the law expressly prohibits is the making of joint wills either for the testator’s reciprocal benefit or for the benefit of
a third person (Civil Code of the Philippines, Article 818). In the case at bench, the Cunanan spouses executed separate
wills. Since the two wills contain essentially the same provisions and pertain to property which in all probability are
conjugal in nature, practical considerations dictate their joint probate. As this Court has held a number of times, it will
always strive to settle the entire controversy in a single proceeding leaving no root or branch to bear the seeds of future
litigation (Motoomull v. Dela Paz, 187 SCRA 743 [1990]).

This petition cannot be completely resolved without touching on a very glaring fact — petitioner has always considered
herself the sole heir of
Dr. Evelyn Perez Cunanan and because she does not consider herself an heir of Dr. Jose F. Cunanan, she noticeably failed
to notify his heirs of the filing of the proceedings. Thus, even in the instant petition, she only impleaded respondent
Judge, forgetting that a judge whose order is being assailed is merely a nominal or formal party (Calderon v. Solicitor
General, 215 SCRA 876 [1992]).

The rule that the court having jurisdiction over the reprobate of a will shall "cause notice thereof to be given as in case of
an original will presented for allowance" (Revised Rules of Court, Rule 27, Section 2) means that with regard to notices,
the will probated abroad should be treated as if it were an "original will" or a will that is presented for probate for the first
time. Accordingly, compliance with Sections 3 and 4 of Rule 76, which require publication and notice by mail or
personally to the "known heirs, legatees, and devisees of the testator resident in the Philippines" and to the executor, if he
is not the petitioner, are required.

The brothers and sisters of Dr. Jose F. Cunanan, contrary to petitioner's claim, are entitled to notices of the time and place
for proving the wills. Under Section 4 of Rule 76 of the Revised Rules of Court, the "court shall also cause copies of the
notice of the time and place fixed for proving the will to be addressed to the designated or other known heirs, legatees,
and devisees of the testator, . . . "

WHEREFORE, the questioned Order is SET ASIDE. Respondent Judge shall allow petitioner reasonable time within
which to submit evidence needed for the joint probate of the wills of the Cunanan spouses and see to it that the brothers
and sisters of Dr. Jose F. Cunanan are given all notices and copies of all pleadings pertinent to the probate proceedings.

SO ORDERED.
 G.R. Nos. L-3087 and L-3088 July 31, 1954
In re: Testate Estate of the deceased JOSE B. SUNTAY. SILVINO SUNTAY, petitioner-appellant, vs.
In re: Intestate Estate of the deceased JOSE B. SUNTAY, FEDERICO C. SUNTAY, administrator-appellee.

This is an appeal from a decree of the Court of First Instance of Bulacan disallowing the alleged will and testament
executed in Manila on November 1929, and the alleged last will and testament executed in Kulangsu, Amoy, China, on 4
January 1931, by Jose B. Suntay. The value of the estate left by the deceased is more than P50,000.

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

There is no merit in the contention that the petitioner Silvino Suntay and his mother Maria Natividad Lim Billian are
estopped from asking for the probate of the lost will or of the foreign will because of the transfer or assignment of their
share right, title and interest in the estate of the late Jose B. Suntay to Jose G. Gutierrez and the spouses Ricardo Gutierrez
and Victoria Goño and the subsequent assignment thereof by the assignees to Francisco Pascual and by the latter to
Federico C. Suntay, for the validity and legality of such assignments cannot be threshed out in this proceedings which is
concerned only with the probate of the will and testament executed in the Philippines on November 1929 or of the foreign
will allegedly executed in Amoy on 4 January 1931 and claimed to have been probated in the municipal district court of
Amoy, Fookien province, Republic of China.

As to prescription, the dismissal of the petition for probate of the will on 7 February 1938 was no bar to the filing of this
petition on 18 June 1947, or before the expiration of ten years.

As to the lost will, section 6, Rule 77, provides:

No will shall be proved as a lost or destroyed will unless the execution and validity of the same be established, and the
will is proved to have been in existence at the time of the death of the testator, or is shown to have been fraudulently or
accidentally destroyed in the lifetime of the testator without his knowledge, nor unless its provisions are clearly and
distinctly proved by at least two credible witnesses. When a lost will is proved, the provisions thereof must be
distinctly stated and certified by the judge, under the seal of the court, and the certificate must be filed and recorded as
other wills are filed and recorded.

The witnesses who testified to the provisions of the lost will are Go Toh, an attesting witness, Anastacio Teodoro and Ana
Suntay. Manuel Lopez, who was an attesting witness to the lost will, was dead at the time of the hearing of this alternative
petition. In his deposition Go Toh testifies that he was one of the witnesses to the lost will consisting of twenty-three
sheets signed by Jose B. Suntay at the bottom of the will and each and every page thereof in the presence of Alberto
Barretto, Manuel Lopez and himself and underneath the testator's signature the attesting witnesses signed and each of
them signed the attestation clause and each and every page of the will in the presence of the testator and of the other
witnesses (answers to the 31st, 41st, 42nd, 49th, 50th, 55th and 63rd interrogatories, Exhibit D-1), but did not take part in
the drafting thereof (answer to the 11th interrogatory, Id.); that he knew the contents of the will written in Spanish
although he knew very little of that language (answers to the 22nd and 23rd interrogatories and to X-2 cross-
interrogatory, Id.) and all he knows about the contends of the lost will was revealed to him by Jose B. Suntay at the time it
was executed (answers to the 25th interrogatory and to X-4 and X-8 cross-interrogatories, Id.); that Jose B. Suntay told
him that the contents thereof are the same as those of the draft (Exhibit B) (answers to the 33rd interrogatory and to X-8
cross-interrogatory, Id.) which he saw in the office of Alberto Barretto in November 1929 when the will was signed
(answers to the 69th, 72nd, and 74th interrogatories, Id); that Alberto Barretto handed the draft and said to Jose B. Suntay:
"You had better see if you want any correction" (answers to the 81st, 82nd and 83rd interrogatories, Id.); that "after
checking Jose B. Suntay put the "Exhibit B" in his pocket and had the original signed and executed" (answers to the 91st
interrogatory, and to X-18 cross-interrogatory, Id.); that Mrs. Suntay had the draft of the will (Exhibit B) translated into
Chinese and he read the translation (answers to the 67th interrogatory, Id.); that he did not read the will and did not
compare it (check it up) with the draft (Exhibit B) (answers to X-6 and X-20 cross-interrogatories, Id.).
Ana Suntay testifies that sometime in September 1934 in the house of her brother Apolonio Suntay she learned that her
father left a will "because of the arrival of my brother Manuel Suntay, who was bringing along with him certain document
and he told us or he was telling us that it was the will of our father Jose B. Suntay which was taken from Go Toh. ..." (p.
524, t. s. n., hearing of 24 February 1948); that she saw her brother Apolonio Suntay read the document in her presence
and of Manuel and learned of the adjudication made in the will by her father of his estate, to wit: one-third to his children,
one-third to Silvino and his mother and the other third to Silvino, Apolonio, Concepcion and Jose, Jr. (pp. 526-8, 530-1,
542, t. s. n. Id.); that "after Apolonio read that portion, then he turned over the document to Manuel, and he went away,"
(p. 528, t. s. n., Id.). On cross-examination, she testifies that she read the part of the will on adjudication to know what
was the share of each heir (pp. 530, 544, t. s. n., Id.) and on redirect she testifies that she saw the signature of her father,
Go Toh, Manuel Lopez and Alberto Barretto (p. 546, t. s. n., Id.).

Anastacio Teodoro testifies that one day in November 1934 (p. 273, t. s. n., hearing of 19 January 1948), before the last
postponement of the hearing granted by the Court, Go Toh arrived at his law office in the De los Reyes Building and left
an envelope wrapped in red handkerchief [Exhibit C] (p. 32, t. s. n., hearing of 13 October 1947); that he checked up the
signatures on the envelope Exhibit A with those on the will placed in the envelope (p. 33, t. s. n., Id.); that the will was
exactly the same as the draft Exhibit B (pp. 32, 47, 50, t. s. n., Id.).

If the will was snatched after the delivery thereof by Go Toh to Anastacio Teodoro And returned by the latter to the
former because they could not agree on the amount of fees, the former coming to the latter's office straight from the boat
(p. 315, t. s. n., hearing of 19 January 1948) that brought him to the Philippines from Amoy, and that delivery took place
in November 1934 (p. 273, t. s. n., Id.), then the testimony of Ana Suntay that she saw and heard her brother Apolonio
Suntay read the will sometime in September 1934 (p. 524, t. s. n., hearing of 24 February 1948), must not be true.

Although Ana Suntay would be a good witness because she was testifying against her own interest, still the fact remains
that she did not read the whole will but only the adjudication (pp. 526-8, 530-1, 542, t. s. n., Id.) and saw only the
signature, of her father and of the witnesses Go Toh, Manuel Lopez and Alberto Barretto (p. 546, t. s. n., Id.). But her
testimony on cross-examination that she read the part of the will on adjudication is inconsistent with her testimony in
chief that after Apolonio had read that part of the will he turned over or handed the document to Manuel who went away.

If it is true that Go Toh saw the draft Exhibit B in the office of Alberto Barretto in November 1929 when the will was
signed, then the part of his testimony that Alberto Barretto handed the draft to Jose B. Suntay to whom he said: "You had
better see if you want any correction" and that "after checking Jose B. Suntay put the "Exhibit B" in his pocket and had
the original signed and executed" cannot be true, for it was not the time for correcting the draft of the will, because it must
have been corrected before and all corrections and additions written in lead pencil must have been inserted and copied in
the final draft of the will which was signed on that occasion. The bringing in for the draft (Exhibit B) on that occasion is
just to fit it within the framework of the appellant's theory. At any rate, all of Go Toh's testimony by deposition on the
provisions of the alleged lost will is hearsay, because he came to know or he learned to them from information given him
by Jose B. Suntay and from reading the translation of the draft (Exhibit B) into Chinese.

Much stress is laid upon the testimony of Federico C. Suntay who testifies that he read the supposed will or the alleged
will of his father and that the share of the surviving widow, according to the will, is two-thirds of the estate (p. 229, t. s.
n., hearing of 24 October 1947). But this witness testified to oppose the appointment of a co-administrator of the estate,
for the reason that he had acquired the interest of the surviving widow not only in the estate of her deceased husband but
also in the conjugal property (pp. 148, 205, 228, 229, 231, t. s. n., Id.) Whether he read the original will or just the copy
thereof (Exhibit B) is not clear. For him the important point was that he had acquired all the share, participation and
interest of the surviving widow and of the only child by the second marriage in the estate of his deceased father. Be that
as it may, his testimony that under the will the surviving widow would take two-thirds of the estate of the late Jose B.
Suntay is at variance with Exhibit B and the testimony of Anastacio Teodoro. According to the latter, the third for strict
legitime is for the ten children; the third for betterment is for Silvino, Apolonio, Concepcion and Jose Jr.; and the third for
free disposal is for the surviving widow and her child Silvino.

Hence, granting that there was a will duly executed by Jose B. Suntay placed in the envelope (Exhibit A) and that it was
in existence at the time of, and not revoked before, his death, still the testimony of Anastacio Teodoro alone falls short of
the legal requirement that the provisions of the lost will must be "clearly and distinctly proved by at least two credible
witnesses." Credible witnesses mean competent witnesses and those who testify to facts from or upon hearsay are neither
competent nor credible witnesses.

On the other hand, Alberto Barretto testifies that in the early part of 1929 he prepared or drew up two mills for Jose B.
Suntay at the latter's request, the rough draft of the first will was in his own handwriting, given to Manuel Lopez for the
final draft or typing and returned to him; that after checking up the final with the rough draft he tore it and returned the
final draft to Manuel Lopez; that this draft was in favor of all the children and the widow (pp. 392-4, 449, t. s. n., hearing
of 21 February 1948); that two months later Jose B. Suntay and Manuel Lopez called on him and the former asked him to
draw up another will favoring more his wife and child Silvino; that he had the rough draft of the second will typed (pp.
395, 449 t. s. n., Id.) and gave it to Manuel Lopez (p. 396, t. s. n., Id.); that he did not sign as witness the second will of
Jose B. Suntay copied from the typewritten draft [Exhibit B] (p. 420, t. s. n., Id.); that the handwritten insertions or
additions in lead pencil to Exhibit B are not his (pp. 415-7 435-6, 457, t. s. n., Id.); that the final draft of the first will
made up of four or five pages (p. 400, t. s. n., Id.) was signed and executed, two or three months after Suntay and Lopez
had called on him (pp. 397-8, 403, 449, t. s. n., Id.) in his office at the Cebu Portland Cement in the China Banking
Building on Dasmariñas street by Jose B. Suntay, Manuel Lopez and a Chinaman who had all come from Hagonoy (p.
398, t. s. n., Id.); that on that occasion they brought an envelope (Exhibit A) where the following words were written:
"Testamento de Jose B. Suntay" (pp. 399, 404, t. s. n., Id.); that after the signing of the will it was placed inside the
envelope (Exhibit A) together with an inventory of the properties of Jose B. Suntay and the envelope was sealed by the
signatures of the testator and the attesting witnesses (pp. 398, 401, 441, 443, 461, t. s. n., Id.); that he again saw the
envelope (Exhibit A) in his house one Saturday in the later part of August 1934, brought by Go Toh and it was then in
perfect condition (pp. 405-6, 411, 440-2, t. s. n., Id.); that on the following Monday Go Toh went to his law office
bringing along with him the envelope (Exhibit A) in the same condition; that he told Go Toh that he would charge
P25,000 as fee for probating the will (pp. 406, 440-2, Id.); that Go Toh did not leave the envelope (Exhibit A) either in his
house or in his law office (p. 407, t. s. n., Id.); that Go Toh said he wanted to keep it and on no occasion did Go Toh leave
it to him (pp. 409, 410, t. s. n., Id.).

The testimony of Go Toh taken and heard by Assistant Fiscal F. B. Albert in connection with the complaint for estafa
filed against Manuel Suntay for the alleged snatching of the envelope (Exhibit A), corroborates the testimony of Alberto
Barretto to the effect that only one will was signed by Jose B. Suntay at his office in which he (Alberto Barretto), Manuel
Lopez and Go Toh took part as attesting witnesses (p. 15, t. s. n., Exhibit 6). Go Toh testified before the same assistant
fiscal that he did not leave the will in the hands of Anastacio Teodoro (p. 26, t. s. n., Exhibit 6). He said, quoting his own
words, "Because I can not give him this envelope even though the contract (on fees) was signed. I have to bring that
document to court or to anywhere else myself." (p. 27, t. s. n., Exhibit 6).

As to the will claimed to have been executed on 4 January 1931 in Amoy, China, the law on the point in Rule 78. Section
1 of the rule provides:

Wills proved and allowed in a foreign country, according to the laws of such country, may be allowed, filed, and
recorded by the proper Court of First Instance in the Philippines.

Section 2 provides:

When a copy of such will and the allowance thereof, duly authenticated, is filed with a petition for allowance in the
Philippines, by the executor or other person interested, in the court having jurisdiction, such court shall fix a time and
place for the hearing, and cause notice thereof to be given as in case of an original will presented for allowance.

Section 3 provides:

If it appears at the hearing that the will should be allowed in the Philippines, the court shall so allow it, and a
certificate of its allowance, signed by the Judge, and attested by the seal of the courts, to which shall be attached a
copy of the will, shall be filed and recorded by the clerk, and the will shall have the same effect as if originally
proved and allowed in such court.

The fact that the municipal district court of Amoy, China, is a probate court must be proved. The law of China on
procedure in the probate or allowance of wills must also be proved. The legal requirements for the execution of a valid
will in China in 1931 should also be established by competent evidence. There is no proof on these points. The unverified
answers to the questions propounded by counsel for the appellant to the Consul General of the Republic of China set forth
in Exhibits R-1 and R-2, objected to by counsel for the appellee, are inadmissible, because apart from the fact that the
office of Consul General does not qualify and make the person who holds it an expert on the Chinese law on procedure in
probate matters, if the same be admitted, the adverse party would be deprived of his right to confront and cross-examine
the witness. Consuls are appointed to attend to trade matters. Moreover, it appears that all the proceedings had in the
municipal district court of Amoy were for the purpose of taking the testimony of two attesting witnesses to the will and
that the order of the municipal district court of Amoy does not purport to probate the will. In the absence of proof that the
municipal district court of Amoy is a probate court and on the Chinese law of procedure in probate matters, it may be
presumed that the proceedings in the matter of probating or allowing a will in the Chinese courts are the a deposition or to
a perpetuation of testimony, and even if it were so it does not measure same as those provided for in our laws on the
subject. It is a proceedings in rem and for the validity of such proceedings personal notice or by publication or both to all
interested parties must be made. The interested parties in the case were known to reside in the Philippines. The evidence
shows that no such notice was received by the interested parties residing in the Philippines (pp. 474, 476, 481, 503-4, t. s.
n., hearing of 24 February 1948). The proceedings had in the municipal district court of Amoy, China, may be likened toe
or come up to the standard of such proceedings in the Philippines for lack of notice to all interested parties and the
proceedings were held at the back of such interested parties.

The order of the municipal district court of Amoy, China, which reads as follows:

ORDER:

SEE BELOW

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

Done and subscribed on the Nineteenth day of the English month of the 35th year of the Republic of China in the
Civil Section of the Municipal District Court of Amoy, China.
 HUANG KUANG CHENG
Clerk of Court

CHIANG TENG HWA

Judge

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

does not purport to probate or allow the will which was the subject of the proceedings. In view thereof, the will and the
alleged probate thereof cannot be said to have been done in accordance with the accepted basic and fundamental concepts
and principles followed in the probate and allowance of wills. Consequently, the authenticated transcript of proceedings
held in the municipal district court of Amoy, China, cannot be deemed and accepted as proceedings leading to the probate
or allowance of a will and, therefore, the will referred to therein cannot be allowed, filed and recorded by a competent
court of this country.

The decree appealed from is affirmed, without pronouncement as to costs.

 G.R. No. L-12105 January 30, 1960
TESTATE ESTATE OF C. O. BOHANAN, deceased. PHILIPPINE TRUST CO., executor-appellee, vs.
MAGDALENA C. BOHANAN, EDWARD C. BOHANAN, and MARY LYDIA BOHANAN, oppositors-appellants.

Appeal against an order of the Court of First Instance of Manila, Hon. Ramon San Jose, presiding, dismissing the
objections filed by Magdalena C. Bohanan, Mary Bohanan and Edward Bohanan to the project of partition submitted by
the executor and approving the said project.

On April 24, 195 0, the Court of First Instance of Manila, Hon. Rafael Amparo, presiding, admitted to probate a last will
and testament of C. O. Bohanan, executed by him on April 23, 1944 in Manila. In the said order, the court made the
following findings:

According to the evidence of the opponents the testator was born in Nebraska and therefore a citizen of that state,
or at least a citizen of California where some of his properties are located. This contention in untenable.
Notwithstanding the long residence of the decedent in the Philippines, his stay here was merely temporary, and he
continued and remained to be a citizen of the United States and of the state of his pertinent residence to spend the
rest of his days in that state. His permanent residence or domicile in the United States depended upon his personal
intent or desire, and he selected Nevada as his homicide and therefore at the time of his death, he was a citizen of
that state. Nobody can choose his domicile or permanent residence for him. That is his exclusive personal right.

Wherefore, the court finds that the testator C. O. Bohanan was at the time of his death a citizen of the United
States and of the State of Nevada and declares that his will and testament, Exhibit A, is fully in accordance with
the laws of the state of Nevada and admits the same to probate. Accordingly, the Philippine Trust Company,
named as the executor of the will, is hereby appointed to such executor and upon the filing of a bond in the sum
of P10,000.00, let letters testamentary be issued and after taking the prescribed oath, it may enter upon the
execution and performance of its trust. (pp. 26-27, R.O.A.).

It does not appear that the order granting probate was ever questions on appeal. The executor filed a project of partition
dated January 24, 1956, making, in accordance with the provisions of the will, the following adjudications: (1) one-half of
the residuary estate, to the Farmers and Merchants National Bank of Los Angeles, California, U.S.A. in trust only for the
benefit of testator's grandson Edward George Bohanan, which consists of several mining companies; (2) the other half of
the residuary estate to the testator's brother, F.L. Bohanan, and his sister, Mrs. M. B. Galbraith, share and share alike. This
consist in the same amount of cash and of shares of mining stock similar to those given to testator's grandson; (3) legacies
of P6,000 each to his (testator) son, Edward Gilbert Bohana, and his daughter, Mary Lydia Bohanan, to be paid in three
yearly installments; (4) legacies to Clara Daen, in the amount of P10,000.00; Katherine Woodward, P2,000; Beulah Fox,
P4,000; and Elizabeth Hastings, P2,000;

It will be seen from the above that out of the total estate (after deducting administration expenses) of P211,639.33 in cash,
the testator gave his grandson P90,819.67 and one-half of all shares of stock of several mining companies and to his
brother and sister the same amount. To his children he gave a legacy of only P6,000 each, or a total of P12,000.

The wife Magadalena C. Bohanan and her two children question the validity of the testamentary provisions disposing of
the estate in the manner above indicated, claiming that they have been deprived of the legitimate that the laws of the form
concede to them.

The first question refers to the share that the wife of the testator, Magdalena C. Bohanan, should be entitled to received.
The will has not given her any share in the estate left by the testator. It is argued that it was error for the trial court to have
recognized the Reno divorce secured by the testator from his Filipino wife Magdalena C. Bohanan, and that said divorce
should be declared a nullity in this jurisdiction, citing the case of Querubin vs.Querubin, 87 Phil., 124, 47 Off. Gaz., (Sup,
12) 315, Cousins Hiz vs. Fluemer, 55 Phil., 852, Ramirez vs. Gmur, 42 Phil., 855 and Gorayeb vs. Hashim, 50 Phil., 22.
The court below refused to recognize the claim of the widow on the ground that the laws of Nevada, of which the
deceased was a citizen, allow him to dispose of all of his properties without requiring him to leave any portion of his
estate to his wife. Section 9905 of Nevada Compiled Laws of 1925 provides:

Every person over the age of eighteen years, of sound mind, may, by last will, dispose of all his or her estate, real
and personal, the same being chargeable with the payment of the testator's debts.

Besides, the right of the former wife of the testator, Magdalena C. Bohanan, to a share in the testator's estafa had already
been passed upon adversely against her in an order dated June 19, 1955, (pp. 155-159, Vol II Records, Court of First
Instance), which had become final, as Magdalena C. Bohanan does not appear to have appealed therefrom to question its
validity. On December 16, 1953, the said former wife filed a motion to withdraw the sum of P20,000 from the funds of
the estate, chargeable against her share in the conjugal property, (See pp. 294-297, Vol. I, Record, Court of First
Instance), and the court in its said error found that there exists no community property owned by the decedent and his
former wife at the time the decree of divorce was issued. As already and Magdalena C. Bohanan may no longer question
the fact contained therein, i.e. that there was no community property acquired by the testator and Magdalena C. Bohanan
during their converture.

Moreover, the court below had found that the testator and Magdalena C. Bohanan were married on January 30, 1909, and
that divorce was granted to him on May 20, 1922; that sometime in 1925, Magdalena C. Bohanan married Carl Aaron and
this marriage was subsisting at the time of the death of the testator. Since no right to share in the inheritance in favor of a
divorced wife exists in the State of Nevada and since the court below had already found that there was no conjugal
property between the testator and Magdalena C. Bohanan, the latter can now have no longer claim to pay portion of the
estate left by the testator.

The most important issue is the claim of the testator's children, Edward and Mary Lydia, who had received legacies in the
amount of P6,000 each only, and, therefore, have not been given their shares in the estate which, in accordance with the
laws of the forum, should be two-thirds of the estate left by the testator. Is the failure old the testator to give his children
two-thirds of the estate left by him at the time of his death, in accordance with the laws of the forum valid?

The old Civil Code, which is applicable to this case because the testator died in 1944, expressly provides that successional
rights to personal property are to be earned by the national law of the person whose succession is in question. Says the
law on this point:

Nevertheless, legal and testamentary successions, in respect to the order of succession as well as to the extent of
the successional rights and the intrinsic validity of their provisions, shall be regulated by the national law of the
person whose succession is in question, whatever may be the nature of the property and the country in which it is
found. (par. 2, Art. 10, old Civil Code, which is the same as par. 2 Art. 16, new Civil Code.)

In the proceedings for the probate of the will, it was found out and it was decided that the testator was a citizen of the
State of Nevada because he had selected this as his domicile and his permanent residence. (See Decision dated April 24,
1950, supra). So the question at issue is whether the estementary dispositions, especially hose for the children which are
short of the legitime given them by the Civil Code of the Philippines, are valid. It is not disputed that the laws of Nevada
allow a testator to dispose of all his properties by will (Sec. 9905, Complied Nevada Laws of 1925, supra). It does not
appear that at time of the hearing of the project of partition, the above-quoted provision was introduced in evidence, as it
was the executor's duly to do. The law of Nevada, being a foreign law can only be proved in our courts in the form and
manner provided for by our Rules, which are as follows:

SEC. 41. Proof of public or official record. — An official record or an entry therein, when admissible for any
purpose, may be evidenced by an official publication thereof or by a copy tested by the officer having the legal
custody of he record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a
certificate that such officer has the custody. . . . (Rule 123).

We have, however, consulted the records of the case in the court below and we have found that during the hearing on
October 4, 1954 of the motion of Magdalena C. Bohanan for withdrawal of P20,000 as her share, the foreign law,
especially Section 9905, Compiled Nevada Laws. was introduced in evidence by appellant's (herein) counsel as Exhibits
"2" (See pp. 77-79, VOL. II, and t.s.n. pp. 24-44, Records, Court of First Instance). Again said laws presented by the
counsel for the executor and admitted by the Court as Exhibit "B" during the hearing of the case on January 23, 1950
before Judge Rafael Amparo (se Records, Court of First Instance, Vol. 1).

In addition, the other appellants, children of the testator, do not dispute the above-quoted provision of the laws of the
State of Nevada. Under all the above circumstances, we are constrained to hold that the pertinent law of Nevada,
especially Section 9905 of the Compiled Nevada Laws of 1925, can be taken judicial notice of by us, without proof of
such law having been offered at the hearing of the project of partition.

As in accordance with Article 10 of the old Civil Code, the validity of testamentary dispositions are to be governed by the
national law of the testator, and as it has been decided and it is not disputed that the national law of the testator is that of
the State of Nevada, already indicated above, which allows a testator to dispose of all his property according to his will,
as in the case at bar, the order of the court approving the project of partition made in accordance with the testamentary
provisions, must be, as it is hereby affirmed, with costs against appellants.
 G.R. No. L-27952 February 15, 1982
TESTATE ESTATE OF JOSE EUGENIO RAMIREZ, MARIA LUISA PALACIOS, Administratrix, petitioner-
appellee, vs. MARCELLE D. VDA. DE RAMIREZ, ET AL., oppositors, JORGE and ROBERTO
RAMIREZ, legatees, oppositors- appellants.

The main issue in this appeal is the manner of partitioning the testate estate of Jose Eugenio Ramirez among the principal
beneficiaries, namely: his widow Marcelle Demoron de Ramirez; his two grandnephews Roberto and Jorge Ramirez; and
his companion Wanda de Wrobleski.

The task is not trouble-free because the widow Marcelle is a French who lives in Paris, while the companion Wanda is an
Austrian who lives in Spain. Moreover, the testator provided for substitutions.

Jose Eugenio Ramirez, a Filipino national, died in Spain on December 11, 1964, with only his widow as compulsory heir.
His will was admitted to probate by the Court of First Instance of Manila, Branch X, on July 27, 1965. Maria Luisa
Palacios was appointed administratrix of the estate. In due time she submitted an inventory of the estate as follows:

INVENTARIO

Una sexta parte (1/6) proindiviso de un terreno, con sus mejoras y edificaciones, situadoen la Escolta,
Manila............................................................. P500,000.00

Una sexta parte (1/6) proindiviso de dos parcelas de terreno situadas en Antipolo, Rizal................... 658.34

Cuatrocientos noventa y uno (491) acciones de la 'Central Azucarera de la Carlota a P17.00 por accion
................................................................................8,347.00

Diez mil ochocientos seize (10,806) acciones de la 'Central Luzon Milling Co.', disuelta y en liquidacion a P0.15
por accion ..............................................1,620.90

Cuenta de Ahorros en el Philippine Trust Co.............................................................................................. 2,350.73

TOTAL.............................................................. P512,976.97

MENOS:

Deuda al Banco de las Islas Filipinas, garan-tizada con prenda de las acciones de La Carlota ......... P 5,000,00

VALOR LIQUIDO........................................... P507,976.97

The testamentary dispositions are as follows:

A.—En nuda propiedad, a D. Roberto y D. Jorge Ramirez, ambas menores de edad, residentes en Manila, I.F., calle
'Alright, No. 1818, Malate, hijos de su sobrino D. Jose Ma. Ramirez, con sustitucion vulgar a favor de sus
respectivos descendientes, y, en su defecto, con sustitucion vulgar reciprocal entre ambos.

El precedente legado en nuda propiedad de la participacion indivisa de la finca Santa Cruz Building, lo ordena el
testador a favor de los legatarios nombrados, en atencion a que dicha propiedad fue creacion del querido padre del
otorgante y por ser aquellos continuadores del apellido Ramirez,

B.—Y en usufructo a saber: —

a. En cuanto a una tercera parte, a favor de la esposa del testador, Da. Marcelle Ramirez, domiciliada en IE PECO,
calle del General Gallieni No. 33, Seine Francia, con sustitucion vulgar u fideicomisaria a favor de Da. Wanda de
Wrobleski, de Palma de Mallorca, Son Rapina Avenida de los Reyes 13,

b.—Y en cuanto a las dos terceras partes restantes, a favor de la nombrada Da. Wanda de Nrobleski con sustitucion
vulgar v fideicomisaria a saber:—

En cuanto a la mitad de dichas dos terceras partes, a favor de D. Juan Pablo Jankowski, de Son Rapina Palma de
Mallorca; y encuanto a la mitad restante, a favor de su sobrino, D. Horace V. Ramirez, San Luis Building, Florida
St. Ermita, Manila, I.F.

A pesar de las sustituciones fideiconiisarias precedentemente ordinadas, las usufiructuarias nombradas

conjuntamente con los nudo propietarios, podran en cualquier memento vender a tercero los bienes objeto
delegado, sin intervencion alguna de los titulares fideicomisaarios.
On June 23, 1966, the administratrix submitted a project of partition as follows: the property of the deceased is to be
divided into two parts. One part shall go to the widow 'en pleno dominio" in satisfaction of her legitime; the other part or
"free portion" shall go to Jorge and Roberto Ramirez "en nuda propriedad." Furthermore, one third (1/3) of the free
portion is charged with the widow's usufruct and the remaining two-thirds (2/3) with a usufruct in favor of Wanda.

Jorge and Roberto opposed the project of partition on the grounds: (a) that the provisions for vulgar substitution in favor
of Wanda de Wrobleski with respect to the widow's usufruct and in favor of Juan Pablo Jankowski and Horacio V.
Ramirez, with respect to Wanda's usufruct are invalid because the first heirs Marcelle and Wanda) survived the testator;
(b) that the provisions for fideicommissary substitutions are also invalid because the first heirs are not related to the
second heirs or substitutes within the first degree, as provided in Article 863 of the Civil Code; (c) that the grant of a
usufruct over real property in the Philippines in favor of Wanda Wrobleski, who is an alien, violates Section 5, Article III
of the Philippine Constitution; and that (d) the proposed partition of the testator's interest in the Santa Cruz (Escolta)
Building between the widow Marcelle and the appellants, violates the testator's express win to give this property to them
Nonetheless, the lower court approved the project of partition in its order dated May 3, 1967. It is this order which Jorge
and Roberto have appealed to this Court.

1. The widow's legitime.

The appellant's do not question the legality of giving Marcelle one-half of the estate in full ownership. They admit that the
testator's dispositions impaired his widow's legitime. Indeed, under Art. 900 of the Civil Code "If the only survivor is the
widow or widower, she or he shall be entitled to one-half of the hereditary estate." And since Marcelle alone survived the
deceased, she is entitled to one-half of his estate over which he could impose no burden, encumbrance, condition or
substitution of any kind whatsoever. (Art. 904, par. 2, Civil Code.)

It is the one-third usufruct over the free portion which the appellants question and justifiably so. It appears that the court a
quo approved the usufruct in favor of Marcelle because the testament provides for a usufruct in her favor of one-third of
the estate. The court a quo erred for Marcelle who is entitled to one-half of the estate "en pleno dominio" as her legitime
and which is more than what she is given under the will is not entitled to have any additional share in the estate. To give
Marcelle more than her legitime will run counter to the testator's intention for as stated above his dispositions even
impaired her legitime and tended to favor Wanda.

2. The substitutions.

It may be useful to recall that "Substitution is the appoint- judgment of another heir so that he may enter into the
inheritance in default of the heir originally instituted." (Art. 857, Civil Code. And that there are several kinds of
substitutions, namely: simple or common, brief or compendious, reciprocal, and fideicommissary (Art. 858, Civil Code.)
According to Tolentino, "Although the Code enumerates four classes, there are really only two principal classes of
substitutions: the simple and the fideicommissary. The others are merely variations of these two." (111 Civil Code, p. 185
[1973].)

The simple or vulgar is that provided in Art. 859 of the Civil Code which reads:

ART. 859. The testator may designate one or more persons to substitute the heir or heirs instituted in case
such heir or heirs should die before him, or should not wish, or should be incapacitated to accept the
inheritance.

A simple substitution, without a statement of the cases to which it refers, shall comprise the three
mentioned in the preceding paragraph, unless the testator has otherwise provided.

The fideicommissary substitution is described in the Civil Code as follows:

ART. 863. A fideicommissary substitution by virtue of which the fiduciary or first heir instituted is
entrusted with the obligation to preserve and to transmit to a second heir the whole or part of inheritance,
shall be valid and shall take effect, provided such substitution does not go beyond one degree from the
heir originally instituted, and provided further that the fiduciary or first heir and the second heir are living
at time of the death of the testator.

It will be noted that the testator provided for a vulgar substitution in respect of the legacies of Roberto and Jorge Ramirez,
the appellants, thus: con sustitucion vulgar a favor de sus respectivos descendientes, y, en su defecto, con substitution
vulgar reciprocal entre ambos.

The appellants do not question the legality of the substitution so provided. The appellants question the sustitucion vulgar
y fideicomisaria a favor de Da. Wanda de Wrobleski" in connection with the one-third usufruct over the estate given to
the widow Marcelle However, this question has become moot because as We have ruled above, the widow is not entitled
to any usufruct.

The appellants also question the sustitucion vulgar y fideicomisaria in connection with Wanda's usufruct over two thirds
of the estate in favor of Juan Pablo Jankowski and Horace v. Ramirez.
They allege that the substitution in its vulgar aspect as void because Wanda survived the testator or stated differently
because she did not predecease the testator. But dying before the testator is not the only case for vulgar substitution for it
also includes refusal or incapacity to accept the inheritance as provided in Art. 859 of the Civil Code, supra. Hence, the
vulgar substitution is valid.

As regards the substitution in its fideicommissary aspect, the appellants are correct in their claim that it is void for the
following reasons:

(a) The substitutes (Juan Pablo Jankowski and Horace V. Ramirez) are not related to Wanda, the heir originally instituted.
Art. 863 of the Civil Code validates a fideicommissary substitution "provided such substitution does not go beyond one
degree from the heir originally instituted."

What is meant by "one degree" from the first heir is explained by Tolentino as follows:

Scaevola Maura, and Traviesas construe "degree" as designation, substitution, or transmission. The
Supreme Court of Spain has decidedly adopted this construction. From this point of view, there can be
only one tranmission or substitution, and the substitute need not be related to the first heir. Manresa,
Morell and Sanchez Roman, however, construe the word "degree" as generation, and the present Code
has obviously followed this interpretation. by providing that the substitution shall not go beyond one
degree "from the heir originally instituted." The Code thus clearly indicates that the second heir must be
related to and be one generation from the first heir.

From this, it follows that the fideicommissary can only be either a child or a parent of the first heir. These
are the only relatives who are one generation or degree from the fiduciary (Op. cit., pp. 193-194.)

(b) There is no absolute duty imposed on Wanda to transmit the usufruct to the substitutes as required by Arts. 865 and
867 of the Civil Code. In fact, the appellee admits "that the testator contradicts the establishment of a fideicommissary
substitution when he permits the properties subject of the usufruct to be sold upon mutual agreement of the usufructuaries
and the naked owners." (Brief, p. 26.)

3. The usufruct of Wanda.

The appellants claim that the usufruct over real properties of the estate in favor of Wanda is void because it violates the
constitutional prohibition against the acquisition of lands by aliens.

The 1935 Constitution which is controlling provides as follows:

SEC. 5. Save in cases of hereditary succession, no private agricultural land shall be transferred or
assigned except to individuals, corporations, or associations qualified to acquire or hold lands of the
public domain in the Philippines. (Art. XIII.)

The court a quo upheld the validity of the usufruct given to Wanda on the ground that the Constitution covers not only
succession by operation of law but also testamentary succession. We are of the opinion that the Constitutional provision
which enables aliens to acquire private lands does not extend to testamentary succession for otherwise the prohibition will
be for naught and meaningless. Any alien would be able to circumvent the prohibition by paying money to a Philippine
landowner in exchange for a devise of a piece of land.

This opinion notwithstanding, We uphold the usufruct in favor of Wanda because a usufruct, albeit a real right, does not
vest title to the land in the usufructuary and it is the vesting of title to land in favor of aliens which is proscribed by the
Constitution.

IN VIEW OF THE FOREGOING, the estate of Jose Eugenio Ramirez is hereby ordered distributed as follows:

One-half (1/2) thereof to his widow as her legitime;

One-half (1/2) thereof which is the free portion to Roberto and Jorge Ramirez in naked ownership and the usufruct to
Wanda de Wrobleski with a simple substitution in favor of Juan Pablo Jankowski and Horace V. Ramirez.

The distribution herein ordered supersedes that of the court a quo. No special pronouncement as to costs.

SO ORDERED.
 G.R. No. L-33048 April 16, 1982
EPIFANIA SARSOSA VDA. DE BARSOBIA and PACITA W. VALLAR, petitioners, vs.
VICTORIANO T. CUENCO, respondent.

Sought to be reviewed herein is the judgment dated August 18, 1970, of the Court of Appeals, 1 rendered in CA-G.R. No.
41318-R, entitled "Victoriano T. Cuenco, Plaintiff-appellant, vs. Epifania Sarsosa Vda. de Barsobia and Pacita W.
Vallar, Defendants- appellees, " declaring Victoriano T. Cuenco (now the respondent) as the absolute owner of the
coconut land in question.

The lot in controversy is a one-half portion (on the northern side) of two adjoining parcels of coconut land located at
Barrio Mancapagao, Sagay, Camiguin, Misamis Oriental (now Camiguin province), with an area of 29,150 square meters,
more or less. 2

The entire land was owned previously by a certain Leocadia Balisado, who had sold it to the spouses Patricio Barsobia
(now deceased) and Epifania Sarsosa, one of the petitioners herein. They are Filipino citizens.

On September 5, 1936, Epifania Sarsosa then a widow, sold the land in controversy to a Chinese, Ong King Po, for the
sum of P1,050.00 (Exhibit "B"). Ong King Po took actual possession and enjoyed the fruits thereof.

On August 5, 1961, Ong King Po sold the litigated property to Victoriano T. Cuenco (respondent herein), a naturalized
Filipino, for the sum of P5,000.00 (Exhibit "A"). Respondent immediately took actual possession and harvested the fruits
therefrom.

On March 6, 1962, Epifania "usurped" the controverted property, and on July 26, 1962, Epifania (through her only
daughter and child, Emeteria Barsobia), sold a one-half (1/2) portion of the land in question to Pacita W. Vallar, the other
petitioner herein (Exhibit "2"). Epifania claimed that it was not her intention to sell the land to Ong King Po and that she
signed the document of sale merely to evidence her indebtedness to the latter in the amount of P1,050.00. Epifania has
been in possession ever since except for the portion sold to the other petitioner Pacita.

On September 19, 1962, respondent filed a Forcible Entry case against Epifania before the Municipal Court of Sagay,
Camiguin. The case was dismissed for lack of jurisdiction since, as the laws then stood, the question of possession could
not be properly determined without first settling that of ownership.

On December 27, 1966, respondent instituted before the Court of First Instance of Misamis Oriental a Complaint for
recovery of possession and ownership of the litigated land, against Epifania and Pacita Vallar (hereinafter referred to
simply as petitioners).

In their Answer below, petitioners insisted that they were the owners and possessors of the litigated land; that its sale to
Ong King Po, a Chinese, was inexistent and/or void ab initio; and that the deed of sale between them was only an
evidence of Epifania's indebtedness to Ong King Po.

The trial Court rendered judgment:

1. Dismissing the complaint with costs against plaintiff (respondent herein).
2. Declaring the two Deeds of Sale, Exhibits A and B, respectively, inexistent and void from the beginning; and
3. Declaring defendant Pacita W. Vallar as the lawful owner and possessor of the portion of land she bought from
Emeteria Barsobia (pp. 57, 67, Record.) 3

On appeal, the Court of Appeals reversed the aforementioned Decision and decreed instead that respondent was the owner
of the litigated property, thus:
xxx xxx xxx

In view of all the foregoing considerations, the judgment appealed from is hereby reversed. In lieu thereof, we render judgment:
(a) Declaring the plaintiff-appellant Victoriano T. Cuenco the absolute owner of the land in question, with the right of
possession thereof;
(b) Ordering the defendants-appellees to restore the possession of said land to the plaintiff;
(c) Dismissing the defendants' counterclaim;
(d) Condemning the defendants to pay to the plaintiff the sum of P10,000.00 representing the latter's share from the sale
of copra which he failed to receive since March, 1962 when he was deprived of his possession over the land, and which
defendants illegally appropriated it to their own use and benefit, plus legal interest from the filing of the complaint until
fully paid; plus P2,000.00 representing expenses and attorney's fees;
(e) Sentencing the defendants to pay the costs.
SO ORDERED. 4

Following the denial of their Motion for Reconsideration, petitioners filed the instant Petition for Review on certiorari
with this Court on January 21, 1971. Petitioners claim that the Court of Appeals erred:

I. ... when it reversed the judgment of the trial court declaring petitioner Pacita W. Vallar as the lawful possessor and
owner of the portion of land she purchased from Emeteria Barsobia, not a party to this case, there being no evidence
against her.
II ... when it included petitioner Pacita W. Vallar to pay P10,000.00, with legal interest from the filing of the complaint,
representing respondent's share in the harvest and to pay the costs, there being no evidence against her.

III. ... when it condemned petitioners to pay P2,000.00 representing expenses and attorney's fees, there being no factual,
legal and equitable justification.

IV. ... in not applying the rule on pari delicto to the facts of the case or the doctrine enunciated ... in the case of Philippine
Banking Corporation vs. Lui She, L-17587, September 12, 1967, to ... Petitioner Epifania Sarsosa Vda. de Barsobia.

V. ... in denying, for lack of sufficient merits, petitioners' motion for rehearing or reconsideration of its decision. 5

As the facts stand, a parcel of coconut land was sold by its Filipino owner, petitioner Epifania, to a Chinese, Ong King
Po, and by the latter to a naturalized Filipino, respondent herein. In the meantime, the Filipino owner had unilaterally
repudiated the sale she had made to the Chinese and had resold the property to another Filipino. The basic issue is: Who
is the rightful owner of the property?

There should be no question that the sale of the land in question in 1936 by Epifania to Ong King Po was inexistent and
void from the beginning (Art. 1409 [7], Civil Code) 6 because it was a contract executed against the mandatory provision
of the 1935 Constitution, which is an expression of public policy to conserve lands for the Filipinos. Said provision reads:

Save in cases of hereditary succession, no private agricultural land shall be transferred or assigned except
to individuals, corporations, or associations, qualified to acquire or hold lands of the public domain. 7

Had this been a suit between Epifania and Ong King Po, she could have been declared entitled to the litigated land on the
basis, as claimed, of the ruling in Philippine Banking Corporation vs. Lui She, 8 reading:

... For another thing, and this is not only cogent but also important. Article 1416 of the Civil Code provides as an
exception to the rule on pari delicto that when the agreement is not illegal per se but is merely prohibited, and the
prohibition by the law is designed for the protection of the plaintiff, he may, if public policy is thereby enhanced,
recover what he has sold or delivered. ...

But the factual set-up has changed. The litigated property is now in the hands of a naturalized Filipino. It is no longer
owned by a disqualified vendee. Respondent, as a naturalized citizen, was constitutionally qualified to own the subject
property. There would be no more public policy to be served in allowing petitioner Epifania to recover the land as it is
already in the hands of a qualified person. Applying by analogy the ruling of this Court in Vasquez vs. Giap and Li Seng
Giap & Sons: 9

... if the ban on aliens from acquiring not only agricultural but also urban lands, as construed by this Court in the Krivenko
case, is to preserve the nation's lands for future generations of Filipinos, that aim or purpose would not be thwarted but
achieved by making lawful the acquisition of real estate by aliens who became Filipino citizens by naturalization.

While, strictly speaking, Ong King Po, private respondent's vendor, had no rights of ownership to transmit, it is likewise
inescapable that petitioner Epifania had slept on her rights for 26 years from 1936 to 1962. By her long inaction or
inexcusable neglect, she should be held barred from asserting her claim to the litigated property (Sotto vs. Teves, 86
SCRA 157 [1978]).

Laches has been defined as the failure or neglect, for an unreasonable and unexplained length of time, to do that
which by exercising due diligence could or should have been done earlier; it is negligence or omission to assert a
right within a reasonable time, warranting a presumption that the party entitled to assert it either has abandoned it or
declined to assert it. (Tijam, et al. vs. Sibonghanoy, et al., No. L-21450, April 15, 1968, 23 SCRA 29, 35). (cited in
Sotto vs. Teves, 86 SCRA 154 [1978]).

Respondent, therefore, must be declared to be the rightful owner of the property.

The award of actual damages in respondent's favor of P10,000.00, as well as of attorney's fees and expenses of litigation
of P2,000.00, is justified. Respondent was deprived of the possession of his land and the enjoyment of its fruits from
March, 1962. The Court of Appeals fixed respondent's share of the sale of copra at P10,000.00 for eight years at four (4)
harvests a year. The accuracy of this finding has not been disputed.

However, we find merit in the assigned error that petitioner, Pacita Vallar, should not be held also liable for actual
damages to respondent. In the absence of contrary proof, she, too, must be considered as a vendee in good faith of
petitioner Epifania.

The award of attorney's fees and litigation expenses in the sum of P2,000.00 in respondent's favor is in order considering that
both petitioners compelled respondent to litigate for the protection of his interests. Moreover, the amount is reasonable. 10

WHEREFORE, except for that portion holding petitioner, Pacita W. Vallar, also liable for damages of P10,000.00, the
appealed judgment is hereby affirmed. Costs against petitioners. SO ORDERED.
 G.R. No. L-3676 January 31, 1955
SOCORRO VASQUEZ, plaintiff-appellant, vs. LI SENG GIAP and LI SENG GIAP & SONS, defendants-appellees.

This is an action to rescind the sale of a parcel of land together with the improvements erected thereon, described in the
complaint, which was sold by the plaintiff to the defendant Li Seng Giap on 22 January 1940, on the ground that the
vendee was an alien and under the Constitution incapable to own and hold title to lands. The case was decided upon the
following stipulation of facts:

Plaintiff and defendants in the above-entitled case, by their respective attorneys, hereby stipulate and agree that
the facts involved in this litigation are as follows:.

That plaintiff and defendant Li Seng Giap are, and were at all times mentioned herein, of legal age and residents
of the City of Manila, Philippines; that defendant Li Seng Giap & Sons, Inc., is a corporation duly organized and
existing under and by virtue of the laws of the Philippines, with principal office in the City of Manila,
Philippines.

II. That on January 22, 1940, plaintiff sold and transferred to defendant Li Seng Giap, then Chinese citizen,
for the sum of P14,500, a parcel of land together with a house of strong materials existing thereon, more
particularly bounded and described as follows:.

A PARCEL OF LAND (Lot No. 22-A of the subdivision plan Psd-15360, being a portion of Lot No. 22,
Block No. 2809 of the Cadastral survey of Manila, G.L.R.O. Cadastral Record No. 192), situated in the
District of Tondo, City of Manila. Bounded on the NE. by lot No. 23, Block No. 2809, on the SE. by Lot
No. 22-B, Block No. 2809; on the SW. by Lot No. 21, Block No. 2809; and on the NW. by Calle
Magdalena; * * * containing an area of four hundred twenty-three square meters and forty-five square
decimeters (423.45) more or less. (Assessed Value — P15,579.00).

III. That on August 21, 1940, defendant Li Seng Giap sold and transferred unto defendant Li Seng Giap &
Sons, Inc., whose shareholdings then were owned by Chinese citizens, for the same sum of P14,500, the above-
mentioned parcel, together with the improvements thereon, and duly registered under Transfer Certificate of Title
No. 59684 of the Office of the Register of Deeds for the city of Manila on August 23, 1940.

IV. That defendant Li Seng Giap was duly naturalized as a Filipino citizen on May 10, 1941, under
Certificate of Naturalization No. 515, the records of which were duly reconstituted under an order of this
Honorable Court in Case No. R-603 dated May 24, 1946.

V. That defendant Li Seng Giap & Sons, Inc., is now a Filipino corporation, 96.67 per cent of its stock being
owned by Filipinos, and duly authorized by its articles of incorporation to own, acquire or dispose of real
properties.

VI. That the following are the names and respective citizenship and shareholdings of the present stockholders
of Li Seng Giap & Sons, Inc:

Names Citizenship No. of Shares Per cent Total Amount.

Li Seng Giap Filipino 3,400 56.67 P340,000.00 Tang Ho de Li Seng Giap Filipino 1,200 20.00 120,000.00
William Lee Filipino 200 3.33 20,000.00 Henry Lee Filipino 200 3.33 20,000.00 Thomas J. Lee Filipino 200 3.33
20,000.00 Sofia Lee Teehankee Filipino 200 3.33 20,000.00 Julian M. Lee Filipino 200 3.33 20,000.00 Anthony
P. Lee Chinese 200 3.33 20,000.00 6,000 100.00% P600,000.00.

VII. That Henry Lee was duly naturalized as a Filipino citizen on October 21, 1936, under Certificate of
Naturalization No. 352, the records of which were duly reconstituted under an order of this Honorable Court in
Case No. R-407 dated May 24, 1946.

VIII. That Thomas J. Lee was duly naturalized as a Filipino citizen on May 10, 1941, under Certificate of
Naturalization No. 516, the records of which were duly reconstituted under an order of this Honorable Court in
Case No. R-604 dated May 24, 1946.

IX. That William Lee was duly naturalized as a Filipino citizen on November 1, 1948, under Certificate of
Naturalization No. 2 of the Court of First Instance of Daet, Camarines Norte.

X. That Sofia Lee Teehankee is a Filipino citizen being married to Dr. Rafael Teehankee, a Filipino citizen.

XI. That Julia M. Lee and Charles Lee are both Filipinos by operation of law as they were both minors when
their father, Li Seng Giap, became a Filipino citizen on May 10, 1941.

Manila, Philippines, September 7, 1949.

Respectfully Submitted:
 (Sgd.) JOSE S. SARTE Counsel for the Plaintiff Room 213 Central Hotel, Manila.

LEE, ORENDAIN, & GUZMAN Counsel for the Defendants 60 Novaliches St., Manila.

By: (Sgd.) LEONARDO M. GUZMAN

The Court rendered judgment dismissing the complaint with cost against the plaintiff. She has appealed.

In Caoile vs. Yu Chiao, 49 Off. Gaz., 4321; Talento vs. Makiki, 49 Off. Gaz., 4331; Bautista vs. Uy 49 Off. Gaz.,
4331; Rellosa vs. Gaw Chee, 49 Off. Gaz., 4345 and Mercado vs. Go Bio, 49 Off. Gaz., 5360, the majority of this Court
has ruled that in Sales of real estate to aliens incapable of holding title thereto by virtue of the provisions of the
Constitution 1 both the vendor and the vendee are deemed to have committed the constitutional violation and being thus in
pari delicto the courts will not afford protection to either party.2 From this ruling three Justices dissented.3

The action is not of rescission because it is not postulated upon any of the grounds provided for in Article 1291 of the old
Civil Code and because the action of rescission involves lesion or damage and seeks to repair it. It is an action for
annulment under Chapter VI, Title II, Book II, on nullity of contracts, based on a defect in the contract which invalidates
it independently of such lesion or damages. 4 It is very likely that the majority of this Court proceeded upon that theory
when it applied the in pari delicto rule referred to above.

In the United States the rule is that in a sale of real estate to an alien disqualified to hold title thereto the vendor divests
himself of the title to such real estate and has no recourse against the vendee despite the latter's disability on account of
alienage to hold title to such real estate and the vendee may hold it against the whole except as against the State. It is only
the State that is entitled by proceedings in the nature of office found to have a forfeiture or escheat declared against the
vendee who is incapable of holding title to the real estate sold and conveyed to him.5

However, if the State does not commence such proceedings and in the meantime the alien becomes naturalized citizen the
State is deemed to have waived its right to escheat the real property and the title of the alien thereto becomes lawful and
valid as of the date of its conveyance or transfer to him. 6 The Rule in the United States that in a sale of real estate to an
alien disqualified to hold title thereto, the vendor divests himself of the title to such real estate and is not permitted to sue
for the annulment of his contract, is also the rule under the Civil Code. * * *Article 1302 of the old Civil Code provides: *
* *Persons sui juris cannot, however, avail themselves of the incapacity of those with whom they contracted; * * *.".

Manresa's comment on this clause of article 1302 of the Civil Code is as follows:.

Irresponsabilidad del defecto alegada.— Es la segunda de las condiciones necesarias para el ejercicio de la
accion. Algunos la expresan diciendo que solo puede intrenar aquella el perjudicado, pero esta expresion puede
conducir a ideas equivocadas, ya quela nulidad es independiente de la lesion, como declara el art. 1.300, y es
licito al favorecido economicamente por el contrato pedir la nulidad basandose en causas a el no imputables, y en
cambio no autoriza la ley el caso inverso.

Sencilla la regla contenida en el parrafo segundo de este articulo,puede complicarse cuando coexisten dos
defectos del contrato, comopuede suceder, derivandose a veces de un mismo hecho, verbigracia,el contrato
celebrado con un incapaz por quien ignora que lo es: eneste ejemplo es indudable que la persona capaz no podra
pedir lanulidad fundado en la incapacidad de la otra, pero si alegar elerror o el dolo que padeciera si las
circunstancias del sujetoeran de decisiva influencia en el contrato. (Supra, pp.709-709.).

Appellant argues that if at the time of the conveyance of the real property the appellee was incapable of holding title to
such real estate, the contract of sale was null or void and may be annulled, and his subsequent naturalization as a Filipino
citizen cannot retroact to the date of the conveyance to make it lawful and valid. However, if the ban on aliens from
acquiring not only agricultural but also urban lands, as construed by this Court in the Krivenko case, is to preserve the
nation's lands for future generations of Filipinos, that aim or purpose would not be thwarted but achieved by making
lawful the acquisition of real estate by aliens who became Filipino citizens by naturalization. The title to the parcel of
land of the vendee, a naturalized Filipino citizen, being valid that of the domestic corporation to which the parcel of land
has been transferred, must also be valid, 96.67 per cent of its capital stock being owned by Filipinos.

The judgment appealed from is affirmed, without costs.

 G.R. No. 92013 July 25, 1990
SALVADOR H. LAUREL, petitioner, vs.
RAMON GARCIA, as head of the Asset Privatization Trust, RAUL MANGLAPUS, as Secretary of Foreign Affairs,
and CATALINO MACARAIG, as Executive Secretary, respondents.

G.R. No. 92047 July 25, 1990

DIONISIO S. OJEDA, petitioner, vs.
EXECUTIVE SECRETARY MACARAIG, JR., ASSETS PRIVATIZATION TRUST CHAIRMAN RAMON T.
GARCIA, AMBASSADOR RAMON DEL ROSARIO, et al., as members of the PRINCIPAL AND BIDDING
COMMITTEES ON THE UTILIZATION/DISPOSITION PETITION OF PHILIPPINE GOVERNMENT
PROPERTIES IN JAPAN, respondents.

These are two petitions for prohibition seeking to enjoin respondents, their representatives and agents from proceeding
with the bidding for the sale of the 3,179 square meters of land at 306 Roppongi, 5-Chome Minato-ku Tokyo, Japan
scheduled on February 21, 1990. We granted the prayer for a temporary restraining order effective February 20, 1990.
One of the petitioners (in G.R. No. 92047) likewise prayes for a writ of mandamus to compel the respondents to fully
disclose to the public the basis of their decision to push through with the sale of the Roppongi property inspire of strong
public opposition and to explain the proceedings which effectively prevent the participation of Filipino citizens and
entities in the bidding process.

The oral arguments in G.R. No. 92013, Laurel v. Garcia, et al. were heard by the Court on March 13, 1990. After G.R.
No. 92047, Ojeda v. Secretary Macaraig, et al. was filed, the respondents were required to file a comment by the Court's
resolution dated February 22, 1990. The two petitions were consolidated on March 27, 1990 when the memoranda of the
parties in the Laurel case were deliberated upon.

The Court could not act on these cases immediately because the respondents filed a motion for an extension of thirty (30)
days to file comment in G.R. No. 92047, followed by a second motion for an extension of another thirty (30) days which
we granted on May 8, 1990, a third motion for extension of time granted on May 24, 1990 and a fourth motion for
extension of time which we granted on June 5, 1990 but calling the attention of the respondents to the length of time the
petitions have been pending. After the comment was filed, the petitioner in G.R. No. 92047 asked for thirty (30) days to
file a reply. We noted his motion and resolved to decide the two (2) cases.

I The subject property in this case is one of the four (4) properties in Japan acquired by the Philippine government
under the Reparations Agreement entered into with Japan on May 9, 1956, the other lots being:

(1) The Nampeidai Property at 11-24 Nampeidai-machi, Shibuya-ku, Tokyo which has an area of approximately 2,489.96
square meters, and is at present the site of the Philippine Embassy Chancery;

(2) The Kobe Commercial Property at 63 Naniwa-cho, Kobe, with an area of around 764.72 square meters and
categorized as a commercial lot now being used as a warehouse and parking lot for the consulate staff; and

(3) The Kobe Residential Property at 1-980-2 Obanoyama-cho, Shinohara, Nada-ku, Kobe, a residential lot which is now
vacant.

The properties and the capital goods and services procured from the Japanese government for national development
projects are part of the indemnification to the Filipino people for their losses in life and property and their suffering
during World War II.

The Reparations Agreement provides that reparations valued at $550 million would be payable in twenty (20) years in
accordance with annual schedules of procurements to be fixed by the Philippine and Japanese governments (Article 2,
Reparations Agreement). Rep. Act No. 1789, the Reparations Law, prescribes the national policy on procurement and
utilization of reparations and development loans. The procurements are divided into those for use by the government
sector and those for private parties in projects as the then National Economic Council shall determine. Those intended for
the private sector shall be made available by sale to Filipino citizens or to one hundred (100%) percent Filipino-owned
entities in national development projects.

The Roppongi property was acquired from the Japanese government under the Second Year Schedule and listed under the
heading "Government Sector", through Reparations Contract No. 300 dated June 27, 1958. The Roppongi property
consists of the land and building "for the Chancery of the Philippine Embassy" (Annex M-D to Memorandum for
Petitioner, p. 503). As intended, it became the site of the Philippine Embassy until the latter was transferred to Nampeidai
on July 22, 1976 when the Roppongi building needed major repairs. Due to the failure of our government to provide
necessary funds, the Roppongi property has remained undeveloped since that time.

A proposal was presented to President Corazon C. Aquino by former Philippine Ambassador to Japan, Carlos J. Valdez,
to make the property the subject of a lease agreement with a Japanese firm - Kajima Corporation — which shall construct
two (2) buildings in Roppongi and one (1) building in Nampeidai and renovate the present Philippine Chancery in
Nampeidai. The consideration of the construction would be the lease to the foreign corporation of one (1) of the buildings
to be constructed in Roppongi and the two (2) buildings in Nampeidai. The other building in Roppongi shall then be used
as the Philippine Embassy Chancery. At the end of the lease period, all the three leased buildings shall be occupied and
used by the Philippine government. No change of ownership or title shall occur. (See Annex "B" to Reply to Comment)
The Philippine government retains the title all throughout the lease period and thereafter. However, the government has
not acted favorably on this proposal which is pending approval and ratification between the parties. Instead, on August
11, 1986, President Aquino created a committee to study the disposition/utilization of Philippine government properties in
Tokyo and Kobe, Japan through Administrative Order No. 3, followed by Administrative Orders Numbered 3-A, B, C
and D.

On July 25, 1987, the President issued Executive Order No. 296 entitling non-Filipino citizens or entities to avail of
separations' capital goods and services in the event of sale, lease or disposition. The four properties in Japan including the
Roppongi were specifically mentioned in the first "Whereas" clause.

Amidst opposition by various sectors, the Executive branch of the government has been pushing, with great vigor, its
decision to sell the reparations properties starting with the Roppongi lot. The property has twice been set for bidding at a
minimum floor price of $225 million. The first bidding was a failure since only one bidder qualified. The second one,
after postponements, has not yet materialized. The last scheduled bidding on February 21, 1990 was restrained by his
Court. Later, the rules on bidding were changed such that the $225 million floor price became merely a suggested floor
price.

The Court finds that each of the herein petitions raises distinct issues. The petitioner in G.R. No. 92013 objects to the
alienation of the Roppongi property to anyone while the petitioner in G.R. No. 92047 adds as a principal objection the
alleged unjustified bias of the Philippine government in favor of selling the property to non-Filipino citizens and entities.
These petitions have been consolidated and are resolved at the same time for the objective is the same - to stop the sale of
the Roppongi property.

The petitioner in G.R. No. 92013 raises the following issues:

(1) Can the Roppongi property and others of its kind be alienated by the Philippine Government?; and

(2) Does the Chief Executive, her officers and agents, have the authority and jurisdiction, to sell the Roppongi property?

Petitioner Dionisio Ojeda in G.R. No. 92047, apart from questioning the authority of the government to alienate the
Roppongi property assails the constitutionality of Executive Order No. 296 in making the property available for sale to
non-Filipino citizens and entities. He also questions the bidding procedures of the Committee on the Utilization or
Disposition of Philippine Government Properties in Japan for being discriminatory against Filipino citizens and Filipino-
owned entities by denying them the right to be informed about the bidding requirements.

II In G.R. No. 92013, petitioner Laurel asserts that the Roppongi property and the related lots were acquired as part
of the reparations from the Japanese government for diplomatic and consular use by the Philippine government. Vice-
President Laurel states that the Roppongi property is classified as one of public dominion, and not of private ownership
under Article 420 of the Civil Code (See infra).

The petitioner submits that the Roppongi property comes under "property intended for public service" in paragraph 2 of
the above provision. He states that being one of public dominion, no ownership by any one can attach to it, not even by
the State. The Roppongi and related properties were acquired for "sites for chancery, diplomatic, and consular quarters,
buildings and other improvements" (Second Year Reparations Schedule). The petitioner states that they continue to be
intended for a necessary service. They are held by the State in anticipation of an opportune use. (Citing 3 Manresa 65-66).
Hence, it cannot be appropriated, is outside the commerce of man, or to put it in more simple terms, it cannot be alienated
nor be the subject matter of contracts (Citing Municipality of Cavite v. Rojas, 30 Phil. 20 [1915]). Noting the non-use of
the Roppongi property at the moment, the petitioner avers that the same remains property of public dominion so long as
the government has not used it for other purposes nor adopted any measure constituting a removal of its original purpose
or use.

The respondents, for their part, refute the petitioner's contention by saying that the subject property is not governed by our
Civil Code but by the laws of Japan where the property is located. They rely upon the rule of lex situs which is used in
determining the applicable law regarding the acquisition, transfer and devolution of the title to a property. They also
invoke Opinion No. 21, Series of 1988, dated January 27, 1988 of the Secretary of Justice which used the lex situs in
explaining the inapplicability of Philippine law regarding a property situated in Japan.

The respondents add that even assuming for the sake of argument that the Civil Code is applicable, the Roppongi property
has ceased to become property of public dominion. It has become patrimonial property because it has not been used for
public service or for diplomatic purposes for over thirteen (13) years now (Citing Article 422, Civil Code) and because
the intention by the Executive Department and the Congress to convert it to private use has been manifested by overt acts,
such as, among others: (1) the transfer of the Philippine Embassy to Nampeidai (2) the issuance of administrative orders
for the possibility of alienating the four government properties in Japan; (3) the issuance of Executive Order No. 296; (4)
the enactment by the Congress of Rep. Act No. 6657 [the Comprehensive Agrarian Reform Law] on June 10, 1988 which
contains a provision stating that funds may be taken from the sale of Philippine properties in foreign countries; (5) the
holding of the public bidding of the Roppongi property but which failed; (6) the deferment by the Senate in Resolution
No. 55 of the bidding to a future date; thus an acknowledgment by the Senate of the government's intention to remove the
Roppongi property from the public service purpose; and (7) the resolution of this Court dismissing the petition in Ojeda v.
Bidding Committee, et al., G.R. No. 87478 which sought to enjoin the second bidding of the Roppongi property scheduled
on March 30, 1989.

III In G.R. No. 94047, petitioner Ojeda once more asks this Court to rule on the constitutionality of Executive Order
No. 296. He had earlier filed a petition in G.R. No. 87478 which the Court dismissed on August 1, 1989. He now avers
that the executive order contravenes the constitutional mandate to conserve and develop the national patrimony stated in
the Preamble of the 1987 Constitution. It also allegedly violates:

(1) The reservation of the ownership and acquisition of alienable lands of the public domain to Filipino citizens. (Sections
2 and 3, Article XII, Constitution; Sections 22 and 23 of Commonwealth Act 141).i•t•c-aüsl

(2) The preference for Filipino citizens in the grant of rights, privileges and concessions covering the national economy
and patrimony (Section 10, Article VI, Constitution);

(3) The protection given to Filipino enterprises against unfair competition and trade practices;

(4) The guarantee of the right of the people to information on all matters of public concern (Section 7, Article III,
Constitution);

(5) The prohibition against the sale to non-Filipino citizens or entities not wholly owned by Filipino citizens of capital
goods received by the Philippines under the Reparations Act (Sections 2 and 12 of Rep. Act No. 1789); and

(6) The declaration of the state policy of full public disclosure of all transactions involving public interest (Section 28,
Article III, Constitution).

Petitioner Ojeda warns that the use of public funds in the execution of an unconstitutional executive order is a
misapplication of public funds He states that since the details of the bidding for the Roppongi property were never
publicly disclosed until February 15, 1990 (or a few days before the scheduled bidding), the bidding guidelines are
available only in Tokyo, and the accomplishment of requirements and the selection of qualified bidders should be done in
Tokyo, interested Filipino citizens or entities owned by them did not have the chance to comply with Purchase Offer
Requirements on the Roppongi. Worse, the Roppongi shall be sold for a minimum price of $225 million from which price
capital gains tax under Japanese law of about 50 to 70% of the floor price would still be deducted.

IV The petitioners and respondents in both cases do not dispute the fact that the Roppongi site and the three related
properties were through reparations agreements, that these were assigned to the government sector and that the Roppongi
property itself was specifically designated under the Reparations Agreement to house the Philippine Embassy.

The nature of the Roppongi lot as property for public service is expressly spelled out. It is dictated by the terms of the
Reparations Agreement and the corresponding contract of procurement which bind both the Philippine government and
the Japanese government.

There can be no doubt that it is of public dominion unless it is convincingly shown that the property has become
patrimonial. This, the respondents have failed to do.

As property of public dominion, the Roppongi lot is outside the commerce of man. It cannot be alienated. Its ownership is
a special collective ownership for general use and enjoyment, an application to the satisfaction of collective needs, and
resides in the social group. The purpose is not to serve the State as a juridical person, but the citizens; it is intended for the
common and public welfare and cannot be the object of appropration. (Taken from 3 Manresa, 66-69; cited in Tolentino,
Commentaries on the Civil Code of the Philippines, 1963 Edition, Vol. II, p. 26).

The applicable provisions of the Civil Code are:

ART. 419. Property is either of public dominion or of private ownership.

ART. 420. The following things are property of public dominion

(1) Those intended for public use, such as roads, canals, rivers, torrents, ports and bridges constructed by the State,
banks shores roadsteads, and others of similar character;

(2) Those which belong to the State, without being for public use, and are intended for some public service or for the
development of the national wealth.

ART. 421. All other property of the State, which is not of the character stated in the preceding article, is patrimonial property.

The Roppongi property is correctly classified under paragraph 2 of Article 420 of the Civil Code as property belonging to
the State and intended for some public service.

Has the intention of the government regarding the use of the property been changed because the lot has been Idle for
some years? Has it become patrimonial?
The fact that the Roppongi site has not been used for a long time for actual Embassy service does not automatically
convert it to patrimonial property. Any such conversion happens only if the property is withdrawn from public use (Cebu
Oxygen and Acetylene Co. v. Bercilles, 66 SCRA 481 [1975]). A property continues to be part of the public domain, not
available for private appropriation or ownership until there is a formal declaration on the part of the government to
withdraw it from being such (Ignacio v. Director of Lands, 108 Phil. 335 [1960]).

The respondents enumerate various pronouncements by concerned public officials insinuating a change of intention. We
emphasize, however, that an abandonment of the intention to use the Roppongi property for public service and to make it
patrimonial property under Article 422 of the Civil Code must be definiteAbandonment cannot be inferred from the non-
use alone specially if the non-use was attributable not to the government's own deliberate and indubitable will but to a
lack of financial support to repair and improve the property (See Heirs of Felino Santiago v. Lazaro, 166 SCRA 368
[1988]). Abandonment must be a certain and positive act based on correct legal premises.

A mere transfer of the Philippine Embassy to Nampeidai in 1976 is not relinquishment of the Roppongi property's
original purpose. Even the failure by the government to repair the building in Roppongi is not abandonment since as
earlier stated, there simply was a shortage of government funds. The recent Administrative Orders authorizing a study of
the status and conditions of government properties in Japan were merely directives for investigation but did not in any
way signify a clear intention to dispose of the properties.

Executive Order No. 296, though its title declares an "authority to sell", does not have a provision in its text expressly
authorizing the sale of the four properties procured from Japan for the government sector. The executive order does not
declare that the properties lost their public character. It merely intends to make the properties available to foreigners and
not to Filipinos alone in case of a sale, lease or other disposition. It merely eliminates the restriction under Rep. Act No.
1789 that reparations goods may be sold only to Filipino citizens and one hundred (100%) percent Filipino-owned
entities. The text of Executive Order No. 296 provides:

Section 1. The provisions of Republic Act No. 1789, as amended, and of other laws to the contrary
notwithstanding, the above-mentioned properties can be made available for sale, lease or any other
manner of disposition to non-Filipino citizens or to entities owned by non-Filipino citizens.

Executive Order No. 296 is based on the wrong premise or assumption that the Roppongi and the three other properties
were earlier converted into alienable real properties. As earlier stated, Rep. Act No. 1789 differentiates the procurements
for the government sector and the private sector (Sections 2 and 12, Rep. Act No. 1789). Only the private sector
properties can be sold to end-users who must be Filipinos or entities owned by Filipinos. It is this nationality provision
which was amended by Executive Order No. 296.

Section 63 (c) of Rep. Act No. 6657 (the CARP Law) which provides as one of the sources of funds for its
implementation, the proceeds of the disposition of the properties of the Government in foreign countries, did not
withdraw the Roppongi property from being classified as one of public dominion when it mentions Philippine properties
abroad. Section 63 (c) refers to properties which are alienable and not to those reserved for public use or service. Rep Act
No. 6657, therefore, does not authorize the Executive Department to sell the Roppongi property. It merely enumerates
possible sources of future funding to augment (as and when needed) the Agrarian Reform Fund created under Executive
Order No. 299. Obviously any property outside of the commerce of man cannot be tapped as a source of funds.

The respondents try to get around the public dominion character of the Roppongi property by insisting that Japanese law
and not our Civil Code should apply.

It is exceedingly strange why our top government officials, of all people, should be the ones to insist that in the sale of
extremely valuable government property, Japanese law and not Philippine law should prevail. The Japanese law - its
coverage and effects, when enacted, and exceptions to its provision — is not presented to the Court It is simply asserted
that the lex loci rei sitae or Japanese law should apply without stating what that law provides. It is a ed on faith that
Japanese law would allow the sale.

We see no reason why a conflict of law rule should apply when no conflict of law situation exists. A conflict of law
situation arises only when: (1) There is a dispute over the title or ownership of an immovable, such that the capacity to
take and transfer immovables, the formalities of conveyance, the essential validity and effect of the transfer, or the
interpretation and effect of a conveyance, are to be determined (See Salonga, Private International Law, 1981 ed., pp.
377-383); and (2) A foreign law on land ownership and its conveyance is asserted to conflict with a domestic law on the
same matters. Hence, the need to determine which law should apply.

In the instant case, none of the above elements exists.

The issues are not concerned with validity of ownership or title. There is no question that the property belongs to the
Philippines. The issue is the authority of the respondent officials to validly dispose of property belonging to the State.
And the validity of the procedures adopted to effect its sale. This is governed by Philippine Law. The rule of lex
situs does not apply.

The assertion that the opinion of the Secretary of Justice sheds light on the relevance of the lex situs rule is misplaced.
The opinion does not tackle the alienability of the real properties procured through reparations nor the existence in what
body of the authority to sell them. In discussing who are capable of acquiring the lots, the Secretary merely explains that
it is the foreign law which should determine who can acquire the properties so that the constitutional limitation on
acquisition of lands of the public domain to Filipino citizens and entities wholly owned by Filipinos is inapplicable. We
see no point in belaboring whether or not this opinion is correct. Why should we discuss who can acquire the Roppongi
lot when there is no showing that it can be sold?

The subsequent approval on October 4, 1988 by President Aquino of the recommendation by the investigating committee
to sell the Roppongi property was premature or, at the very least, conditioned on a valid change in the public character of
the Roppongi property. Moreover, the approval does not have the force and effect of law since the President already lost
her legislative powers. The Congress had already convened for more than a year.

Assuming for the sake of argument, however, that the Roppongi property is no longer of public dominion, there is another
obstacle to its sale by the respondents.

There is no law authorizing its conveyance.

Section 79 (f) of the Revised Administrative Code of 1917 provides

Section 79 (f ) Conveyances and contracts to which the Government is a party. — In cases in which the
Government of the Republic of the Philippines is a party to any deed or other instrument conveying the title to real
estate or to any other property the value of which is in excess of one hundred thousand pesos, the respective
Department Secretary shall prepare the necessary papers which, together with the proper recommendations, shall
be submitted to the Congress of the Philippines for approval by the same. Such deed, instrument, or contract shall
be executed and signed by the President of the Philippines on behalf of the Government of the Philippines unless
the Government of the Philippines unless the authority therefor be expressly vested by law in another officer.

The requirement has been retained in Section 48, Book I of the Administrative Code of 1987 (Executive Order No. 292).

SEC. 48. Official Authorized to Convey Real Property. — Whenever real property of the Government is authorized
by law to be conveyed, the deed of conveyance shall be executed in behalf of the government by the following:

(1) For property belonging to and titled in the name of the Republic of the Philippines, by the President, unless the
authority therefor is expressly vested by law in another officer.

(2) For property belonging to the Republic of the Philippines but titled in the name of any political subdivision or
of any corporate agency or instrumentality, by the executive head of the agency or instrumentality.

It is not for the President to convey valuable real property of the government on his or her own sole will. Any such
conveyance must be authorized and approved by a law enacted by the Congress. It requires executive and legislative
concurrence.

Resolution No. 55 of the Senate dated June 8, 1989, asking for the deferment of the sale of the Roppongi property does
not withdraw the property from public domain much less authorize its sale. It is a mere resolution; it is not a formal
declaration abandoning the public character of the Roppongi property. In fact, the Senate Committee on Foreign Relations
is conducting hearings on Senate Resolution No. 734 which raises serious policy considerations and calls for a fact-
finding investigation of the circumstances behind the decision to sell the Philippine government properties in Japan.

The resolution of this Court in Ojeda v. Bidding Committee, et al., supra, did not pass upon the constitutionality of
Executive Order No. 296. Contrary to respondents' assertion, we did not uphold the authority of the President to sell the
Roppongi property. The Court stated that the constitutionality of the executive order was not the real issue and that
resolving the constitutional question was "neither necessary nor finally determinative of the case." The Court noted that
"[W]hat petitioner ultimately questions is the use of the proceeds of the disposition of the Roppongi property." In
emphasizing that "the decision of the Executive to dispose of the Roppongi property to finance the CARP ... cannot be
questioned" in view of Section 63 (c) of Rep. Act No. 6657, the Court did not acknowledge the fact that the property
became alienable nor did it indicate that the President was authorized to dispose of the Roppongi property. The resolution
should be read to mean that in case the Roppongi property is re-classified to be patrimonial and alienable by authority of
law, the proceeds of a sale may be used for national economic development projects including the CARP.

Moreover, the sale in 1989 did not materialize. The petitions before us question the proposed 1990 sale of the Roppongi
property. We are resolving the issues raised in these petitions, not the issues raised in 1989.

Having declared a need for a law or formal declaration to withdraw the Roppongi property from public domain to make it
alienable and a need for legislative authority to allow the sale of the property, we see no compelling reason to tackle the
constitutional issues raised by petitioner Ojeda.

The Court does not ordinarily pass upon constitutional questions unless these questions are properly raised in appropriate
cases and their resolution is necessary for the determination of the case (People v. Vera, 65 Phil. 56 [1937]). The Court
will not pass upon a constitutional question although properly presented by the record if the case can be disposed of on
some other ground such as the application of a statute or general law (Siler v. Louisville and Nashville R. Co., 213 U.S.
175, [1909], Railroad Commission v. Pullman Co., 312 U.S. 496 [1941]).

The petitioner in G.R. No. 92013 states why the Roppongi property should not be sold:

The Roppongi property is not just like any piece of property. It was given to the Filipino people in reparation for the
lives and blood of Filipinos who died and suffered during the Japanese military occupation, for the suffering of
widows and orphans who lost their loved ones and kindred, for the homes and other properties lost by countless
Filipinos during the war. The Tokyo properties are a monument to the bravery and sacrifice of the Filipino people in
the face of an invader; like the monuments of Rizal, Quezon, and other Filipino heroes, we do not expect economic
or financial benefits from them. But who would think of selling these monuments? Filipino honor and national
dignity dictate that we keep our properties in Japan as memorials to the countless Filipinos who died and suffered.
Even if we should become paupers we should not think of selling them. For it would be as if we sold the lives and
blood and tears of our countrymen. (Rollo- G.R. No. 92013, p.147)

The petitioner in G.R. No. 92047 also states:

Roppongi is no ordinary property. It is one ceded by the Japanese government in atonement for its past belligerence
for the valiant sacrifice of life and limb and for deaths, physical dislocation and economic devastation the whole
Filipino people endured in World War II.

It is for what it stands for, and for what it could never bring back to life, that its significance today remains
undimmed, inspire of the lapse of 45 years since the war ended, inspire of the passage of 32 years since the property
passed on to the Philippine government.

Roppongi is a reminder that cannot — should not — be dissipated ... (Rollo-92047, p. 9)

It is indeed true that the Roppongi property is valuable not so much because of the inflated prices fetched by real property
in Tokyo but more so because of its symbolic value to all Filipinos — veterans and civilians alike. Whether or not the
Roppongi and related properties will eventually be sold is a policy determination where both the President and Congress
must concur. Considering the properties' importance and value, the laws on conversion and disposition of property of
public dominion must be faithfully followed.

WHEREFORE, IN VIEW OF THE FOREGOING, the petitions are GRANTED. A writ of prohibition is issued enjoining
the respondents from proceeding with the sale of the Roppongi property in Tokyo, Japan. The February 20, 1990
Temporary Restraining Order is made PERMANENT.

SO ORDERED.