Professional Documents
Culture Documents
L-33006 December 8, 1982 (4) carabaos were attached because three (3) carabaos had
earlier been slaughtered during the rites preceding the burial
NICANOR NACAR, petitioner, of the late Isabelo Nacar.
vs.
CLAUDIO A. NISTAL as Municipal Judge of Esperanza, Nicanor Nacar filed a motion to dismiss, to dissolve writ of
Agusan del Sur, PROVINCIAL SHERIFF of Agusan del Sur, preliminary attachment, and to order the return of the
ILDEFONSO JAPITANA and ANTONIO DOLORICON, carabaos. Private respondent Japitana filed an opposition to
respondents. this motion while intervenor Antonio Doloricon filed a complaint
in intervention asserting that he was the owner of the attached
Tranquilino O. Calo, Jr. for petitioner. carabaos and that the certificates of ownership of large cattle
were in his name.
Ildefonso Japitana and Antonio Boloricon for respondents.
The respondent Judge denied the motion to dismiss prompting
Mr. Nacar to come to the Supreme Court.
GUTIERREZ, JR., J.: In a resolution dated January 12, 1971, this Court, upon the
posting of a bond in the amount of P1,000.00, directed the
Nicanor Nacar filed this petition for certiorari, prohibition, and issuance of a preliminary mandatory injunction. The
mandamus with preliminary injunction to annul an order of the respondents were enjoined from further enforcing the writ of
respondent judge of the municipal court of Esperanza, Agusan attachment and to return the seized carabaos. The judge was
del Sur directing the attachment of seven (7) carabaos, to restrained from further proceeding with Civil Case No. 65.
effect the return of four (4) carabaos seized under the
questioned order, and to stop the respondent judge from We find the petition meritorious.
further proceeding in Civil Case No. 65.
The pertinent portions of the complaint filed by Mr. Japitana
Respondent Ildefonso Japitana filed the complaint in Civil with the municipal court read as follows:
Case No. 65 and entitled it "Claim Against the Estate of the
Late Isabelo Nacar With Preliminary Attachment:" On the basis ILDEFONSO JAPITANA Civil Case No. 65
of this complaint, including an allegation "that defendant are Plaintiff,
(sic) about to remove and dispose the above-named property
(seven carabaos) with intent to defraud plaintiff herein", and FOR:
considering that Mr. Japitana had given security according to
the Rules of Court, Judge Nistal issued the order commanding — Versus —
the provincial sheriff to attach the seven (7) heads of cattle in
the possession of petitioner Nicanor Nacar. Actually only four
CLAIM AGAINST THE ESTATE NICANOR That plaintiff is willing to put up a bond for the
NACAR THE LATE ISABELO NACAR WITH issuance of a preliminary attachment in an
Defendant. PRELIMINARY ATTACHMENT x amount to be fixed by the Court, not exceeding
---------------------------------x the sum of P 2,791.00 which is the plaintiff's
claim herein;
COMPLAINT
WHEREFORE, it is respectfully prayed that
COMES NOW the undersigned plaintiff and pending the hearing of this case, a writ of
before this Honorable Court, respectfully avers: preliminary attachment be issued against the
properties of the defendant to serve as security
xxx xxx xxx for the payment or satisfaction of any judgment
that may be recovered herein; and that after
That at various dates since the year 1968, the due hearing on the principal against the
defendant have (sic) incurred indebtedness to defendant for the sum of P 2,791,00 with legal
the plaintiff in the total sum of TWO interest from September 15, 1970 plus costs of
THOUSAND SEVEN HUNDRED NINETY ONE this suit. (Annex "A", p. 7 rollo).
(P2,791.00) PESOS, which said amount had
long been overdue for payment, and which the In his motion to dismiss, the petitioner raised the issue of lack
defendant up to this date have (sic) not been of jurisdiction and absence of a cause of action. Mr. Nacar
able to pay, despite repeated demands from the averred that the indebtedness mentioned in the complaint was
plaintiff; alleged to have been incurred by the late Isabelo Nacar and
not by Nicanor Nacar. There was, therefore, no cause of action
That the defendant Isabelo Nacar died last against him. The petitioner also stated that a municipal court
April, 1970 leaving among other things personal has no jurisdiction to entertain an action involving a claim filed
property consisting seven (7) heads of against the estate of a deceased person.
carabaos now in the possession of the
defendant Nicanor Nacar; The same grounds have been raised in this petition. Mr. Nacar
contends:
That plaintiff herein file a claim against the
estate of the late Isabelo Nacar to recover the xxx xxx xxx
aforementioned sum of P2,791.99;
9. That the respondent judge acted without
That defendant are (sic) about to remove and jurisdiction.The municipal courts or inferior
dispose the above mentioned property with courts have NO jurisdiction to settle the estate
intent to defraud plaintiff herein; of deceased persons. The proper remedy is for
the creditor to file the proper proceedings in the
court of first instance and file the corresponding subsequent paragraphs, one clearly gathers that the debts
claim. But assuming without admitting that the were actually incurred by the late Isabelo Nacar, who died
respondent judge had jurisdiction, it is very several months before the filing of the complaint. The
patent that he committed a very grave abuse of complaint which the respondent judge reads as one for the
discretion and totally disregarded the provisions collection of a sum of money and all the paragraphs of which
of the Rules of Court and decisions of this are incidentally unnumbered, expressly states as a material
honorable Court when he issued an ex- averment:
parte writ of preliminary attachment, when there
is no showing that the plaintiff therein has a xxx xxx xxx
sufficient cause of action, that there is no other
security for the claim sought to be enforced by That plaintiff herein file (sic) a claim against the estate of the
the plaintiff; or that the amount claimed in the late Isabelo Nacar to recover the aforementioned sum of
action is as much as the sum for which the P2,791.00;
order is prayed for above all legal
counterclaims; There was no bond to answer xxx xxx xxx
for whatever damages that herein petitioner
may suffer; (Rollo, pp. 3- 4). Under the circumstances of this case, respondent Japitana
has no cause of action against petitioner Nacar. Mathay v.
xxx xxx xxx Consolidated Bank and Trust Company (58 SCRA 559) gives
the elements of a valid cause of action:
The respondent judge tried to avoid the consequences of the
issues raised in the motion to dismiss by stating that although A cause of action is an act or omission of one
the title of the complaint styled it a claim against the estate of party in violation of the legal right of the other.
the late Isabelo Nacar, the allegations showed that the nature Its essential elements are, namely: (1) the
of the action was really for the recovery of an indebtedness in existence of a legal right in the plaintiff, (2) a
the amount of P2,791.99. correlative legal duty in the defendant, and (3)
an act or omission of the defendant in violation
The rule cited by the judge is correctly stated but it is hardly of plaintiff's right with consequential injury or
relevant to the contents of the complaint filed by Mr. Japitana. damage to the plaintiff for which he may
maintain an action for the recovery of damages
It is patent from the portions of the complaint earlier cited that or other appropriate relief. ( Ma-ao Sugar
the allegations are not only vague and ambiguous but Central Co., Inc. vs. Barrios, et al., 79 Phil. 666,
downright misleading. The second paragraph of the body of 667; Ramitere et al. vs. Montinola Vda. de Yulo,
the complaint states that the defendant (herein petitioner et al., L-19751, February 28, 1966, 16 SCRA
Nicanor Nacar) at various dates since the year 1968 incurred 251, 255). On the other hand, Section 3 of Rule
debts to the plaintiff in the sum of P2,791.00. And yet, in the 6 of the Rules of Court provides that the
complaint must state the ultimate facts were it not for the complaint in intervention of respondent
constituting the plaintiff's cause of action. Doloricon. Respondent Doloricon filed his complaint for
Hence, where the complaint states ultimate intervention on the ground that the four carabaos, subject of
facts that constitute the three essential the writ of attachment, were actually his carabaos. Thus, the
elements of a cause of action, the complaint respondent court in its Order denying the petitioner's motion to
states a cause of action; (Community dismiss, to dissolve writ of preliminary attachment and in order
Investment and Finance Corp. vs. Garcia, 88 the return of the carabaos said:
Phil. 215, 218) otherwise, the complaint must
succumb to a motion to dismiss on that ground. ... Antonio Doloricon manifested before this
Court that he is filing a third-party complaint
Indeed, although respondent Japitana may have a legal right alleging that he is the true and lawful owner of
to recover an indebtedness due him, petitioner Nicanor Nacar the carabaos in questions.
has no correlative legal duty to pay the debt for the simple
reason that there is nothing in the complaint to show that he IN VIEW OF ALL THE FOREGOING, this Court
incurred the debt or had anything to do with the creation of the for the interest of both parties will not for the
liability. As far as the debt is concerned, there is no allegation meantime dismiss this case. Antonio Doloricon
or showing that the petitioner had acted in violation of Mr. is hereby given 10 days from receipt hereof
Japitana's rights with consequential injury or damage to the within which to file his third-party complaint. The
latter as would create a cause of action against the former. plaintiff who in his opposition to defendant's
motion to dismiss pray (sic) for the custody of
It is also patent from the complaint that respondent Japitana the carabaos. This Court further requires
filed the case against petitioner Nacar to recover seven (7) plaintiff to put up the additional bond of P
heads of carabaos allegedly belonging to Isabelo Nacar which I,000.00 after which the latter may be entitled of
Japitana wanted to recover from the possession of the (sic) the custody of the carabaos subject of
petitioner to answer for the outstanding debt of the late Isabelo litigation pending final termination of this case.
Nacar. This matter, however, is only ancillary to the main (Rollo, pp. 18-19)
action. The ancillary matter does not cure a fatal defect in the
complaint for the main action is for the recovery of an The respondent court's reason for not dismissing the case is
outstanding debt of the late lsabelo Nacar due respondent contrary to applicable precedents on the matter. We ruled
Japitana, a cause of action about which petitioner Nacar has in Mathay v. Consolidated Bank and Trust Company, supra:
nothing to do.
Section I, Rule 16 of the Rules of Court,
In fact the fatal defect in the complaint was noticed by the providing in part that:
respondent court when it advised respondent Japitana to
amend his complaint to conform with his evidence and from Within the time for pleading a
the court's admission that it was inclined to dismiss the case motion to dismiss may be made
on any of the following Moreover, even assuming that respondent Japitana had a
grounds; ... legal right to the carabaos which were in the possession of
petitioner Nacar, the proper procedure would not be to file an
(g) That the complaint states no action for the recovery of the outstanding debts of the late
cause of action. ... Isabelo Nacar against his stepfather, the petitioner Nacar as
defendant. As we said in Maspil v. Romero (61 SCRA 197):
explicitly requires that the sufficiency of the complaint must be
tested exclusively on the basis of the complaint itself and no Appropriate actions for the enforcement or
other should be considered when the ground for motion to defense of rights must be taken in accordance
dismiss is that the complaint states no cause of action. with procedural rules and cannot be left to the
Pursuant thereto this Court has ruled that: whims or caprices of litigants. It cannot even be
left to the untrammeled discretion of the courts
As a rule the sufficiency of the of justice without sacrificing uniformity and
complaint, when challenged in a equality in the application and effectivity thereof.
motion to dismiss, must be
determined exclusively on the Considering the foregoing, the respondent court's denial of the
basis of the facts alleged therein' motion to dismiss the complaint and its issuance of a writ of
(Uy Chao vs. De La Rama attachment based on the allegations of the complaint are
Steamship Co., Inc., L-14495, improper. With this conclusion, we find no need to discuss the
September 29, 1962, 6 SCRA other issue on whether or not the procedural rules on the
69, 72. See also De Jesus, et al. issuance of a writ of attachment were followed by the
vs. Belarmino et al., 95 Phil. 365, respondent court in issuing the subject writ of attachment.
371; Dalandan, et at. vs. Julio, et
al., L- 19101, February 29, 1964, WHEREFORE, the petition is hereby granted. The preliminary
10 SCRA 400; Ramitere et al. vs. mandatory injunction issued on January 13, 1971 is made
Montinola Vda. de Yulo, et al., L- permanent and the cash bond filed by the petitioner in
19751, February 28, 1966, 16 connection therewith is ordered returned to him.
SCRA 250, 254; Acuna vs. Batac
Producers Cooperative SO ORDERED.
Marketing Association, Inc., et
al., L-20338, June 30, 1967, 20 Teehankee (Chairman), Melencio-Herrera, Plana and Relova,
SCRA 526, 531) JJ., concur.
Hence, it was error for the respondent court not to dismiss the
case simply because respondent Doloricon filed the complaint
for intervention alleging that he owned the carabaos.
Separate Opinions administration proceedings that may be taken to settle the
estate of the deceased Isabelo Nacar. If such a proceeding is
instituted and the subject claim is not filed therein within the
period prescribed, the same shall be deemed "barred forever."
VASQUEZ, J., concurring: (Sec. 5, Rule 86, Rules of Court). Even if this action were
commenced during the lifetime of Isabelo Nacar, the same
I concur in the result. shall have to be dismissed, and the claim prosecuted in the
proper administration proceedings (Sec. 21, Rule 3, Ibid.).
The fundamental error committed by the private respondents
was in pursuing their claim in an ordinary action; and that by It would seem that the main purpose of the private
the respondent municipal judge in entertaining the same. respondents in filing Civil Case No. 65 was to attach the seven
carabaos owned by Isabelo Nacar. A case had to be filed in
As can be seen from the caption and the body of the complaint order to justify the issuance of a writ of attachment,
filed in Civil Case No. 65, the claim of the private respondents unfortunately, said remedy may not be allowed. The carabaos,
was not against herein petitioner Nicanor Nacar but against if really owned by Isabelo Nacar, pertained to his estate upon
the estate of the deceased Isabelo Nacar. It is a claim for his death. The claim of the private respondents may only be
money arising from unpaid indebtedness granted on various satisfied by a voluntary act on the part of the heirs of Isabelo
dates. Isabelo Nacar died before the said complaint was filed. Nacar, or pursued in the appropriate settlement proceedings. A
It does not appear that any proceeding has been filed to settle municipal court may not entertain such a proceeding, it not
his estate. being vested, under the law then in force, with probate
jurisdiction.
Under these facts, the filing of an ordinary action to recover
said claim is not allowed in any court. Even if settlement Civil Case No. 65 should accordingly be dismissed and the
proceedings had been taken to settle the estate of Isabelo writ of attachment issued therein dissolved.
Nacar, the suit to recover the claim of the private respondents
may not be filed against the administrator or executor of his
estate. This is expressly provided for in Section 1 of Rule 87 of
the Rules of Court, as follows: Separate Opinions
As a result of the Extrajudicial Settlement, OCT RO-255 was In their answer, private respondents deny the material
cancelled and in lieu thereof, several transfer certificates of averments in the complaint and assert that they are the
title covering the subdivided lots were issued in the names of owners of the lot in question, having bought the same from
the respective adjudicatees. One of them is TCT No. 27257 in Rafael Reyes, Sr., that the issuance of TCT No. 27257 is null
the name of Rafael Reyes, Jr. covering Lot No. 1-A-14. The and void, for such sale was known to Rafael Reyes, Jr.; that
Transfer Certificates of Title were, however, kept by one they have been in possession of the property and have been
Candido Hebron. On 10 January 1969, some of the heirs of paying the land taxes thereon; and that petitioners are barred
Gavino Reyes filed a case of Annulment of Partition and by prescription and/or laches.5
Recovery of Possession before the Court of First Instance of
Cavite City, which was docketed therein as Civil Case No. Petitioners amended their complaint on 21 March 1985 to
1267. One of the defendants in said case is herein private implead as additional defendants the spouses Ricardo M.
respondent Rosario Martillano. The case was dismissed on 18 Gardiola and Emerita Gardiola, on the basis of the following
September 1969, but Candido Hebron was ordered by the trial claims:
court to deliver to the heirs concerned all the transfer
certificates of title in his possession.3 xxx xxx xxx
After obtaining the Transfer Certificate of Title for Lot No. 1-A- 9. Meanwhile, during the presentation of the
14 from Hebron, pursuant to the aforesaid order in Civil Case defendants spouses Dalmacio Gardiola and Rosario
No. 1267, petitioners herein, as successors-in-interest of Martillano's evidence the former testified that they
Rafael Reyes, Jr., filed on 14 March 1983 with the Regional mortgaged the subject land to the Rural Bank of
Trial Court the above-mentioned Civil Case No. RTC-BCV-83- Carmona Inc. For their failure to redeem the mortgage
17 against private respondents (defendants therein) for the same was foreclosed by the bank.
recovery of possession or, in the alternative, for
indemnification, accounting and damages. They allege therein 10. However, within the period of one(1) year from
that after "having definitely discovered that they are the lawful such foreclosure the questioned land was redeemed by
owners of the property," (Lot No. 1-A-14), they, "including the original defendants' son in the person of Ricardo M.
Gardiola, who was knowledgeable/aware of the question — Lot No. 1-A-14 — and that Transfer
pendency of the above captioned case. The Certificate of Title No. T-27257 was obtained by means
corresponding redemption was effected through a deed of fraud, the claim of the defendants over the said
of conveyance, . . . .6 property is already barred. Action for reconveyance
prescribes in four (4) years from the discovery thereof.
The prayer of the amended complaint now contains the If there was fraud, the defendant could have
alternative relief for indemnification for the reasonable value of discovered the same in 1967 when the partition was
the property "in the event restitution of the property is no made in as much as defendant Rosario Martillano was
longer possible."7 a party to that partition. Let us grant further that the
issuance of Transfer Certificate of Title No. T-27257 to
In its decision of 1 October 1986,8 the trial court concluded that Rafael Reyes, Jr. created a constructive or implied trust
petitioners' "title over the subject property is valid and regular in favor of the defendants, again, the claim of the
and thus they are entitled to its possession and enjoyment," defendants is also barred. From 1967 to the filing of
and accordingly decided thus: their answer (let us consider this as an action for
reconveyance) to this case sometime in July, 1983, a
WHEREFORE, the defendants or anyone acting for period of about sixteen (16) years had already elapsed.
and in their behalf are hereby ordered to relinguish Prescriptibility of an action for reconveyance based on
possession or vacate the property in question which is implied or constructive trust is ten (10) years.
covered by Transfer Certificate of Title No. T-27257 in
favor of the plaintiffs. The trial court further held that the continued possession by
private respondents, which it found to have started in 1943, did
All other claims and/or counterclaims of the parties not ripen into ownership because at that time, the property
relative to this case are dismissed for lack of proper was already registered, hence it cannot be acquired by
substantiation. prescription or adverse possession.9
The conclusion of the trial court is based on its finding that (a) Private respondents appealed the said decision to the Court of
there is no evidence that the heirs of Gavino Reyes entered Appeals which docketed the appeal as C.A.-G.R. CV No.
into any written agreement of partition in 1936 based on the 11934. In its decision of 20 October 1989, the respondent
subdivision plan; (b) there is no identity between Lot No. 1-14- Court of Appeals formulated the issues before it as follows:
A and the land sold to private respondents by Rafael Reyes,
Sr., or otherwise stated, the description of the latter as I
indicated in the deed of sale (Exh. "5") does not tally with the
description of the former; and (c) moreover: Whether or not the lower court erred in declaring that
the property of the late Gavino Reyes consisting of 70
Granting, arguendo, that the sale made by Rafael hectares was partitioned only in 1967 by his
Reyes, Sr. to the defendants covered the land in grandchildren after discovery of the existence of OCT
No. 255 and that no actual partition was made in 1936 rather a confirmation by them of their ownership of the
by the decedent's children. property. It must also be remembered that when
Gavino Reyes died on March 7, 1921, his property was
II admittedly not yet covered by a torrens title, as it was
only in 1941 when said properties were brought into
Whether or not the lower court erred in concluding that the application of the torrens system. With this factual
the parcel of land sold by the appellees' predecessor- milieu, it can also be concluded that his heirs have
in-interest, the late Rafael Reyes, Sr. to appellant indeed settled, subdivided and partitioned Gavino
Dalmacio Gardiola was not the same parcel of land Reyes' landed estate without formal requirements of
under litigation.10 Rule 74 of the Rules of Court when a parcel of land is
covered by a torrens title. As told earlier, the
and resolved such issues, thus: Subdivision Plan (Exh. 6) undisputedly showed on its
face that the 70 hectares of land belonging to the late
On the first issue, We believe that the lower court Gavino Reyes was subdivided and partitioned by his
committed a reversible error when it declared that the children in 1936. On this score, the partition of the said
landed estate of the late Gavino Reyes was partitioned property even without the formal requirements under
only in 1967 by the latter's grandchildren; and that no the rule is valid as held in the case of Hernandez vs.
actual partition was made in 1936 by the decedents' Andal, 78 Phil. 176, which states:
(sic) children. The evidence on record bears out the
existence of a subdivision plan (Exh. 6) which was not xxx xxx xxx
controverted nor denied by the appellees. In like
manner, the lower court itself recognized the fact that Moreover, in the Deed of Sale dated December 3, 1943
the property of the late Gavino Reyes consisting of 70 (Exh. 5) executed by Rafael Reyes, Sr. in favor of
hectares was surveyed and subdivided in 1936 as appellant Dalmacio Gardiola, the land sold therein was
evidenced by the said subdivision plan (Exh. 6). With described as "na aking minana sa aking ama." This
the existence of a subdivision plan, and from the alone would confirm the contention of the appellants
uncontroverted testimony of appellants' witness, We that there was already an actual partition (at least an
can only infer that at least an oral partition, which under oral partition) of the property of Gavino Reyes in 1936.
the law is valid and binding, was entered into by the As aforestated, the presence of the Subdivision Plan
heirs of Gavino Reyes regarding his properties in 1936. (Exh. 6) is an (sic) evidence of such partition which
As held in a long line of decisions, extrajudicial partition appellees failed to controvert not to mention the fact
can be done orally, and the same would be valid if that the lower court itself recognized the existence of
freely entered into (Belen v. Belen, 49 O.G. 997, March said plan, in the same manner that it concluded that
1953). The reason for this is because a partition is not the property was already surveyed and actually
exactly a conveyance for the reason that it does not subdivided in 1936 (page 3, pars. 3 and 4, Decision).
involve transfer of property from one to the other but
From the foregoing considerations it is evident that the however, the discrepancy in the description was due to
Deed of Extrajudicial Settlement of Estate (Exh. D) the fact that the description of the land sold in the Deed
executed by the grandchildren of the late Gavino of Sale was expressed in layman's language whereas
Reyes in 1967 is of no moment considering that the the description of Lot No. 1-A-14 in TCT No. 27257
property subject of the partition in the deed was was done in technical terms. This was so because,
already partitioned in 1936 by the children of Gavino when Rafael Reyes, Sr. sold the property in dispute to
Reyes. It is for this reason that the lots supposedly appellant Dalmacio Gardiola on December 3, 1943, the
inherited by the grandchildren named in the deed of only evidence of title to the land then available in so far
1967 were the same lots inherited and given to their as Rafael Reyes, Sr. was concerned was Tax
respective fathers or mothers in 1936 while the land Declaration No. 4766, because at that time, neither he
was not yet covered by the torrens system. Hence, in nor appellant Dalmacio Gardiola was aware of the
the case of Rafael Reyes, Sr., the land inherited by him existence of OCT No. 255 as in fact TCT No. 27257
was two (2) parcels of land known as Lots Nos. 1-A-3 was issued only in 1967. Consequently, the land
and 1-A-14 described in the Subdivision plan of 1936 subject of the Deed of Sale was described by the
(Exh. 6), which were the same parcels of land allegedly vendor in the manner as described in Tax Declaration
inherited by Rafael Reyes, Jr. from Gavino Reyes in No. 4766. However, the description of the land
representation of his father, pursuant to the Deed of appearing in the Deed of Sale (Exh. 5) was exactly the
Extrajudicial Settlement of Estate for which TCT No. same land identified as Lot No. 1-A-14 in the
27257 was issued. Subdivision Plan (Exh. 6) of 1936. Accordingly, the
assumption of the lower court that "if the land sold by
Coming to the second issue, the lower court likewise Rafael Reyes, Sr. was the one now in litigation, he
erred when it concluded that the parcel of land sold by could have easily indicated Lot No. 1-A-14" is bereft of
appellee's predecessor-in-interest to appellant merit under the foregoing circumstances. Interestingly
Dalmacio Gardiola was not the same parcel of land enough, the appellees never denied the identity of the
under litigation. It must be pointed out that the identity subject lot during the hearing at the lower court. What
of the parcel of land which the appellees sought to they were denying only was the sale made by Rafael
recover from the appellants was never an issue in the Reyes, Sr. to appellant Dalmacio Gardiola which does
lower court, because the litigants had already not hold true because of the document denominated as
conceded that the parcel identified as Lot No. 1-A-14 in Deed of Sale (Exh. 5).11
TCT No. 27257 was the same parcel of land identified
as Cadastral Lot No. 1228 and 1235 described in Tax It concluded that the trial court erred when it ordered the
Declaration No. 4766. Despite this admission, however, private respondents or anyone acting in their behalf to
the lower court declared that "as described in the deed relinquish the possession or vacate the property in question. It
of sale (Exh. 5), the land's description does not tally thus decreed:
with the description of Lot No. 1-A-14, the land in
litigation." As correctly pointed out by the appellants
WHEREFORE, the appealed Judgment is ordered "militates against the indefeasible and incontrovertible
REVERSED and SET ASIDE and a new one is character of the torrens title,"14 and allows reconveyance which
rendered declaring appellants to be the lawful owners is not tenable since the action therefor had already prescribed,
of the lot identified as Lot No. 1-A-14 in TCT No. as stated in the decision of the trial court.
27257. No
costs.12 In the resolution of 7 May 1990, We required respondents to
comment on the petition. But even before it could do so,
Their motion to reconsider the above decision having been petitioner, without obtaining prior leave of the Court, filed on 29
denied by the Court of Appeals in its resolution of 1 March May 1990 a so-called Supplemental Arguments in Support of
1990,13 petitioners filed the instant petition on 6 April 1990 after The Petition For Review On certiorari15 wherein they assert,
having obtained an extension of time within which to file it. among others, that: (a) the findings of facts of respondent
Court are contrary to those of the trial court and appear to be
The petition does not implead original new defendants Ricardo contradicted by the evidence on record thus calling for the
Gardiola and Emelita Gardiola. review by this Court;16 (b) it also committed misapprehension
of the facts in this case and its findings are based on
As ground for their plea for the review of the decision of the speculation, conjecture and surmises; (c) private respondents'
Court of Appeals, petitioners allege that said court has decided attack on petitioners' title is a collateral attack which is not
questions of substance in a way not in accord with law or allowed; even if it is allowed, the same had already prescribed
applicable jurisprudence when it held that "the deed of and is now barred.
extrajudicial settlement of estate (Exh. "D") executed by the
grandchildren of the late Gavino Reyes in 1967 is of no It was only on 15 June 1990 that private respondents filed their
moment considering that the property subject of the partition Comment.17 We required petitioners to reply thereto, which
was already partitioned in 1936 by the children of Gavino they complied with on 8 August 1990.18 A rejoinder was filed by
Reyes." In support thereof, they claim that (a) TCT No. 27257 private respondents on 29 August 1990.
covers two parcels of land; the lot described in paragraph 1
thereof is owned by petitioners and that ownership was We gave due course to the petition on 19 September 1990
confirmed by this Court in G.R. No. 79882, hence, the Court of and required the parties to submit simultaneously their
Appeals should have affirmed the decision of the trial court; (b) respective memoranda which they complied with.
private respondent Rosario Martillano was a party to the
extrajudicial settlement of estate which was duly registered in Attached as Annex "A" to private respondent's Memorandum,
the Registry of Deeds in 1967; said registration is the which was filed on 10 December 1990, is the Resolution of this
operative act that gives validity to the transfer or creates a lien Court (Third Division) of 20 August 1990 in G.R. No. 92811
upon the land and also constituted constructive notice to the entitled Spouses Artemio Durumpili and Angustia Reyes vs.
whole world. The court cannot disregard the binding effect The Court of Appeals and Spouses Dalmacio Gardiola and
thereof Finally, the pronouncement of the Court of Appeals that Rosario Martillano, which also involves the property of Gavino
private respondents are the lawful owners of the lot in question
Reyes, the partition thereof among his children in 1936, and Second Division. It should be mentioned that in the
the extrajudicial settlement in 1967. Durumpili case before the Third Division, the Court of
Appeals relied on the alleged confirmation of the sale
In said resolution, this Court held: executed by Angustia Reyes, while in the Reyes case
before this Second Division, there was no sale that was
. . . The partition made in 1936, although oral, was executed by the petitioners Reyes' predecessor-in-
valid. The requirement in Article 1358 of the Civil Code interest, Rafael Reyes, Jr.
that acts which have for their object the creation,
transmission, modification or extinguishment of real The foregoing claim is not supported by the rollo of G.R. No.
rights over immovable property must appear in a public 92811, which reveals the following: (a) On 18 September
instrument is only for convenience and not for validity 1990, petitioners therein, represented by De Lara, De Lunas
or enforceability as between the parties themselves. and Rosales, who are the lawyers of petitioners in the instant
[Thunga Hui vs. Que Bentec, 2 Phil. 561 (1903)] The case, filed a motion for the reconsideration of the resolution of
subsequent execution by the heirs of the Extrajudicial 20 August 1990.19 b) This motion was denied in the resolution
Partition in 1967 did not alter the oral partition as in fact of 1 October 1990.20 c) On 17 November 1990, petitioners
the share pertaining to Angustia Reyes corresponded therein, through the same lawyers, filed a Motion For Leave Of
to that previously assigned to her father. Considering Court To Refer Case To The Honorable Supreme
that Angel Reyes sold this property to Basilio de Court En Banc And/Or Motion For Reconsideration21 wherein
Ocampo who, in turn, sold the same to respondents, they specifically admit that said case and the instant petition
we agree with the Court of Appeals that the latter have "identity and/or similarity of the parties, the facts, the
lawfully acquired the property and are entitled to issues raised," even going to the extent of "graphically"
ownership and possession thereof. illustrating where such similarities lie.22 d) This motion was
denied in the resolution of 28 November 1990. Copy thereof
In answer to the charge of private respondents that petitioners was furnished the attorneys for petitioners.23 e) Entry of
deliberately failed to cite this resolution, the latter, in their judgment had already been made therein and a copy thereof
reply-memorandum dated 15 March 1991 and filed three days was sent to petitioner's counsel per Letter of Transmittal of the
thereafter, allege: Deputy Court and Chief of the Judicial Records Office dated
20 December 1990.
Our failure to mention the aforementioned resolution
before this Honorable Court is not deliberate nor with What comes out prominently from the disquisitions of the
malice aforethought. The reason is that to date, we parties is this simple issue: whether or not respondent Court of
have not yet received any resolution to our Motion For Appeals committed any reversible error in setting aside the
Leave of Court To Refer Case To The Honorable decision of the trial court.
Supreme Court En Banc. Moreover, we honestly feel
that the resolution that will be issued therein will not be We find none. The reversal of the trial court's decision is
applicable to the case before this Honorable Court's inevitable and unavoidable because the legal and factual
conclusions made by the trial court are unfounded and clearly There is nothing in said section from which it can be inferred
erroneous. The Court of Appeals was not bound to agree to that a writing or other formality is an essential requisite to the
such conclusions. The trial court erred in holding that: (a) there validity of the partition. Accordingly, an oral partition is valid.
was no partition among the children of Gavino Reyes in 1936
since there is no written evidence in support thereof; yet, it Barcelona, et al. vs. Barcelona, et al., supra, provides the
admits that there was a survey and subdivision of the property reason why oral partition is valid and why it is not covered by
and the adjudication of specific subdivision lots to each of the the Statute of Frauds: partition among heirs or renunciation of
children of Gavino; (b) the land sold by Rafael Reyes, Sr. to an inheritance by some of them is not exactly a conveyance of
private respondents is not identical to Lot No. 1-A-14, the lot real property for the reason that it does not involve transfer of
specified for and adjudicated to Rafael Reyes, Jr. in the property from one to the other, but rather a confirmation or
partition agreement; and (c) if the land sold by Rafael Reyes, ratification of title or right of property by the heir renouncing in
Sr. to private respondent Dalmacio Gardiola is indeed Lot No. favor of another heir accepting and receiving the inheritance.
1-A-14 and that TCT No. T-27257 was obtained through fraud,
the remedy open to the vendee was an action for Additionally, the validity of such oral partition in 1936 has been
reconveyance, which should have been brought within four (4) expressly sustained by this Court in the Resolution of 20
years from the discovery thereof in 1967 when the August 1990 in G.R. No. 92811.25
Extrajudicial Settlement was executed since private
respondent Rosario Martillano, wife of Dalmacio, was a party But even if We are to assume arguendo that the oral partition
thereto. executed in 1936 was not valid for some reason or another,
We would still arrive at the same conclusion for upon the death
The Court of Appeals correctly held that the partition made by of Gavino Reyes in 1921, his heirs automatically became co-
the children of Gavino Reyes in 1936, although oral, was valid owners of his 70-hectare parcel of land. The rights to the
and binding. There is no law that requires partition among succession are transmitted from the moment of death of the
heirs to be in writing to be valid.24 In Hernandez vs. Andal, decedent.26 The estate of the decedent would then be held in
supra, this Court, interpreting Section 1 of Rule 74 of the Rules co-ownership by the heirs. The co-heir or co-owner may validly
of Court, held that the requirement that a partition be put in a dispose of his share or interest in the property subject to the
public document and registered has for its purpose the condition that the portion disposed of is eventually allotted to
protection of creditors and at the same time the protection of him in the division upon termination of the co-ownership.
the heirs themselves against tardy claims. The object of Article 493 of the Civil Code provides:
registration is to serve as constructive notice to others. It
follows then that the intrinsic validity of partition not executed Each co-owner shall have the full ownership of his part
with the prescribed formalities does not come into play when and the fruits and benefits pertaining thereto, and he
there are no creditors or the rights of creditors are not affected. may even substitute another person in its enjoyment,
Where no such rights are involved, it is competent for the heirs except when personal rights are involved. But the
of an estate to enter into an agreement for distribution in a effect of the alienation or the mortgage, with respect to
manner and upon a plan different from those provided by law. the co-owners, shall be limited to the portion which
may be allotted to him in the division upon the certificate of title covering Lot No. 1-14-A. They therefore
termination of the co-ownership. admit and concede that the property claimed by private
respondent, which was acquired by sale from Rafael Reyes,
In Ramirez vs. Bautista,27 this Court held that every co-heir Sr., is none other than Lot No. 1-14-A.
has the absolute ownership of his share in the community
property and may alienate, assign, or mortgage the same, The participation of private respondent Rosario Gardiola in the
except as to purely personal rights, but the effect of any such Extrajudicial Settlement did not place private respondents in
transfer is limited to the portion which may be awarded to him estoppel to question the issuance of TCT No. T-27257. As
upon the partition of the property. correctly maintained by private respondents, she signed it in
representation of her deceased mother, Marta Reyes, a
In the case at bar, the lot sold by Rafael Reyes, Sr. to private daughter and an heir of Gavino Reyes. She did not sign for
respondent Dalmacio Gardiola is his share in the estate of his and in behalf of her husband, Dalmacio Gardiola, vendee of
deceased father, Gavino Reyes. It is the same property which the share of Rafael Reyes, Sr.
was eventually adjudicated to his son and heir, Rafael Reyes,
Jr., represented in turn by his heirs-petitioners herein-in the The same did not operate to divest the vendee of the share of
extrajudicial settlement of 1967. Rafael Reyes, Sr. in the estate of Gavino.1âwphi1Petitioners,
as mere successors-in-interest of Rafael Reyes, Jr., son of
In respect to the issue as to whether the property sold by Rafael Reyes, Sr., can only acquire that which Rafael, Jr.
Rafael Reyes, Sr. is identical to Lot No. 1-14-A, the trial court could transmit to them upon his death. The latter never
based its conclusion that it is not, on his observation that the became the owner of Lot No. 1-A-14 because it was sold by
description of the former does not tally with that of the latter, his father in 1943. The issuance of TCT No. T-27257 in the
moreover, if Rafael did intend to sell Lot No. 1-14-A, he should name of Rafael Reyes, Jr., in so far as Lot No. 1-14-A is
have specifically stated it in the deed since at that time, the concerned, was clearly erroneous because he never became
property had already been partitioned and said lot was its owner. An extrajudicial settlement does not create a light in
adjudicated to him. In addition to the contrary findings and favor of an heir. As this Court stated in the Barcelona case,28 it
conclusion of the respondent Court on this issue to which We is but a confirmation or ratification of title or right to property.
fully agree, it is to be stressed that Rafael had this property Thus, since he never had any title or right to Lot No. 1-14-A,
declared for taxation purposes and the tax declaration issued the mere execution of the settlement did not improve his
was made the basis for the description of the property in the condition, and the subsequent registration of the deed did not
deed of sale. Upon the execution of the deed of sale, vendee create any right or vest any title over the property in favor of
— herein private respondent Dalmacio Gardiola — the petitioners as heirs of Rafael Reyes, Jr. The latter cannot
immediately took possession of the property. This is the very give them what he never had before. Nemo dare potest quod
same property which is the subject matter of this case and non habet.
which petitioners seek to recover from the private
respondents. The main evidence adduced for their claim of There is one more point that should be stressed here.
ownership and possession over it is TCT No. T-27257, the Petitioners' immediate predecessor-in-interest, Rafael Reyes,
Jr., never took any action against private respondents from the
time his father sold the lot to the latter. Neither did petitioners
bring any action to recover from private respondents the
ownership and possession of the lot from the time Rafael
Reyes, Jr. died. As categorically admitted by petitioners in their
complaint and amended complaint, it was only in or about
September 1969 when, after the delivery of TCT No. 27257 by
Candido Hebron to them, that they definitely discovered that
they were the owners of the property in question. And yet,
despite full knowledge that private respondents were in actual
physical possession of the property, it was only about thirteen
and one-half (13 1/2) years later that they decided to file an
action for recovery of possession. As stated earlier, the original
complaint was filed in the trial court on 14 March 1983. There
was then absolutely no basis for the trial court to place the
burden on private respondents to bring an action for
reconveyance within four (4) years from their discovery of the
issuance of the transfer certificate of title in the name of Rafael
Reyes, Jr.
SO ORDERED.
[G.R. No. 94918. September 2, 1992.] The ultimate issue before Us is whether or not private
respondents can validly acquire all the five (5) parcels of land
DANILO I. SUAREZ, EUFROCINA SUAREZ-ANDRES, co-owned by petitioners and registered in the name of
MARCELO I. SUAREZ, JR., EVELYN SUAREZ-DE LEON petitioner’s deceased father. Marcelo Suarez, whose estate
and REGINIO I. SUAREZ, Petitioners, v. THE COURT OF has not been partitioned or liquidated, after the said properties
APPEALS, VALENTE RAYMUNDO, VIOLETA RAYMUNDO, were levied and publicly sold en masse to private respondents
MA. CONCEPCION VITO and VIRGINIA to satisfy the personal judgment debt of Teofista Suarez, the
BANTA, Respondents. surviving spouse of Marcelo Suarez, mother of herein
petitioners.chanrobles law library
Villareal Law Offices, for Petitioners.
The undisputed facts of the case are as follows:chanrob1es
Nelson Loyola for Private Respondent. virtual 1aw library
NOCON, J.: On June 21, 1984 before the expiration of the redemption
period, petitioners filed a reinvindicatory action 2 against the other defendants in the said case. A motion for
private respondents and the Provincial Sheriff of Rizal, reconsideration was filed but was later denied.
thereafter docketed as Civil Case No. 51203, for the
annulment of the auction sale and the recovery of the On October 10, 1984, RTC Branch 151 issued in Civil Case
ownership of the levied pieces of property. Therein, they Nos. 21736-21739 an Order directing Teofista Suarez and all
alleged, among others, that being strangers to the case persons claiming right under her to vacate the lots subject of
decided against their mother, they cannot be held liable the judicial sale; to desist from removing or alienating
therefor and that the five (5) parcels of land, of which they are improvements thereon; and to surrender to private
co-owners, can neither be levied nor sold on execution. respondents the owner’s duplicate copy of the torrens title and
other pertinent documents.
On July 31, 1984, the Provincial Sheriff of Rizal issued to
private respondents a final deed of sale 3 over the properties. Teofista Suarez then filed with the then Court of Appeals a
petition for certiorari to annul the Orders of Branch 151 dated
On October 22, 1984, Teofista Suarez joined by herein October 10, 1984 and October 14, 1986 issued in Civil Case
petitioners filed with Branch 151 a Motion for Reconsideration Nos. 21736-21739.
4 of the Order dated October 10, 1984, claiming that the
parcels of land are co-owned by them and further informing On December 4, 1986 petitioners filed with Branch 155 a
the Court the filing and pendency of an action to annul the Motion for reconsideration of the Order 5 dated September 24,
auction sale (Civil Case No. 51203), which motion however, 1986. In an Order dated June 10, 1987, 6 Branch 155 lifted its
was denied.chanrobles.com:cralaw:red previous order of dismissal and directed the issuance of alias
summons.chanrobles law library : red
On February 25, 1985, a writ of preliminary injunction was
issued enjoining private respondents from transferring to third Respondents then appealed to the Court of Appeals seeking to
parties the levied parcels of land based on the finding that the annul the orders dated February 25, 1985, 7 May 19, 1989 8
auctioned lands are co-owned by petitioners. and February 26, 1990 9 issued in Civil Case No. 51203 and
further ordering respondent Judge to dismiss Civil Case No.
On March 1, 1985, private respondent Valente Raymundo filed 51203. The appellate court rendered its decision on July 27,
in Civil Case No. 51203 a Motion to Dismiss for failure on the 1990, 10 the dispositive portion of which
part of the petitioners to prosecute, however, such motion was reads:jgc:chanrobles.com.ph
later denied by Branch 155, Regional Trial Court, Pasig.
"WHEREFORE, the petition for certiorari is hereby granted
On December 1985, Raymundo filed in Civil Case No. 51203 and the questioned orders dated February 25, 1985, May 19,
an Ex-Parte Motion to Dismiss complaint for failure to 1989 and February 26, 1990 issued in Civil Case No. 51203
prosecute. This was granted by Branch 155 through an Order are hereby annulled, further respondent Judge is ordered to
dated May 29, 1986, notwithstanding petitioner’s pending dismiss Civil Case No. 51203." 11
motion for the issuance of alias summons to be served upon
Hence, this appeal.
Thus, from the foregoing, the legitime of the surviving spouse
Even without touching on the incidents and issues raised by is equal to the legitime of each child.
both petitioner and private respondents and the developments
subsequent to the filing of the complaint, We cannot but notice The proprietary interest of petitioners in the levied and
the glaring error committed by the trial court. auctioned property is different from and adverse to that of their
mother. Petitioners became co-owners of the property not
It would be useless to discuss the procedural issue on the because of their mother but through their own right as children
validity of the execution and the manner of publicly selling en of their deceased father. Therefore, petitioners are not barred
masse the subject properties for auction. To start with, only in any way from instituting the action to annul the auction sale
one-half of the 5 parcels of land should have been the subject to protect their own interest.
of the auction sale.
WHEREFORE, the decision of the Court of Appeals dated July
The law in point is Article 777 of the Civil Code, the law 27, 1990 as well as its Resolution of August 28, 1990 are
applicable at the time of the institution of the case. hereby REVERSED and set aside; and Civil Case No. 51203
is reinstated only to determine that portion which belongs to
"The rights to the succession are transmitted from the moment petitioners and to annul the sale with regard to said
of the death of the decedent."cralaw virtua1aw library portion.chanrobles law library
xxx If the suit is not brought in the name of or against the real
party in interest, a motion to dismiss may be filed on the
ground that the complaint states no cause of action.
This petition, filed under Rule 65 of the Rules of Court, assails WHEREAS, the minors ELPIDIO, SUAREZ, DANILO
the Court of Appeals (CA) Decision1 and Resolution2 in CA- SUAREZ, EVELYN SUAREZ, MARCELO SUAREZ,
G.R. SP No. 58090 which reversed, set aside and recalled the JR. and REGGINEO SUAREZ are represented herein
Regional Trial Court (RTC) Orders3 in Civil Case No. 51203. by EUFROCINA S. ANDRES, in her capacity as the
guardian and legal administrator of the property of the
First, the long settled facts. said minors;
Marcelo and Teofista Isagon Suarez'4 marriage was blessed WHEREAS, there are no known debts or financial
with both material wealth and progeny in herein respondents, obligations of whatever nature and amount against the
namely, Danilo,5 Eufrocina, Marcelo Jr., Evelyn, and estate of the deceased;
Reggineo,6 all surnamed Suarez. During their marriage,
governed by the conjugal partnership of gains regime, they NOW, THEREFORE, in consideration of the foregoing
acquired numerous properties, which included the following: premises, the Parties have agreed to settle and
(1) a parcel of land situated in Barrio Caniogan, Pasig with an liquidate the assets of the conjugal partnership
area of 348 square meters covered by Transfer Certificate of between the deceased and TEOFISTA ISAGON, and to
Title (TCT) No. 30680; (2) property located in Pinagbuhatan, settle and adjudicate the estate of the said deceased,
Pasig, with an area of 1,020 square meters under Tax by and pursuance to these presents, in the following
Declaration No. A-016-01003; and (3) Lot Nos. 5, 6 & 7, Block manner, to wit:
2 covered by Tax Declaration No. A-01700723 (subject
properties). 1. That TEOFISTA ISAGON, as the surviving spouse
and partner of the deceased, shall receive in absolute
After the death of Marcelo Sr. in 1955, Teofista and herein and exclusive ownership the following properties as her
respondents, as well as Elpidio Suarez,7 executed an
lawful share in the assets of the conjugal partnership of the estate of the deceased MARCELO SUAREZ, which
gains between her and the deceased, to wit: estate is comprised of the following properties, to wit:
(a) Half (1/2) interest and participation in the (a) A parcel of land covered by TCT No. 30680,
parcel of land covered by Tax Declaration No. situated at Barrio Kaniogan, Municipality of
6938, situated at Sitio Pantayan, Municipality of Pasig, Province of Rizal, with an assessed
Taytay, Province of Rizal; value of P4,150.00.
(b) Half (1/2) interest and participation in the (b) Three (3) parcels of land covered by TCT
parcel of land covered by Tax Declaration No. Nos. 33982, 33983 and 33984, situated at
6939, situated at Sitio Pantayan, Municipality of Barrio Pineda, Municipality of Pasig, Province
Taytay, Province of Rizal; of Rizal, with an assessed value of P560.00.
(c) Half (1/2) interest and participation in the (c) A parcel of land covered by TCT 33986,
parcel of land covered by TCT No. 38291, situated at Barrio Pineda, Municipality of Pasig,
situated at Barrio Rosario, Municipality of Pasig, Province of Rizal, with an assessed value
Province of Rizal; of P440.00.
(d) Half (1/2) interest and participation in the (d) Two (2) parcels of land, being Lots Nos. 42
parcel of land covered by TCT No. 38290, and 44 of the amendment-subdivision plan TY-
situated at Barrio Rosario, Municipality of Pasig, 4653-Amd., being a portion of Lot 2 described
Province of Rizal; on the original plan II-4653, G.L.R.O. Record
No. _____, situated at Barrio Santolan,
(e) TWELVE THOUSAND FIVE HUNDRED Municipality of Pasig, Province of Rizal, with a
THIRTY PESOS AND NINETY (P12,530.90) total assessed value of P590.00.
deposited with the Commercial Bank and Trust
Company of the Philippines, and THIRTY-NINE (e) Two parcels of land, being Lots Nos. 43 and
PESOS (P39.00) deposited with Prudential 45 of the amendment-subdivision plan TY-4653-
Bank. Amd., being a portion of Lot 2 described on the
original plan II-4653, G.L.R.O. Record No.
2. That the Parties TEOFISTA ISAGON, EUFROCINA _______, situated at Barrio Santolan,
S. ANDRES, ELPIDIO SUAREZ, DANILO SUAREZ, Municipality of Pasig, Province of Rizal, with a
EVELYN SUAREZ, MARCELO SUAREZ, JR. and total assessed value of P1,190.00.
REGGINEO SUAREZ, shall each and all receive and
be entitled to a share equivalent to one-seventh (1/7) of (f) A parcel of land, being Lot No. 6, Block 269
of the subdivision plan pos-112, being a portion
of Lot 2, Block 348, Psd-3188, G.L.R.O. Record rendered judgment: (1) rescinding the respective contracts of
Nos. 375,699 and 917, situated at San Felipe plaintiffs with Rizal Realty and Teofista, and (2) holding the two
Neri, Province of Rizal, with an assessed value defendants solidarily liable to plaintiffs for damages in the
of P6,340.00. aggregate principal amount of about P70,000.00.9
(g) A parcel of land covered by OCT No. 391, When the judgment of the CFI became final and executory,
situated in the Municipality of Taytay, Province herein subject properties were levied and sold on execution on
of Rizal, with an assessed value of P1,840.00. June 24, 1983 to satisfy the judgment against Teofista and
Rizal Realty. The aforementioned plaintiffs were the highest
(h) TWELVE THOUSAND (12,000) shares of bidder, and bought the levied properties for the amount
stock of the Consolidated Mines, Inc. of P94,170.00. As a result, a certificate of sale was issued to
represented by Certificate No. 71-5-B (for 1,000 them and registered in their favor on August 1, 1983. On July
shares) and Certificate No. 12736 (for 11,000 31, 1984, the Provincial Sheriff of Rizal issued a final deed of
shares). sale over the subject properties.
PROVIDED, that their title to the properties Parenthetically, before expiration of the redemption period, or
hereinabove mentioned shall be in common and the on June 21, 1984, herein respondents filed a revindicatory
share of each heir being pro indiviso. action against petitioner Valente, Violeta, Virginia and Maria
Concepcion, docketed as Civil Case No. 51203, for the
Curiously, despite the partition, title to the foregoing properties, annulment of the auction sale and recovery of ownership of
explicitly identified in the Extrajudicial Settlement of Estate as the levied properties. Essentially, respondents alleged in their
forming part of Marcelo's and Isagon's property regime, complaint that they cannot be held liable for the judgment
remained in the couple's name. Not surprisingly, Teofista rendered against their mother, Teofista, not having been
continued to administer and manage these properties. On the impleaded therein; and consequently, the subject properties,
whole, apart from those now owned exclusively by Teofista, all which they own pro indiviso with their mother, can neither be
the properties were held pro indiviso by Teofista and her levied nor be sold on execution.
children; and respective titles thereto were not changed, with
Teofista as de facto administrator thereof. Meanwhile, the RTC, Branch 151, formerly the CFI, Branch 1,
in Civil Case Nos. 21376 to 21379, issued an Order10 directing
In 1975, Rizal Realty Corporation (Rizal Realty) and Teofista, Teofista: (1) to vacate the subject properties, (2) to desist from
the latter owning ninety percent (90%) of the former's shares despoiling, dismantling, removing or alienating the
of stock, were sued by petitioner Valente Raymundo, his wife improvements thereon, (3) to place petitioner Valente, Violeta,
Violeta, Virginia Banta and Maria Concepcion Vito (plaintiffs) in Virginia and Maria Concepcion in peaceful possession thereof,
consolidated cases for Rescission of Contract and Damages, and (4) to surrender to them the owner's duplicate copy of the
docketed as Civil Case Nos. 21736 to 21739. Thereafter, in torrens title and other pertinent documents. Herein
1975, the then Court of First Instance (CFI) of Rizal, Branch 1, respondents, joined by their mother, Teofista, filed a Motion for
Reconsideration arguing that the subject properties are co- succession, they should have seasonably filed such
owned by them and further informing the RTC of the filing and claim to protect their rights. As the record discloses,
pendency of Civil Case No. 51203. Nonetheless, the trial court however, the children chose to remain silent, and even
denied Teofista's and herein respondents' motion, reiterated its allowed the auction sale to be held, filing almost a year
previous order, which included, among others, the order for later a half-hearted complaint to annul the proceedings
Teofista and all persons claiming right under her, to vacate the which they allowed to be dismissed by not diligently
lots subject of the judicial sale. prosecuting it.
Undaunted, Teofista and herein respondents filed a petition In Santos v. Mojica (10 SCRA 318), a partition case
for certiorari before the CA to annul the foregoing orders. The with third- party claimants, the Supreme Court came
appellate court, on July 6, 1987, dismissed Teofista's and out with the following ruling: "The procedure (a petition
herein respondents' petition, thus: for certiorari) followed by him (a petitioner not party to
the original partition case) in vindicating his right is not
We believe this petition cannot prosper for two the one sanctioned by law, for he should have filed a
reasons. First, as purported case for certiorari it fails to separate and independent action making parties
show how the respondent judge had acted without or in therein the sheriff and the plaintiffs responsible for the
excess of jurisdiction or with grave abuse of discretion. execution xxx. It can, therefore, be said that (he) acted
The two orders being assailed were preceded by a final improperly in filing the present petition because his
judgment, a corresponding writ of execution, a levy on remedy was to file a separate and independent action
execution and a judicial sale, all of which enjoy a to vindicate his ownership over the land.
strong sense presumption of regularity.
WHEREFORE, the petition is denied and the
Secondly, as far as [petitioner] Teofista Suarez is restraining order previously issued is DISSOLVED, with
concerned, she cannot complain about the levy costs against petitioners.11
because she was a party in the consolidated cases
where judgment was rendered against her in her On the other litigation front concerning Civil Case No. 51203, a
personal capacity. Since she did not appeal from the writ of preliminary injunction was issued by the RTC Pasig,
decision, she cannot say that the judgment is Branch 155, on February 25, 1985, enjoining petitioner
erroneous for an obligation that belong to the Valente, Violeta, Virginia and Maria Concepcion from
corporation. And with respect to the children of Teofista transferring to third parties the levied properties based on its
Suarez, who are co-petitioners in this proceedings preliminary finding that the auctioned properties are co-owned
[herein respondents], suffice it to point out that not by Teofista and herein respondents. Subsequently, however,
being parties in the consolidated cases, what they Civil Case No. 51203 was dismissed by the RTC, Branch 155,
should have done was to immediately file a third party at the instance of petitioner Valente for failure of herein
claim. The moment levy was made on the parcels of respondents to prosecute. But in yet another turn of events,
land, which they claim are theirs by virtue of hereditary
the RTC, Branch 155, lifted its previous order of dismissal and respondent judge is ordered to dismiss Civil Case No.
directed the issuance of alias summons. 51203.12
Thus, it was now petitioner Valente's, Violeta's, Virginia's and From this ruling, herein respondents appealed to the Supreme
Maria Concepcion's turn to file a petition for certiorari with the Court. In Suarez v. Court of Appeals,13 we reversed the
CA, assailing the various orders of the RTC, Branch 155, appellate court, thus:
which all rejected their bid to dismiss Civil Case No. 51203.
The CA granted their petition, thus: Even without touching on the incidents and issues
raised by both petitioner [herein respondents] and
And the fact that herein private respondents, as the private respondents [petitioner Valente, Violeta, Virginia
legal heirs of Teofista Vda. de Suarez and supposedly and Maria Concepcion] and the developments
not parties in Civil Case Nos. 21376 - 21379 does not subsequent to the filing of the complaint, [w]e cannot
preclude the application of the doctrine of res but notice the glaring error committed by the trial court.
judicata since, apart from the requisites constitutive of
this procedural tenet, they were admittedly the children It would be useless to discuss the procedural issue on
of Teofista Suarez, who is the real party-in-interest in the validity of the execution and the manner of publicly
the previous final judgment. As successors-in-interest selling en masse the subject properties for auction. To
of Teofista Suarez, private respondents merely stepped start with, only one-half of the 5 parcels of land [subject
into the shoes of their mother in regard to the levied properties] should have been the subject of the auction
pieces of property. Verily, there is identity of parties, not sale.
only where the parties in both actions are the same,
but where there is privity with them as in the cases of The law in point is Article 777 of the Civil Code, the law
successors-in-interest by title subsequent to the applicable at the time of the institution of the case:
commencement of the action or where there is
substantial identity. The rights to the succession are transmitted from the
moment of the death of the decedent."
Finally, the action to annul the judicial sale filed by
herein private respondents is not the reinvindicatory Article 888 further provides:
suit, much less the third party claim contemplated by
Section 17 of Rule 39. "The legitime of the legitimate children and
descendants consists of one-half of the
WHEREFORE, the petition for certiorari is hereby hereditary estate of the father and of the
granted and the questioned orders dated February 25, mother.
1985, May 19, 1989 and February 26, 1990 issued in
Civil Case No. 51203 are hereby annulled; further
The latter may freely dispose of the remaining half, Upon our reinstatement of Civil Case No. 51203, each and
subject to the rights of illegitimate children and of the every pleading filed by herein respondents, as plaintiffs
surviving spouse as hereinafter provided." therein, was hotly contested and opposed by therein
defendants, including petitioner Valente. Moreover, even at
Article 892, par. 2 likewise provides: that stage, when the case had been remanded with a directive
to "determine that portion which belongs to [herein
"If there are two or more legitimate children or respondents] and to annul the sale with regard to said portion,"
descendants, the surviving spouse shall be Civil Case No. 51203 had to be re-raffled and transferred, for
entitled to a portion equal to the legitime of varied reasons, to the different court branches in Pasig City. In
each of the legitimate children or descendants." between all these, petitioner Valente, along with the other
defendants, repeatedly filed a Motion to Dismiss Civil Case
Thus, from the foregoing, the legitime of the surviving No. 51203 for the purported failure of herein respondents to
spouse is equal to the legitime of each child. prosecute the case. Most of these Motions to Dismiss were
denied.
The proprietary interest of petitioners [herein
respondents] in the levied and auctioned property is With each transfer of Civil Case No. 51203, the judge to which
different from and adverse to that of their mother the case was raffled had to study the records anew.
[Teofista]. Petitioners [herein respondents] became co- Expectedly, part of the records went missing and were lost. On
owners of the property not because of their mother April 12, 1993, the Clerk of Court of RTC, Branch 71, to which
[Teofista] but through their own right as children of their Civil Case No. 51203 was remanded, filed a report on the
deceased father [Marcelo Sr.]. Therefore, petitioners records of the case, to wit:
[herein respondents] are not barred in any way from
instituting the action to annul the auction sale to protect 1. The first volume of the record in the above-entitled
their own interest. case was recorded as received on June 20, 1990, by
Sheriff Alejandro O. Loquinario;
WHEREFORE, the decision of the Court of Appeals
dated July 27, 1990 as well as its Resolution of August 2. That the staff of Branch 71 at this time was sharing a
28, 1990 are hereby REVERSED and set aside; and small room with Branch 161 at the First Floor of the
Civil Case No. 51203 is reinstated only to determine Justice Hall, and as the Branch was newly formed, it
that portion which belongs to petitioners and to annul had no equipment or furniture of its own, and was still
the sale with regard to said portion. undermanned;
It was at this point when another series of events transpired, 3. That sometime in August 1990, Branch 71 moved to
culminating in the present petition. the staffroom of Branch 159 at the Second Floor of the
Justice Hall;
4. That on October 25, 1990, this Court received a 11. That from the time the same was found to be
Notice of Judgment dated October 22, 1990 from the missing, Judge Claravall ordered that a search for the
Court of Appeals that ruled the dismissal of the above- same be made in all of the offices wherein this branch
entitled case, and as per standing instructions of Judge was forced to share a room with, as well as the Court
Graduacion A. Reyes-Claravall, the same was bound of Appeals, in the event that the same was transmitted
as volume 2 of the case; to said Court;
5. That just before the Christmas vacation in 1991, the 12. That all the efforts were in vain, as said record
branch was forced to hastily move all of its records and could not be located anywhere;
equipment to branch 69, because of the unexpected
notice we received that the room we were occupying 13. That the undersigned now concludes that the first
was to be demolished in order to meet the schedule for volume of the above-entitled case was probably lost
the renovation of the building; during the renovation of the Justice Hall Building, and
will have to be reconstituted with the use of documents
6. That unfortunately, the room was demolished before in the possession of the parties, or documents entered
the undersigned could make a last check to see if as exhibits in other Courts.14
everything was transferred;
In this regard, herein respondents filed a Motion for
7. That it was only later on that this office discovered Reconstitution of Records15 of the case. Initially, petitioner
that important documents were indeed lost, including Valente, and the other defendants -- Violeta, Virginia and
transcripts of stenographic notes in a case that was Maria Concepcion -- opposed the motion.16 However, the trial
submitted for decision; court eventually granted the motion for reconstitution, and
ordered petitioner Valente and the other defendants to submit
8. That sometime in May 1992, the branch moved its a copy of their Answer filed thereat and copies of other
Office to its present location; pleadings pertinent to the case.17
9. That on March 8, 1993, this Court received a copy of Thereafter, three (3) incidents, among numerous others, set off
a Decision of the Supreme Court reversing the earlier by the parties' pleadings, are worth mentioning, to wit:
ruling of the Court of Appeals;
1. A Motion for Leave to File and Admit Supplemental
10. That it was at this time that the first volume of this Complaint18 filed by herein respondents. The Supplemental
case, which was bundled along with other cases which Complaint additionally prayed that the levy and sale at public
were decided and/or archived, was reported as auction of the subject properties be annulled and set aside, as
missing; the bid price was unconscionable and grossly inadequate to
the current value of the subject properties. The Supplemental
Complaint further sought a re-bidding with respect to Teofista's
share in the subject properties. Finally, it prayed that TCT No. executory DECISIONS of the Court of Appeals in an
6509 in the name of petitioner Valente, Violeta, Virginia and unprecedented action. In said decision, the Supreme
Maria Concepcion be cancelled and TCT No. 30680 in the Court ordered the plaintiffs [herein respondents] to
name of Marcelo Suarez, married to Teofista Isagon, be establish with evidence their personality as heirs of
reinstated. Marcelo Suarez, and after being able to do so, to
adduce evidence that would determine what portion
2. A Manifestation and Motion (to Execute/Enforce Decision belongs to plaintiffs hence the above matters need be
dated September 4, 1992 of the Supreme Court)19 filed by litigated upon before the RTC can "annul the sale with
herein respondents pointing out that the Supreme Court itself regard to said portion" (belonging to the plaintiffs
had noted the current increased value of the subject properties alleged heirs).
and that petitioner Valente, Violeta, Virginia and Maria
Concepcion unjustly enriched themselves in appropriating the On these incidents, the records reveal the following Orders
subject properties worth millions then, for a measly bid price issued by the different branches of the RTC:
of P94,170.00, for a judgment obligation worth
only P70,000.00. 1. Order dated March 17, 1995, issued by Presiding Judge
Rodrigo B. Lorenzo of Branch 266, Pasig City, admitting herein
3. An Urgent Motion [to direct compliance by plaintiffs (herein respondents' Supplemental Complaint.21
respondents) with Supreme Court Decision or to consider the
matter submitted without evidence on the part of 2. Order dated January 22, 1996, issued by Judge Apolinario
plaintiffs]20 filed by therein defendants, including herein B. Santos resolving: (a) herein respondents' Manifestation and
petitioner Valente, pointing out that plaintiffs (herein Motion (to execute/enforce Decision dated September 4, 1992
respondents) have yet to comply with the RTC, Branch 67 of the Supreme Court), and (b) therein defendants' (including
Order commanding them to submit (to the RTC) any evidence herein petitioner Valente's) Request for Answer to Written
showing settlement of the estate of the deceased Marcelo Interrogatories.22 The RTC, Branch 67, resolved the incidents,
Suarez, in order for the court to determine the portion in the thus:
estate which belongs to Teofista. The Urgent Motion stated in
paragraph 2, thus: From the foregoing uncontroverted facts, this Court is
convinced beyond a shadow of doubt that the Decision
2. The defendants [including herein petitioner Valente] of the Supreme Court of September 4, 1992, being the
did everything possible to expedite the disposition of final arbiter in any judicial dispute, should be
this case while the plaintiffs [herein respondents] did implemented for the following reasons:
everything possible to DELAY the disposition of the
same obviously because the plaintiffs [herein xxxx
respondents] are in full possession and enjoyment of
the property in dispute. In its decision of September 4, On the request for Answers to Written Interrogatories
1992, the SUPREME COURT nullified TWO final and filed by the defendants, it is obvious that at this stage
of the proceedings where the Supreme Court had d. [Herein respondents], including Teofista
already pronounced the undisputed facts, which binds Suarez, are hereby ordered to submit to this
this court, the answer sought to be elicited through court any evidence showing settlement of the
written interrogatories, therefore, are entirely irrelevant, estate of the deceased, Marcelo Suarez, in
aside from having been filed way out of time. order for this court to determine the portion in
the estate which belongs to Teofista Suarez.
WHEREFORE, premises considered, this court,
implements the decision of the Supreme Court dated Therein defendants, including petitioner Valente, filed a Motion
September 4, 1992 which mandates that: for Reconsideration which the trial court denied on May 29,
1996.
"xxx and Civil Case No. 51203 is reinstated only
to determine that portion which belongs to 3. Order dated September 10, 1996, issued by Judge Santos
petitioner and to annul the sale with regard to denying the appeal interposed by petitioner Valente from the
said portion." January 22, 1996 and May 29, 1996 Orders, ruling that these
are interlocutory orders, and, therefore, not appealable.23
In order to enforce such mandate of the
Supreme Court, this court orders that: 4. Order dated April 8, 1999, issued by Pairing Judge Santiago
Estrella which declared, thus:
a. The auction sale of the five (5) parcels of
land and all prior and subsequent proceedings Considering that counsel for the plaintiffs does not have the
in relation thereto are declared null and void. birth certificates of the heirs of the plaintiff to prove their
affiliation with the deceased which is one of the matters written
b. Transfer Certificate of Title No. 6509 in the in the decision of the higher court which must be complied
name of defendant Valente Raymundo is also with, and in order for counsel for the plaintiffs [herein
declared null and void, and the Register of respondents] to have the opportunity to complete all
Deeds of Rizal, Pasig City, is ordered to issue a documentary evidence and in view of abbreviating the
new one in the name of the deceased Marcelo proceedings and as prayed for, today's scheduled pre-trial is
Suarez or to reinstate Transfer Certificate of re-set for the last time to May 19, 1999 at 8:30 a.m.
Title No. 30680 in the name of Marcelo Suarez.
In this connection, counsel for plaintiffs [herein
c. Teofista Suarez is ordered to reimburse the respondents] is advised to secure all the documentary
amount of P94,170.00, plus legal interest from evidence she needs material to this case which will
the date of issuance of this order, and failing expedite the disposition of this case.24
which, the portion of the estate of Marcelo
Suarez belonging to the surviving spouse, This last Order and therein defendants' Urgent Motion
Teofista Suarez, may be levied on execution. spawned another contentious issue between the parties. In
this connection, Judge Estrella issued an Order25 requiring the their complaint and the defendants [including petitioner
parties to file their respective position papers due to the Valente] to prove their defense, consistent with the
"divergent views on the nature of the hearing that should be directive of the Honorable Supreme Court (in its
conducted in compliance with" our decision in Suarez. Both Decision promulgated on September 4, 1992), the
parties duly filed their position papers, with herein respondents Court is, however, confronted with the very recent
attaching thereto a copy of the Extrajudicial Settlement of decision of the Honorable Supreme Court in "Heirs of
Estate executed by the heirs of Marcelo Suarez in 1957. Guido Yaptinchay, et al. vs. Del Rosario, et al., G.R.
No. 124320, March 2, 1999" where it held that -
In resolving this latest crossfire between the parties, the RTC,
Branch 67, issued an Order dated January 11, 2000, which The declaration of heirship must be made in an
reads, in part: administration proceeding, and not in an
independent civil action. This doctrine was
This Court is of the view that the Honorable Supreme reiterated in Solve vs. Court of Appeals (182
Court is not a trier of facts, precisely it directed that the SCRA 119, 128). The trial court cannot make a
records of this case be remanded to the Regional Trial declaration of heirship in the civil action for the
Court for further proceedings. reason that such a declaration can only be
made in a special proceeding. Under Section 3,
xxxx Rule 1 of the 1997 Revised Rules of Court, a
civil action is defined as "one by which a party
It is a matter of record that there was no trial on the sues another for the enforcement or protection
merits completed in the Regional Trial Court. xxx The of a right, or the prevention or redress of a
Supreme Court reversed the judgment of the Court of wrong" while a special proceeding is "a remedy
Appeals and ordered the reinstatement of Civil Case by which a party seeks to establish a status, a
No. 51203. Naturally, there was no trial on the merits right, or a particular fact." It is then decisively
before this Court that allowed the parties to adduce clear that the declaration of heirship can be
evidence to establish their respective claims in the made only in a special proceeding inasmuch as
plaintiffs' [herein respondents] complaint and in the the petitioners here are seeking the
defendants' [including petitioner Valente] counter-claim, establishment of a status or right.
respectively. It is in this context that the Honorable
Supreme Court reinstated the "action [of herein In as much as the leading case on the matter is that of
respondents] to annul the auction sale to protect their "Heirs of Yaptinchay v. Del Rosario, G.R. No. 124320,
[herein respondents] own interest. March 2, 1999" it is left with no choice but to obey said
latter doctrine.
While this Court is of the view that trial on the merits is
necessary for the purpose of giving the plaintiffs [herein WHEREFORE, the foregoing premises considered, this
respondents] a chance to adduce evidence to sustain Court holds that in the light of the doctrine laid down in
the case of "Heirs of Yaptinchay vs. Del Rosario, G.R. [herein respondents], issued an order to
No. 124320, March 2, 1999" this case is dismissed execute/enforce the decision of the Supreme Court
without prejudice to the plaintiffs' [herein respondents'] xxx.
filing a special proceeding consistent with said latest
ruling.26 xxxx
Herein respondents moved for reconsideration thereof which, [Petitioner Valente, Violeta, Virginia and Maria
however, was denied by the RTC, Branch 67 on March 14, Concepcion] filed a notice of appeal on the order of
2000.27 Judge Santos. The appeal, on motion of [herein
respondents] was denied on September 10,
Consequently, herein respondents filed a petition 1996. Obviously, the decision of the Supreme Court
for certiorari before the CA alleging grave abuse of discretion had become final and executory. Likewise, both orders
in the trial court's order dismissing Civil Case No. 51203 of Judge Santos dated May 29, 1996 denying the
without prejudice. All the defendants in the trial court were motion for reconsideration and the denial of the notice
impleaded as private respondents in the petition. Yet, of appeal dated September 6, 1996 had also become
curiously, only petitioner Valente filed a Comment thereto. The final and executory.
appellate court granted the petition, recalled and set aside
RTC, Branch 67's Orders dated January 11, 2000 and March The denial of petitioner Valente's Motion for Reconsideration
14, 2000, and reinstated Judge Santos' Orders dated May 29, prompted the filing of this present petition for certiorari.
1996 and September 6, 1996. It disposed of the petition, thus:
Petitioner Valente posits that the appellate court committed
We agree with [herein respondents]. grave abuse of discretion in recalling and setting aside the
Orders of Judge Estrella and reinstating those of Judge
On September 4, 1992, the Supreme Court (G.R. No. Santos because:
94918) reversed the decision of the Court of Appeals
and mandates that Civil Case No. 51203 be reinstated 1. The CA ruled that the Orders dated May 29, 1996
in order to determine the portion in the estate which and September 6, 1996 issued by Judge Santos were
belongs to Teofista Suarez. The sale of the parcels of final and executory, and yet the latter did not allow an
land was declared null and void. Necessarily, the title appeal to be taken therefrom ratiocinating that the
(TCT No. 5809) in the name of respondents was also questioned orders were interlocutory, and therefore,
declared null and void. xxx not appealable; and
Petitioner asseverates that the assailed CA ruling "is unfair Contrary to petitioner Valente's stance, there is no trickery or
and it amounts to a trickery to prevent an appeal against a chicanery in the CA's distinction between an interlocutory and
final order by claiming that the appealed order is merely a final order. Indeed, as ruled by the CA, the RTC Order
interlocutory and later maintain that the same order has denying petitioner Valente's Notice of Appeal attained finality
become final after declaring it to be interlocutory." when he failed to file a petition for certiorari under Rule 65 of
the Rules of Court.
We reject petitioner's paltry contention. Petitioner apparently
does not comprehend the distinction between an interlocutory We cannot overemphasize the rule that the correct
order which is final and executory, and a final order which identification of the nature of an assailed order determines the
disposes of the controversy or case; much less, understand remedies available to an aggrieved party. The old Rules of
the available remedies therefrom. Court in Section 2, Rule 41 reads, thus:
With the advent of the 1997 Rules of Civil Procedure, Section In fine, petitioner Valente erroneously sought relief through
1, Rule 41 now provides for the appropriate remedy to be reversed remedies. He tried to appeal the interlocutory orders
taken from an interlocutory order, thus: of the RTC which are unappealable. Thus, the RTC properly
denied his Notice of Appeal, and the CA correctly upheld the
SECTION 1. Subject of appeal. - An appeal may be RTC. He should have filed a petition for certiorari; under Rule
taken from a judgment or final order that completely 65. On the other hand, from the final order of the CA, he
disposes of the case, or of a particular matter therein comes before this Court on a petition for certiorari under Rule
when declared by these Rules to be appealable. 65, when the proper remedy is an appeal by certiorari under
Rule 45.
No appeal may be taken from:
In the recent case of Jan-Dec Construction Corporation v.
xxx Court of Appeals33 we ruled in this wise:
(c) An interlocutory order; As a rule, the remedy from a judgment or final order of
the CA is appeal via petition for review under Rule 45
xxx of the Rules.
In all the above instances where the judgment or final Under Rule 45, decisions, final orders or resolutions of
order is not appealable, the aggrieved party may file an the CA in any case, i.e., regardless of the nature of the
appropriate special civil action under Rule 65. action or proceedings involved, may be appealed to the
Court by filing a petition for review, which would be but
a continuation of the appellate process over the original
Clearly, the denial of therein defendants' (including petitioner
case. It seeks to correct errors of judgment committed
Valente's) appeal from the Orders dated May 29, 1996 and
by the court, tribunal, or officer. In contrast, a special
September 6, 1996 was in order. Thus, the CA decision
civil action for certiorari under Rule 65 is an
affirming the RTC's denial was correct.
independent action based on the specific grounds
therein provided and proper only if there is no appeal
or any plain, speedy and adequate remedy in the with regard to said portion." There is clearly no intimation in
ordinary course of law. It is an extraordinary process our decision for the RTC to have to determine an already
for the correction of errors of jurisdiction and cannot be settled issue i.e., herein respondents' status as heirs of
availed of as a substitute for the lost remedy of an Marcelo Sr.
ordinary appeal.
Moreover, petitioner Valente cannot assail, directly or
Independently of this procedural infirmity, even on the merits of indirectly, the status of herein respondents as legitimate
the case, the petition does not fare otherwise. It must be children of Marcelo Sr. and Teofista, and likewise demand that
dismissed for lack of merit. herein respondents first prove their filiation to Marcelo Sr. The
following records bear out Marcelo, Sr.'s and Teofista's
Petitioner Valente insists that, following our ruling in Heirs of paternity of herein respondents, and the latter's status as
Yaptinchay v. Del Rosario,34 herein respondents must first be legitimate children:
declared heirs of Marcelo Sr. before they can file an action to
annul the judicial sale of what is, undisputedly, conjugal 1. The CA decision in CA-G.R. SP Nos. 10646 to 10649 where
property of Teofista and Marcelo Sr. Teofista, along with herein respondents, questioned the RTC,
Branch 151's Orders dated October 10, 1984 and October 14,
We disagree. Our ruling in Heirs of Yaptinchay is not 1986. Although the CA ruled against Teofista and herein
applicable. respondents, it explicitly recognized the latter's status as
legitimate children of Teofista and Marcelo Sr.; and38
Herein respondents' status as legitimate children of Marcelo
Sr. and Teofista ― and thus, Marcelo Sr.'s heirs ― has been 2. The CA decision in CA-G.R. SP No. 20320 which incorrectly
firmly established, and confirmed by this Court in Suarez v. ruled that herein respondents were, as children of Teofista,
Court of Appeals.35 True, this Court is not a trier of facts,36 but merely successors-in-interest of the latter to the property and
as the final arbiter of disputes,37 we found and so ruled that by virtue thereof, bound by the judgment in Civil Case Nos.
herein respondents are children, and heirs of their deceased 21376 to 21379 consistent with the doctrine of res
father, Marcelo Sr. This having been settled, it should no judicata.39 We subsequently reversed this ruling on the wrong
longer have been a litigated issue when we ordered a remand application of res judicata in the conclusive case of Suarez.
to the lower court. In short, petitioner Valente's, Violeta's, We retained and affirmed, however, the CA's factual finding of
Virginia's, and Maria Concepcion's representation in the RTC herein respondents' status as heirs of Marcelo Sr. We
that our ruling in Suarez required herein respondents to categorically held therein that "the proprietary interest of
present evidence of their affiliation with the deceased, Marcelo [herein respondents] in the levied and auctioned [properties] is
Sr., is wrong. different from and adverse to that of [Teofista]. [Herein
respondents] became co-owners of the property not because
As was set forth in the dispositive portion of Suarez, "Civil of [Teofista] but through their own right as children of their
Case No. 51203 is reinstated only to determine that portion deceased father [, Marcelo Sr.]."
which belongs to [herein respondents] and to annul the sale
Clearly, herein respondents' long possessed status of Art. 265. The filiation of legitimate children is proved by
legitimate children of Marcelo Sr. and Teofista cannot be the record of birth appearing in the Civil Register, or by
indirectly or directly attacked by petitioner Valente in an action an authentic document or a final judgment.
to annul a judicial sale.
Art. 266. In the absence of the titles indicated in the
Articles 262,40 263,41 265 and 26642 of the Civil Code, the preceding article, the filiation shall be proved by the
applicable law at the time of Marcelo's death, support the continuous possession of status of a legitimate child.
foregoing conclusion, to wit:
In Heirs of Yaptinchay, the complaint for annulment and/or
Art. 262. The heirs of the husband may impugn the declaration of nullity of certain TCT's was dismissed for failure
legitimacy of the child only in the following cases: of the petitioners to demonstrate "any proof or even a
semblance of it" that they had been declared the legal heirs of
(1) If the husband should die before the the deceased couple, the spouses Yaptinchay. In stark
expiration of the period fixed for bringing his contrast, the records of this case reveal a document, an
action; Extrajudicial Settlement of Marcelo Sr.'s estate, which explicitly
recognizes herein respondents as Marcelo Sr.'s legitimate
(2) If the husband should die after the filing of children and heirs. The same document settles and partitions
the complaint, without having desisted from the the estate of Marcelo Sr. specifying Teofista's paraphernal
same; properties, and separates the properties she owns in common
with her children, herein respondents. Plainly, there is no need
(3) If the child was born after the death of the to re-declare herein respondents as heirs of Marcelo Sr., and
husband. prolong this case interminably.
Art. 263. The action to impugn the legitimacy of the Petitioner Valente, along with Violeta, Virginia and Maria
child shall be brought within one year from the Concepcion, became owners of the subject properties only by
recording of birth in the Civil Register, if the husband virtue of an execution sale to recover Teofista's judgment
should be in the same place, or in a proper case, any obligation. This judgment obligation is solely Teofista's, and
of his heirs. payment therefor cannot be made through an execution sale
of properties not absolutely owned by her. These properties
If he or his heirs are absent, the period shall be were evidently conjugal properties and were, in fact, even
eighteen months if they should reside in the titled in the name of Marcelo, Sr. married to Teofista. Thus,
Philippines; and two years if abroad. If the birth of the upon Marcelo Sr.'s death, by virtue of compulsory succession,
child has been concealed, the term shall be counted Marcelo Sr.'s share in the conjugal partnership was transmitted
from the discovery of the fraud. by operation of law to his compulsory heirs.
Compulsory succession is a distinct kind of succession, albeit Yaptinchay and the cited cases of Litam v. Rivera50 and Solivio
not categorized as such in Article 77843 of the Civil Code. It v. Court of Appeals,51 and Guilas v. CFI Judge of
reserves a portion of the net estate of the decedent in favor of Pampanga52 cited in Solivio. We ruled thus:
certain heirs, or group of heirs, or combination of heirs,
prevailing over all kinds of succession.44 The portion that is so The common doctrine in Litam, Solivio and Guilas in
reserved is the legitime. Article 886 of the Civil Code defines which the adverse parties are putative heirs to the
legitime as "that part of the testator's property which he cannot estate of a decedent or parties to the special
dispose of because the law has reserved it for certain heirs proceedings for its settlement is that if the special
who are, therefore, called compulsory heirs." Herein proceedings are pending, or if there are no special
respondents are primary compulsory heirs,45 excluding proceedings filed but there is, under the circumstances
secondary compulsory heirs,46 and preferred over concurring of the case, a need to file one, then the determination
compulsory heirs in the distribution of the decedent's estate.47 of, among other issues, heirship should be raised and
settled in said special proceedings. Where special
Even without delving into the Extrajudicial Settlement of proceedings had been instituted but had been finally
Marcelo Sr.'s estate in 1957, it must be stressed that herein closed and terminated, however, or if a putative heirs
respondents' rights to the succession vested from the moment has lost the right to have himself declared in the
of their father's death.48 Herein respondents' ownership of the special proceedings as co-heir and he can no longer
subject properties is no longer inchoate; it became absolute ask for its re-opening, then an ordinary civil action can
upon Marcelo's death, although their respective shares therein be filed for his declaration as heir in order to bring
remained pro indiviso. Ineluctably, at the time the subject about the annulment of the partition or distribution or
properties were sold on execution sale to answer for Teofista's adjudication of a property or properties belonging to the
judgment obligation, the inclusion of herein respondents' share estate of the deceased.
therein was null and void.
In the case at bar, respondent, believing rightly or
In fine, Teofista's ownership over the subject properties is not wrongly that she was the sole heir to Portugal's estate,
absolute. Significantly, petitioner Valente does not even executed on February 15, 1988 the questioned Affidavit
attempt to dispute the conjugal nature of the subject of Adjudication under the second sentence of Rule 74,
properties. Since Teofista owns only a portion of the subject Section of the Revised Rules of Court. Said rule is an
properties, only that portion could have been, and was exception to the general rule that when a person dies
actually, levied upon and sold on auction by the provincial leaving property, it should be judicially administered
sheriff of Rizal. Thus, a separate declaration of heirship by and the competent court should appoint a qualified
herein respondents is not necessary to annul the judicial sale administrator, in the order established in Sec. 6, Rule
of their share in the subject properties. 78 in case the deceased left no will, or in case he did,
he failed to name an executor therein.
We note the recent case of Portugal v. Portugal-
Beltran,49 where we scrutinized our rulings in Heirs of xxx
It appearing, however, that in the present case the only
property of the intestate estate of Portugal is the
Caloocan parcel of land, to still subject it, under the
circumstances of the case, to a special proceeding
which could be long, hence, not expeditious, just to
establish the status of petitioners as heirs is not only
impractical; it is burdensome to the estate with the
costs and expenses of an administration proceedings.
And it is superfluous in light of the fact that the parties
to the civil case-subject of the present case, could and
had already in fact presented evidence before the trial
court which assumed jurisdiction over the case upon
the issues it defined during pre-trial.
SO ORDERED.
DEVELOPMENT BANK OF G.R. No. 172248
THE PHILIPPINES, The spouses Dionesio and Matea S. Asok owned
Petitioner,
Present: several parcels of land. Upon their death on September 14,
failed to pay the loan and the mortgage was extrajudicially 141, as amended:[12]
foreclosed pursuant to Act 3135.[7] Petitioner emerged as the Sec. 119. Every conveyance of land acquired
under the free patent or homestead provisions,
highest bidder with a bid of P163,297.[8] when proper, shall be subject to repurchase by
the applicant, his widow, or legal heirs, within a
period of five years from date of the
On November 28, 1991, a certificate of sale was issued in conveyance.
favor of petitioner. This was registered on December 24, 1992.
[9]
On March 25, 1998, petitioners ownership over the property In a decision dated January 7, 1999, the RTC
was consolidated and TCT No. T-27172 was issued in its dismissed the complaint. Reconsideration was denied on
name.[10] February 3, 1999.[13] It ruled that the one-year period for
on learning that TCT No. T-9626 had been cancelled by TCT Aggrieved, respondents appealed to the CA. In a decision
No. T-27172 issued in the name of petitioner. They invoked dated December 14, 2005, the CA reversed and set aside the
RTC decision. Reconsideration was denied in a resolution issued to him. Thus, the property mortgaged to it was no
dated March 28, 2006. It held that the period of redemption longer covered by a free patent but by a TCT.[16]
sale.Thus, respondents had until December 24, 1998 to The plain intent of Sec. 119 is to give the homesteader
repurchase the property and the complaint was seasonably or patentee every chance to preserve and keep in the family
filed.[15] the land that the State has gratuitously given him as a reward
Petitioner raises the following issues: (1) whether Sec. patentees son (and a new title in his name issued) does not
119 of CA 141 is applicable in this case; (2) whether bring it outside the purview of Sec. 119. In fact, the policy
respondents are the legal heirs of the patentees and (3) behind the law is fulfilled because the land remains in the
whether the right to repurchase has already prescribed. family of the patentee. As we explained in Ferrer v. Mangente:
[18]
[24]
Furthermore, the law must be liberally construed in order to
There is no dispute that in extrajudicial foreclosures
[25]
carry out its purpose.
under Act 3135, the debtor or his or her successors-in-interest
Finally, petitioner asserts that even if respondents may redeem the property within one year. This redemption
could be considered as being entitled to the right under Sec. period should be reckoned from the date of registration of the
119, this had already prescribed because the period should be certificate of sale.[28] The five-year period fixed in Sec. 119
counted from the date of conveyance which means the date of begins to run from the expiration of the one-year redemption
sale and not the date of registration of the certificate of sale. period.[29] Here, the certificate of sale was registered on
This is far from a novel issue. It was already resolved respondents had a five-year period, or until December 24,
in Rural Bank of Davao City, Inc. v. CA:[26] 1998, to exercise their right to repurchase under Sec. 119 of
CA 141. Consequently, the CA was correct in holding that the
redemption price.
No costs.
SO ORDERED.
PAZ SAMANIEGO- G.R. No. 145545 This is a petition for review under Rule 45 of the 1997
CELADA, Rules of Civil Procedure seeking to reverse the
Decision[1] dated October 13, 2000 of the Court of Appeals in
Petitioner,
Present: CA-G.R. CV No. 41756, which affirmed the
[2]
Decision dated March 2, 1993 of the Regional Trial Court
(RTC), Branch 66, Makati City. The RTC had declared the last
will and testament of Margarita S. Mayores probated and
QUISUMBING, J.,
Chairperson, designated respondent Lucia D. Abena as the executor of her
will. It also ordered the issuance of letters testamentary in
- versus - CARPIO MORALES, favor of respondent.
TINGA,
The facts are as follows:
VELASCO, JR., and
Petitioner Paz Samaniego-Celada was the first cousin
BRION, JJ.
of decedent Margarita S. Mayores (Margarita) while
respondent was the decedents lifelong companion since 1929.
On August 11, 1987, petitioner filed a petition for letters Petitioner appealed the RTC decision to the Court of
of administration of the estate of Margarita before the RTC of Appeals. But the Court of Appeals, in a decision dated October
Makati. The case was docketed as SP Proc. No. M-1531. 13, 2000, affirmed in toto the RTC ruling. The dispositive
portion of the Court of Appeals decision states:
On October 27, 1987, respondent filed a petition for WHEREFORE, foregoing premises
probate of the will of Margarita before the RTC of Makati. The considered, the appeal having no merit in fact
case was docketed as SP Proc. No. M-1607 and consolidated and in law, is hereby ORDERED
with SP Proc. No. M-1531. DISMISSED and the appealed Decision of the
trial court AFFIRMED IN TOTO, with cost
On March 2, 1993, the RTC rendered a decision to oppositors-appellants.
declaring the last will and testament of Margarita probated and SO ORDERED.[5]
respondent as the executor of the will. The dispositive portion
of the decision states:
Hence, the instant petition citing the following issues:
In view of the foregoing, judgment is
I.
hereby rendered:
WHETHER OR NOT THE COURT OF
1) declaring the will as probated;
APPEALS COMMITTED A REVERSIBLE
ERROR IN NOT INVALIDATING THE WILL
2) declaring Lucia Abena as the
SINCE IT DID NOT CONFORM TO THE
executor of the will who will serve as
FORMALITIES REQUIRED BY LAW;
signed by the testator in the presence of the instrumental
II. witnesses and in the presence of one another. She also
argues that the signatures of the testator on pages A, B, and C
WHETHER OR NOT THE COURT OF of the will are not the same or similar, indicating that they were
APPEALS COMMITTED ERROR IN NOT not signed on the same day. She further argues that the will
INVALIDATING THE WILL BECAUSE IT WAS was procured through undue influence and pressure because
PROCURED THROUGH UNDUE INFLUENCE at the time of execution of the will, Margarita was weak, sickly,
AND PRESSURE[;] AND
jobless and entirely dependent upon respondent and her
nephews for support, and these alleged handicaps allegedly
III.
affected her freedom and willpower to decide on her
own. Petitioner thus concludes that Margaritas total
WHETHER OR NOT THE COURT OF
dependence on respondent and her nephews compelled her to
APPEALS GRAVELY ERRED IN NOT
sign the will. Petitioner likewise argues that the Court of
DECLARING PETITIONER, HER SIBLINGS
Appeals should have declared her and her siblings as the legal
AND COUSIN AS THE LEGAL HEIRS OF
MARGARITA S. MAYORES AND IN NOT heirs of Margarita since they are her only living collateral
ISSUING LETTERS OF ADMINISTRATION TO relatives in accordance with Articles 1009[9] and 1010[10] of the
HER.[6] Civil Code.
of the residence certificates of the purported witnesses of Vicente Lee, Sr. and the last will and testament was validly
Noynay and Grajo. He alleged that their signatures had executed and actually notarized by respondent per
likewise been forged and merely copied from their respective affidavit[7] of Gloria Nebato, common-law wife of Vicente Lee,
voters affidavits. Sr. and corroborated by the joint affidavit[8] of the children of
Vicente Lee, Sr., namely Elena N. Lee and Vicente N. Lee, Jr.
Complainant further asserted that no copy of such
xxx.[9]
purported will was on file in the archives division of the
Records Management and Archives Office of the National Respondent further stated that the complaint was filed
Commission for Culture and the Arts (NCCA). In this simply to harass him because the criminal case filed by
connection, the certification of the chief of the archives division complainant against him in the Office of the Ombudsman did
Respondent in his comment dated July 6, 2001 be found there because none was filed.
constituted an infringement of legal ethics, particularly Canon A will is an act whereby a person is permitted, with the
1[11] and Rule 1.01[12] of the Code of Professional Responsibility formalities prescribed by law, to control to a certain degree the
(CPR).[13] Thus, the investigating commissioner of the IBP disposition of his estate, to take effect after his death. [15] A will
Commission on Bar Discipline recommended the suspension may either be notarial or holographic.
The IBP Board of Governors, in its Resolution No. followed in the execution of wills. The object of solemnities
XVII-2006-285 dated May 26, 2006, resolved: surrounding the execution of wills is to close the door on bad
[T]o ADOPT and APPROVE, as it is hereby faith and fraud, to avoid substitution of wills and testaments
ADOPTED and APPROVED, with
and to guarantee their truth and authenticity.[16]
modification, the Report and Recommendation
of the Investigating Commissioner of the above-
A notarial will, as the contested will in this case, is An acknowledgment is the act of one who has
required by law to be subscribed at the end thereof by the executed a deed in going before some competent officer or
testator himself. In addition, it should be attested and court and declaring it to be his act or deed. It involves an extra
subscribed by three or more credible witnesses in the step undertaken whereby the signatory actually declares to the
presence of the testator and of one another.[17] notary public that the same is his or her own free act and
prohibitory laws shall be void, except when the law itself A cursory examination of the acknowledgment of the
authorizes their validity. will in question shows that this particular requirement was
The Notarial Law then in force required the exhibition to establish the true and correct identity of the person to whom
of the residence certificate upon notarization of a document or it is issued, as well as the payment of residence taxes for the
crossed out a prior entry and entered instead the will of the
Respondents failure, inadvertent or not, to file in the archives decedent. As proof, he presented a photocopy of his notarial
division a copy of the notarized will was therefore not a cause register. To reinforce his claim, he presented a photocopy of a
for disciplinary action. certification[28] stating that the archives division had no copy of
failed to make the necessary entries pertaining to the will in his A photocopy is a mere secondary evidence. It is not
notarial register. The old Notarial Law required the entry of the admissible unless it is shown that the original is unavailable.
following matters in the notarial register, in chronological order: The proponent must first prove the existence and cause of the
unavailability of the original, [29] otherwise, the evidence carelessness cannot be taken lightly in view of the importance
presented will not be admitted. Thus, the photocopy of and delicate nature of a will, considering that the testator and
respondents notarial register was not admissible as evidence the witnesses, as in this case, are no longer alive to identify
of the entry of the execution of the will because it failed to the instrument and to confirm its contents. [34] Accordingly,
comply with the requirements for the admissibility of secondary respondent must be held accountable for his acts. The validity
breach of duty.[35]
In the same vein, respondents attempt to controvert the
certification dated September 21, 1999[30] must fail. Not only In this connection, Section 249 of the old Notarial Law
March 15, 2000;[31] its contents did not squarely prove the fact Grounds for revocation of commission. The
following derelictions of duty on the part of a
of entry of the contested will in his notarial register. notary public shall, in the discretion of the
proper judge of first instance, be sufficient
ground for the revocation of his commission:
Notaries public must observe with utmost care [32] and
xxx xxx xxx
utmost fidelity the basic requirements in the performance of
(b) The failure of the notary to make the proper
their duties, otherwise, the confidence of the public in the
entry or entries in his notarial register
integrity of notarized deeds will be undermined.[33] touching his notarial acts in the manner
required by law.
prescribed by law render the entire will invalid. This (f) The failure of the notary to make the proper
notation regarding cedula certificates.[36]
These gross violations of the law also made The practice of law is a privilege burdened with
respondent liable for violation of his oath as a lawyer and conditions.[44] A breach of these conditions justifies disciplinary
constituted transgressions of Section 20 (a), Rule 138 of the action against the erring lawyer. A disciplinary sanction is
Rules of Court[37] and Canon 1[38] and Rule 1.01[39] of the CPR. imposed on a lawyer upon a finding or acknowledgment that
due care and with due regard to the provision of existing law trustworthiness expected of him as a notary public and as an
and had complied with the elementary formalities in the officer of the court, he is PERPETUALLY DISQUALIFIED from
performance of his duties xxx, we find that he acted very reappointment as a notary public.
the Lawyers Oath; (2) Rule 138 of the Rules of Court; (3)
Responsibility; (4) Art. 806 of the Civil Code and (5) the
IV
X X X WHEN IT HELD THAT THE ISSUANCE The phrase in the earlier-quoted Deed of Donation to
OF A WRIT OF EXECUTION PENDING become effective upon the death of the DONOR admits of no
APPEAL IS IN VIOLATION OF PARAGRAPH
(a) SECTION 2, RULE 39, OF THE RULES OF other interpretation than to mean that Matilde did not intend to
transfer the ownership of the six lots to petitioners mother x x x The donation in question is
subject to a resolutory term or period when
during her (Matildes) lifetime.[28] the donor provides in the aforequoted
provisions, but in the event that the DONEE
should die before the DONOR, the present
The statement in the Deed of Donation reading anytime donation shall be deemed rescinded and [of]
during the lifetime of the DONOR or anyone of them who no further force and effect. When the donor
provides that should the DONEE xxx die
should survive, they could use, encumber or even dispose of
before the DONOR, the present donation
any or even all the parcels of land herein donated [29] means shall be deemed rescinded and [of] no
that Matilde retained ownership of the lots and reserved in her further force and effect the logical
construction thereof is that after the
the right to dispose them. For the right to dispose of a thing execution of the subject donation, the same
without other limitations than those established by law is an became effective immediately and shall be
deemed rescinded and [of] no further force
attribute of ownership.[30] The phrase in the Deed of Donation and effect upon the arrival of a resolutory
or anyone of them who should survive is of course out of term or period, i.e., the death of the donee
which shall occur before that of the
sync. For the Deed of Donation clearly stated that it would take
donor. Understandably, the arrival of this
effect upon the death of the donor, hence, said phrase could resolutory term or period cannot rescind and
only have referred to the donor Matilde. Petitioners themselves render of no further force and effect a
donation which has never become effective,
concede that such phrase does not refer to the donee, thus: because, certainly what donation is there to
x x x [I]t is well to point out that the last be rescinded and rendered of no further
provision (sentence) in the disputed force and effect upon the arrival of said
paragraph should only refer to Matilde Aluad, resolutory term or period if there was no
the donor, because she was the only surviving donation which was already effective at the
spouse at the time the donation was time when the donee died?[32] (Underscoring
executed on 14 November 1981, as her supplied)
husband Crispin Aluad [] had long been dead
as early as 1975.[31]
SO ORDERED.
G.R. No. L-33592 March 31, 1931 Doctor Geronimo Z. Gaanan, a local physician of
Meycauayan, visited the old lady, with whom he was well
Estate of the deceased Victorina Villaranda. acquianted, three or four times, the first visit having occurred
EUSEBIA LIM, petitioner-appellant, between 6 and 7 p. m. of June 3d. Upon examining the
vs. patient, he found her insensible and incapable of talking or
JULIANA CHINCO, oppositor-appellee. controlling her movements. On the same day the parish priest
called for the purpose of administering the last rites of the
Perfecto Gabriel and Eusebio Orense for appellant. church, and being unable to take her confession, he limited
Camus and Delgado for appellee. himself to performing the office of extreme unction. Doctor
Isidoro Lim, of Manila, was also called upon to visit the patient
STREET, J.: and he came to see her two or three times. With his approval,
it was decided to take the woman to the hospital of San Juan
This is a contest over the probate of a paper writing purporting de Dios in Manila, and on the morning of June 5, 1929, the
to be the will of Victorina Villaranda y Diaz, a former resident of ambulance from this hospital arrived, in charge of Doctor
the municipality of Meycauayan, Province of Bulacan, who Guillermo Lopez del Castillo, a resident physician of the
died in the Hospital of San Juan de Dios, in the City of Manila, hospital. At about 11 c'clock a.m. on that day she was
on June 9, 1929. The deceased left no descendants or embarked on the ambulance and taken to the hospital, where
ascendants, and the document produced as her will purports she died four days later.
to leave her estate, consisting of properties valued at P50,000,
more or less, chiefly to three collateral relatives, Eusebia, The purported will, which is the subject of this proceeding, was
Crispina, and Maria, of the surname of Lim. This instrument prepared by Perfecto Gabriel, a practicing attorney of Manila,
was offered for probate by Eusebia Lim, named in the whose wife appears to be related to the chief beneficiaries
instrument as executrix Opposition was made by Juliana named in the will. This gentlemen arrived upon the scene at 9
Chinco, a full sister of the deceased. Upon hearing the cause o'clock on the forenoon of June 5, 1929. After informing
the trial court sustained the opposition and disallowed the will himself of the condition of the testatrix, he went into a room
on the ground that the testatrix did not have testamentary adjacent to that occupied by the patient and, taking a sheet
capacity at the time the instrument purports to have been from an exercise book, wrote the instrument in question. He
executed by her From this judgment the proponent of the will then took it into the sick room for execution. With this end in
appealed. view Gabriel suggested to Doctor Lopez del Castillo that he
would be pleased to have Doctor Castillo sign as a witness,
The deceased was a resident of Mercauayan, Province of but the latter excused himself for the reason that he
Bulacan, and was about 80 years of age at the time of her considered the old lady to be lacking in testamentary capacity.
death. On the morning of June 2, 1929, she was stricken with Another person present was Marcos Ira, a first cousin of the
apoplexy, incident to cerebral hemorrhage, and was taken in deceased, and attorney Gabriel asked him also whether or not
an unconscious condition, seated in a chair, to her room. he was willing to sign as one of the witnesses. Ira replied in a
discouraging tone, and the attorney turned away without instrument over to her clause by clause and asked her
pressing the matter. In the end three persons served as whether it expressed her wishes. He says that she made signs
witnesses, all of whom were in friendly relations with the that enabled him to understand that she concurred in what
lawyer, and two relatives of his wife. The intended testatrix was written. But it is clear, even upon the statement of this
was not able to affix her signature to the document, and it was witness, that the patient was unable to utter intelligent speech.
signed for her by the attorney. Upon the authority of Perry vs. Elio (29 Phil., 134), the paper
offered for probate was properly disallowed.
The vital question in the case is whether the supposed
testatrix had testamentary capacity at the time the paper The judgment appealed from will therefore be affirmed, and it
referred to was signed. Upon this point we are of the opinion, is so ordered, with costs against the appellant.
as was the trial judge, that the deceased, on the morning of
June 5, 1929, was in a comatose condition and incapable of Avanceña, C.J., Johnson, Villamor and Villa-Real, JJ., concur.
performing any conscious and valid act. The testimony of Malcolm and Johns, JJ., concurred, but being absent at the
Doctor Gaanan and Doctor Lopez del Castillo is sufficient date of the promulgation of the opinion, their names do not
upon this point, and this testimony is well corroborated by appear signed thereto. — AVANCEÑA, C.J.
Paciana Diaz and Irene Ahorro. The first of these witnesses
was the one who chiefly cared for the deceased during her last
illness in Meycauayan until she was carried away to the
hospital in Manila; and the second was a neighbor, who was
called in when the stroke of apoplexy first occurred and who Separate Opinions
visited the patient daily until she was removed from
Meycauayan.
ROMUALDEZ, J., dissenting:
The testimony of these witnesses is convincing to the effect
I am of opinion that the will in question is genuine and that it
that the patient was in a continuous state of coma during the
was drawn up and signed with all the legal requisites;
entire period of her stay in Meycauayan, subsequent to the
therefore, I vote for its allowance, and the consequent reversal
attack, and that on the forenoon of June 5, 1929, she did not
of the judgment appealed from.
have sufficient command of her faculties to enable her to do
any valid act. Doctor Lim, the physician from Manila, testified
for the proponent of the will. His testimony tends to show that
the patient was not suffering from cerebral hemorrhage but
from uræmic trouble, and that, after the first attack, the patient
was much relieved and her mind so far cleared up that she
might have made a will on the morning of June 5th. The
attorney testified that he was able to communicate with the
deceased when the will was made, and that he read the
G.R. No. L-5263 February 17, 1954 no forgery, fraud, trickery or undue influence in the execution
of the will, and that petition of forced heirs is not a ground for
AGUSTIN BARRERA, ET AL., proponents-appellants, denying probate; but the will was disallowed because it was
vs. not the personal last will and testament of the deceased and it
JOSE TAMPOCO, ET AL., oppositors-appellees. was not based on the finding that Olivia Villapaña did not
furnish the names of the persons instituted as heirs and that
Jesus G. Barrera for appellants. the will was not read to her before she signed it. The second
Filemon Cajator for appellees. ground is premised on the conclusion that attesting witness
Laureano Antonio was not present when Olivia Villapaña and
PARAS, C.J.: attesting witness Honorio Lacson signed the will; that Antonio
only partially saw the signing by attesting witness Modesto
Olivia Villapaña died in Tarlac, Tarlac, on December 13, 1948. Puno; and that Olivia Villapaña saw Antonio sign only two or
On December 31, 1948, a petition was filed by Agustin Barrera three times. From this decision the petitioner has appealed.
in the Court of First Instance of Tarlac for the probate of the
will executed by Olivia Villapaña on July 17, 1948, and for the According to appellant's evidence, two or three days before
appointment of the petitioner as executor. According to the July 10, 1948, Pilar Tañedo called on Modesto Puno, a lawyer
petition the properties left by the testatrix are worth and justice of the peace of Concepcion, Tarlac, and requested
P94,852.96, and the heirs instituted are nephews and nieces the latter to come to Manila for a conference with Olivia
and grandchildren in the collateral line. Jose Tampoco and Villapaña, aunt of Pilar. On July 10, 1948, Atty. Puno,
Victoriano Tampoco, alleged grandchildren of the testatrix in complying with the request, went to the house of Pilar Tañedo
the direct line, filed an opposition, claiming that the will was not in Singalong Street where Olivia was staying. The latter, after
executed and attested in accordance with the law, that the preliminary greetings and courtesies, informed Atty. Puno that
testatrix lacked testamentary capacity, that there was undue she wanted him to prepare her will, giving the names of the
influence and pressure in its execution, that the signature of heirs and the properties to be left. Olivia Villapaña asked Atty.
Olivia Villapaña was obtained by fraud and trickery, and that Puno to get the description of the properties from the herein
the testamentary provisions are illegal. Consorcia Lintang, appellant, Agustin Barrera, husband of Pilar Tañedo. Atty.
Nemesio Villapaña, Marcos Villapaña, Jesus Villapaña, Puno noted the wishes of Olivia, and, as there was then no
Vicente Villapaña, Ursulo Villapaña, Avelina Villapaña, and available typewriter, he informed the old woman that he would
Rosario Villapaña, alleged nephews and nieces, also filed an prepare the will in his office in Concepcion and come back with
opposition on substantially the same grounds on which the it on the following Saturday. As promised, on or July 17, 1948,
opposition of Jose and Victoriano Tampoco was based. After Atty. Puno returned to the house of Olivia Villapaña in
protracted trial, and more than a year after submission of the Singalong, carrying with him one original and three copies, in
case, a decision was rendered by the Court of First Instance of typewritten form, of the will he drafted in accordance with the
Tarlac on August 11, 1951, disallowing the will. The court found instructions of Olivia Villapaña. Atty. Puno arrived about noon.
that Olivia Villapaña had testamentary capacity, that there was He read the will to Olivia to find out whether it conformed to
her wishes, and she indicated that it was all right. After lunch Of the three attesting witnesses, namely, Atty. Modesto Puno,
Atty. Puno manifested that two other witnesses were Honorio Lacson, and Laureano Antonio, the first two testified
necessary, whereupon Pilar Tañedo requested Honorio Lacson positively that the will was signed by the testatrix and the three
and Laureano Antonio, who were then living in the first floor of witnesses in the presence of each other, and that it was read
the house, to come up. Lacson and Antonio did as requested. to the testatrix before being signed. In view of the opposition
Olivia Villapaña, Atty. Puno, Lacson and Antonio were then filed by the two sets of oppositors , the third attesting witness,
seated around a small rectangular table in sala, and at this Laureano Antonio, had to be presented by the petitioner but,
juncture Atty. Puno gave a copy of the will to Olivia, Lacson contrary to expectations, Antonio testified that he arrived at the
and Antonio, while he retained one. The Attorney again read scene of the execution of the will after testatrix and Honorio
the will aloud, advising the rest to check their respective Lacson had already signed and after Atty. Puno was half
copies. As Olivia Villapaña agreed to the will, she proceeded through affixing his signatures, and that the testatrix left before
to sign all the four copies, on the lines previously placed by Antonio finished signing all the copies. By numerical
Atty. Puno, followed successively by Lacson, Atty. Puno and superiority alone, the weight of the testimony of Atty. Puno and
Antonio, all in the presence of each other. After the signing, Honorio Lacson outbalances the probative value of the
Atty. Puno gave the original and a copy to Olivia, and retained testimony of Laureano Antonio. Intrinsically, we cannot state
the other two copies. Atty. Puno , Lacson and Antonio stayed that Laureano Antonio spoke the truth on the witness stand,
for a while even ate merienda prepared by the sisters Pilar and since, in the first place, the attestation clause signed by him
Beatriz Tañedo. Olivia Villapaña delivered her will to Agustin contradicts his pretense and, in the second place, there is
Barrera for safekeeping on October 17, 1948 when she was enough evidence on the record to show that in his conferences
taken to the U.S.T. Hospital where she remained until with Atty. Barrera before taking the witness stand, Antonio
November 7, 1948. On this date her doctors lost all hope for never gave the slightest indication that he was not present
her recovery and Olivia Villapaña was brought to Tarlac, when the testatrix left before Antonio finished signing. Modesto
Tarlac, her hometown, where, as already stated, she died on Puno is a lawyer and at the time a justice of the peace, and it
December 13, 1948. is improbable that he would unnecessarily risk his honor and
reputation. Indeed, the trial court gave the impression that Atty.
According to the evidence for the oppositors-appellees, the will Puno was anxious to strictly meet the requirements of the law
presented in the court by the petitioner was not executed in and in the absence, as in the case at bar, of any reason for a
accordance with law, in that attesting witness Laureano hasty completion, we do not believe that Atty. Puno would
Antonio did not see the testatrix and attesting witness Lacson have allowed the signing of the will to be proceeded with
sign the will or any of its copies, that he saw Atty. Puno when unless three attesting witnesses were already present. On the
the latter was already half thru signing the document, and that other hand, we can fairly state that there was in fact no hurry
the testatrix did not see Antonio sign all the copies. on the part of any of the participants in the will, because the
testatrix Olivia Villapaña was not dying (she died some five
After a thorough study of the record and mature reflection on months after the execution of the will) and the parties could
the conflicting evidence, we are constrained to conclude that therefore take all the time that they wanted, Indeed, none of
the trial court erred in denying probate of the will.
the three witnesses, left the house of Olivia Villapaña and they Lacson both attesting witnesses, categorically affirmed that
even stayed therein until after merienda time. this procedure was followed. At any rate, even under the
testimony of Atty. Puno and Honorio Lacson, the signing could
The fact that Atty. Puno id the brother of Jose Puno who is the have taken place at about or after two thirty, since the former
husband of Carmen Tañedo, one of the beneficiaries of the declared that it took place between two and three o'clock and
will, and that Honorio Lacson is the husband of Bibiana Honorio Lacson stated that the time was two or two thirty.
Lacson who is a first cousin of Agustin Barrera, herein another point invoked by the trial court against the probate of
petitioner and husband of Pilar Tañedo, is not sufficient to the will is the circumstance that, while Atty. Puno testified that
make then biased witnesses. If Atty. Puno had any material he placed the lines on which the testatrix and the witnesses
interest, this fact should have caused him to be more careful in were to sign before he read the document to the testatrix
seeing to it that the formalities of the law were strictly complied whom he gave the original witness Lacson testify that Atty.
with, and this should be true with respect to Honorio Lacson. Puno read the original after giving a copy to the testatrix, and
after reading Atty. Puno placed the lines for signatures. The
In deciding against the probate of the will, the trial court discrepancy again refers to a minor detail which is not
believed the testimony of Laureano Antonio to the effect that sufficient to negative the truthfulness of Atty. Puno and Honorio
he arrived at the place of the signing at about 2:30 in the Lacson on the main and important fact that the will was signed
afternoon, and thereby found that a greater part of the by the testatrix and the three attesting witnesses in the
proceeding was finished, because Atty. Puno declared in one presence of each other.
place that "the signing of the testament commenced around
between one o'clock and two o'clock" and in another place that Oppositors-appellees presented in corroboration of the
the signing took place "around two and three o'clock," and testimony of Laureano Antonio, Joaquin Villapaña and
Honorio Lacson declared that he was called by Pilar Tañedo to Consolacion del Mundo. Joaquin Villapaña, a painter allegedly
act as witness at around two o'clock or two thirty. From the was then the maid of Oliva Villapaña. Apart from the fact that
testimony of Atty. Puno and Honorio Lacson the court there is evidence to show that both Joaquin Villapaña and
concluded that the signing actually commenced between one Consolacion del Mundo were not yet employed in the house of
and two o'clock. We are of the opinion that the specification of Oliva when the latter's will was executed, there is little or no
the time of the signing refers to an immaterial or unimportant reason for their version to prevail over the positive testimony is
detail which, in view of the lapse of time, might have been a even corroborated by two other witnesses, Bibiana Lacson
mistake by one or the other participant in the execution of and Beatriz Tañedo. Certainly the story of Joaquin Villapaña
Oliva's will. What is important and decisive — and this should and Consolacion del Mundo can have no greater weight than
be impressed in the mind of an attorney preparing and taking that of Laureano Antonio.
charge of the signing of will, — is that the testatrix and each of
the three attesting witnesses must affix their signatures in the In the holding that the will was not that of Oliva Villapaña, the
presence of one another. In the case before us, Atty. Puno and trial court found that it was not read to her; and this finding was
Honorio premised on the alleged contradiction of Atty. Puno and
Honorio Lacson regarding the sequence of the reading of the
will and the placing of the lines for signatures, and regarding testamentary capacity; and in such a situation it becomes our
the question whether a copy or the original was handed to the duty to give expression to her will.
testatrix. As we have already observed, the discrepancy
relates to an insignificant matter which cannot vitally detract Wherefore, the appealed order is reversed and the will
from the credibility of Atty. Puno to the effect that upon arrival executed by Oliva Villapaña on July 17, 1948, is hereby
at the house of Oliva Villapaña at about noon, he read the will allowed. So ordered without costs.
to her with a view to finding whether she was agreeable
thereto. It is not necessary that said will be read upon its Pablo, Bengzon, Padilla, Montemayor, Reyes, Jugo, Bautista
signing and in the presence of the witnesses. Angelo, and Labrador, JJ., concur.
The trial court also concluded that the testatrix could not have
furnished the names of the heirs instituted under the will,
because (1) Salvador Tañedo, one of such heirs, was long
dead and (2) Marcelo Villapaña, another instituted heir, was
non-existent, since Oliva Villapaña did not have a grandson by
such name. It is true that Salvador Tañedo was already dead
and the testatrix knew about it, but it is not uncommon for a
woman of old age, confused by the big number of her
relatives, to commit the mistake of unwittingly mentioning a
dead one. With respect to the instituted heir, Marcelo
Villapaña, while it appears that Oliva did not have a grandson
answering to that name, there is evidence tending to show that
Pioquinto Villapaña, a child of Ruperta Pineda, must have
been reffered to, because Oliva, who was the child's god-
mother, originally wanted said child to be baptized as Marcelo,
after his father. Moreover, if Atty. Puno had supplied the names
instituted as heirs, he would have consulted all the interested
parties and would be sure that no mistake of the kind was
made.
The motion for reconsideration of petitioner dated October 27, THE SAID COURT ERRED IN NOT FINDING
1986 11 was likewise denied by the appellate court in its THAT THE ALLEGED WILL WAS
resolution of November 20, 1986 12 on the ground that the FRAUDULENTLY ANTEDATED TO CONCEAL
affidavit of one Patricia Delgado submitted with the motion ITS ACTUAL DATE OF EXECUTION AND TO
constitutes cumulative evidence and the motion being in reality SHIELD IT FROM PROBABLE DISPUTES AS
a second motion for reconsideration which is prescribed by TO THE TESTAMENTARY CAPACITY ON THE
law. PART OF THE ALLEGED TESTATRIX AT THE
TIME OF ITS ACTUAL EXECUTION.
In the petition now before Us, petitioner assigned the following
errors: V
THE SAID COURT ERRED IN ALLOWING THE 3. That in her plea for new trial in the said case,
HOLOGRAPHIC WILL IN QUESTION TO I have exerted efforts to locate witnesses whose
PROBATE. whereabouts were not known to us during the
trial in the lower court, but I have finally
In the meantime, petitioner who passed away on November 3, succeeded in tracking them down;
1986, was substituted by her heirs.
4. That despite their initial reluctance to testify
In the first and second assigned errors, petitioners maintain in this case,I am convinced that they would
that the appellate court erred in denying the motion for new testify under proper subpoena for purposes of
trial insisting that the new evidence sought to be presented is shedding light on the fact that the testatrix was
not merely corroborative or cumulative. gravely ill at or but the time that the questioned
will was allegedly executed;
On the other hand, the contention of private respondent is that
the motion for new trial was a pro-forma motion because it was 5. That they had the clear opportunity to know
not in accordance with Sec. 1, Rule 53 of the Rules of Court. the circumstances under which the purported
We find merit in this contention. will was executed; and that they know for a fact
that there was 'undue influence' exerted by
Section 1, Rule 53 provides — petitioner and other relatives to procure
improper favors from the testatrix;
Before a final order or judgment rendered by
the Court of appeals becomes executory, a xxx xxx xxx 13
motion for new trial may be filed on the ground
of newly discovered evidence which could not Said motion for new trial is not in substantial compliance with
have been discovered prior to the trial in the the requirements of Rule 53. The lone affidavit of a witness
court below by the exercise of the diligence and who was already presented said the hearing is hardly sufficient
which is of such a character as would probably to justify the holding of new trial. The alleged new witnesses
change the result. The motion shall be were unnamed without any certainty as, to their appearance
accompanied by affidavits showing the facts before the court to testify. Affiant attests only on his belief that
constituting the grounds therefor and the newly they would testify if and when they are subpoenaed by the
discovered evidence. court. Furthermore, the allegations in the affidavit as to the
undue influence exerted on the testatrix are mere conclusions
The affidavit of merit executed by Gregorio Montinola Sanson and not statement of facts. The requisite affidavits must state
alleged the following: facts and not mere conclusions or opinions, otherwise they are
not valid. 14 The affidavits are required to avoid waste of the
court's time if the newly discovered evidence turns out to be The motion for new trial being pro-forma, it does not interrupt
immaterial or of any evidentiary weight. the running of the period for appeal. 19 Since petitioner's
motion was filed on September 24,1986, the fifteenth or last
Moreover, it could not be said that the evidence sought to be day of the period to appeal, the decision of the respondent
presented is new having been discovered only after the trial. It court became final on the following day, September 25. And
is apparent from the allegations of affiant that efforts to locate when the motion for reconsideration of petitioner was filed on
the witnesses were exerted only after the decision of the October 30,1986, it was obviously filed out of time.
appellate court was handed down. The trial lasted for about
four years so that petitioner had ample time to find said Since the questioned decision has already become final and
alleged witnesses who were admittedly known to her. The executory, it is no longer within the province of this Court to
evidence which the petitioner now propose to present could review it. This being so, the findings of the probate court as to
have been discovered and presented during the hearing of the the due execution of the will and the testamentary capacity of
case, and there is no sufficient reason for concluding that had testatrix are now conclusive. 20
the petitioner exercised proper diligence she would not have
been able to discover said evidence. 15 At any rate, even assuming that We can still review this case
on its merits, the petition will also have to fail.
In addition, We agree with the appellate court that since the
alleged illness of the testatrix as well as the charges of undue During the hearing before the probate court, not only were
influence exerted upon her had been brought to light during three (3) close relatives of the testatrix presented but also two
the trial, and new evidence on this point is merely (2) expert witnesses who declared that the contested will and
corroborative and cumulative which is generally not a ground signature are in the handwriting of the testatrix. These
for new trial. 16 Accordingly, such evidence even if presented testimonies more than satisfy the requirements of Art. 811 of
win not carry much probative weight which can alter the the Civil Code 21 in conjunction with Section 11 of Rule 76,
judgment. 17 Revised Rules of Court, 22 or the probate of holographic wills.
It is very patent that the motion for new trial was filed by As regards the alleged antedating of the will, petitioner failed
petitioner only for the purpose of delaying the proceedings. In to present competent proof that the will was actually executed
fact, petitioners son in his manifestation admitted that he had sometime in June 1980 when the testatrix was already
to request a new law firm to do everything legally possible to seriously ill and dying of terminal lung cancer. She relied only
meet the deadline for the filing of a motion for reconsideration on the supposed inconsistencies in the testimony of Asuncion
and/or for new trial. 18 This would explain the haphazard Gemperle, niece and constant companion of testatrix, which
preparation of the motion, thus failing to comply with the upon careful examination did not prove such claim of
requirements of rule 53, which was filed on the last day of the antedating.
reglementary period of appeal so that the veracity of the
ground relied upon is questionable. The appellate court The factual findings of the probate court and the Court of
correctly denied the motion for new trial. Appeals that the will in question was executed according to the
formalities required by law are conclusive on the Supreme Petitioner still insists that the fact that in her holographic will
Court when supported by evidence. 23 We have examined the the testatrix failed to dispose of all of her estate is an indication
records of this case and find no error in the conclusion arrived of the unsoundness of her mind.
at by the respondent court that the contested will was duly
executed in accordance with law. We cannot subscribe to this contention. Art. 841 of the Civil
Code provides —
Petitioner alleges that her exclusion from the alleged
holographic will was without rhyme or reason, being the only A will shall be valid even though it should not
surviving sister of the testatrix with whom she shares an contain an institution of an heir, or such
intimate relationship, thus demonstrating the lack of institution should not comprise the entire estate,
testamentary capacity of testatrix. and even though the person so instituted
should not accept the inheritance or should be
In the case of Pecson v. Coronel, 24 it was held — incapacitated to succeed.
The appellants emphasize the fact that family In such cases, the testamentary dispositions
ties in this country are very strongly knit and made in accordance with law shall be complied
that the exclusion of a relative from one's estate with and the remainder of the estate shall pass
is an exceptional case. It is true that the ties of to the legal heirs.
relationship in the Philippines are very strong,
but we understand that cases of preterition of Thus, the fact that in her holographic will, testatrix disposed of
relatives from the inheritance are not rare. The only eleven (11) of her real properties does not invalidate the
liberty to dispose of one's estate by will when will, or is it an indication that the testatrix was of unsound
there are no forced heirs is rendered sacred by mind. The portion of the estate undisposed of shall pass on to
the Civil Code in force in the Philippines since the heirs of the deceased in intestate succession.
1889...
Neither is undue influence present just because blood
Article 842 of the Civil Code provides that one who has no relatives, other than compulsory heirs have been omitted, for
compulsory heirs may dispose by will of all his estate or any while blood ties are strong in the Philippines, it is the testator's
part of it in favor of any person having capacity to succeed. right to disregard non-compulsory heirs. 25 The fact that some
heirs are more favored than others is proof of neither fraud or
It is within the right of the testatrix not to include her only sister undue influence. 26 Diversity of apportionment is the usual
who is not a compulsory heir in her will. Nevertheless, per reason for making a testament, otherwise, the decedent might
testimony of Asuncion Gemperle, the latter had reserved two as well die intestate. 27
boxes of jewelry worth P850,000.00 for petitioner.
Furthermore, petitioner's son Francis was instituted as an heir The contention of the petitioner that the will was obtained by
in the contested will. undue influence or improper pressure exerted by the
beneficiaries of the will cannot be sustained on mere petitioner. The decision of respondent court dated August 29,
conjecture or suspicion; as it is not enough that there was 1986 in toto the decision of the Regional Trial Court of Manila
opportunity to exercise undue influence or a possibility that it dated March 21, 1985 is hereby declared to be immediately
may have been exercised. 28 The exercise of improper executory.
pressure and undue influence must be supported by
substantial evidence that it was actually exercised. 29 SO ORDERED.
Finally, We quote with approval the observation of the Teehankee, C.J., Narvasa, Cruz and Grino-Aquino, JJ.,
respondent court — concur.
(d) If it was procured by undue and improper (5) If the signature of the testator
pressure and influence, on the part of the was procured by fraud;
beneficiary, or of some other person for his
benefit; (6) If the testator acted by
mistake or did not intend that the
(e) If the signature of the testator was procured instrument he signed should be
by fraud or trick, and he did not intend that the his will at the time of affixing his
instrument should be his will at the time of fixing signature thereto.
his signature thereto.
These lists are exclusive; no other grounds can serve to
In the same vein, Article 839 of the New Civil Code disallow a will. 5 Thus, in a petition to admit a holographic will
reads: to probate, the only issues to be resolved are: (1) whether the
instrument submitted is, indeed, the decedent's last will and
Art. 839: The will shall be disallowed in any of testament; (2) whether said will was executed in accordance
the following cases; with the formalities prescribed by law; (3) whether the
decedent had the necessary testamentary capacity at the time
(1) If the formalities required by the will was executed; and, (4) whether the execution of the
law have not been complied will and its signing were the voluntary acts of the decedent. 6
with;
In the case at bench, respondent court held that the
(2) If the testator was insane, or holographic will of Anne Sand was not executed in accordance
otherwise mentally incapable of with the formalities prescribed by law. It held that Articles 813
making a will, at the time of its and 814 of the New Civil Code, ante, were not complied with,
execution; hence, it disallowed the probate of said will. This is erroneous.
(3) If it was executed through We reiterate what we held in Abangan vs. Abangan, 40 Phil.
force or under duress, or the 476, 479 (1919), that:
influence of fear, or threats;
The object of the solemnities surrounding the
(4) If it was procured by undue execution of wills is to close the door against
and improper pressure and bad faith and fraud, to avoid substitution of wills
influence, on the part of the and testaments and to guaranty their truth and
authenticity. Therefore, the laws on this subject
should be interpreted in such a way as to attain dispositions cannot be effectuated. Such failure, however,
these primordial ends. But, on the other hand, does not render the whole testament void.
also one must not lose sight of the fact that it is
not the object of the law to restrain and curtail Likewise, a holographic will can still be admitted to probate,
the exercise of the right to make a will. So when notwithstanding non-compliance with the provisions of Article
an interpretation already given assures such 814. In the case of Kalaw vs. Relova 132 SCRA 237
ends, any other interpretation whatsoever, that 242 (1984), this Court held:
adds nothing but demands more requisites
entirely unnecessary, useless and frustrative of Ordinarily, when a number of erasures,
the testator's last will, must be disregarded. corrections, and interlineations made by the
testator in a holographic Will have not been
For purposes of probating non-holographic wills, these formal noted under his signature, . . . the Will is not
solemnities include the subscription, attestation, and thereby invalidated as a whole, but at most only
acknowledgment requirements under Articles 805 and 806 of as respects the particular words erased,
the New Civil Code. corrected or interlined. Manresa gave an
identical commentary when he said "la omission
In the case of holographic wills, on the other hand, what de la salvedad no anula el testamento, segun la
assures authenticity is the requirement that they be totally regla de jurisprudencia establecida en la
autographic or handwritten by the testator himself, 7 as sentencia de 4 de Abril de 1985." 8 (Citations
provided under Article 810 of the New Civil Code, thus: omitted.)
A person may execute a holographic will which Thus, unless the unauthenticated alterations, cancellations or
must be entirely written, dated, and signed by insertions were made on the date of the holographic will or on
the hand of the testator himself. It is subject to testator's signature, 9 their presence does not invalidate the
no other form, and may be made in or out of the will itself. 10 The lack of authentication will only result in
Philippines, and need not be witnessed. disallowance of such changes.
(Emphasis supplied.)
It is also proper to note that the requirements of authentication
Failure to strictly observe other formalities will not of changes and signing and dating of dispositions appear in
result in the disallowance of a holographic will that is provisions (Articles 813 and 814) separate from that which
unquestionably handwritten by the testator. provides for the necessary conditions for the validity of the
holographic will (Article 810). The distinction can be traced to
A reading of Article 813 of the New Civil Code shows that its Articles 678 and 688 of the Spanish Civil Code, from which the
requirement affects the validity of the dispositions contained in present provisions covering holographic wills are taken. They
the holographic will, but not its probate. If the testator fails to read as follows:
sign and date some of the dispositions, the result is that these
Art. 678: A will is called holographic when the pass upon certain provisions of the will. 11 In the case at
testator writes it himself in the form and with the bench, decedent herself indubitably stated in her holographic
requisites required in Article 688. will that the Cabadbaran property is in the name of her late
father, John H. Sand (which led oppositor Dr. Jose Ajero to
Art. 688: Holographic wills may be executed question her conveyance of the same in its entirety). Thus, as
only by persons of full age. correctly held by respondent court, she cannot validly dispose
of the whole property, which she shares with her father's other
In order that the will be valid it must be drawn heirs.
on stamped paper corresponding to the year of
its execution, written in its entirety by the IN VIEW WHEREOF, the instant petition is GRANTED. The
testator and signed by him, and must contain a Decision of the Court of Appeals in CA-G.R. CV No. 22840,
statement of the year, month and day of its dated March 30, 1992, is REVERSED and SET ASIDE, except
execution. with respect to the invalidity of the disposition of the entire
house and lot in Cabadbaran, Agusan del Norte. The Decision
If it should contain any erased, corrected, or of the Regional Trial Court of Quezon City, Branch 94 in Sp.
interlined words, the testator must identify them Proc. No. Q-37171, dated November 19, 1988, admitting to
over his signature. probate the holographic will of decedent Annie Sand, is hereby
REINSTATED, with the above qualification as regards the
Foreigners may execute holographic wills in Cabadbaran property. No costs.
their own language.
SO ORDERED.
This separation and distinction adds support to the
interpretation that only the requirements of Article 810 of the Narvasa, C.J., Padilla, Regalado and Mendoza, JJ.,
New Civil Code — and not those found in Articles 813 and 814 concur.
of the same Code — are essential to the probate of a
holographic will.
There is no question that Edward E. Christensen was a citizen Being an American citizen, Mr. Christensen was
of the United States and of the State of California at the time of interned by the Japanese Military Forces in the
his death. But there is also no question that at the time of his Philippines during World War II. Upon liberation, in April
death he was domiciled in the Philippines, as witness the 1945, he left for the United States but returned to the
following facts admitted by the executor himself in appellee's Philippines in December, 1945. Appellees Collective
brief: Exhibits "6", CFI Davao, Sp. Proc. 622, as Exhibits
"AA", "BB" and "CC-Daney"; Exhs. "MM", "MM-l", "MM-
In the proceedings for admission of the will to probate, 2-Daney" and p. 473, t.s.n., July 21, 1953.)
the facts of record show that the deceased Edward E.
Christensen was born on November 29, 1875 in New In April, 1951, Edward E. Christensen returned once
York City, N.Y., U.S.A.; his first arrival in the Philippines, more to California shortly after the making of his last
as an appointed school teacher, was on July 1, 1901, will and testament (now in question herein) which he
on board the U.S. Army Transport "Sheridan" with Port executed at his lawyers' offices in Manila on March 5,
of Embarkation as the City of San Francisco, in the 1951. He died at the St. Luke's Hospital in the City of
State of California, U.S.A. He stayed in the Philippines Manila on April 30, 1953. (pp. 2-3)
until 1904.
In arriving at the conclusion that the domicile of the deceased
In December, 1904, Mr. Christensen returned to the is the Philippines, we are persuaded by the fact that he was
United States and stayed there for the following nine born in New York, migrated to California and resided there for
years until 1913, during which time he resided in, and nine years, and since he came to the Philippines in 1913 he
was teaching school in Sacramento, California. returned to California very rarely and only for short visits
(perhaps to relatives), and considering that he appears never
Mr. Christensen's next arrival in the Philippines was in to have owned or acquired a home or properties in that state,
July of the year 1913. However, in 1928, he again which would indicate that he would ultimately abandon the
departed the Philippines for the United States and Philippines and make home in the State of California.
Sec. 16. Residence is a term used with many shades domicile requires bodily presence in that place and
of meaning from mere temporary presence to the most also an intention to make it one's domicile." Residence,
permanent abode. Generally, however, it is used to however, is a term used with many shades of meaning,
denote something more than mere physical presence. from the merest temporary presence to the most
(Goodrich on Conflict of Laws, p. 29) permanent abode, and it is not safe to insist that any
one use et the only proper one. (Goodrich, p. 29)
As to his citizenship, however, We find that the citizenship that
he acquired in California when he resided in Sacramento, The law that governs the validity of his testamentary
California from 1904 to 1913, was never lost by his stay in the dispositions is defined in Article 16 of the Civil Code of the
Philippines, for the latter was a territory of the United States Philippines, which is as follows:
(not a state) until 1946 and the deceased appears to have
considered himself as a citizen of California by the fact that ART. 16. Real property as well as personal property is
when he executed his will in 1951 he declared that he was a subject to the law of the country where it is situated.
citizen of that State; so that he appears never to have intended
to abandon his California citizenship by acquiring another. This However, intestate and testamentary successions, both
conclusion is in accordance with the following principle with respect to the order of succession and to the
expounded by Goodrich in his Conflict of Laws. amount of successional rights and to the intrinsic
validity of testamentary provisions, shall be regulated
The terms "'residence" and "domicile" might well be by the national law of the person whose succession is
taken to mean the same thing, a place of permanent under consideration, whatever may be the nature of the
abode. But domicile, as has been shown, has acquired property and regardless of the country where said
a technical meaning. Thus one may be domiciled in a property may be found.
place where he has never been. And he may reside in
a place where he has no domicile. The man with two The application of this article in the case at bar requires the
homes, between which he divides his time, certainly determination of the meaning of the term "national law"is used
resides in each one, while living in it. But if he went on therein.
business which would require his presence for several
weeks or months, he might properly be said to have There is no single American law governing the validity of
sufficient connection with the place to be called a testamentary provisions in the United States, each state of the
resident. It is clear, however, that, if he treated his Union having its own private law applicable to its citizens only
settlement as continuing only for the particular and in force only within the state. The "national law" indicated
business in hand, not giving up his former "home," he in Article 16 of the Civil Code above quoted can not, therefore,
could not be a domiciled New Yorker. Acquisition of a possibly mean or apply to any general American law. So it can
domicile of choice requires the exercise of intention as refer to no other than the private law of the State of California.
well as physical presence. "Residence simply requires
bodily presence of an inhabitant in a given place, while
The next question is: What is the law in California governing to a foreign law for decision, is the reference to the
the disposition of personal property? The decision of the court purely internal rules of law of the foreign system; i.e., to
below, sustains the contention of the executor-appellee that the totality of the foreign law minus its Conflict of Laws
under the California Probate Code, a testator may dispose of rules?"
his property by will in the form and manner he desires, citing
the case of Estate of McDaniel, 77 Cal. Appl. 2d 877, 176 P. On logic, the solution is not an easy one. The Michigan
2d 952. But appellant invokes the provisions of Article 946 of court chose to accept the renvoi, that is, applied the
the Civil Code of California, which is as follows: Conflict of Laws rule of Illinois which referred the
matter back to Michigan law. But once having
If there is no law to the contrary, in the place where determined the the Conflict of Laws principle is the rule
personal property is situated, it is deemed to follow the looked to, it is difficult to see why the reference back
person of its owner, and is governed by the law of his should not have been to Michigan Conflict of Laws.
domicile. This would have resulted in the "endless chain of
references" which has so often been criticized be legal
The existence of this provision is alleged in appellant's writers. The opponents of the renvoi would have looked
opposition and is not denied. We have checked it in the merely to the internal law of Illinois, thus rejecting the
California Civil Code and it is there. Appellee, on the other renvoi or the reference back. Yet there seems no
hand, relies on the case cited in the decision and testified to by compelling logical reason why the original reference
a witness. (Only the case of Kaufman is correctly cited.) It is should be the internal law rather than to the Conflict of
argued on executor's behalf that as the deceased Christensen Laws rule. It is true that such a solution avoids going
was a citizen of the State of California, the internal law thereof, on a merry-go-round, but those who have accepted
which is that given in the abovecited case, should govern the the renvoi theory avoid this inextricabilis circulas by
determination of the validity of the testamentary provisions of getting off at the second reference and at that point
Christensen's will, such law being in force in the State of applying internal law. Perhaps the opponents of
California of which Christensen was a citizen. Appellant, on the the renvoi are a bit more consistent for they look
other hand, insists that Article 946 should be applicable, and in always to internal law as the rule of reference.
accordance therewith and following the doctrine of the renvoi,
the question of the validity of the testamentary provision in Strangely enough, both the advocates for and the
question should be referred back to the law of the decedent's objectors to the renvoi plead that greater uniformity will
domicile, which is the Philippines. result from adoption of their respective views. And still
more strange is the fact that the only way to achieve
The theory of doctrine of renvoi has been defined by various uniformity in this choice-of-law problem is if in the
authors, thus: dispute the two states whose laws form the legal basis
of the litigation disagree as to whether
The problem has been stated in this way: "When the the renvoi should be accepted. If both reject, or both
Conflict of Laws rule of the forum refers a jural matter accept the doctrine, the result of the litigation will vary
with the choice of the forum. In the case stated above, upon to determine how this property should be
had the Michigan court rejected the renvoi, judgment distributed, it would refer the distribution to the national
would have been against the woman; if the suit had law of the deceased, thus applying the Massachusetts
been brought in the Illinois courts, and they too statute of distributions. So on the surface of things the
rejected the renvoi, judgment would be for the woman. Massachusetts court has open to it alternative course
The same result would happen, though the courts of action: (a) either to apply the French law is to
would switch with respect to which would hold liability, intestate succession, or (b) to resolve itself into a
if both courts accepted the renvoi. French court and apply the Massachusetts statute of
distributions, on the assumption that this is what a
The Restatement accepts the renvoi theory in two French court would do. If it accepts the so-
instances: where the title to land is in question, and called renvoidoctrine, it will follow the latter course,
where the validity of a decree of divorce is challenged. thus applying its own law.
In these cases the Conflict of Laws rule of the situs of
the land, or the domicile of the parties in the divorce This is one type of renvoi. A jural matter is presented
case, is applied by the forum, but any further reference which the conflict-of-laws rule of the forum refers to a
goes only to the internal law. Thus, a person's title to foreign law, the conflict-of-laws rule of which, in turn,
land, recognized by the situs, will be recognized by refers the matter back again to the law of the forum.
every court; and every divorce, valid by the domicile of This is renvoi in the narrower sense. The German term
the parties, will be valid everywhere. (Goodrich, for this judicial process is 'Ruckverweisung.'" (Harvard
Conflict of Laws, Sec. 7, pp. 13-14.) Law Review, Vol. 31, pp. 523-571.)
X, a citizen of Massachusetts, dies intestate, domiciled After a decision has been arrived at that a foreign law
in France, leaving movable property in Massachusetts, is to be resorted to as governing a particular case, the
England, and France. The question arises as to how further question may arise: Are the rules as to the
this property is to be distributed among X's next of kin. conflict of laws contained in such foreign law also to be
resorted to? This is a question which, while it has been
Assume (1) that this question arises in a considered by the courts in but a few instances, has
Massachusetts court. There the rule of the conflict of been the subject of frequent discussion by textwriters
laws as to intestate succession to movables calls for an and essayists; and the doctrine involved has been
application of the law of the deceased's last domicile. descriptively designated by them as the "Renvoyer" to
Since by hypothesis X's last domicile was France, the send back, or the "Ruchversweisung", or the
natural thing for the Massachusetts court to do would "Weiterverweisung", since an affirmative answer to the
be to turn to French statute of distributions, or whatever question postulated and the operation of the adoption
corresponds thereto in French law, and decree a of the foreign law in toto would in many cases result in
distribution accordingly. An examination of French law, returning the main controversy to be decided according
however, would show that if a French court were called to the law of the forum. ... (16 C.J.S. 872.)
Another theory, known as the "doctrine of renvoi", has (a) The provisions of a foreign law which
been advanced. The theory of the doctrine of renvoi is disclaims the right to bind its nationals abroad
that the court of the forum, in determining the question as regards their personal statute, and desires
before it, must take into account the whole law of the that said personal statute shall be determined
other jurisdiction, but also its rules as to conflict of by the law of the domicile, or even by the law of
laws, and then apply the law to the actual question the place where the act in question occurred.
which the rules of the other jurisdiction prescribe. This
may be the law of the forum. The doctrine of (b) The decision of two or more foreign systems
the renvoi has generally been repudiated by the of law, provided it be certain that one of them is
American authorities. (2 Am. Jur. 296) necessarily competent, which agree in
attributing the determination of a question to the
The scope of the theory of renvoi has also been defined and same system of law.
the reasons for its application in a country explained by Prof.
Lorenzen in an article in the Yale Law Journal, Vol. 27, 1917- xxx xxx xxx
1918, pp. 529-531. The pertinent parts of the article are
quoted herein below: If, for example, the English law directs its judge to
distribute the personal estate of an Englishman who
The recognition of the renvoi theory implies that the has died domiciled in Belgium in accordance with the
rules of the conflict of laws are to be understood as law of his domicile, he must first inquire whether the
incorporating not only the ordinary or internal law of the law of Belgium would distribute personal property upon
foreign state or country, but its rules of the conflict of death in accordance with the law of domicile, and if he
laws as well. According to this theory 'the law of a finds that the Belgian law would make the distribution
country' means the whole of its law. in accordance with the law of nationality — that is the
English law — he must accept this reference back to
xxx xxx xxx his own law.
Von Bar presented his views at the meeting of the We note that Article 946 of the California Civil Code is its
Institute of International Law, at Neuchatel, in 1900, in conflict of laws rule, while the rule applied in In re
the form of the following theses: Kaufman, Supra, its internal law. If the law on succession and
the conflict of laws rules of California are to be enforced jointly,
(1) Every court shall observe the law of its country as each in its own intended and appropriate sphere, the principle
regards the application of foreign laws. cited In re Kaufman should apply to citizens living in the State,
but Article 946 should apply to such of its citizens as are not
(2) Provided that no express provision to the contrary domiciled in California but in other jurisdictions. The rule laid
exists, the court shall respect: down of resorting to the law of the domicile in the
determination of matters with foreign element involved is in
accord with the general principle of American law that the therein and another for those domiciled in other jurisdictions.
domiciliary law should govern in most matters or rights which Reason demands that We should enforce the California
follow the person of the owner. internal law prescribed for its citizens residing therein, and
enforce the conflict of laws rules for the citizens domiciled
When a man dies leaving personal property in one or abroad. If we must enforce the law of California as in comity
more states, and leaves a will directing the manner of we are bound to go, as so declared in Article 16 of our Civil
distribution of the property, the law of the state where Code, then we must enforce the law of California in
he was domiciled at the time of his death will be looked accordance with the express mandate thereof and as above
to in deciding legal questions about the will, almost as explained, i.e., apply the internal law for residents therein, and
completely as the law of situs is consulted in questions its conflict-of-laws rule for those domiciled abroad.
about the devise of land. It is logical that, since the
domiciliary rules control devolution of the personal It is argued on appellees' behalf that the clause "if there is no
estate in case of intestate succession, the same rules law to the contrary in the place where the property is situated"
should determine the validity of an attempted in Sec. 946 of the California Civil Code refers to Article 16 of
testamentary dispostion of the property. Here, also, it is the Civil Code of the Philippines and that the law to the
not that the domiciliary has effect beyond the borders contrary in the Philippines is the provision in said Article 16
of the domiciliary state. The rules of the domicile are that the national law of the deceased should govern. This
recognized as controlling by the Conflict of Laws rules contention can not be sustained. As explained in the various
at the situs property, and the reason for the recognition authorities cited above the national law mentioned in Article 16
as in the case of intestate succession, is the general of our Civil Code is the law on conflict of laws in the California
convenience of the doctrine. The New York court has Civil Code, i.e., Article 946, which authorizes the reference or
said on the point: 'The general principle that a return of the question to the law of the testator's domicile. The
dispostiton of a personal property, valid at the domicile conflict of laws rule in California, Article 946, Civil Code,
of the owner, is valid anywhere, is one of the universal precisely refers back the case, when a decedent is not
application. It had its origin in that international comity domiciled in California, to the law of his domicile, the
which was one of the first fruits of civilization, and it this Philippines in the case at bar. The court of the domicile can not
age, when business intercourse and the process of and should not refer the case back to California; such action
accumulating property take but little notice of boundary would leave the issue incapable of determination because the
lines, the practical wisdom and justice of the rule is case will then be like a football, tossed back and forth between
more apparent than ever. (Goodrich, Conflict of Laws, the two states, between the country of which the decedent was
Sec. 164, pp. 442-443.) a citizen and the country of his domicile. The Philippine court
must apply its own law as directed in the conflict of laws rule of
Appellees argue that what Article 16 of the Civil Code of the the state of the decedent, if the question has to be decided,
Philippines pointed out as the national law is the internal law of especially as the application of the internal law of California
California. But as above explained the laws of California have provides no legitime for children while the Philippine law, Arts.
prescribed two sets of laws for its citizens, one for residents 887(4) and 894, Civil Code of the Philippines, makes natural
children legally acknowledged forced heirs of the parent
recognizing them.
Their respective motions for reconsideration having been ART. 16. Real property as well as personal property is
denied by the lower court on June 11, 1964, oppositors- subject to the law of the country where it is situated.
appellants appealed to this Court to raise the issue of which
law must apply — Texas law or Philippine law. However, intestate and testamentary successions, both
with respect to the order of succession and to the
In this regard, the parties do not submit the case on, nor even amount of successional rights and to the intrinsic
discuss, the doctrine of renvoi, applied by this Court in Aznar validity of testamentary provisions, shall be regulated
by the national law of the person whose succession is alia, the amount of successional rights, to the decedent's
under consideration, whatever may he the nature of the national law. Specific provisions must prevail over general
property and regardless of the country wherein said ones.
property may be found.
Appellants would also point out that the decedent executed
ART. 1039. Capacity to succeed is governed by the law two wills — one to govern his Texas estate and the other his
of the nation of the decedent. Philippine estate — arguing from this that he intended
Philippine law to govern his Philippine estate. Assuming that
Appellants would however counter that Art. 17, paragraph such was the decedent's intention in executing a separate
three, of the Civil Code, stating that — Philippine will, it would not alter the law, for as this Court ruled
in Miciano v. Brimo, 50 Phil. 867, 870, a provision in a
Prohibitive laws concerning persons, their acts or foreigner's will to the effect that his properties shall be
property, and those which have for their object public distributed in accordance with Philippine law and not with his
order, public policy and good customs shall not be national law, is illegal and void, for his national law cannot be
rendered ineffective by laws or judgments ignored in regard to those matters that Article 10 — now Article
promulgated, or by determinations or conventions 16 — of the Civil Code states said national law should govern.
agreed upon in a foreign country.
The parties admit that the decedent, Amos G. Bellis, was a
prevails as the exception to Art. 16, par. 2 of the Civil Code citizen of the State of Texas, U.S.A., and that under the laws of
afore-quoted. This is not correct. Precisely, Texas, there are no forced heirs or legitimes. Accordingly,
Congress deleted the phrase, "notwithstanding the provisions since the intrinsic validity of the provision of the will and the
of this and the next preceding article" when they incorporated amount of successional rights are to be determined under
Art. 11 of the old Civil Code as Art. 17 of the new Civil Code, Texas law, the Philippine law on legitimes cannot be applied to
while reproducing without substantial change the second the testacy of Amos G. Bellis.
paragraph of Art. 10 of the old Civil Code as Art. 16 in the new.
It must have been their purpose to make the second Wherefore, the order of the probate court is hereby affirmed in
paragraph of Art. 16 a specific provision in itself which must be toto, with costs against appellants. So ordered.
applied in testate and intestate succession. As further
indication of this legislative intent, Congress added a new Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal,
provision, under Art. 1039, which decrees that capacity to Zaldivar, Sanchez and Castro, JJ., concur.
succeed is to be governed by the national law of the decedent.
Ang kasulatang ito, na binubuo ng ____ dahon pati ang huling (Sgd.)
dahong ito, na ipinahayag sa amin ni Eugenia E. Igsolo, PETRONIO Y. BAUTISTA
tagapagmana na siya niyang Huling Habilin, ngayon ika-10 ng
Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim Doc. No. 1232 ; NOTARIO PUBLIKO
ng kasulatang nabanggit at sa kaliwang panig ng lahat at Page No. 86 ; Until Dec. 31, 1981
bawa’t dahon, sa harap ng lahat at bawa’t sa amin, at kami Book No. 43 ; PTR-152041-1/2/81-Manila
namang mga saksi ay lumagda sa harap ng nasabing Series of 1981 TAN # 1437-977-81
tagapagmana at sa harap ng lahat at bawa’t isa sa amin, sa
ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at The three named witnesses to the will affixed their signatures
bawa’t dahon ng kasulatan ito. on the left-hand margin of both pages of the will, but not at the
bottom of the attestation clause.
EUGENIA E. IGSOLO
address: 500 San Diego St. The probate petition adverted to only two (2) heirs, legatees
and devisees of the decedent, namely: petitioner himself, and
one Irene Lynn Igsolo, who was alleged to have resided arguments that the will was not properly executed and attested
abroad. Petitioner prayed that the will be allowed, and that to in accordance with law.
letters testamentary be issued to the designated executor, Vart
Prague. After a careful examination of the will and consideration of the
testimonies of the subscribing and attesting witnesses, and
The petition was opposed by Geralda Aida Castillo (Geralda having in mind the modern tendency in respect to the
Castillo), who represented herself as the attorney-in-fact of formalities in the execution of a will, i.e., the liberalization of
"the 12 legitimate heirs" of the decedent.2 Geralda Castillo the interpretation of the law on the formal requirements of a
claimed that the will is a forgery, and that the true purpose of will with the end in view of giving the testator more freedom in
its emergence was so it could be utilized as a defense in expressing his last wishes, this Court is persuaded to rule that
several court cases filed by oppositor against petitioner, the will in question is authentic and had been executed by the
particularly for forcible entry and usurpation of real property, all testatrix in accordance with law.
centering on petitioner’s right to occupy the properties of the
decedent.3 It also asserted that contrary to the representations On the issue of lack of acknowledgement, this Court has noted
of petitioner, the decedent was actually survived by 12 that at the end of the will after the signature of the testatrix, the
legitimate heirs, namely her grandchildren, who were then following statement is made under the sub-title, "Patunay Ng
residing abroad. Per records, it was subsequently alleged that Mga Saksi":
decedent was the widow of Bonifacio Igsolo, who died in
1965,4 and the mother of a legitimate child, Asuncion E. Igsolo, "Ang kasulatang ito, na binubuo ng _____ dahon pati ang
who predeceased her mother by three (3) months.5 huling dahong ito, na ipinahayag sa amin ni Eugenia N. Igsolo,
tagapagmana na siya niyang Huling Habilin, ngayong ika-10
Oppositor Geralda Castillo also argued that the will was not ng Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa
executed and attested to in accordance with law. She pointed ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at
out that decedent’s signature did not appear on the second bawa’t dahon, sa harap ng lahat at bawa’t sa amin, at kami
page of the will, and the will was not properly acknowledged. namang mga saksi ay lumagda sa harap ng nasabing
These twin arguments are among the central matters to this tagapagmana at sa harap ng lahat at bawa’t isa sa amin, sa
petition. ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at
bawa’t dahon ng kasulatan ito."
After due trial, the RTC admitted the will to probate, in an
Order dated 10 August 1992.6 The RTC favorably took into The aforequoted declaration comprises the attestation clause
account the testimony of the three (3) witnesses to the will, and the acknowledgement and is considered by this Court as
Quirino Agrava, Lamberto Leano, and Juanito Estrada. The a substantial compliance with the requirements of the law.
RTC also called to fore "the modern tendency in respect to the
formalities in the execution of a will x x x with the end in view On the oppositor’s contention that the attestation clause was
of giving the testator more freedom in expressing his last not signed by the subscribing witnesses at the bottom thereof,
wishes;"7 and from this perspective, rebutted oppositor’s this Court is of the view that the signing by the subscribing
witnesses on the left margin of the second page of the will Petitioner argues that the requirement under Article 805 of the
containing the attestation clause and acknowledgment, instead Civil Code that "the number of pages used in a notarial will be
of at the bottom thereof, substantially satisfies the purpose of stated in the attestation clause" is merely directory, rather than
identification and attestation of the will. mandatory, and thus susceptible to what he termed as "the
substantial compliance rule."11
With regard to the oppositor’s argument that the will was not
numbered correlatively in letters placed on upper part of each The solution to this case calls for the application of Articles 805
page and that the attestation did not state the number of and 806 of the Civil Code, which we replicate in full.
pages thereof, it is worthy to note that the will is composed of
only two pages. The first page contains the entire text of the Art. 805. Every will, other than a holographic will, must be
testamentary dispositions, and the second page contains the subscribed at the end thereof by the testator himself or by the
last portion of the attestation clause and acknowledgement. testator's name written by some other person in his presence,
Such being so, the defects are not of a serious nature as to and by his express direction, and attested and subscribed by
invalidate the will. For the same reason, the failure of the three or more credible witnesses in the presence of the
testatrix to affix her signature on the left margin of the second testator and of one another.
page, which contains only the last portion of the attestation
clause and acknowledgment is not a fatal defect. The testator or the person requested by him to write his name
and the instrumental witnesses of the will, shall also sign, as
As regards the oppositor’s assertion that the signature of the aforesaid, each and every page thereof, except the last, on the
testatrix on the will is a forgery, the testimonies of the three left margin, and all the pages shall be numbered correlatively
subscribing witnesses to the will are convincing enough to in letters placed on the upper part of each page.
establish the genuineness of the signature of the testatrix and
the due execution of the will.8 The attestation shall state the number of pages used upon
which the will is written, and the fact that the testator signed
The Order was appealed to the Court of Appeals by Ernesto the will and every page thereof, or caused some other person
Castillo, who had substituted his since deceased mother-in- to write his name, under his express direction, in the presence
law, Geralda Castillo. In a Decision dated 17 August 1995, the of the instrumental witnesses, and that the latter witnessed
Court of Appeals reversed the trial court and ordered the and signed the will and all the pages thereof in the presence of
dismissal of the petition for probate.9 The Court of Appeals the testator and of one another.
noted that the attestation clause failed to state the number of
pages used in the will, thus rendering the will void and If the attestation clause is in a language not known to the
undeserving of probate.10 witnesses, it shall be interpreted to them.
Hence, the present petition. Art. 806. Every will must be acknowledged before a notary
public by the testator and the witnesses. The notary public
shall not be required to retain a copy of the will, or file another The case of In re Will of Andrada concerned a will the
with the office of the Clerk of Court. attestation clause of which failed to state the number of sheets
or pages used. This consideration alone was sufficient for the
The appellate court, in its Decision, considered only one Court to declare "unanim[ity] upon the point that the defect
defect, the failure of the attestation clause to state the number pointed out in the attesting clause is fatal."17 It was further
of pages of the will. But an examination of the will itself reveals observed that "it cannot be denied that the x x x requirement
several more deficiencies. affords additional security against the danger that the will may
be tampered with; and as the Legislature has seen fit to
As admitted by petitioner himself, the attestation clause fails to prescribe this requirement, it must be considered material."18
state the number of pages of the will.12 There was an
incomplete attempt to comply with this requisite, a space Against these cited cases, petitioner cites Singson v.
having been allotted for the insertion of the number of pages in Florentino19 and Taboada v. Hon. Rosal,20 wherein the Court
the attestation clause. Yet the blank was never filled in; hence, allowed probate to the wills concerned therein despite the fact
the requisite was left uncomplied with. that the attestation clause did not state the number of pages of
the will. Yet the appellate court itself considered the import of
The Court of Appeals pounced on this defect in reversing the these two cases, and made the following distinction which
trial court, citing in the process Uy Coque v. Navas L. petitioner is unable to rebut, and which we adopt with
Sioca13 and In re: Will of Andrada.14 In Uy Coque, the Court approval:
noted that among the defects of the will in question was the
failure of the attestation clause to state the number of pages Even a cursory examination of the Will (Exhibit "D"), will
contained in the will.15 In ruling that the will could not be readily show that the attestation does not state the number of
admitted to probate, the Court made the following pages used upon which the will is written. Hence, the Will is
consideration which remains highly relevant to this day: "The void and undeserving of probate.
purpose of requiring the number of sheets to be stated in the
attestation clause is obvious; the document might easily be We are not impervious of the Decisions of the Supreme Court
so prepared that the removal of a sheet would completely in "Manuel Singson versus Emilia Florentino, et al., 92 Phil.
change the testamentary dispositions of the will and in 161 and Apolonio [Taboada] versus Hon. Avelino Rosal, et al.,
the absence of a statement of the total number of sheets 118 SCRA 195," to the effect that a will may still be valid even
such removal might be effected by taking out the sheet if the attestation does not contain the number of pages used
and changing the numbers at the top of the following upon which the Will is written. However, the Decisions of the
sheets or pages. If, on the other hand, the total number of Supreme Court are not applicable in the aforementioned
sheets is stated in the attestation clause the falsification of the appeal at bench. This is so because, in the case of "Manuel
document will involve the inserting of new pages and the Singson versus Emilia Florentino, et al., supra," although the
forging of the signatures of the testator and witnesses in the attestation in the subject Will did not state the number of
margin, a matter attended with much greater difficulty."16 pages used in the will, however, the same was found in the
last part of the body of the Will:
"x x x We have examined the will in question and noticed that the
attestation clause failed to state the number of pages used in
The law referred to is article 618 of the Code of Civil writing the will. This would have been a fatal defect were it not
Procedure, as amended by Act No. 2645, which requires that for the fact that, in this case, it is discernible from the entire will
the attestation clause shall state the number of pages or that it is really and actually composed of only two pages duly
sheets upon which the will is written, which requirement has signed by the testatrix and her instrumental witnesses. As
been held to be mandatory as an effective safeguard against earlier stated, the first page which contains the entirety of the
the possibility of interpolation or omission of some of the testamentary dispositions is signed by the testatrix at the end
pages of the will to the prejudice of the heirs to whom the or at the bottom while the instrumental witnesses signed at the
property is intended to be bequeathed (In re Will of Andrada, left margin. The other page which is marked as "Pagina dos"
42 Phil. 180; Uy Coque vs. Navas L. Sioca, 43 Phil., 405; comprises the attestation clause and the
Gumban vs. Gorcho, 50 Phil. 30; Quinto vs. Morata, 54 Phil. acknowledgment. The acknowledgment itself states that "this
481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio Last Will and Testament consists of two pages including this
decidendi of these cases seems to be that the attestation page" (pages 200-201, supra) (Underscoring supplied).
clause must contain a statement of the number of sheets or
pages composing the will and that if this is missing or is However, in the appeal at bench, the number of pages used in
omitted, it will have the effect of invalidating the will if the the will is not stated in any part of the Will. The will does not
deficiency cannot be supplied, not by evidence aliunde, but by even contain any notarial acknowledgment wherein the
a consideration or examination of the will itself. But here the number of pages of the will should be stated.21
situation is different. While the attestation clause does not
state the number of sheets or pages upon which the will is Both Uy Coque and Andrada were decided prior to the
written, however, the last part of the body of the will contains a enactment of the Civil Code in 1950, at a time when the
statement that it is composed of eight pages, which statutory provision governing the formal requirement of wills
circumstance in our opinion takes this case out of the rigid rule was Section
of construction and places it within the realm of similar cases
where a broad and more liberal view has been adopted to 618 of the Code of Civil Procedure.22 Reliance on these cases
prevent the will of the testator from being defeated by purely remains apropos, considering that the requirement that the
technical considerations." (page 165-165, supra) attestation state the number of pages of the will is extant from
(Underscoring supplied) Section 618.23 However, the enactment of the Civil Code in
1950 did put in force a rule of interpretation of the
In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al." supra, requirements of wills, at least insofar as the attestation clause
the notarial acknowledgement in the Will states the number of is concerned, that may vary from the philosophy that governed
pages used in the: these two cases. Article 809 of the Civil Code states: "In the
absence of bad faith, forgery, or fraud, or undue and improper
"x x x pressure and influence, defects and imperfections in the form
of attestation or in the language used therein shall not render
the will invalid if it is proved that the will was in fact executed these are facts that the will itself can reveal, and defects or
and attested in substantial compliance with all the even omissions concerning them in the attestation clause can
requirements of article 805." be safely disregarded. But the total number of pages, and
whether all persons required to sign did so in the
In the same vein, petitioner cites the report of the Civil Code presence of each other must substantially appear in the
Commission, which stated that "the underlying and attestation clause, being the only check against perjury in
fundamental objective permeating the provisions on the [law] the probate proceedings.29 (Emphasis supplied.)
on [wills] in this project consists in the [liberalization] of the
manner of their execution with the end in view of giving the The Court of Appeals did cite these comments by Justice
testator more [freedom] in [expressing] his last wishes. This J.B.L. Reyes in its assailed decision, considering that the
objective is in accord with the [modern tendency] in respect to failure to state the number of pages of the will in the attestation
the formalities in the execution of wills."24 However, petitioner clause is one of the defects which cannot be simply
conveniently omits the qualification offered by the Code disregarded. In Caneda itself, the Court refused to allow the
Commission in the very same paragraph he cites from their probate of a will whose attestation clause failed to state that
report, that such liberalization be "but with sufficient the witnesses subscribed their respective signatures to the will
safeguards and restrictions to prevent the commission of fraud in the presence of the testator and of each other,30 the other
and the exercise of undue and improper pressure and omission cited by Justice J.B.L. Reyes which to his estimation
influence upon the testator."25 cannot be lightly disregarded.
Caneda v. Court of Appeals26 features an extensive discussion Caneda suggested: "[I]t may thus be stated that the rule, as it
made by Justice Regalado, speaking for the Court on the now stands, is that omission which can be supplied by an
conflicting views on the manner of interpretation of the legal examination of the will itself, without the need of resorting to
formalities required in the execution of the attestation clause in extrinsic evidence, will not be fatal and, correspondingly, would
wills.27 Uy Coque and Andrada are cited therein, along with not obstruct the allowance to probate of the will being assailed.
several other cases, as examples of the application of the rule However, those omissions which cannot be supplied except by
of strict construction.28 However, the Code Commission opted evidence aliunde would result in the invalidation of the
to recommend a more liberal construction through the attestation clause and ultimately, of the will itself."31 Thus, a
"substantial compliance rule" under Article 809. A cautionary failure by the attestation clause to state that the testator signed
note was struck though by Justice J.B.L. Reyes as to how every page can be liberally construed, since that fact can be
Article 809 should be applied: checked by a visual examination; while a failure by the
attestation clause to state that the witnesses signed in one
x x x The rule must be limited to disregarding those defects another’s presence should be considered a fatal flaw since the
that can be supplied by an examination of the will itself: attestation is the only textual guarantee of compliance.32
whether all the pages are consecutively numbered; whether
the signatures appear in each and every page; whether the The failure of the attestation clause to state the number of
subscribing witnesses are three or the will was notarized. All pages on which the will was written remains a fatal flaw,
despite Article 809. The purpose of the law in requiring the The Court could thus end here and affirm the Court of
clause to state the number of pages on which the will is written Appeals. However, an examination of the will itself reveals a
is to safeguard against possible interpolation or omission of couple of even more critical defects that should necessarily
one or some of its pages and to prevent any increase or lead to its rejection.
decrease in the pages.33 The failure to state the number of
pages equates with the absence of an averment on the part of For one, the attestation clause was not signed by the
the instrumental witnesses as to how many pages consisted instrumental witnesses. While the signatures of the
the will, the execution of which they had ostensibly just instrumental witnesses appear on the left-hand margin of the
witnessed and subscribed to. Following Caneda, there is will, they do not appear at the bottom of the attestation clause
substantial compliance with this requirement if the will states which after all consists of their averments before the notary
elsewhere in it how many pages it is comprised of, as was the public.
situation in Singson and Taboada. However, in this case, there
could have been no substantial compliance with the Cagro v. Cagro36 is material on this point. As in this case, "the
requirements under Article 805 since there is no statement in signatures of the three witnesses to the will do not appear at
the attestation clause or anywhere in the will itself as to the the bottom of the attestation clause, although the page
number of pages which comprise the will. containing the same is signed by the witnesses on the left-
hand margin."37 While three (3) Justices38 considered the
At the same time, Article 809 should not deviate from the need signature requirement had been substantially complied with, a
to comply with the formal requirements as enumerated under majority of six (6), speaking through Chief Justice Paras, ruled
Article 805. Whatever the inclinations of the members of the that the attestation clause had not been duly signed, rendering
Code Commission in incorporating Article 805, the fact the will fatally defective.
remains that they saw fit to prescribe substantially the same
formal requisites as enumerated in Section 618 of the Code of There is no question that the signatures of the three witnesses
Civil Procedure, convinced that these remained effective to the will do not appear at the bottom of the attestation
safeguards against the forgery or intercalation of notarial clause, although the page containing the same is signed by
wills.34 Compliance with these requirements, however the witnesses on the left-hand margin.
picayune in impression, affords the public a high degree of
comfort that the testator himself or herself had decided to We are of the opinion that the position taken by the appellant
convey property post mortem in the manner established in the is correct. The attestation clause is "a memorandum of the
will.35 The transcendent legislative intent, even as facts attending the execution of the will" required by law to be
expressed in the cited comments of the Code made by the attesting witnesses, and it must necessarily bear
Commission, is for the fruition of the testator’s their signatures. An unsigned attestation clause cannot be
incontestable desires, and not for the indulgent admission considered as an act of the witnesses, since the omission of
of wills to probate. their signatures at the bottom thereof negatives their
participation.
The petitioner and appellee contends that signatures of the attestation clause which contains the utterances reduced into
three witnesses on the left-hand margin conform substantially writing of the testamentary witnesses themselves. It is the
to the law and may be deemed as their signatures to the witnesses, and not the testator, who are required under Article
attestation clause. This is untenable, because said signatures 805 to state the number of pages used upon which the will is
are in compliance with the legal mandate that the will be written; the fact that the testator had signed the will and every
signed on the left-hand margin of all its pages. If an attestation page thereof; and that they witnessed and signed the will and
clause not signed by the three witnesses at the bottom thereof, all the pages thereof in the presence of the testator and of one
be admitted as sufficient, it would be easy to add such clause another. The only proof in the will that the witnesses have
to a will on a subsequent occasion and in the absence of the stated these elemental facts would be their signatures on the
testator and any or all of the witnesses.39 attestation clause.
The Court today reiterates the continued efficacy of Cagro. Thus, the subject will cannot be considered to have been
Article 805 particularly segregates the requirement that the validly attested to by the instrumental witnesses, as they failed
instrumental witnesses sign each page of the will, from the to sign the attestation clause.
requisite that the will be "attested and subscribed by [the
instrumental witnesses]." The respective intents behind these Yet, there is another fatal defect to the will on which the denial
two classes of signature are distinct from each other. The of this petition should also hinge. The requirement under
signatures on the left-hand corner of every page signify, Article 806 that "every will must be acknowledged before a
among others, that the witnesses are aware that the page they notary public by the testator and the witnesses" has also not
are signing forms part of the will. On the other hand, the been complied with. The importance of this requirement is
signatures to the attestation clause establish that the highlighted by the fact that it had been segregated from the
witnesses are referring to the statements contained in the other requirements under Article 805 and entrusted into a
attestation clause itself. Indeed, the attestation clause is separate provision, Article 806. The non-observance of Article
separate and apart from the disposition of the will. An 806 in this case is equally as critical as the other cited flaws in
unsigned attestation clause results in an unattested will. Even compliance with Article 805, and should be treated as of
if the instrumental witnesses signed the left-hand margin of the equivalent import.
page containing the unsigned attestation clause, such
signatures cannot demonstrate these witnesses’ undertakings In lieu of an acknowledgment, the notary public, Petronio Y.
in the clause, since the signatures that do appear on the page Bautista, wrote "Nilagdaan ko at ninotario ko ngayong 10 ng
were directed towards a wholly different avowal. Hunyo 10 (sic), 1981 dito sa Lungsod ng Maynila."40 By no
manner of contemplation can those words be construed as an
The Court may be more charitably disposed had the witnesses acknowledgment. An acknowledgment is the act of one who
in this case signed the attestation clause itself, but not the left- has executed a deed in going before some competent officer
hand margin of the page containing such clause. Without or court and declaring it to be his act or deed.41 It involves an
diminishing the value of the instrumental witnesses’ signatures extra step undertaken whereby the signor actually declares to
on each and every page, the fact must be noted that it is the
the notary that the executor of a document has attested to the mindset in making the testamentary dispositions to those
notary that the same is his/her own free act and deed. persons he/she had designated in the will.
It might be possible to construe the averment as a jurat, even It may not have been said before, but we can assert the rule,
though it does not hew to the usual language thereof. A jurat is self-evident as it is under Article 806. A notarial will that is
that part of an affidavit where the notary certifies that before not acknowledged before a notary public by the testator
him/her, the document was subscribed and sworn to by the and the witnesses is fatally defective, even if it is
executor.42 Ordinarily, the language of the jurat should avow subscribed and sworn to before a notary public.
that the document was subscribed and sworn before the
notary public, while in this case, the notary public averred that There are two other requirements under Article 805 which
he himself "signed and notarized" the document. Possibly were not fully satisfied by the will in question. We need not
though, the word "ninotario" or "notarized" encompasses the discuss them at length, as they are no longer material to the
signing of and swearing in of the executors of the document,
which in this case would involve the decedent and the disposition of this case. The provision requires that the testator
instrumental witnesses. and the instrumental witnesses sign each and every page of
the will on the left margin, except the last; and that all the
Yet even if we consider what was affixed by the notary public pages shall be numbered correlatively in letters placed on the
as a jurat, the will would nonetheless remain invalid, as the upper part of each page. In this case, the decedent, unlike the
express requirement of Article 806 is that the will be witnesses, failed to sign both pages of the will on the left
"acknowledged", and not merely subscribed and sworn to. The margin, her only signature appearing at the so-called "logical
will does not present any textual proof, much less one under end"44 of the will on its first page. Also, the will itself is not
oath, that the decedent and the instrumental witnesses numbered correlatively in letters on each page, but instead
executed or signed the will as their own free act or deed. The numbered with Arabic numerals. There is a line of thought that
acknowledgment made in a will provides for another all- has disabused the notion that these two requirements be
important legal safeguard against spurious wills or those made construed as mandatory.45Taken in isolation, these omissions,
beyond the free consent of the testator. An acknowledgement by themselves, may not be sufficient to deny probate to a will.
is not an empty meaningless act.43 The acknowledgment Yet even as these omissions are not decisive to the
coerces the testator and the instrumental witnesses to declare adjudication of this case, they need not be dwelt on, though
before an officer of the law that they had executed and indicative as they may be of a general lack of due regard for
subscribed to the will as their own free act or deed. Such the requirements under Article 805 by whoever executed the
declaration is under oath and under pain of perjury, thus will.
allowing for the criminal prosecution of persons who
participate in the execution of spurious wills, or those executed All told, the string of mortal defects which the will in question
without the free consent of the testator. It also provides a suffers from makes the probate denial inexorable.
further degree of assurance that the testator is of certain
WHEREFORE, the petition is DENIED. Costs against
petitioner.
SO ORDERED.
G.R. No. 74695 September 14, 1993 As testified to by the three instrumental witnesses, the notary
public and by private respondent who were present at the
In the Matter of the Probate of the Last Will and Testament execution, the testator did not read the final draft of the will
of the Deceased Brigido Alvarado, CESAR himself. Instead, private respondent, as the lawyer who drafted
ALVARADO, petitioner, the eight-paged document, read the same aloud in the
vs. presence of the testator, the three instrumental witnesses and
HON. RAMON G. GAVIOLA, JR., Presiding Justice, HON. the notary public. The latter four followed the reading with their
MA. ROSARIO QUETULIO LOSA and HON. LEONOR INES own respective copies previously furnished them.
LUCIANO, Associate Justices, Intermediate Appellate
Court, First Division (Civil Cases), and BAYANI MA. Meanwhile, Brigido's holographic will was subsequently
RINO, respondents. admitted to probate on 9 December 1977. On the 29th day of
the same month, a codicil entitled "Kasulatan ng Pagbabago
Vicente R. Redor for petitioner. sa Ilang Pagpapasiya na Nasasaad sa Huling Habilin na may
Petsa Nobiembre 5, 1977 ni Brigido Alvarado" was executed
Bayani Ma. Rino for and in his own behalf. changing some dispositions in the notarial will to generate
cash for the testator's eye operation. Brigido was then
suffering from glaucoma. But the disinheritance and revocatory
clauses were unchanged. As in the case of the notarial will, the
BELLOSILLO, J.: testator did not personally read the final draft of the codicil.
Instead, it was private respondent who read it aloud in his
presence and in the presence of the three instrumental
Before us is an appeal from the Decision dated 11 April
witnesses (same as those of the notarial will) and the notary
19861 of the First Civil Cases Division of the then Intermediate
public who followed the reading using their own copies.
Appellate Court, now Court of Appeals, which affirmed the
Order dated 27 June 19832 of the Regional Trial Court of Sta.
Cruz, Laguna, admitting to probate the last will and A petition for the probate of the notarial will and codicil was
testament3 with codicil4 of the late Brigido Alvarado. filed upon the testator's death on 3 January 1979 by private
respondent as executor with the Court of First Instance, now
Regional Trial Court, of Siniloan, Laguna.5Petitioner, in turn,
On 5 November 1977, the 79-year old Brigido Alvarado
filed an Opposition on the following grounds: that the will
executed a notarial will entitled "Huling Habilin" wherein he
sought to be probated was not executed and attested as
disinherited an illegitimate son (petitioner) and expressly
required by law; that the testator was insane or otherwise
revoked a previously executed holographic will at the time
mentally incapacitated to make a will at the time of its
awaiting probate before Branch 4 of the Regional Trial Court of
execution due to senility and old age; that the will was
sta. Cruz, Laguna.
executed under duress, or influence of fear and threats; that it
was procured by undue and improper pressure and influence
on the part of the beneficiary who stands to get the lion's share glaucoma which he had been suffering from for several years
of the testator's estate; and lastly, that the signature of the and even prior to his first consultation with an eye specialist
testator was procured by fraud or trick. on
14 December 1977.
When the oppositor (petitioner) failed to substantiate the
grounds relied upon in the Opposition, a Probate Order was The point of dispute is whether the foregoing circumstances
issued on 27 June 1983 from which an appeal was made to would qualify Brigido as a "blind" testator under Art. 808 which
respondent court. The main thrust of the appeal was that the reads:
deceased was blind within the meaning of the law at the time
his "Huling Habilin" and the codicil attached thereto was Art. 808. If the testator is blind, the will shall be
executed; that since the reading required by Art. 808 of the read to him twice; once, by one of the
Civil Code was admittedly not complied with, probate of the subscribing witnesses, and again, by the notary
deceased's last will and codicil should have been denied. public before whom the will is acknowledged.
On 11 April 1986, the Court of Appeals rendered the decision Petitioner contends that although his father was not totally
under review with the following findings: that Brigido Alvarado blind when the will and codicil were executed, he can be so
was not blind at the time his last will and codicil were considered within the scope of the term as it is used in Art.
executed; that assuming his blindness, the reading 808. To support his stand, petitioner presented before the trial
requirement of Art. 808 was substantially complied with when court a medical certificate issued by Dr. Salvador R. Salceda,
both documents were read aloud to the testator with each of Director of the Institute of Opthalmology (Philippine Eye
the three instrumental witnesses and the notary public Research Institute),6 the contents of which were interpreted in
following the reading with their respective copies of the layman's terms by Dr. Ruperto Roasa, whose expertise was
instruments. The appellate court then concluded that although admitted by private respondent.7 Dr. Roasa explained that
Art. 808 was not followed to the letter, there was substantial although the testator could visualize fingers at three (3) feet,
compliance since its purpose of making known to the testator he could no longer read either printed or handwritten matters
the contents of the drafted will was served. as of 14 December 1977, the day of his first consultation.8
The issues now before us can be stated thus: Was Brigido On the other hand, the Court of Appeals, contrary to the
Alvarado blind for purpose of Art, 808 at the time his "Huling medical testimony, held that the testator could still read on the
Habilin" and its codicil were executed? If so, was the double- day the will and the codicil were executed but chose not to do
reading requirement of said article complied with? so because of "poor eyesight."9 Since the testator was still
capable of reading at that time, the court a quo concluded that
Regarding the first issue, there is no dispute on the following Art. 808 need not be complied with.
facts: Brigido Alvarado was not totally blind at the time the will
and codicil were executed. However, his vision on both eyes We agree with petitioner in this respect.
was only of "counting fingers at three (3) feet" by reason of the
Regardless of respondent's staunch contention that the instrumental witnesses and, again, by the notary public before
testator was still capable of reading at the time his will and whom the will was acknowledged. The purpose is to make
codicil were prepared, the fact remains and this was testified known to the incapacitated testator the contents of the
to by his witnesses, that Brigido did not do so because of his document before signing and to give him an opportunity to
"poor," 10 "defective," 11 or "blurred"12 vision making it object if anything is contrary to his instructions.
necessary for private respondent to do the actual reading for
him. That Art. 808 was not followed strictly is beyond cavil. Instead
of the notary public and an instrumental witness, it was the
The following pronouncement in Garcia lawyer (private respondent) who drafted the eight-paged will
vs. Vasquez 13 provides an insight into the scope of the term and the five-paged codicil who read the same aloud to the
"blindness" as used in Art. 808, to wit: testator, and read them only once, not twice as Art. 808
requires.
The rationale behind the requirement of reading
the will to the testator if he is blind or incapable Private respondent however insists that there was substantial
of reading the will himself (as when he is compliance and that the single reading suffices for purposes of
illiterate), is to make the provisions thereof the law. On the other hand, petitioner maintains that the only
known to him, so that he may be able to object valid compliance or compliance to the letter and since it is
if they are not in accordance with his wishes . . . admitted that neither the notary public nor an instrumental
witness read the contents of the will and codicil to Brigido,
Clear from the foregoing is that Art. 808 applies not only to probate of the latter's will and codicil should have been
blind testators but also to those who, for one reason or disallowed.
another, are "incapable of reading the(ir) will(s)." Since Brigido
Alvarado was incapable of reading the final drafts of his will We sustain private respondent's stand and necessarily, the
and codicil on the separate occasions of their execution due to petition must be denied.
his "poor," "defective," or "blurred" vision, there can be no
other course for us but to conclude that Brigido Alvarado This Court has held in a number of occasions that substantial
comes within the scope of the term "blind" as it is used in Art. compliance is acceptable where the purpose of the law has
808. Unless the contents were read to him, he had no way of been satisfied, the reason being that the solemnities
ascertaining whether or not the lawyer who drafted the will and surrounding the execution of wills are intended to protect the
codicil did so confortably with his instructions. Hence, to testator from all kinds of fraud and trickery but are never
consider his will as validly executed and entitled to probate, it intended to be so rigid and inflexible as to destroy the
is essential that we ascertain whether Art. 808 had been testamentary privilege. 14
complied with.
In the case at bar, private respondent read the testator's will
Article 808 requires that in case of testators like Brigido and codicil aloud in the presence of the testator, his three
Alvarado, the will shall be read twice; once, by one of the instrumental witnesses, and the notary public. Prior and
subsequent thereto, the testator affirmed, upon being asked, requirements of the law in order to insure the authenticity of
that the contents read corresponded with his instructions. Only the will, the formal imperfections should be brushed aside
then did the signing and acknowledgement take place. There when they do not affect its purpose and which, when taken
is no evidence, and petitioner does not so allege, that the into account, may only defeat the testator's will. 17
contents of the will and codicil were not sufficiently made
known and communicated to the testator. On the contrary, with As a final word to convince petitioner of the propriety of the
respect to the "Huling Habilin," the day of the execution was trial court's Probate Order and its affirmance by the Court of
not the first time that Brigido had affirmed the truth and Appeals, we quote the following pronouncement in Abangan
authenticity of the contents of the draft. The uncontradicted v. Abangan, 18 to wit:
testimony of Atty. Rino is that Brigido Alvarado already
acknowledged that the will was drafted in accordance with his The object of the solemnities surrounding the
expressed wishes even prior to 5 November 1977 when Atty. execution of wills is to close the door against
Rino went to the testator's residence precisely for the purpose bad faith and fraud, to avoid the substitution of
of securing his conformity to the draft. 15 wills and testaments and to guaranty their truth
and authenticity. Therefore the laws on the
Moreover, it was not only Atty. Rino who read the documents subject should be interpreted in such a way as
on to attain these primordial ends. But, on the
5 November and 29 December 1977. The notary public and other hand, also one must not lose sight of the
the three instrumental witnesses likewise read the will and fact that it is not the object of the law to restrain
codicil, albeit silently. Afterwards, Atty. Nonia de la Pena (the and curtail the exercise of the right to make a
notary public) and Dr. Crescente O. Evidente (one of the three will. So when an interpretation already given
instrumental witnesses and the testator's physician) asked the assures such ends, any other interpretation
testator whether the contents of the document were of his own whatsoever, that adds nothing but demands
free will. Brigido answered in the affirmative. 16 With four more requisites entirely unnecessary, useless
persons following the reading word for word with their own and frustrative of the testator's will, must be
copies, it can be safely concluded that the testator was disregarded(emphasis supplied).
reasonably assured that what was read to him (those which he
affirmed were in accordance with his instructions), were the Brigido Alvarado had expressed his last wishes in clear and
terms actually appearing on the typewritten documents. This is unmistakable terms in his "Huling Habilin" and the codicil
especially true when we consider the fact that the three attached thereto. We are unwilling to cast these aside fro the
instrumental witnesses were persons known to the testator, mere reason that a legal requirement intended for his
one being his physician (Dr. Evidente) and another protection was not followed strictly when such compliance had
(Potenciano C. Ranieses) being known to him since childhood. been rendered unnecessary by the fact that the purpose of the
law, i.e., to make known to the incapacitated testator the
The spirit behind the law was served though the letter was not. contents of the draft of his will, had already been
Although there should be strict compliance with the substantial
accomplished. To reiterate, substantial compliance suffices
where the purpose has been served.
SO ORDERED.
On March 31, 1986, respondent Judge to which the case was On July 18, respondent Judge denied the motion holding that
reassigned denied the motion for reconsideration holding that to allow the probate of two wills in a single proceeding "would
the documents submitted by petitioner proved "that the wills of be a departure from the typical and established mode of
the testator domiciled abroad were properly executed, genuine probate where one petition takes care of one will." He pointed
and sufficient to possess real and personal property; that out that even in New York "where the wills in question were
letters testamentary were issued; and that proceedings were first submitted for probate, they were dealt with in separate
held on a foreign tribunal and proofs taken by a competent proceedings" (Records, p. 395).
judge who inquired into all the facts and circumstances and
being satisfied with his findings issued a decree admitting to On August 13, 1986, petitioner filed a motion for the
probate the wills in question." However, respondent Judge said reconsideration of the Order of July 18, 1986, citing Section 3,
that the documents did not establish the law of New York on Rule 2 of the Rules of Court, which provides that no party may
the procedure and allowance of wills (Records, p. 381). 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 Consulate General of the Philippines (Exhs. "F"
wills, would go against "the grain of inexpensive, just and and "G");
speedy determination of the proceedings" (Records, pp. 405-
407). (b) two certifications from the Secretary of State
of New York and Custodian of the Great Seal
On September 11, 1986, petitioner filed a supplement to the on the facts that Judge Bernard L. Reagan is
motion for reconsideration, citing Benigno v. De La Peña, 57 the Surrogate of the Country of Onondaga
Phil. 305 (1932) (Records, which is a court of record, that his signature and
p. 411), but respondent Judge found that this pleading had seal of office are genuine, and that the
been filed out of time and that the adverse party had not been Surrogate is duly authorized to grant copy of
furnished with a copy thereof. In her compliance, petitioner the respective wills of Evelyn and Jose
stated that she had furnished a copy of the motion to the (Exhs. "F-1" and "G-1");
counsel of the Cunanan heirs and reiterated her motion for a
"final ruling on her supplemental motion" (Records, p. 421). (c) two certificates of Judge Reagan and Chief
Clerk Donald E. Moore stating that they have in
On November 19, respondent Judge issued an order, denying their records and files the said wills which were
the motion for reconsideration filed by petitioner on the recorded on April 7, 1982 (Exhs. "F-2" and "G-
grounds that "the probate of separate wills of two or more 2");
different persons even if they are husband and wife cannot be
undertaken in a single petition" (Records, pp. 376-378). (d) the respective wills of Evelyn and Jose
(Exhs. "F-3", "F-6" and Exh. "G-3" — "G-6");
Hence, petitioner instituted the instant petition, arguing that the
evidence offered at the hearing of April 11, 1983 sufficiently (e) certificates of Judge Reagan and the Chief
proved the laws of the State of New York on the allowance of Clerk certifying to the genuineness and
wills, and that the separate wills of the Cunanan spouses need authenticity of the exemplified copies of the two
not be probated in separate proceedings. wills (Exhs. "F-7" and "F-7");
SO ORDERED.
The said Severo Tabora was also called as a witness again Rufino R. Papa, was called as a witness for the purpose of
during the rehearing. He testified that he knew Tomasa Elizaga supporting the allegation that Tomasa Elizaga Yap Caong was
Yap Caong during her lifetime; that she was dead; that his mentally incapacitated to make the will dated August 11, 1909
signature as a witness to Exhibit A (the will of August 11, 1909) (Exhibit A). Papa declared that he was a physician; that he
was placed there by him; that the deceased, Tomasa Elizaga knew Tomasa Elizaga Yap Caong; that he had treated her in
Yap Caong, became familiar with the contents of the will the month of August; that he visited her first on the 8th day of
because she signed it before he (the witness) did; that he did August; that he visited her again on the 9th and 10th days of
not know whether anybody there told her to sign the will or not; August; that on the first visit he found the sick woman
that he signed two bills; that he did not know La O; that he did completely weak — very weak from her sickness, in the third
not believe that Tomasa had signed the will (Exhibit A) before stage of tuberculosis; that she was lying in bed; that on the
he arrived at the house; that he was not sure that he had seen first visit he found her with but little sense, the second day
also, and on the third day she had lost all her intelligence; that or not; he supposed she must have read it because Lorenzo
she died on the 11th of August; tat he was requested to issue turned the will over to her; that when Lorenzo asked her to
the death certificate; that when he asked her (Tomasa) sign the will, he did not know what she said — he could not
whether she was feeling any pain or anything of that kind, she hear her voice; that he did not know whether the sick woman
did not answer at all; that she was in a condition of stupor, was him sign the will or not; that he believed that Tomasa died
induced, as he believed, by the stage of uraemia from which the next day after the will had been signed; that the other two
she was suffering. witnesses, Timoteo Paez and Severo Tabora, had signed the
will in the room with the sick woman; that he saw them sign
Anselmo Zacarias, who had signed the will of August 11, 1909, the will and that they saw him sign it; that he was not sure
was also called as a witnesses during the rehearing. He whether the testatrix could have seen them at the time they
testified that he had known Tomasa Elizaga Yap Caong since signed the will or not; that there was a screen before the bed;
he was a child; that Tomasa was dead; that he had written the that he did not think that Lorenzo had been giving instructions
will exhibit A; that it was all in his writing except the last part, as to the contents of the will; that about ten or fifteen minutes
which was written by Carlos Sobaco; that he had written the elapsed from the time Lorenzo handed the will to Tomasa
will Exhibit A at the request of the uncle of Tomasa; that before she started to sign it; that the pen with which she
Lorenzo, the brother of the deceased, was the one who had signed the will as given to her and she held it.
instructed him as to the terms of the will ; that the deceased
had not spoken to him concerning the terms of the will; that the Clotilde Mariano testified that he was a cigarette maker; that
will was written in the dining room of the residence of the he knew Tomasa Elizaga Yap Caong and that she was dead;
deceased; that Tomasa was in another room different from that that she had made two wills; that the first one was written by
in which the will was written; that the will was not written in the La O and the second by Zacarias; that he was present at the
presence of Tomasa; that he signed the will as a witness in the time Zacarias wrote the second one; that he was present when
room where Tomasa was lying; that the other witnesses signed the second will was taken to Tomasa for signature; that
the will in the same room that when he went into the room Lorenzo had told Tomasa that the second will was exactly like
where the sick woman was (Tomasa Elizaga Yap Caong) the first; that Tomasa said she could not sign it.
Lorenzo had the will in his hands; that when Lorenzo came to
the bed he showed the will to his sister (Tomasa) and On cross examination he testified that there was a lot of
requested her to sign it; that she was lying stretched out on the visitors there; that Zacarias was not there; that Paez and
bed and two women, who were taking care of her, helped her Tabora were there; that he had told Tomasa that the second
to sit up, supporting her by lacing their hands at her back; that will was exactly like the first.
when she started to write her name, he withdrew from the bed
on account of the best inside the room; when he came back During the rehearing Cornelia Serrano and Pedro Francisco
again to the sick bed the will was signed and was again in the were also examined as witnesses. There is nothing in their
hands of Lorenzo; that he did not see Tomasa sign the will testimony, however, which in our opinion is important.
because he withdrew from the room; that he did not know
whether Tomasa had been informed of the contents of the will
In rebuttal Julia e la Cruz was called as a witness. She Lorenzo Yap Caong testified as a witness on rebuttal. He said
testified that she was 19 years of age; that she knew Tomasa that he knew Anselmo Zacarias and that Zacarias wrote the
Elizaga Yap Caong during her lifetime; that she lived in the will of Tomasa Elizaga Yap Caong; that Tomasa had given him
house of Tomasa during the last week of her illness; that instructions; that Tomasa had said that she sign the will; that
Tomasa had made two wills; that she was present when the the will was on a table near the bed of Tomasa; that Tomasa,
second one was executed; that a lawyer had drawn the will in from where she was lying in the bed, could seethe table where
the dining room and after it had been drawn and everything the witnesses had signed the will.
finished , it was taken to where Doña Tomasa was, for her
signature; that it was taken to her by Anselmo Zacarias; that During the rehearing certain other witnesses were also
she was present at the time Tomasa signed the will that there examined; in our opinion, however, it is necessary to quote
were many other people present also; that she did not see from them for the reason that their testimony in no way affects
Timoteo Paez there; that she saw Severo Tabora; that the preponderance of proof above quoted.
Anselmo Zacarias was present; that she did not hear Clotilde
Mariano ask Tomasa to sign the will; that she did not hear At the close of the rehearing the Honorable A. S. Crossfield,
Lorenzo say to Tomasa that the second will was the same sa judge, in an extended opinion, reached the conclusion that the
the first; that Tomasa asked her to help her to sit up and to put last will and testament of Tomasa Elizaga Yap Caong, which
a pillow to her back when Zacarias gave her some paper or was attached to the record and marked Exhibit A was the last
document and asked her to sign it; that she saw Tomasa take will and testament of the said Tomasa Elizaga Yap Caong and
hold of the pen and try to sign it but she did not see the place admitted it to probate and ordered that the administrator
she signed the document, for the reason that she left the therefore appointed should continue as such administrator.
room; that she saw Tomasa sign the document but did not see From that order the protestants appealed to this court, and
on what place on the document she signed; and that a notary made the following assignments of error:
public came the next morning; that Tomasa was able to move
about in the bed; that she had seen Tomasa in the act of I. The court erred in declaring that the will, Exhibit A,
starting to write her signature when she told her to get her was executed by the deceased Tomasa Yap Caong,
some water. without the intervention of any external influence on the
part of other persons.
Yap Cao Quiang was also called as a witness in rebuttal. He
testified that he knew Tomasa Elizaga Yap Caong and knew II. The court erred in declaring that the testator had
that she had made a will; that he saw the will at the time it was clear knowledge and knew what she was doing at the
written; that he saw Tomasa sign it on her head; that he did not time of signing the will.
hear Lorenzo ask Tomasa to sign the will; that Lorenzo had
handed the will to Tomasa to sign; that he saw the witnesses III. The court erred in declaring that the signature of the
sign the will on a table near the bed; that the table was outside deceased Tomasa Yap Caong in the first will, Exhibit 1,
the curtain or screen and near the entrance to the room where is identical with that which appears in the second will,
Tomasa was lying. Exhibit A.
IV. The court erred in declaring that the will, Exhibit A, time she signed this will. In view of the conflict in the testimony
was executed in accordance with the law. of the witnesses and the finding of the lower court, we do not
feel justified in reversing his conclusions upon that question.
With reference to the first assignment of error, to wit, that
undue influence was brought to bear upon Tomasa Elizaga With reference to the third assignment of error, to wit, that the
Yap Caong in the execution of her will of August 11th, 1909 lower court committed an error in declaring that the signature
(Exhibit A), the lower court found that no undue influence had of Tomasa Elizaga Yap Caong, on her first will (August 6,
been exercised over the mind of the said Tomasa Elizaga Yap 1909, Exhibit 1), is identical with that which appears in the
Caong. While it is true that some of the witnesses testified that second will (August 11, 1909, Exhibit A), it may be said:
the brother of Tomasa, one Lorenzo, had attempted to unduly
influence her mind in the execution of he will, upon the other First. That whether or not Tomasa Elizaga Yap Caong
hand, there were several witnesses who testified that Lorenzo executed the will of August 6, 1909 (Exhibit 1), was not the
did not attempt, at the time of the execution of the will, to question presented to the court. The question presented was
influence her mind in any way. The lower court having had an whether or not she had duly executed the will of August 11,
opportunity to see, to hear, and to note the witnesses during 1909 (Exhibit A).
their examination reached the conclusion that a
preponderance of the evidence showed that no undue Second. There appears to be but little doubt that Tomasa
influence had been used. we find no good reason in the record Elizaga Yap Caong did execute the will of August 6, 1909.
for reversing his conclusions upon that question. Several witnesses testified to that fact. The mere fact,
however, that she executed a former will is no proof that she
With reference to the second assignment of error to wit, that did not execute a later will. She had a perfect right, by will, to
Tomasa Elizaga Yap Caong was not of sound mind and dispose of her property, in accordance with the provisions of
memory at the time of the execution of the will, we find the law, up to the very last of moment her life. She had a perfect
same conflict in the declarations of the witnesses which we right to change, alter, modify or revoke any and all of her
found with reference to the undue influence. While the former wills and to make a new one. Neither will the fact that
testimony of Dr. Papa is very strong relating to the mental the new will fails to expressly revoke all former wills, in any
condition of Tomasa Elizaga Yap Caong, yet, nevertheless, his way sustain the charge that she did not make the new will.
testimony related to a time perhaps twenty-four hours before
the execution of the will in question (Exhibit A). Several Third. In said third assignment of error there is involved in the
witnesses testified that at the time the will was presented to statement that "The signature of Tomasa Elizaga Yap Caong,
her for her signature, she was of sound mind and memory and in her first will (Exhibit 1) was not identical with that which
asked for a pen and ink and kept the will in her possession for appears in her second will (Exhibit A)" the inference that she
ten or fifteen minutes and finally signed it. The lower court had not signed the second will and all the argument of the
found that there was a preponderance of evidence sustaining appellants relating to said third assignment of error is based
the conclusion that Tomasa Elizaga Yap Caong was of sound upon the alleged fact that Tomasa Elizaga Yap Caong did not
mind and memory and in the possession of her faculties at the sign Exhibit A. Several witnesses testified that they saw her
write the name "Tomasa." One of the witnesses testified that The precise case of a signature by the first name only,
she had written her full name. We are of the opinion, and we does not appear to have arisen either in England or the
think the law sustains our conclusion, that if Tomasa Elizaga United States; but the principle on which the decisions
Yap Caong signed any portion of her name tot he will, with the already referred to were based, especially those in
intention to sign the same, that the will amount to a signature. regard to signing by initials only, are equally applicable
It has been held time and time again that one who makes a to the present case, and additional force is given to
will may sign the same by using a mark, the name having them by the decisions as to what constitutes a binding
been written by others. If writing a mark simply upon a will is signature to a contract. (Palmer vs. Stephens, 1 Denio,
sufficient indication of the intention of the person to make and 478; Sanborne vs. Flager, 9 Alle, 474; Weston vs.
execute a will, then certainly the writing of a portion or all of Myers, 33 Ill., 424; Salmon Falls, etc. Co. vs. Goddard,
her name ought to be accepted as a clear indication of her 14 How. (U. S.), 446.)
intention to execute the will. (Re Goods of Savory, 15 Jur.,
1042; Addy vs. Grix, 8 Ves. Jr., 504; Baker vs. Dening, 8 Ad. The man who cannot write and who is obliged to make his
and El., 94 Long vs. Zook, 13 Penn., 400; Vernon vs. Kirk, 30 mark simply therefor, upon the will, is held to "sign" as
Penn., 218; Cozzen's Will, 61 Penn., 196; Re Goods of effectually as if he had written his initials or his full name. It
Emerson, L. R. 9 Ir., 443; Main vs. Ryder, 84 Penn., 217.) would seem to be sufficient, under the law requiring a
signature by the person making a will, to make his mark, to
We find a very interesting case reported in 131 Pennsylvania place his initials or all or any part of his name thereon. In the
State, 220 (6 L. R. A., 353), and cited by the appellees, which present case we think the proof shows, by a large
was known as "Knox's Appeal." In this case one Harriett S. preponderance, that Tomasa Elizaga Yap Caong, if she did not
Knox died very suddenly on the 17th of October, 1888, at the sign her full name, did at least sign her given name "Tomasa,"
residence of her father. After her death a paper was found in and that is sufficient to satisfy the statute.
her room, wholly in her handwriting, written with a lead pencil,
upon three sides of an ordinary folded sheet of note paper and With reference to the fourth assignment of error, it may be said
bearing the signature simply of "Harriett." In this paper the that the argument which was preceded is sufficient to answer it
deceased attempted to make certain disposition of her also.
property. The will was presented for probate. The probation
was opposed upon the ground that the same did not contain During the trial of the cause the protestants made a strong
the signature of the deceased. That was the only question effort to show that Tomasa Elizaga Yap Caong did not sign her
presented to the court, whether the signature, in the form name in the presence of the witnesses and that they did not
above indicated, was a sufficient signature to constitute said sign their names in their presence nor in the presence of each
paper the last will and testament of Harriett S. Knox. It was other. Upon that question there is considerable conflict of
admitted that the entire paper was in the handwriting of the proof. An effort was made to show that the will was signed by
deceased. In deciding that question, Justice Mitchell said: the witnesses in one room and by Tomasa in another. A plan of
the room or rooms in which the will was signed was presented
as proof and it was shown that there was but one room; that
one part of the room was one or two steps below the floor of
the other; that the table on which the witnesses signed the will
was located upon the lower floor of the room. It was also
shown that from the bed in which Tomasa was lying, it was
possible for her to see the table on which the witnesses signed
the will. While the rule is absolute that one who makes a will
must sign the same in the presence of the witnesses and that
the witnesses must sign in the presence of each other, as well
as in the presence of the one making the will, yet,
nevertheless, the actual seeing of the signatures made is not
necessary. It is sufficient if the signatures are made where it is
possible for each of the necessary parties, if they desire to
see, may see the signatures placed upon the will.
The order of the lower court ordering the probate of the last
will and testament of Don Sixto Lopez is affirmed, with costs.
Hon. Avelino S. Rosal in his own behalf. The trial court, thru then Presiding Judge Ramon C. Pamatian
issued the questioned order denying the probate of the will of
Dorotea Perez for want of a formality in its execution. In the
same order, the petitioner was also required to submit the
names of the intestate heirs with their corresponding
GUTIERREZ, JR. J.: addresses so that they could be properly notified and could
intervene in the summary settlement of the estate.
This is a petition for review of the orders issued by the Court of
First Instance of Southern Leyte, Branch III, in Special Instead of complying with the order of the trial court, the
Proceedings No. R-1713, entitled "In the Matter of the Petition petitioner filed a manifestation and/or motion, ex partepraying
for Probate of the Will of Dorotea Perez, Deceased; Apolonio for a thirty-day period within which to deliberate on any step to
Taboada, Petitioner", which denied the probate of the will, the be taken as a result of the disallowance of the will. He also
motion for reconsideration and the motion for appointment of a asked that the ten-day period required by the court to submit
special administrator. the names of intestate heirs with their addresses be held in
abeyance.
In the petition for probate filed with the respondent court, the
petitioner attached the alleged last will and testament of the The petitioner filed a motion for reconsideration of the order
late Dorotea Perez. Written in the Cebuano-Visayan dialect, denying the probate of the will. However, the motion together
the will consists of two pages. The first page contains the with the previous manifestation and/or motion could not be
entire testamentary dispositions and is signed at the end or acted upon by the Honorable Ramon C. Pamatian due to his
bottom of the page by the testatrix alone and at the left hand transfer to his new station at Pasig, Rizal. The said motions or
margin by the three (3) instrumental witnesses. The second incidents were still pending resolution when respondent Judge
page which contains the attestation clause and the Avelino S. Rosal assumed the position of presiding judge of
acknowledgment is signed at the end of the attestation clause the respondent court.
Meanwhile, the petitioner filed a motion for the appointment of The attestation shall state the number of pages
special administrator. used upon which the will is written, and the fact
that the testator signed the will and every page
Subsequently, the new Judge denied the motion for thereof, or caused some other person to write
reconsideration as well as the manifestation and/or motion his name, under his express direction, in the
filed ex parte. In the same order of denial, the motion for the presence of the instrumental witnesses, and
appointment of special administrator was likewise denied that the lacier witnesses and signed the will and
because of the petitioner's failure to comply with the order the pages thereof in the presence of the
requiring him to submit the names of' the intestate heirs and testator and of one another.
their addresses.
If the attestation clause is in a language not
The petitioner decided to file the present petition. known to the witnesses, it shall be interpreted
to the witnesses, it shall be interpreted to them.
For the validity of a formal notarial will, does Article 805 of the
Civil Code require that the testatrix and all the three The respondent Judge interprets the above-quoted provision
instrumental and attesting witnesses sign at the end of the will of law to require that, for a notarial will to be valid, it is not
and in the presence of the testatrix and of one another? enough that only the testatrix signs at the "end" but an the
three subscribing witnesses must also sign at the same place
Article 805 of the Civil Code provides: or at the end, in the presence of the testatrix and of one
another because the attesting witnesses to a will attest not
Every will, other than a holographic will, must merely the will itself but also the signature of the testator. It is
be subscribed at the end thereof by the testator not sufficient compliance to sign the page, where the end of
himself or by the testator's name written by the will is found, at the left hand margin of that page.
some other person in his presence, and by his
express direction, and attested and subscribed On the other hand, the petitioner maintains that Article 805 of
by three or more credible witnesses in the the Civil Code does not make it a condition precedent or a
presence of the testator and of one another. matter of absolute necessity for the extrinsic validity of the wig
that the signatures of the subscribing witnesses should be
The testator or the person requested by him to specifically located at the end of the wig after the signature of
write his name and the instrumental witnesses the testatrix. He contends that it would be absurd that the
of the will, shall also sign, as aforesaid, each legislature intended to place so heavy an import on the space
and every page thereof, except the last, on the or particular location where the signatures are to be found as
left margin, and all the pages shall be long as this space or particular location wherein the signatures
numbered correlatively in letters placed on the are found is consistent with good faith and the honest frailties
upper part of each page. of human nature.
We find the petition meritorious. wills in this project consists in the liberalization of the manner
of their execution with the end in view of giving the testator
Undoubtedly, under Article 805 of the Civil Code, the will must more freedom in expressing his last wishes but with sufficient
be subscribed or signed at its end by the testator himself or by safeguards and restrictions to prevent the commission of fraud
the testator's name written by another person in his presence, and the exercise of undue and improper pressure and
and by his express direction, and attested and subscribed by influence upon the testator. This objective is in accord with the
three or more credible witnesses in the presence of the modern tendency in respect to the formalities in the execution
testator and of one another. of a will" (Report of the Code commission, p. 103).
It must be noted that the law uses the Parenthetically, Judge Ramon C. Pamatian stated in his
terms attested and subscribed Attestation consists in questioned order that were not for the defect in the place of
witnessing the testator's execution of the will in order to see signatures of the witnesses, he would have found the
and take note mentally that those things are, done which the testimony sufficient to establish the validity of the will.
statute requires for the execution of a will and that the
signature of the testator exists as a fact. On the other hand, The objects of attestation and of subscription were fully met
subscription is the signing of the witnesses' names upon the and satisfied in the present case when the instrumental
same paper for the purpose of Identification of such paper as witnesses signed at the left margin of the sole page which
the will which was executed by the testator. (Ragsdale v. Hill, contains all the testamentary dispositions, especially so when
269 SW 2d 911). the will was properly Identified by subscribing witness Vicente
Timkang to be the same will executed by the testatrix. There
Insofar as the requirement of subscription is concerned, it is was no question of fraud or substitution behind the questioned
our considered view that the will in this case was subscribed in order.
a manner which fully satisfies the purpose of Identification.
We have examined the will in question and noticed that the
The signatures of the instrumental witnesses on the left margin attestation clause failed to state the number of pages used in
of the first page of the will attested not only to the genuineness writing the will. This would have been a fatal defect were it not
of the signature of the testatrix but also the due execution of for the fact that, in this case, it is discernible from the entire
the will as embodied in the attestation clause. wig that it is really and actually composed of only two pages
duly signed by the testatrix and her instrumental witnesses. As
While perfection in the drafting of a will may be desirable, earlier stated, the first page which contains the entirety of the
unsubstantial departure from the usual forms should be testamentary dispositions is signed by the testatrix at the end
ignored, especially where the authenticity of the will is not or at the bottom while the instrumental witnesses signed at the
assailed. (Gonzales v. Gonzales, 90 Phil. 444, 449). left margin. The other page which is marked as "Pagina dos"
comprises the attestation clause and the acknowledgment.
The law is to be liberally construed, "the underlying and The acknowledgment itself states that "This Last Will and
fundamental objective permeating the provisions on the law on Testament consists of two pages including this page".
In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court adopted to prevent the will of the testator from
made the following observations with respect to the purpose of being defeated by purely technical
the requirement that the attestation clause must state the considerations.
number of pages used:
Icasiano v. Icasiano (11 SCRA 422, 429) has the following
The law referred to is article 618 of the Code of ruling which applies a similar liberal approach:
Civil Procedure, as amended by Act No. 2645,
which requires that the attestation clause shall ... Impossibility of substitution of this page is
state the number of pages or sheets upon assured not only (sic) the fact that the testatrix
which the win is written, which requirement has and two other witnesses did sign the defective
been held to be mandatory as an effective page, but also by its bearing the coincident
safeguard against the possibility of interpolation imprint of the seal of the notary public before
or omission of some of the pages of the will to whom the testament was ratified by testatrix
the prejudice of the heirs to whom the property and all three witnesses. The law should not be
is intended to be bequeathed (In re will of so strictly and literally interpreted as to penalize
Andrada, 42 Phil., 180; Uy Coque vs. Navas L. the testatrix on account of the inadvertence of a
Sioca, 43 Phil. 405; Gumban vs. Gorecho, 50 single witness over whose conduct she had no
Phil. 30; Quinto vs. Morata, 54 Phil. 481; control where the purpose of the law to
Echevarria vs. Sarmiento, 66 Phil. 611). guarantee the Identity of the testament and its
The ratio decidendi of these cases seems to be component pages is sufficiently attained, no
that the attestation clause must contain a intentional or deliberate deviation existed, and
statement of the number of sheets or pages the evidence on record attests to the fun
composing the will and that if this is missing or observance of the statutory requisites.
is omitted, it will have the effect of invalidating Otherwise, as stated in Vda. de Gil. Vs.
the will if the deficiency cannot be supplied, not Murciano, 49 Off. Gaz. 1459, at 1479 (decision
by evidence aliunde, but by a consideration or on reconsideration) 'witnesses may sabotage
examination of the will itself. But here the the will by muddling or bungling it or the
situation is different. While the attestation attestation clause.
clause does not state the number of sheets or
pages upon which the will is written, however, WHEREFORE, the present petition is hereby granted. The
the last part of the body of the will contains a orders of the respondent court which denied the probate of tile
statement that it is composed of eight pages, will, the motion for reconsideration of the denial of probate,
which circumstance in our opinion takes this and the motion for appointment of a special administrator are
case out of the rigid rule of construction and set aside. The respondent court is ordered to allow the probate
places it within the realm of similar cases where of the wig and to conduct further proceedings in accordance
a broad and more liberal view has been with this decision. No pronouncement on costs.
SO ORDERED.
Teehankee, J, is on leave.
G.R. No. L-5971 February 27, 1911 doctrine laid down in the case of Jaboneta vs. Gustilo (5 Phil.
Rep., 541) the alleged fact that one of the subscribing
BEATRIZ NERA, ET AL., plaintiffs-appellees, witnesses was in the outer room when the testator and the
vs. other describing witnesses signed the instrument in the inner
NARCISA RIMANDO, defendant-appellant. room, had it been proven, would not be sufficient in itself to
invalidate the execution of the will. But we are unanimously of
Valerio Fontanilla and Andres Asprer for appellant. opinion that had this subscribing witness been proven to have
Anacleto Diaz for appellees. been in the outer room at the time when the testator and the
other subscribing witnesses attached their signatures to the
CARSON, J.: instrument in the inner room, it would have been invalid as a
will, the attaching of those signatures under circumstances not
The only question raised by the evidence in this case as to the being done "in the presence" of the witness in the outer room.
due execution of the instrument propounded as a will in the This because the line of vision from this witness to the testator
court below, is whether one of the subscribing witnesses was and the other subscribing witnesses would necessarily have
present in the small room where it was executed at the time been impeded by the curtain separating the inner from the
when the testator and the other subscribing witnesses outer one "at the moment of inscription of each signature."
attached their signatures; or whether at that time he was
outside, some eight or ten feet away, in a large room In the case just cited, on which the trial court relied, we held
connecting with the smaller room by a doorway, across which that:
was hung a curtain which made it impossible for one in the
outside room to see the testator and the other subscribing The true test of presence of the testator and the
witnesses in the act of attaching their signatures to the witnesses in the execution of a will is not whether they
instrument. actually saw each other sign, but whether they might
have been seen each other sign, had they chosen to
A majority of the members of the court is of opinion that this do so, considering their mental and physical condition
subscribing witness was in the small room with the testator and position with relation to each other at the moment
and the other subscribing witnesses at the time when they of inscription of each signature.
attached their signatures to the instrument, and this finding, of
course, disposes of the appeal and necessitates the But it is especially to be noted that the position of the parties
affirmance of the decree admitting the document to probate as with relation to each other at the moment of the subscription of
the last will and testament of the deceased. each signature, must be such that they may see each other
sign if they choose to do so. This, of course, does not mean
The trial judge does not appear to have considered the that the testator and the subscribing witnesses may be held to
determination of this question of fact of vital importance in the have executed the instrument in the presence of each other if
determination of this case, as he was of opinion that under the it appears that they would not have been able to see each
other sign at that moment, without changing their relative
positions or existing conditions. The evidence in the case
relied upon by the trial judge discloses that "at the moment
when the witness Javellana signed the document he was
actually and physically present and in such position with
relation to Jaboneta that he could see everything that took
place by merely casting his eyes in the proper direction
and without any physical obstruction to prevent his doing so."
And the decision merely laid down the doctrine that the
question whether the testator and the subscribing witnesses to
an alleged will sign the instrument in the presence of each
other does not depend upon proof of the fact that their eyes
were actually cast upon the paper at the moment of its
subscription by each of them, but that at that moment existing
conditions and their position with relation to each other were
such that by merely casting the eyes in the proper direction
they could have seen each other sign. To extend the doctrine
further would open the door to the possibility of all manner of
fraud, substitution, and the like, and would defeat the purpose
for which this particular condition is prescribed in the code as
one of the requisites in the execution of a will.
(1) I give and bequeath to my wife ALICIA R. FORTUNO (6) I hereby direct that the executor named herein or her lawful
exclusively my residential house and lot, located at San substitute should served (sic) without bond;
Francisco, Nabua, Camarines Sur, Philippines, including ALL
(7) I hereby revoke any and all my other wills, codicils, or On October 14, 1985, without terminating the testate
testamentary dispositions heretofore executed, signed, or proceedings, the trial court gave due course to Paulas petition
published, by me; in Sp. Proc. No. IR-888.[25]
On November 6, 13 and 20, 1985, the order was
(8) It is my final wish and desire that if I die, no relatives of
published in the newspaper Bicol Star.[26]
mine in any degree in the Llorentes Side should ever bother
and disturb in any manner whatsoever my wife Alicia R. On May 18, 1987, the Regional Trial Court issued a joint
Fortunato and my children with respect to any real or personal decision, thus:
properties I gave and bequeathed respectively to each one of
them by virtue of this Last Will and Testament.[17] Wherefore, considering that this court has so found that the
divorce decree granted to the late Lorenzo Llorente is void and
On December 14, 1983, Lorenzo filed with the Regional inapplicable in the Philippines, therefore the marriage he
Trial Court, Iriga, Camarines Sur, a petition for the probate and contracted with Alicia Fortunato on January 16, 1958 at Manila
allowance of his last will and testament wherein Lorenzo is likewise void. This being so the petition of Alicia F. Llorente
moved that Alicia be appointed Special Administratrix of his for the issuance of letters testamentary is denied. Likewise,
estate.[18] she is not entitled to receive any share from the estate even if
the will especially said so her relationship with Lorenzo having
On January 18, 1984, the trial court denied the motion for
gained the status of paramour which is under Art. 739 (1).
the reason that the testator Lorenzo was still alive.[19]
On January 24, 1984, finding that the will was duly On the other hand, the court finds the petition of Paula Titular
executed, the trial court admitted the will to probate.[20] Llorente, meritorious, and so declares the intrinsic disposition
of the will of Lorenzo Llorente dated March 13, 1981 as void
On June 11, 1985, before the proceedings could be and declares her entitled as conjugal partner and entitled to
terminated, Lorenzo died.[21] one-half of their conjugal properties, and as primary
On September 4, 1985, Paula filed with the same court a compulsory heir, Paula T. Llorente is also entitled to one-third
petition[22] for letters of administration over Lorenzos estate in of the estate and then one-third should go to the illegitimate
her favor. Paula contended (1) that she was Lorenzos children, Raul, Luz and Beverly, all surname (sic) Llorente, for
surviving spouse, (2) that the various property were acquired them to partition in equal shares and also entitled to the
during their marriage, (3) that Lorenzos will disposed of all his remaining free portion in equal shares.
property in favor of Alicia and her children, encroaching on her
legitime and 1/2 share in the conjugal property.[23] Petitioner, Paula Llorente is appointed legal administrator of
the estate of the deceased, Lorenzo Llorente. As such let the
On December 13, 1985, Alicia filed in the testate corresponding letters of administration issue in her favor upon
proceeding (Sp. Proc. No. IR-755), a petition for the issuance her filing a bond in the amount (sic) of P100,000.00
of letters testamentary.[24] conditioned for her to make a return to the court within three
(3) months a true and complete inventory of all goods,
chattels, rights, and credits, and estate which shall at any time have acquired during the twenty-five (25) years of
come to her possession or to the possession of any other cohabitation.
person for her, and from the proceeds to pay and discharge all
debts, legacies and charges on the same, or such dividends SO ORDERED.[32]
thereon as shall be decreed or required by this court; to render
a true and just account of her administration to the court within On August 25, 1995, petitioner filed with the Court of
one (1) year, and at any other time when required by the court Appeals a motion for reconsideration of the decision.[33]
and to perform all orders of this court by her to be performed.
On March 21, 1996, the Court of Appeals, [34] denied the
On the other matters prayed for in respective petitions for want motion for lack of merit.
of evidence could not be granted. Hence, this petition.[35]
SO ORDERED.[27]
The Issue
In time, Alicia filed with the trial court a motion for
reconsideration of the aforequoted decision.[28]
Stripping the petition of its legalese and sorting through
On September 14, 1987, the trial court denied Alicias
the various arguments raised,[36] the issue is simple. Who are
motion for reconsideration but modified its earlier decision,
entitled to inherit from the late Lorenzo N. Llorente?
stating that Raul and Luz Llorente are not children legitimate
or otherwise of Lorenzo since they were not legally adopted by We do not agree with the decision of the Court of
him.[29] Amending its decision of May 18, 1987, the trial court Appeals. We remand the case to the trial court for ruling on the
declared Beverly Llorente as the only illegitimate child of intrinsic validity of the will of the deceased.
Lorenzo, entitling her to one-third (1/3) of the estate and one-
third (1/3) of the free portion of the estate.[30]
On September 28, 1987, respondent appealed to the The Applicable Law
Court of Appeals.[31]
On July 31, 1995, the Court of Appeals promulgated its The fact that the late Lorenzo N. Llorente became an
decision, affirming with modification the decision of the trial American citizen long before and at the time of: (1) his divorce
court in this wise: from Paula; (2) marriage to Alicia; (3) execution of his will; and
(4) death, is duly established, admitted and undisputed.
WHEREFORE, the decision appealed from is hereby Thus, as a rule, issues arising from these incidents are
AFFIRMED with the MODIFICATION that Alicia is declared as necessarily governed by foreign law.
co-owner of whatever properties she and the deceased may
The Civil Code clearly provides:
Art. 15. Laws relating to family rights and duties, or to the States. Each State of the union has its own law applicable to
status, condition and legal capacity of persons are binding its citizens and in force only within the State. It can therefore
upon citizens of the Philippines, even though living abroad. refer to no other than the law of the State of which the
decedent was a resident.[39] Second, there is no showing that
Art. 16. Real property as well as personal property is subject to the application of the renvoi doctrine is called for or required
the law of the country where it is situated. by New York State law.
The trial court held that the will was intrinsically invalid
However, intestate and testamentary succession, both with since it contained dispositions in favor of Alice, who in the trial
respect to the order of succession and to the amount of courts opinion was a mere paramour. The trial court threw the
successional rights and to the intrinsic validity of testamentary will out, leaving Alice, and her two children, Raul and Luz, with
provisions, shall be regulated by the national law of the nothing.
person whose succession is under consideration,
whatever may be the nature of the property and regardless of The Court of Appeals also disregarded the will. It declared
the country wherein said property may be found. (emphasis Alice entitled to one half (1/2) of whatever property she and
ours) Lorenzo acquired during their cohabitation, applying Article
144 of the Civil Code of the Philippines.
True, foreign laws do not prove themselves in our The hasty application of Philippine law and the complete
jurisdiction and our courts are not authorized to take judicial disregard of the will, already probated as duly executed in
notice of them. Like any other fact, they must be alleged and accordance with the formalities of Philippine law, is
proved.[37] fatal, especially in light of the factual and legal
While the substance of the foreign law was pleaded, the circumstances here obtaining.
Court of Appeals did not admit the foreign law. The Court of
Appeals and the trial court called to the fore
the renvoi doctrine, where the case was referred back to the Validity of the Foreign Divorce
law of the decedents domicile, in this case, Philippine law.
We note that while the trial court stated that the law of In Van Dorn v. Romillo, Jr.[40] we held that owing to the
New York was not sufficiently proven, in the same breath it nationality principle embodied in Article 15 of the Civil Code,
made the categorical, albeit equally unproven statement that only Philippine nationals are covered by the policy against
American law follows the domiciliary theory hence, Philippine absolute divorces, the same being considered contrary to our
law applies when determining the validity of Lorenzos will.[38] concept of public policy and morality. In the same case, the
First, there is no such thing as one American law. The Court ruled that aliens may obtain divorces abroad, provided
"national law" indicated in Article 16 of the Civil Code cannot they are valid according to their national law.
possibly apply to general American law. There is no such law Citing this landmark case, the Court held in Quita v. Court
governing the validity of testamentary provisions in the United of Appeals,[41] that once proven that respondent was no longer
a Filipino citizen when he obtained the divorce from petitioner, was a foreigner, not covered by our laws on family rights and
the ruling in Van Dorn would become applicable and petitioner duties, status, condition and legal capacity.[44]
could very well lose her right to inherit from him.
Whether the will is intrinsically valid and who shall inherit
In Pilapil v. Ibay-Somera,[42] we recognized the divorce from Lorenzo are issues best proved by foreign law which
obtained by the respondent in his country, the Federal must be pleaded and proved. Whether the will was executed in
Republic of Germany. There, we stated that divorce and its accordance with the formalities required is answered by
legal effects may be recognized in the Philippines insofar as referring to Philippine law. In fact, the will was duly probated.
respondent is concerned in view of the nationality principle in
our civil law on the status of persons. As a guide however, the trial court should note that
whatever public policy or good customs may be involved in our
For failing to apply these doctrines, the decision of the system of legitimes, Congress did not intend to extend the
Court of Appeals must be reversed.[43] We hold that the divorce same to the succession of foreign nationals. Congress
obtained by Lorenzo H. Llorente from his first wife Paula was specifically left the amount of successional rights to the
valid and recognized in this jurisdiction as a matter of decedent's national law.[45]
comity. Now, the effects of this divorce (as to the succession to
the estate of the decedent) are matters best left to the Having thus ruled, we find it unnecessary to pass upon
the other issues raised.
determination of the trial court.
We find no grave abuse of discretion on the part of the Although on its face, the will appeared to have preterited the
respondent judge. No proof was adduced to support petitioner and thus, the respondent judge should have denied
petitioner's contention that the motion to withdraw was secured its reprobate outright, the private respondents have sufficiently
through fraudulent means and that Atty. Franco Loyola was not established that Adoracion was, at the time of her death, an
his counsel of record. The records show that after the firing of American citizen and a permanent resident of Philadelphia,
the contested motion, the petitioner at a later date, filed a Pennsylvania, U.S.A. Therefore, under Article 16 par. (2) and
manifestation wherein he confirmed that the Motion to Dismiss 1039 of the Civil Code which respectively provide:
Opposition was his voluntary act and deed. Moreover, at the
time the motion was filed, the petitioner's former counsel, Atty. Art. 16 par. (2).
Jose P. Lagrosa had long withdrawn from the case and had
been substituted by Atty. Franco Loyola who in turn filed the xxx xxx xxx
motion. The present petitioner cannot, therefore, maintain that
the old man's attorney of record was Atty. Lagrosa at the time However, intestate and testamentary
of filing the motion. Since the withdrawal was in order, the successions, both with respect to the order of
respondent judge acted correctly in hearing the probate of the succession and to the amount of successional
will ex-parte, there being no other opposition to the same. rights and to the intrinsic validity of
testamentary provisions, shall be regulated by
The third issue raised deals with the validity of the provisions the national law of the person whose
of the will. As a general rule, the probate court's authority is succession is under consideration, whatever
limited only to the extrinsic validity of the will, the due may be the nature of the property and
execution thereof, the testatrix's testamentary capacity and the regardless of the country wherein said property
compliance with the requisites or solemnities prescribed by may be found.
law. The intrinsic validity of the will normally comes only after
Art. 1039. the intrinsic validity of the provision of the will
and the amount of successional rights are to be
Capacity to succeed is governed by the law of determined under Texas law, the Philippine Law
the nation of the decedent. on legitimes cannot be applied to the testacy of
Amos G. Bellis.
the law which governs Adoracion Campo's will is the law of
Pennsylvania, U.S.A., which is the national law of the As regards the alleged absence of notice of hearing for the
decedent. Although the parties admit that the Pennsylvania petition for relief, the records wig bear the fact that what was
law does not provide for legitimes and that all the estate may repeatedly scheduled for hearing on separate dates until June
be given away by the testatrix to a complete stranger, the 19, 1980 was the petitioner's petition for relief and not his
petitioner argues that such law should not apply because it motion to vacate the order of January 10, 1979. There is no
would be contrary to the sound and established public policy reason why the petitioner should have been led to believe
and would run counter to the specific provisions of Philippine otherwise. The court even admonished the petitioner's failing
Law. to adduce evidence when his petition for relief was repeatedly
set for hearing. There was no denial of due process. The fact
It is a settled rule that as regards the intrinsic validity of the that he requested "for the future setting of the case for hearing
provisions of the will, as provided for by Article 16(2) and 1039 . . ." did not mean that at the next hearing, the motion to
of the Civil Code, the national law of the decedent must apply. vacate would be heard and given preference in lieu of the
This was squarely applied in the case of Bellis v. Bellis (20 petition for relief. Furthermore, such request should be
SCRA 358) wherein we ruled: embodied in a motion and not in a mere notice of hearing.
It is therefore evident that whatever public Finally, we find the contention of the petition as to the issue of
policy or good customs may be involved in our jurisdiction utterly devoid of merit. Under Rule 73, Section 1, of
system of legitimes, Congress has not intended the Rules of Court, it is provided that:
to extend the same to the succession of foreign
nationals. For it has specifically chosen to SECTION 1. Where estate of deceased
leave, inter alia, the amount of successional persons settled. — If the decedent is an
rights, to the decedent's national law. Specific inhabitant of the Philippines at the time of his
provisions must prevail over general ones. death, whether a citizen or an alien, his will
shall be proved, or letters of administration
xxx xxx xxx granted, and his estate settled, in the Court of
First Instance in the province in which he
The parties admit that the decedent, Amos G. resided at the time of his death, and if he is an
Bellis, was a citizen of the State of Texas, inhabitant of a foreign country, the Court of First
U.S.A., and under the law of Texas, there are Instance of any province in which he had
no forced heirs or legitimes. Accordingly, since estate. The court first taking cognizance of the
settlement of the estate of a decedent, shall
exercise jurisdiction to the exclusion of all other
courts. The jurisdiction assumed by a court, so
far as it depends on the place of residence of
the decedent, or of the location of his estate,
shall not be contested in a suit or proceeding,
except in an appeal from that court, in the
original case, or when the want of jurisdiction
appears on the record.
SO ORDERED.
(e) Any heir who may dare question the validity I, FLORENTINA R. DE ALSUA, 67 years old,
and legitimacy of the provision contained herein Filipina, married to Don Jesus Alsua, resident of
shall be under obligation to pay to the other and with postal address in the Municipality of
heirs, in the concept of damages and prejudice, Ligao, Province of Albay, Philippines, being in
the sum of P5,000.00 plus attorney's fees. the full possession of my mental and physical
faculties freely and spontaneously execute this
(f) The provisions of this deed shall bind the my last will and testament in my handwriting
successors of the herein heirs. and signed by me and expressed in the
Spanish language which I speak, write and
(g) In the event of death of one of the spouses, understand, this 5th day of January, 1955 in the
the properties assigned or adjudicated to each Municipality of Ligao, Province of Albay, and in
and everyone of the heirs shall be considered which I ordain and provide:
as his share or participation in the estate or as
his inheritance left by the deceased and each First: That in or about the year 1906 I was
married to my husband Don Jesus Alsua and
begot nine (9) children with him, four (4) of shall be partitioned among my spouse and
whom are still living and they are Francisco above named children or the children
Alsua, Pablo Alsua, Fernando Alsua and mentioned in above par. 3 in the same
Amparo Alsua. The other five (5) died during proportion that is, one-half (1 1/2) to my
their minority, single and without children. spouse; and the other half to my children in
equal parts.
Second: That after my marriage to my husband
Don Jesus Alsua and during our conjugal union, Fifth: That I name as my executor my husband
and as a result of our efforts and industry, we Don Jesus Alsua without having to post any
were able to acquire conjugal properties bond.
consisting of abaca (abales) and cacao lands
and urban lands registered in the office of the IN VIRTUE WHEREOF, I hereby sign in my own
Registry of Property of the Province of Albay handwriting this testament on this 5th day of
and in the City of Manila. January, 1955 in the Municipality of Ligao,
Province of Albay, Philippines. têñ.£îhqwâ£
Third: That I institute as my heirs with right to
inherit the following- my spouse Don Jesus (SGD.)
Alsua, one-half (1/2) of my properties, real and FLORENTI
personal, and the other half, to my children NA R. DE
Francisco Alsua, married to Joseph O. Betts, ALSUA
Pablo Alsua, Fernando Alsua, married to
Clotilde Samson, and Amparo Alsua, married to (Joint Record on appeal pp. 420-423, CA-G.R.
Fernando Buenviaje, in equal parts. It is to be No. 54492-R)
understood, however, that the other half that
corresponds as legitime to my above named As previously stated, Don Jesus Alsua executed a separate
children have already been given to them, but similar holographic will on the same day, Jan. 5, 1955 in
pursuant to a document dated November 25, exactly the same terms and conditions as the above will of his
1949 and ratified on the same day, month and wife.
year before Notary Public Segundo G. Flores
(Reg. No. 525; Pag. 15; Lib. 11; Series of 1949) On May 21, 1956, the spouses Don Jesus and Doñ;a Tinay
enjoining each and everyone of them to respect filed before the Court of First Instance of Albay their respective
and faithfully comply with each and every petitions for the probate of their respective holographic wins
clause contained in the said document. which were docketed as Special Proceedings No. 484 (Jesus
Alsua, Petitioner) and Special Proceedings No. 485 (Doñ;a
Fourth: That should I acquire new properties Florentina Ralla de Alsua, Petitioner).
after the execution of this testament, the same
On August 14, 1956, the spouses Don Jesus and Doñ;a Tinay which by reason of this testament I leave to my
executed their mutual and reciprocal codicils amending and husband as his share and the other half that
supplementing their respective holographic wins. Again, the corresponds to my husband constitutes an the
codicils similarly acknowledged and provided that one-half of properties that up to now have not been
all the properties of the spouses, conjugal and paraphernal, disposed of, particularly the urban lands
had been disposed of, conveyed to and partitioned among situated in Legaspi, Albay, Ligao of the Province
their legitimate heirs in the "Escritura de Particion" of of Albay and in the City of Manila, with the
November 25, 1949, but that they reserved for themselves (the exception of that portion that I bequeath to my
spouses Don Jesus and Doñ;a Tinay) the other half or those husband as his inheritance and his legitimate.
not disposed of to the said legitimate heirs under the above
agreement of partition, and that they mutually and reciprocally That I institute as my heirs with the right to
bequeathed unto each other their participation therein as well inherit my husband Don Jesus Alsua and my
as in all properties which might be acquired subsequently. children Francisco Alsua, Pablo Alsua,
Each spouse also declared that should she or he be the Fernando Alsua and Amparo Alsua. I leave to
surviving spouse, whatever belongs to him or her or would my aforecited children all the properties
pertain to him or her, would be divided equally among the four described in the above mentioned Document of
children. It was also declared in both codicils that upon the Partition dated November 25, 1949 which
death of either of the spouses, the surviving spouse was correspond to each one of them and in the
designated mutually and reciprocally as the executor or profits (fruits) expressed in the same, and in the
administrator of all the properties reserved for themselves. event that the properties granted to one or any
of my children should exceed in quantity or
The codicil executed by Doñ;a Tinay, written in Spanish reads, value those corresponding to another or others,
as translated: têñ.£îhqw⣠I hereby declare that it is my will that the same
be divided among my children as their
CODICIL inheritance from the free portion of my property.
This codicil supplements and amends the I leave to my spouse Don Jesus Alsua as his
preceding testament. That my spouse and I legitime and as Ws inheritance the part of the
have agreed to divide the properties which we free portion of my property which have not been
have acquired into 2 parts. The 1/2 that would allocated in favor of my children in the
correspond to me covers all the properties that I Document of Partition aforecited and that which
have partitioned among my children in the should exceed 1/2 of the conjugal property of
Document of Partition dated November 25, gains that pertains to him as above stated,
1949 before Notary Public Segundo G. Flores, including all those properties which we shall
Jr. (Doc. No. 525; Pag. No. 15; Lib. No. 11; acquire after the execution of this document.
Series of 1949) (and) even as the properties
In case it should be God's will that I survive my bookkeeper and secretary, Esteban P. Ramirez, whom he
spouse, I hereby declare that it is my will that instructed to make a list of all his remaining properties with
any and all kinds of property that pertain to me their corresponding descriptions. His lawyer, Atty. Gregorio
or would pertain to me, which have not been imperial Sr. was then instructed to draft a new will which was
disposed of pursuant to the partition, should be duly signed by Don Jesus and his attesting witnesses on
divided equally among my above-mentioned November 14, 1959 at Ms home in Ligao, Albay. This notarial
heirs after my death. Ligao, Albay, Philippines, will and testament (Exh. A) of Don Jesus executed on
August 14,1956. têñ.£îhqw⣠November 14, 1959 had three essential features: (a) it
expressly cancelled, revoked and annulled all the provisions of
(SGD.) Don Jesus' holographic will of January 5, 1955 and his codicil
of August 14, 1956; (b) it provided for the collation of all his
FLORENTI
properties donated to his four living children by virtue of the
NA RALLA
"Escritura de Particion Extra. judicial" of 1949, and that such
DE ALSUA
properties be taken into account in the partition of his estate
(joint Record on Appeal pp. 423-425, CA-G.R. among the children; and (c) it instituted his children as
No. 54492-R) legatees/devisees of certain specific properties, and as to the
rest of the properties and whatever may be subsequently
And as stated previously, on the same day, August 14, 1956, acquired in the future, before his death, were to be given to
Don Jesus executed also a separate but similar codicil in Francisca and Pablo, naming Francesca as executrix to serve
exactly the same terms and conditions as the above codicil of without a bond.
his wife. Also on the same day of August 14, 1956, the
spouses Don Jesus and Doñ;a Tinay both filed their respective After all debts, funeral charges and other expenses of the
supplemental petitions for the probate of their respective estate of Doñ;a Tinay had been paid, all her heirs including
codicils in the probate proceedings earlier filed. On February Don Jesus, submitted to the probate court for approval a deed
19, 1957, their respective holographic wins and the codicils of partition executed on December 19, 1959 (Exh. 7-Q) and
thereto were duly admitted to probate. which essentially confirmed the provisions of the partition of
1949, the holographic will and codicil of Doñ;a Tinay. On July
Upon the death of Doñ;a Tinay on October 2, 1959, Don Jesus 6, 1960, the court approved the partition of 1959 and on
was named executor to serve without bond in an order issued January 6, 1961 declared the termination of the proceedings
by the probate court on October 13, 1959. Letters on the estate of Doñ;a Tinay.
testamentary having been issued in favor of Don Jesus, he
took his oath of office and performed his duties as such until On May 6,1964, Don Jesus Alsua died.
July 1, 1960.
On May 20, 1964, petitioner herein Francisca Alsua Betts, as
Thereafter in the early part of November, 1959, Don Jesus the executrix named in the will of November 14, 1959, filed a
cancelled his holographic will in the presence of his petition for the probate of said new will of Don Jesus Alsua
before the Court of First Instance of Albay and was docketed market value of P238,000.00 at only P2,000.00 per hectare,
as Special Proceedings No. 699. Oppositions thereto were and four (4) commercial urban lots Ideally located in the
filed by Pablo, Amparo and Fernando, thru his judicial business section of Legazpi City including the lot and the
guardian Clotilde Samson, on the following grounds: (a) that building presently occupied by the well-known "Mayon Hotel"
Don Jesus was not of sound and disposing mind at the time of with an assessed value of approximately P117,260.00 or a
the execution of the alleged will; (b) that the will was executed probable market value at the time of P469,040.00. It appearing
under duress or influence of fear or threats; or it was procured from the new will that these properties were bequeathed to
by undue and improper pressure and influence on the part of Pablo Alsua and Francisco Alsua-Betts, specifically, 3 parcels
the main beneficiaries and of person or persons in collusion of the 33 agricultural lands to Pablo and the rest to Francisco,
with them, or the signature of the testator was secured by or the oppositors also raised in issue the non-inclusion of said
thru fraud; (c) that the will was not executed according to the properties in the inventory of the estate of their late father. In
formal requirements of the law; and (d) that the alleged will answer, Francisco claimed ownership over the same, alleging
subject of probate contravened the Extrajudicial Partition of that she bought the properties from their father and presenting
1949 agreed upon by him, his deceased spouse, Doñ;a Tinay, the two Deeds of Sale now being assailed, one dated August
and all his children, Francisco, Pablo, Amparo and Fernando 26, 1961 purporting to show the sale of the 33 parcels of
thru his judicial guardian Clotilde Samson, and also agricultural land to Francisco by their father for the price of
contravened Don Jesus' own probated holographic will and P70,000.00 and the other dated November 26, 1962
codicil of 1955 and 1956, respectively, essentially confirming evidencing the sale of the four urban lots for the sum of
and implementing the said partition of 1949 which had already P80,000.00. Claiming fraud in the sales, the oppositors filed
been partially executed by all the signatories thereto in the Civil Case No. 3068, seeking the annulment of the aforesaid
partition of the estate of Doñ;a Tinay in December, 1959. two deeds of sale, with damages, which upon agreement of
the parties was then jointly heard and tried with Special
On the basis of Francisca's designation as executrix in the Proceedings No. 699 for probate of the Last Will and
new will dated November 14, 1959, the Probate Court Testament of Don Jesus executed on November 14, 1959.
appointed her Administratrix of the estate of her late father,
Don Jesus Alsua. She then filed with the Probate Court an After a joint hearing of the merits of these two cases, the Court
inventory of the properties of the estate which, according to of First Instance of Albay promulgated a decision on January
the oppositors therein (the private respondents now) did not 15, 1973, the dispositive portion of which states: têñ.£îhqwâ£
include some properties appearing in the agreement of
November 25. 1949 or in the inventory attached thereto as WHEREFORE, in view of all the foregoing,
Annex "A" and in the "Escritura de Particion" of December 19, judgment is hereby rendered, to wit:
1959 as belonging to or should pertain to Don Jesus.
According to the oppositors, these properties consist of thirty- 1. In Special Proceedings 699, the Court
three (33) premium agricultural lots with a total land area of hereby APPROVES and ALLOWS the Will
1,187,970 square meters, or approximately 119 hectares and executed by Don Jesus Alsua at Ligao, Albay,
with a total assessed value of P48,410.00 or a probable total on November 14, 1959, which had been
marked as Exhibit A, consisting of nine (9) and to reimburse the plaintiffs the net gain, in
pages, and orders that the same be made the the proportion that appertains to them in the
basis for division and distribution of the estate properties subject of litigation in Civil Case No.
of said testator; 3068 from the date of the filing of this
complaint, up to the complete restoration of the
2. In Civil Case 3068, the Court hereby properties pertaining to (plaintiffs) pursuant to
dismisses the complaint and holds that the sale Article 2208 of the New Civil Code, paragraph
on August 26, 1961 (Exh. U) and the sale on 11, ordering them in addition to pay to the
November 26, 1962 (Exh. W), are lawful and plaintiffs and oppositors the sum of P50,000.00
valid sales and accordingly conveyed title to the as attorney's fees, and the costs.
VENDEE thereof. The Plaintiffs in Civil Case
3068. are ordered jointly and severally to pay to Hence, the petition at bar assailing the respondent court's
the defendant, Francisco Alsua Betts Fifty decision on four assigned errors, to wit: têñ.£îhqwâ£
Thousand Pesos (P50,000.00) as damages and
Fifty Thousand (P50,000.00) Pesos for I. The respondent Court of Appeals erred in not
attorney's fees or a total of One Hundred affirming the findings of the probate court
Thousand Pesos (P100,000.00) and to pay the (Special Proceedings No. 699) that private
costs. respondents, oppositors to the probate of the
will, are in estoppel to question the competence
On appeal by herein respondents to the Court of Appeals, the of testator Don Jesus Alsua.
court reversed the appealed decision in a judgment rendered
on April 4, 1977, the dispositive portion of which states, as II. The respondent Court of Appeals grossly
translated, thus —têñ.£îhqw⣠erred in holding that testator Don Jesus Alsua
cannot revoke his previous will.
IN VIEW OF THE FOREGOING, this Tribunal
finds itself constrained to set aside as it hereby III. The respondent court's finding is grounded
sets aside the decision appealed from in the entirely on speculation, surmises or conjectures
following manner: (1) in Special Proceedings resulting in a gross misapprehension of facts.
699, the probate of the will, Exh. A, is hereby
denied; (2) in Civil Case No. 3068, Exhs. U and IV. The respondent court grossly erred in
W and the titles issued on the basis thereof are annulling the sales of August 26, 1961 (Exh. U),
hereby declared null and void, ordering the and of November 26, 1962 (Exh. W).
appellees Francisco Alsua and Joseph Betts to
pay to the plaintiffs in the concept of fixed On the first issue of estoppel raised in the assignment of
damages, the sum of P5,000.00 and to render errors, We hold that the same is of no moment. The
an accounting of properties in their possession controversy as to the competency or incompetency of Don
Jesus Alsua to execute his will cannot be determined by acts 'The primary purpose of the
of the herein private respondents as oppositors to the will in proceeding is not to establish the
formally agreeing in writing jointly with the petitioner Francisca existence of the right of any
Alsua de Betts that their father, Don Jesus Alsua, be appointed living person, but to determine
by the court executor of the will of their mother in Special whether or not the decedent has
Proceedings No. 485, Testate Estate of Doñ;a Florentina Ralla performed the acts specified by
de Alsua and in subsequently petitioning the court not to the pertinent statutes, which are
require Don Jesus Alsua to file any accounting as executor in the essential prerequisites to
the proceedings, which petitioners claim and was upheld by personal direction of the mode of
the trial court as constituting estoppel on the part of the private devolution of his property on
respondents from questioning the competence of Don Jesus death. There is no legal but
Alsua. merely a moral duty resting upon
a proponent to attempt to
The principle of estoppel is not applicable in probate validate the wishes of the
proceedings, a ruling laid down in the case of Testate Estate departed, and he may and
of the Late Procopia Apostol Benedicta Obispo, et al vs. frequently does receive no
Remedios Obispo, 50 O.G. 614, penned by Justice J.B.L. personal benefit from the
Reyes, an eminent and recognized authority on Civil Law performance of the act.
when he was still in the Court of Appeals, and We quote: têñ.
£îhqw⣠One of the most fundamental
conceptions of probate law, is
Finally, probate proceedings involve public that it is the duty of the court to
interest, and the application therein of the rile of effectuate, in so far as may be
estoppel, when it win block the ascertainment of compatible with the public
the truth as to the circumstances surrounding interest, the devolutionary
the execution of a testament, would seem wishes of a deceased person
inimical to public policy. Over and above the (Matter of Watson's Wilt 262
interest of private parties is that of the state to N.Y., 284, 294, 186, N.E., 787;
see that testamentary dispositions be carried Matter of Marriman's Estate, 124
out if, and only if, executed conformably to law. Misc. 320, 325, 208, N.Y.S., 672;
Foley, S., affirmed 217 app. Div.,
The Supreme Court of New York aptly said in 733, 216 N.Y.S., 126,
Re Canfield's Will, 300 N.Y.S., 502: têñ. Henderson, S., Matter of
£îhqw⣠Draske's Estate, 160 Misc. 587,
593, 290, N.Y.S., 581). To that
end, the court is, in effect, an
additional party to every litigation (6) If the testator acted by mistake or did not
affecting the disposal of the intend that the instrument he signed should be
assets of the deceased. Matter his will at the time of affixing his signature
of Van Valkenburgh's Estate, 164 thereto.
Misc. 295, 298, N.Y.S., 219.'
The issue under consideration appears to Us to have been
The next issue that commands Our attention is whether the answered by the respondent court itself when it accepted the
respondent court erred in not allowing the probate of the last findings of the trial court on the due execution of the
will and testament of Don Jesus Alsua. Petitioners claim that questioned will and testament of Don Jesus, declaring: têñ.
the disallowance was based on speculations, surmises or £îhqwâ£
conjectures, disregarding the facts as found by the trial court.
The Civil Court is very clear and explicit in providing the cases ... and going back to the previous question,
where a will may be disallowed under Article 839 which whether the questioned will and testament of
provides as follows: têñ.£îhqw⣠November 14, 1959, Exh. A, was executed in
accordance with Arts. 805-809 of the New Civil
Art. 839. The will shall be disallowed in any of Code, this Tribunal from the very beginning
the following cases: accepts the findings of the inferior court
concerning the question, têñ.£îhqwâ£
(1) If the formalities required by law have not
been complied with; On October 2, 1959, Doñ;a
Florentina died at Ligao, Albay.
(2) If the testator was insane, or otherwise About 2 weeks after said death
mentally incapable of making a wilt at the time of his wife, Don Jesus Alsua
of its execution; decided to make a new will,
thereby revoking and cancelling
(3) If it was executed through force or under his previous holographic will
duress, or the influence of fear, or threats; which he made on January 5,
1955 and also its codicil dated
(4) If it was procured by undue and improper August 14, 1956. In the
pressure and influence, on the part of the presence of his bookkeeper and
beneficiary or of some other person; secretary, Esteban P. Ramirez,
he crossed out in ink each and
(5) If the signature of the testator was procured every page of said page he
by fraud, wrote on each page the word
"cancelado", and affixed his
signature thereon (Exh V-5, V-6,
consecutively up to and including corrections, he instructed Atty.
Exh. V-14). He then instructed Jorge S. Imperial to put the win
Ramirez to make a list of all s in final form. He further told Atty,
properties with their Jorge Imperial that the signing of
corresponding descriptions. the will should be at his home in
Ligao, in the morning of
Meanwhile, Don Jesus Alsua November 14, 1959, and that the
sent for his lawyer, Don Gregorio witnesses should be Mr. Ramon
Imperial, Sr. and the latter came Balana, the then Register of
accompanied by his son, Atty. Deeds of Albay; Mr. Jose
Jorge S, Imperial, who, Madarieta who is a friend of the
incidentally, is now a judge of the family; and Mr. Jose Gaya who is
Court of First Instance of Naga a sort of employee of Don Jesus.
City, Camarines Sur. Don Jesus
informed his lawyers that he Thus in the morning of
wanted to make a new will, and November 14, 1959, Don
accordingly gave more detailed Gregorio and Atty. Jorge S.
instructions as to how he wanted Imperial, riding in a sedan,
to divide his properties among stopped at the Legaspi
his four children. He handed to residence of Mr. Ramon Balana,
them a list and on the left he and informed the latter that Don
indicated the name of the child to Jesus was requesting him to be
whom the listed properties shall one of the attesting witnesses to
pertain. Atty. Jorge Imperial took his will. Mr. Balana, having a
notes of the instructions of Don very high regard for Don Jesus,
Jesus Alsua. To Don Jesus, considered it an honor to be so
Spanish is his major language, asked, and gladly went with the
as in fact his conversations with Imperials. They arrived at the
Don Gregorio are always in residence of Don Jesus at Ligao;
Spanish. A few days before Albay, almost ten o'clock of that
November 14, 1959, Atty. Jorge morning, and they were ushered
S. Imperial showed to Don Jesus in by Mr. Jose Gaya, and the
the semi-final draft of the will and latter requested them to be
after reading it Don Jesus said seated at the usual receiving
that it was as directed by him, room on the ground floor while
and after making a few minor he announced their arrival to
Don Jesus who was on the remark that it is about time to do
second floor. Soon Don Jesus what they were there for, and
came down, carrying with him this was followed by a more or
the will to be signed placed less statement from Jesus, who
inside a cartolina folder. He said: têñ.£îhqwâ£
greeted Don Gregorio, Mr.
Balan, and Atty. Imperial and 'Preisamente es
immediately joined them in por lo que he
conversation. Mr. Gaya called for Hamado a
Mr. Jose Madarieta, whose ustedes que esten
residence is just across the road presentes para
from the house of Don Jesus. ser testigos de rni
Mr. Madarieta was already ultimo voluntad y
informed by Don Jesus himself testamento que
about the fact of signing the will ha sido preparado
that morning, and so, on being por el abogado Sr.
advised by Mr. Gaya that the Gregorio Imperial
Imperials had already arrived, segun mis
Madarieta proceeded to the instrucciones
residence of Don Jesus, without cuyo documento
much delay. With the coming of tengo aqui
Madarieta and the coming back conmigo y
of Gaya, there were now six encuentro que,
people gathered in the living despues de lo he
room, namely: Don Jesus Alsua, leido, esta
Don Gregorio Imperial Atty. satisfactoriamente
Jorge S. Imperial Mr. Ramon hecho segun mis
Balana, Mr. Jose Madarieta, and instrucciones,
Mr. Jose Gaya. All the witnesses Como saben
who testified for the petitioner ustedes tengo
declared that Don Jesus was in cuatro (4) hijos
bright and lively conversation todos egos.' (pp.
which ran from problems of 43-44, t.s.n.,
farming and the merits of hearing of
French-made wines. At 1 1:00 December 7,
o'clock, Don Gregorio made a 1967, Sarte.
On request of Don Jesus, all of the nine pages, one at the end of
them moved to the big round the instrument proper and one
table on another part of the below the attestation clause. The
same sala for convenience in original will was marked as Exh.
signing because there were A (or set A); the duplicate as
chairs all around this table. The Exh. K (or set K) and the
will which consisted of nine triplicate of Don Jesus, Mr.
pages, with a duplicate, and Balana, Mr. Madarieta, and Mr.
triplicate was laid on the round Gaya were Identified by Mr.
table and the signing began, with Balana, Mr. Madarieta and Atty.
Atty. Jorge S. Imperial assisting (now Judge) imperial. It was also
each person signing by clearly established that when
indicating the proper place Don Jesus signed the will Mr.
where the signature shall be Balana, Mr. Madarieta, and Mr.
written. Don Jesus, as testator, Gaya were present and
signed first. After signing the witnessed said signing, and that
original and the two other sets, when each of these three
the three sets were then passed witnesses was signing, Don
to Mr. Ramon Balana who Jesus and the two other attesting
signed as attesting witness. After witnesses were present and
Mr. Balana, Mr. Jose Madarieta Witnessing said Signing. The
signed next as another attesting signing by the testator and the
witness, and when Mr. Madarieta attesting witnesses having been
finished signing all the three completed, Atty. Jorge S.
sets, the same were passed to Imperial as Notary Public with
Mr. Jose Gaya who also signed commission for the entire
as the third attesting witness. On province of Albay, notarized the
each of the three sets, Don wilt and sealed it with his notarial
Jesus signed ten times, — one seat which seal he brought along
on the margin of each of the nine that morning. After all the three
pages, and at the end of the sets were notarized, they were
instrument proper. Each of the all given back to Don Jesus who
three attesting witnesses placed them inside the same
(Balana, Madarieta and Gaya) folder. At that moment, it was
signed eleven times on each set, already about 12:30 P.M. and
— one on the margin of each of Don Jesus invited all of them to
lunch, which invitation was gladly executed separately their respective holographic wigs both
accepted by all of then-L (pp. dated January 5, 1955 and codicils dated August 14, 1956 with
474-480, Joint Record on Appeal the same terms and conditions as reproduced herein earlier.
in CA-G.R. No. 54492-R) Both holographic wills and codicils having been probated
thereafter and upon the death of Doñ;a Tinay, Don Jesus was
which findings are supported by the evidence, - appointed executor of the will and in due time the partition of
it is quite difficult to conclude that the same had the properties or estate of Doñ;a Tinay was approved by the
not complied with the requirements of Arts. 804- probate court on July 6, 1960.
806 of the New Civil Code. ... (CA Decision, pp.
13-16, as translated). The respondent court ruled that the Extrajudicial Partition of
November 25, 1949 was an enforceable contract which was
This cited portion of the appealed decision accepts as a fact binding on Don Jesus Alsua as the surviving spouse, barring
that the findings of the lower court declaring the contested will him from violating said partition agreement, barring him from
as having been executed with all the formal requirements of a revoking his holographic will of January 5, 1955 and his codicil
valid will, are supported by the evidence. This finding is of August 14, 1956, and further barring him from executing his
conclusive upon this Tribunal and We cannot alter, review or new will and testament of November 14, 1959, now the subject
revise the same. Hence, there is no further need for Us to of the probate proceedings elevated to this Court.
dwell on the matter as both the lower court and the respondent
appellate court have declared that these are the facts and We do not agree with this ruling of the Court of Appeals. We
such facts are fully borne and supported by the records. We hold that the Extrajudicial Partition of November 25, 1949 is
find no error in the conclusion arrived at that the contested will null and void under Article 1056 in relation to Article 1271 of
was duly executed in accordance with law. We rule that the the old Civil Code which are applicable hereto. These Articles
questioned last will and testament of Don Jesus Alsua fully provide as follows: têñ.£îhqwâ£
complied with the formal requirements of the law.
Art. 1056. If the testator should make a partition
Respondent court, however, denied probate of the will of his property by an act inter vivos, or by will,
after ,'noting certain details which were a little bit difficult to such partition shall stand in so far as it does not
reconcile with the ordinary course of things and of life." First prejudice the legitime of the forced heirs. ...
was the fact that the spouses Don Jesus and Doñ;a Tinay
together with their four children Francisco, Pablo, Amparo and Art. 1271. All things, even future ones, which
Fernando had executed the Extrajudicial Partition of are not excluded from the commerce of man,
November 25, 1949 (Exh. A) which divided the conjugal may be the subject-matter of contracts.
properties of the spouses between the spouses themselves
and the children under the terms and conditions and Nevertheless, no contract may be entered into
dispositions herein before stated and to implement its with respect to future inheritances, except those
provisions, Don Jesus and Doñ;a Tinay subsequently the object of which is to make a division inter
vivos of an estate, in accordance with Article Almadin of her property among her nieces, the
1056. defendants and appellants herein, was valid
and enforceable.
All services not contrary to law or to good
morals may also be the subject- matter of Article 1056 of the Civil Code provides:
contract.
Art. 1056. If the testator should make a partition
Article 1056 specifically uses the word "testator" from which of his property by an act inter vivos, or by will,
the clear intent of the law may be deduced that the privilege of such partition shall stand in so far as it does not
partitioning one's estate by acts inter vivos is restricted only to prejudice the legitime of the forced heirs.
one who has made a prior will or testament. In other words,
Article 1056 being an exception cannot be given a wider scope The Supreme Court of Spain, in a decision
as to include in the exception any person whether he has rendered on June 13, 1903, laid down the
made a will or not. following doctrine:
Respondent court citing the same Article concluded that under Considering that the language of article 1056
both the old and new Civil Code, a person who executes a will cannot be interpreted to mean that a person
is permitted at the same time or a little thereafter or even may, by acts inter vivos, partition his property
before as long as he mentions this fact in the will, to partition referred to in the section wherein said article is
his properties pursuant to the provisions of Article 1056 of the found, without the authority of a testament
old Civil Code. The court further added that jurisprudence is to containing an expression of his last will, or the
the effect that the partition presupposes the execution of the authority of law, for, otherwise, a partition thus
will that it ratifies or effectuates, citing the case of Legasto vs. made would be tantamount to making a will in a
Verzosa, 54 Phil. 776. Finally, respondent court held the manner not provided for, authorized, nor
opinion that the extrajudicial partition of November 14, 1949 included in the chapter referring to testaments,
was ratified in the holographic will executed by Don Jesus on and especially, to the forms thereof, which is
Jan. 5, 1955 and in the codicil of August 14, 1956. entirely different from the legal consequences of
a free disposition made by parents during their
Again, We do not agree with this ruling of the respondent lifetime, whereby they give to their children the
court. In Legasto vs. Verzosa, supra, the Supreme Court whole or a part of their property;
categorically declared the necessity of a prior will before the
testator can partition his properties among his heirs, and We Considering that, inasmuch as the second
quote the pertinent portions of the decision: têñ.£îhqw⣠paragraph of article 1271 makes reference to
the aforesaid article, in providing that no
The first question to decide in the instant appeal contracts may be entered into with respect to
is whether the partition made by Sabina future inheritances except those the object of
which is to make a division inter vivos of the law, in article 1056 as well as in article 1057,
estate in accordance with article 1056, it is which we shall hereafter examine, makes
evident that said difference likewise leads to the allusion to the forms or manner of making the
conclusion that a partition thus made should be partition and not to the effects thereof, which
on the basis of a testamentary or legal means that, for purposes of partition the formal
succession and should be made in conformity solemnities which must accompany every
with the fundamental rules thereof and the testament or last will are not necessary. Neither
order of the heirs entitled to the estate, because is it necessary to observe the special for.
neither of the two provisions could be given a realities required in case of donations, because
wider meaning or scope than that they simply it is not a matter of disposing gratuitously of
provide for the division of the estate during the properties, but of dividing those which already
lifetime of the owner, which, otherwise, would have been legally disposed of.
have to be done upon the death of the testator
in order to carry into effect the partition of the It is thus seen that both the Spanish Supreme
estate among the persons interested. Court and the learned and authoritative
commentator, Manresa, are of opinion that a
Manresa comments on the same article as testator may, by an act inter vivos, partition his
follows: property, but he must first make a will with all
the formalities provided for by law. And it could
A distinction must be made between the not be otherwise, for without a will there can be
disposition of property and its division; and the no testator; when the law, therefore, speaks of
provision of article 1056 authorizing the testator the partition inter vivos made by a testator of his
to dispose of his property by acts inter vivos or property, it necessarily refers to that property
by last will, must be understood in accordance which he has devised to his heirs. A person who
with this distinction. The Idea is to divide the disposes of his property gratis inter vivos is not
estate among the heirs designated by the called a testator, but a donor. In employing the
testator. This designation constitutes the word "testator," the law evidently desired to
disposition of the properties to take effect after distinguish between one who freely donates his
his death, and said act must necessarily appear property in life and one who disposes of it by
in the testament because it is the expression of will to take effect after his death.
the testator's last will and must be surrounded
by appropriate formalities. Then comes the We are not in conformity with the holding of the respondent
second part, to wit, the division in conformity court that the extrajudicial partition of November 25, 1949
with that disposition, and the testator may make which under the old Civil Code was expressly prohibited as
this division in the same will or in another will, against public policy had been validly ratified by the
or by an act inter vivos. With these words, the holographic will of Don Jesus executed on January 5, 1955
and his codicil of August 14, 1956. Such a holding of the the encumbrances to be assumed by the donee
appellate court that a person who executes a will is permitted expressed.
to partition his properties pursuant to the provisions of Article
1056 of the old Civil Code even before executing his will as The acceptance must be made in the deed of
long as he mentions this fact in the will, is not warranted under gift or in a separate public writing; but it shall
the ruling of Legasto vs. Verzosa, supra and the commentary produce no effect if not made during the lifetime
of Manresa as quoted above. We rule, therefore, that the of the donor.
respondent court erred in denying probate to the will of Don
Jesus dated November 14, 1959; it erred in holding that Don If the acceptance is made by separate public
Jesus being a party to the extrajudicial partition of 1949 was instrument, authentic notice thereof shall be
contractually bound by the provisions thereof and hence could given the donor, and this proceeding shall be
not revoke his participation therein by the simple expedience noted in both instruments.
of making a new will with contrary provisions or dispositions. It
is an error because the so-called extrajudicial partition of 1949 This other half, therefore, remained as the disposable free
is void and inoperative as a partition; neither is it a valid or portion of the spouses which may be disposed of in such
enforceable contract because it involved future inheritance; it manner that either of the spouses would like in regards to his
may only be given effect as a donation inter vivos of specific or her share in such portion, unencumbered by the provision
properties to the heirs made by the parents. enjoining the last surviving spouse to give equally to the
children what belongs or-would pertain to him or her. The end
Considering that the document, the extrajudicial partition of result, therefore, is that Don Jesus and Doñ;a Tinay, in the
November 25, 1949, contained specific designation of Deed of 1949, made to their children valid donations of only
properties allotted to each child, We rule that there was one-half of their combined properties which must be charged
substantial compliance with the rules on donations inter vivos against their legitime and cannot anymore be revoked unless
under the old Civil Code (Article 633). On the other hand, there inofficious; the other half remained entirely at the free disposal
could have been no valid donation to the children of the other of the spouses with regards to their respective shares.
half reserved as the free portion of Don Jesus and Doñ;a Tinay
which, as stated in the deed, was to be divided equally among Upon the death of Doñ;a Tinay on October 2, 1959, her share
the children for the simple reason that the property or in the free portion was distributed in accordance with her
properties were not specifically described in the public holographic will dated January 25, 1955 and her codicil dated
instrument, an essential requirement under Article 633 which August 14, 1956. It must be stressed here that the distribution
provides as follows: têñ.£îhqw⣠of her properties was subject to her holographic win and
codicil, independently of the holographic will and codicil of Don
Art. 633. In order that a donation or real Jesus executed by him on the same date. This is fundamental
property be valid it must be made by public because otherwise, to consider both wills and codicils jointly
instrument in which the property donated must would be to circumvent the prohibition of the Civil Code on
be specifically described and in the amount of joint wills (Art. 818) and secondly because upon the death of
Doñ;a Tinay, only her estate was being settled, and not that of libre disposicion todos aquellos bienes de los
Don Jesus. que no he dispuesto aun en favor de mis hijos
en la escritura de reparticion precitada y que
We have carefully examined the provisions of the holographic excedieran de la mitad de gananciales que le
will and codicil of Doñ;a Tinay and We find no indication corresponds tal como arriba declare,
whatsoever that Doñ;a Tinay expressly or impliedly instituted incluyendo todos aquenos bienes que se
both the husband and her children as heirs to her free portion adquiriesen por nosotros despues de otorgado
of her share in the conjugal assets. In her holographic will, por mi este testamento.
mention of her children as heirs was made in the fourth clause
but it only provided that, to wit: têñ.£îhqw⣠Para el caso de que Dios dispusiera que yo
sobreviviera a mi esposo declaro que es mi
Cuatro. Que si yo adquieriese nuevase voluntad que todas las propiedades de todo
propiedades despues de otorgado este mi genero que me pertenecen y me pudieran
testamento seran las mismas repartados entre pertenecer, no dispuestas aun en la reparticion,
mi esposo o hijos arriba mencionada en el se dividan por igual entre mis herederos
parrafo tercero su la misma proporcion o sea: la mencionados despues de mi muerte.
mitad (1/2) para is esposa; y la otra mitad (1/2)
para mis hijos en partes iguales. Again for purposes of clarity and convenience, the above
portion states: têñ.£îhqwâ£
For purposes of clarity and convenience, this fourth clause
provided that "Should I acquire new properties after the I leave to my spouse Don Jesus Alsua as his
execution of this testament, the same shall be partitioned legitime and as his inheritance the part of the
among my spouse and above named children or the children free portion of my property which have not been
mentioned in above par. 3 in the same proportion, that is, one- allocated in favor of my children in the
half (1/2) to my spouse; and the other half to my children in Document of Partition aforecited and that which
equal parts." From the above-quoted provision, the children should exceed 1/2 of the conjugal property of
would only inherit together with Don Jesus whatever new gains that pertains to him as above stated,
properties Doñ;a Tinay would acquire after the execution of including all those properties which we shall
her will. acquire after the execution of this document.
Now, the annulment case. The only issue raised anent the civil 3. Where there is a grave abuse of discretion (Buyco vs.
case for annulment of the two Deeds of Sale executed by and People, 51 O.G. 2927);
between Don Jesus and petitioner Francisco is their validity or
nullity. Private respondents mainly contend that the sales were 4. When the judgment is based on a misapprehension of facts
fictitious or simulated, there having been no actual (Cruz vs. Sosing, L-4875, Nov. 27, 1953);
consideration paid. They further insist that the issue raised is a
question of fact and, therefore, not reviewable in a certiorari 5. When the findings of fact are conflicting (Casica vs.
proceeding before the Supreme Court. On the other hand, Villaseca, L-9590, April 30, 1957); and
petitioners herein maintain that it was error for the respondent
court to set aside on appeal the factual findings of the trial 6. When the Court of Appeals, in making its findings, went
court that the two sales were valid. beyond the issues of the case and the same is contrary to the
admissions of both appellant and appellee (Evangelists vs.
It is true that the jurisprudence of this Court in cases brought Alto Surety & Ins. Co., L-11139, April 23, 1958; Ramos vs.
to Us from the Court of Appeals is limited to reviewing and Pepsi Cola, L-22533, Feb. 9, 1967, 19 SCRA 289).
revising the errors of law imputed to it, its findings of fact being
conclusive; and this same principle applies even if the Court of In the case at bar, We find and so declare that the respondent
Appeals was in disagreement with the lower court as to the court's conclusion as to the nullity of the contested sales was
weight of evidence with a consequent reversal of its findings of not supported by the evidence on record and adduced during
fact. But what should not be ignored by lawyers and litigants the trial.
alike is the more basic principle that the "findings of fact"
described as "final" or "conclusive" are those borne out by the Evident from the records are the following documentary
record or those which are based upon substantial evidence. evidence: (1) Exhibit U, a deed of sale over agricultural lands
The general rule laid down by the Supreme Court does not executed on August 26, 1961 by Don Jesus in favor of
declare the absolute correctness of all the findings of fact Francisca for the consideration of Seventy Thousand Pesos
made by the Court of Appeals. These are exceptions to the (P70,000.00), which document bears the signature of Don
general rule, where We have reviewed and revised the Jesus, not assailed as a forgery, and the signature of Pablo
findings of fact of the Court of Appeals. Among the exceptions Alsua as an instrumental witness, again not assailed as a
to the rule that findings of fact by the Court of Appeals cannot forgery nor alleged as done thru fraud, force or threat. (2)
be reviewed on appeals by certiorari are: Exhibit "W", a deed of sale over urban lots executed on
November 16, 1962 for the consideration of Eighty Thousand
1. When the conclusion is a finding grounded entirely on Pesos (P80,000.00), which document also bears the signature
speculation, surmises or conjectures (Joaquin vs. Navarro, 93 of Don Jesus, also admittedly not a forgery. (3) Exhibit "F", a
Phil. 257); document dated August 26, 1961 and signed by Don Jesus
and Pablo Alsua as witness, acknowledging receipt of a Bank receipts thereof by Don Jesus were even signed by one of the
of Philippine Island Check No. 0252 in the amount of Seventy private respondents, Pablo Alsua, as a witness. The latter
Thousand Pesos (P70,000.00) for the sale of 33 parcels of cannot now deny the payment of the consideration And even
agricultural land to Francisco under the same date; again, of he now allege that in fact no transfer of money was
Pablo did not deny the genuineness of his signature. (4) involved, We find his allegation belied by Exhibits "X-3 " and
Exhibit "X", a Bank of the Philippine Islands Check No. D-6979 "X-5 ", which show that the checks of Francisco made payable
dated November 26, 1962, in the amount of P32,644.71, to Don Jesus. were in fact given to Don Jesus as he endorsed
drawn and signed by Francesca, payable to Don Jesus. (5) them on the back thereof, and most specifically Exhibit "A" in
Exhibit "X-1", a second Bank of Philippine Islands Check (No. the annulment case, which proved that Don Jesus actually
D-6980) also dated November 26, 1962 in the amount of ? used Exhibit "XI " to complete payment on the estate and
47,355.29, drawn by Francisco and payable to Don Jesus. (6) inheritance tax on the estate of his wife to the Bureau of
Exhibit "X-3 " and "X-5 ", endorsements on the back of the last Internal Revenue.
two checks by Don Jesus, again, his signatures thereon were
not assailed. (7) Exhibit "A" (in the annulment case), a Bureau Private respondents further insist that the sales were
of Internal Revenue Receipt (No. 2347260) dated November fraudulent because of the inadequacy of the given price.
29, 1962 with a notation acknowledging the receipt of BPI Inadequacy of consideration does not vitiate a contract unless
Check No. D-6980 in the amount of P47,355.29 from Don it is proven which in the case at bar was not, that there was
Jesus Alsua in payment of Balance of Transfer of Tax Ass. No. fraud, mistake or undue influence. (Article 1355, New Civil
EA-35415-19 plus interest. We are convinced and satisfied Code). We do not find the stipulated price as so inadequate to
from this array of documentary evidence that in fact, Don shock the court's conscience, considering that the price paid
Jesus sold the subject properties to his daughter, Francisca for was much higher than the assessed value of the subject
the total consideration of P150,000.00. properties and considering that the sales were effected by a
father to her daughter in which case filial love must be taken
The claim of the private respondents that the sales were into account.
fictitious and void for being without cause or consideration is
as weak and flimsy as the ground upon which the respondent WHEREFORE, IN VIEW OF THE FOREGOING, the decision
court upheld said claim on the basis that there was no need for appealed from is hereby set aside. The decision of the Court
funds in Don Jesus' old age aside from the speculation that of First Instance Of Albay in Special Proceedings No. 699 and
there was nothing in the evidence that showed what motivated Civil Case No. 3068 is hereby reinstated, with costs against
Don Jesus to change his mind as to favor Francesca and respondents.
discriminate against the other children. The two contracts of
same executed by Don Jesus in favor of Francesca are SO ORDERED.
evidenced by Exhibits "U" and "W", the genuineness of which
were not at all assailed at any time during this long drawn-out Teehankee (Chairman), Makasiar and Fernandez, JJ.,
litigation of 15 years standing. That the consideration stated in concur.1äwphï1.ñët
the contracts were paid is also sufficiently proved as the
De Castro, J., took no part.
WHEREFORE, Exhibit "F", the document The resolution of the factual issue raised in the
presented for probate as the last wig and motion for reconsideration hinges on the
testament of the deceased Isabel Gabriel is appreciation of the evidence. We have carefully
here by DISALLOWED. re-examined the oral and documentary
evidence of record, There is no reason to alter
From this judgment of disallowance, Lutgarda Santiago the findings of fact in the decision of this Court
appealed to respondent Court, hence, the only issue decided sought to be set aside. 7
on appeal was whether or not the will in question was
executed and attested as required by law. The Court of In her petition before this Court, oppositor Rizalina Gabriel
Appeals, upon consideration of the evidence adduced by both Gonzales contends that respondent Court abused its
parties, rendered the decision now under review, holding that discretion and/or acted without or in excess of its jurisdiction in
the will in question was signed and executed by the deceased reverssing the findings of fact and conclusions of the trial
Isabel Gabriel on April 15, 1961 in the presence of the three court. The Court, after deliberating on the petition but without
attesting witnesses, Matilde Orobia, Celso Gimpaya and Maria giving due course resolved, in the Resolution dated Oct. 11,
Gimpaya, signing and witnessing the document in the 1973 to require the respondents to comment thereon, which
presence of the deceased and of each other as required by comment was filed on Nov. 14, 1973. Upon consideration of
law, hence allow ed probate. the allegations, the issues raised and the arguments adduced
in the petition, as well as the Comment 8 of private respondent
Oppositor Rizalina Gabriel Gonzales moved for thereon, We denied the petition by Resolution on November
reconsideration 3 of the aforesaid decision and such motion 26, 1973, 9 the question raised being factual and for
insufficient showing that the findings of fact by respondent V. The Court of Appeals erred in reversing the trial court's
Court were unsupported by substantial evidence. finding that it was incredible that Isabel Gabriel could have
dictated the wilt Exhibit "F , without any note or document, to
Subsequently, or on December 17, 1973, petitioner Rim Atty. Paraiso.
Gabriel Goes fried a Motion for Reconsideration 10 which
private respondent answered by way of her Comment or VI. The Court of Appeals erred in reversing the finding of the
Opposition 11 filed on January 15, 1974. A Reply and Rejoinder trial court that Matilde Orobia was not physically present when
to Reply followed. Finally, on March 27, 1974, We resolved to the Will Exhibit "F" was allegedly signed on April 15, 1961 by
give due course to the petition. the deceased Isabel Gabriel and the other witnesses Celso
Gimpaya and Maria Gimpaya.
The petitioner in her brief makes the following assignment of
errors: VII. The Court of Appeals erred in holding that the trial court
gave undue importance to the picture takings as proof that the
I. The respondent Court of Appeals erred in holding that the win was improperly executed.
document, Exhibit "F" was executed and attested as required
by law when there was absolutely no proof that the three VIII. The Court of Appeals erred in holding that the grave
instrumental witnesses were credible witness contradictions, evasions, and misrepresentations of witnesses
(subscribing and notary) presented by the petitioner had been
II. The Court of Appeals erred in reversing the finding of the explained away, and that the trial court erred in rejecting said
lower court that the preparation and execution of the win testimonies.
Exhibit "F", was unexpected and coincidental.
IX. The Court of Appeals acted in excess of its appellate
III. The Court of Appeals erred in finding that Atty, Paraiso was jurisdiction or has so far departed from the accepted and usual
not previously furnished with the names and residence course of judicial proceedings, as to call for an exercise of the
certificates of the witnesses as to enable him to type such data power of supervision.
into the document Exhibit "F".
X. The Court of Appeals erred in reversing the decision of the
IV. The Court of Appeals erred in holding that the fact that the trial court and admitting to probate Exhibit "F", the alleged last
three typewritten lines under the typewritten words "Pangalan" will and testament of the deceased Isabel Gabriel.
and "Tinitirahan" were left blank shows beyond cavil that the
three attesting witnesses were all present in the same It will be noted from the above assignments of errors that the
occasion. same are substantially factual in character and content.
Hence, at the very outset, We must again state the oft-
repeated and well-established rule that in this jurisdiction, the
factual findings of the Court of Appeals are not reviewable, the
same being binding and conclusive on this Court. This rule has
been stated and reiterated in a long line of cases enumerated Having laid down the above legal precepts as Our foundation,
in Chan vs. CA (L-27488, June 30, 1970, 33 SCRA 737, We now proceed to consider petitioner's assignments of
743) 12 and Tapas vs. CA (L-22202, February 27; 1976, 69 errors.
SCRA 393), 13 and in the more recent cases of Baptisia vs.
Carillo and CA (L32192, July 30, 1976, 72 SCRA 214, 217) Petitioner, in her first assignment, contends that the
and Vda. de Catindig vs. Heirs of Catalina Roque (L-25777, respondent Court of Appeals erred in holding that the
November 26, 1976, 74 SCRA 83, 88). In the case of Chan vs. document, Exhibit "F", was executed and attested as required
CA, this Court said: by law when there was absolutely no proof that the three
instrumental witnesses were credible witnesses. She argues
... from Guico v. Mayuga, a 1936 decision, the opinion being that the require. ment in Article 806, Civil Code, that the
penned by the then Justice Recto, it has been well-settled that witnesses must be credible is an absolute requirement which
the jurisdiction of tills Court in cases brought to us from the must be complied with before an alleged last will and
Court of Appeals is limited to reviewing and revising the errors testament may be admitted to probate and that to be a
of law imputed to it, its findings of fact being conclusive. More credible witness, there must be evidence on record that the
specifically, in a decision exactly a month later, this Court, witness has a good standing in his community, or that he is
speaking through the then Justice Laurel, it was held that the honest and upright, or reputed to be trustworthy and reliable.
same principle is applicable, even if the Court of Appeals was According to petitioner, unless the qualifications of the witness
in disagreement with the lower court as to the weight of the are first established, his testimony may not be favorably
evidence with a consequent reversal of its findings of fact ... considered. Petitioner contends that the term "credible" is not
synonymous with "competent" for a witness may be competent
Stated otherwise, findings of facts by the Court of Appeals, under Article 820 and 821 of the Civil Code and still not be
when supported by substantive evidence are not reviewable credible as required by Article 805 of the same Code. It is
on appeal by certiorari. Said findings of the appellate court are further urged that the term "credible" as used in the Civil Code
final and cannot be disturbed by Us particularly because its should receive the same settled and well- known meaning it
premises are borne out by the record or based upon has under the Naturalization Law, the latter being a kindred
substantial evidence and what is more, when such findings are legislation with the Civil Code provisions on wigs with respect
correct. Assignments of errors involving factual issues cannot to the qualifications of witnesses.
be ventilated in a review of the decision of the Court of
Appeals because only legal questions may be raised. The We find no merit to petitioner's first assignment of error. Article
Supreme Court is not at liberty to alter or modify the facts as 820 of the Civil Code provides the qualifications of a witness to
set forth in the decision of the Court of Appeals sought to be the execution of wills while Article 821 sets forth the
reversed. Where the findings of the Court of Appeals are disqualification from being a witness to a win. These Articles
contrary to those of the trial court, a minute scrutiny by the state:
Supreme Court is in order, and resort to duly-proven evidence
becomes necessary. The general rule We have thus stated Art. 820. Any person of sound mind and of the
above is not without some recognized exceptions. age of eighteen years or more, and not blind,
deaf or dumb, and able to read and write, may law is mandatory that the petition for naturalization must be
be a witness to the execution of a will supported by two character witnesses who must prove their
mentioned in article 806 of this Code. "Art. 821. good standing in the community, reputation for trustworthiness
The following are disqualified from being and reliableness, their honesty and uprightness. The two
witnesses to a will: witnesses in a petition for naturalization are character
witnesses in that being citizens of the Philippines, they
(1) Any person not domiciled in the Philippines, personally know the petitioner to be a resident of the
Philippines for the period of time required by the Act and a
(2) Those who have been convicted of person of good repute and morally irreproachable and that
falsification of a document, perjury or false said petitioner has in their opinion all the qualifications
testimony. necessary to become a citizen of the Philippines and is not in
any way disqualified under the provisions of the Naturalization
Under the law, there is no mandatory requirement that the Law (Section 7, Commonwealth Act No. 473 as amended).
witness testify initially or at any time during the trial as to his
good standing in the community, his reputation for In probate proceedings, the instrumental witnesses are not
trustworthythiness and reliableness, his honesty and character witnesses for they merely attest the execution of a
uprightness in order that his testimony may be believed and will or testament and affirm the formalities attendant to said
accepted by the trial court. It is enough that the qualifications execution. And We agree with the respondent that the rulings
enumerated in Article 820 of the Civil Code are complied with, laid down in the cases cited by petitioner concerning character
such that the soundness of his mind can be shown by or witnesses in naturalization proceedings are not applicable to
deduced from his answers to the questions propounded to instrumental witnesses to wills executed under the Civil Code
him, that his age (18 years or more) is shown from his of the Philippines.
appearance, testimony , or competently proved otherwise, as
well as the fact that he is not blind, deaf or dumb and that he is In the case at bar, the finding that each and everyone of the
able to read and write to the satisfaction of the Court, and that three instrumental witnesses, namely, Matilde Orobia, Celso
he has none of the disqualifications under Article 821 of the Gimpaya and Maria Gimpaya, are competent and credible is
Civil Code. We reject petitioner's contention that it must first be satisfactorily supported by the evidence as found by the
established in the record the good standing of the witness in respondent Court of Appeals, which findings of fact this
the community, his reputation for trustworthiness and Tribunal is bound to accept and rely upon. Moreover, petitioner
reliableness, his honesty and uprightness, because such has not pointed to any disqualification of any of the said
attributes are presumed of the witness unless the contrary is witnesses, much less has it been shown that anyone of them
proved otherwise by the opposing party. is below 18 years of age, of unsound mind, deaf or dumb, or
cannot read or write.
We also reject as without merit petitioner's contention that the
term "credible" as used in the Civil Code should be given the It is true that under Article 805 of the New Civil Code, every
same meaning it has under the Naturalization Law where the will, other than a holographic will, must be subscribed at the
end thereof by the testator himself or by the testator's name Article 805 of this Code," and cites authorities that the word
written by some other person in his presence, and by his "credible" insofar as witnesses to a will are concerned simply
express direction, and attested and subscribed by three or means " competent." Thus, in the case of Suntay vs. Suntay,
more credible witnesses in the presence of the testator and of 95 Phil. 500, the Supreme Court held that "Granting that a will
one another, While the petitioner submits that Article 820 and was duly executed and that it was in existence at the time of,
821 of the New Civil Code speak of the competency of a and not revoked before, the death of the testator, still the
witness due to his qualifications under the first Article and provisions of the lost wig must be clearly and distinctly proved
none of the disqualifications under the second Article, whereas by at least two credible witnesses. 'Credible witnesses' mean
Article 805 requires the attestation of three or more credible competent witnesses and not those who testify to facts from or
witnesses, petitioner concludes that the term credible requires upon hearsay. " emphasis supplied).
something more than just being competent and, therefore, a
witness in addition to being competent under Articles 820 and In Molo Pekson and Perez Nable vs. Tanchuco, et al., 100
821 must also be a credible witness under Article 805. Phil. 344, the Supreme Court held that "Section 620 of the
same Code of Civil Procedure provides that any person of
Petitioner cites American authorities that competency and sound mind, and of the age of eighteen years or more, and not
credibility of a witness are not synonymous terms and one blind, deaf, or dumb and able to read and write, may be a
may be a competent witness and yet not a credible one. She witness to the execution of a will. This same provision is
exacerbates that there is no evidence on record to show that reproduced in our New Civil Code of 1950, under Art. 820. The
the instrumental witnesses are credible in themselves, that is, relation of employer and employee, or being a relative to the
that they are of good standing in the community since one was beneficiary in a win, does not disqualify one to be a witness to
a family driver by profession and the second the wife of the a will. The main qualification of a witness in the attestation of
driver, a housekeeper. It is true that Celso Gimpaya was the wills, if other qualifications as to age, mental capacity and
driver of the testatrix and his wife Maria Gimpaya, merely a literacy are present, is that said witness must be credible, that
housekeeper, and that Matilde Orobia was a piano teacher to is to say, his testimony may be entitled to credence. There is a
a grandchild of the testatrix But the relation of employer and long line of authorities on this point, a few of which we may
employee much less the humble or financial position of a cite:
person do not disqualify him to be a competent testamentary
witness. (Molo Pekson and Perez Nable vs. Tanchuco, et al., A 'credible witness is one who is not is not to
100 Phil. 344; Testate Estate of Raymundo, Off. Gaz., March testify by mental incapacity, crime, or other
18,1941, p. 788). cause. Historical Soc of Dauphin County vs.
Kelker 74 A. 619, 226 Pix 16, 134 Am. St. Rep.
Private respondent maintains that the qualifications of the 1010. (Words and Phrases, Vol. 10, p. 340).
three or more credible witnesses mentioned in Article 805 of
the Civil Code are those mentioned in Article 820 of the same
Code, this being obvious from that portion of Article 820 which
says "may be Q witness to the execution of a will mentioned in
As construed by the common law, a 'credible In the strict sense, the competency of a person to be an
witness' to a will means a 'competent witness.' instrumental witness to a will is determined by the statute, that
Appeal of Clark, 95 A. 517, 114 Me. 105, Ann. is Art. 820 and 821, Civil Code, whereas his credibility
Cas. 1917A, 837. (lbid, p. 341). depends On the appreciation of his testimony and arises from
the belief and conclusion of the Court that said witness is
Expression 'credible witness' in relation to telling the truth. Thus, in the case of Vda. de Aroyo v. El
attestation of wins means 'competent witness Beaterio del Santissimo Rosario de Molo, No. L-22005, May 3,
that is, one competent under the law to testify to 1968, the Supreme Court held and ruled that: "Competency as
fact of execution of will. Vernon's Ann. Civ St. a witness is one thing, and it is another to be a credible
art. 8283. Moos vs. First State Bank of Uvalde, witness, so credible that the Court must accept what he says.
Tex . Civ. App. 60 S.W. 2nd 888, 889. (Ibid, p. Trial courts may allow a person to testify as a witness upon a
342) given matter because he is competent, but may thereafter
decide whether to believe or not to believe his testimony." In
The term 'credible', used in the statute of wills fine, We state the rule that the instrumental witnesses in Order
requiring that a will shall be attested by two to be competent must be shown to have the qualifications
credible witnesses means competent; under Article 820 of the Civil Code and none of the
witnesses who, at the time of attesting the will, disqualifications under Article 821 and for their testimony to be
are legally competent to testify, in a court of credible, that is worthy of belief and entitled to credence, it is
justice, to the facts attested by subscribing the not mandatory that evidence be first established on record that
will, the competency being determined as of the the witnesses have a good standing in the community or that
date of the execution of the will and not of the they are honest and upright or reputed to be trustworthy and
timr it is offered for probate, Smith vs. reliable, for a person is presumed to be such unless the
Goodell 101 N.E. 255, 256, 258 111. 145. (Ibid.) contrary is established otherwise. In other words, the
instrumental witnesses must be competent and their
Credible witnesses as used in the statute testimonies must be credible before the court allows the
relating to wills, means competent witnesses — probate of the will they have attested. We, therefore, reject
that is, such persons as are not legally petitioner's position that it was fatal for respondent not to have
disqualified from testifying in courts of justice, introduced prior and independent proof of the fact that the
by reason of mental incapacity, interest, or the witnesses were "credible witnesses that is, that they have a
commission of crimes, or other cause excluding good standing in the community and reputed to be trustworthy
them from testifying generally, or rendering and reliable.
them incompetent in respect of the particular
subject matter or in the particular suit. Hill vs. Under the second, third, fourth, fifth, sixth, seventh and eighth
Chicago Title & Trust co 152 N.E. 545, 546, 322 assignments of errors, petitioner disputes the findings of fact of
111. 42. (Ibid. p, 343) the respondent court in finding that the preparation and
execution of the will was expected and not coincidental, in
finding that Atty. Paraiso was not previously furnished with the appellate court is amply based on the testimony of Celso
names and residence certificates of the witnesses as to enable Gimpaya that he was not only informed on the morning of the
him to type such data into the document Exhibit "F", in holding day that he witnessed the will but that it was the third time
that the fact that the three typewritten lines under the when Isabel Gabriel told him that he was going to witness the
typewritten words "pangalan" and "tinitirahan" were left blank making of her will, as well as the testimony of Maria Gimpaya
shows beyond cavil that the three attesting witnesses were all that she was called by her husband Celso Gimpaya to proceed
present in the same occasion, in holding credible that Isabel to Isabel Gabriel's house which was nearby and from said
Gabriel could have dictated the will without note or document house, they left in a car to the lawyer's office, which
to Atty. Paraiso, in holding that Matilde Orobia was physically testimonies are recited in the respondent Court's decision.
present when the will was signed on April 15, 1961 by the
deceased Isabel Gabriel and the other witnesses Celso The respondent Court further found the following facts: that
Gimpaya and Maria Gimpaya, in holding that the trial court Celso Gimpaya and his wife Maria Gimpaya obtained
gave undue importance to the picture takings as proof that the residence certificates a few days before Exhibit "F" was
will was improperly executed, and in holding that the grave executed. Celso Gimpaya's residence certificate No. A-
contradictions, evasions and misrepresentations of the 5114942 was issued at Navotas, Rizal on April 13, 1961 while
witnesses (subscribing and notary) presented by the petitioner Maria Gimpaya's residence certificate No. A-5114974 was
had been explained away. issued also at Navotas, Rizal on April 14, 1961. The
respondent Court correctly observed that there was nothing
Since the above errors are factual We must repeat what We surprising in these facts and that the securing of these
have previously laid down that the findings of fact of the residence certificates two days and one day, respectively,
appellate court are binding and controlling which We cannot before the execution of the will on April 15, 1961, far from
review, subject to certain exceptions which We win consider showing an amazing coincidence, reveals that the spouses
and discuss hereinafter. We are convinced that the appellate were earlier notified that they would be witnesses to the
court's findings are sufficiently justified and supported by the execution of Isabel Gabriel's will.
evidence on record. Thus, the alleged unnaturalness
characterizing the trip of the testatrix to the office of Atty. We also agree with the respondent Court's conclusion that the
Paraiso and bringing all the witnesses without previous excursion to the office of Atty. Paraiso was planned by the
appointment for the preparation and execution of the win and deceased, which conclusion was correctly drawn from the
that it was coincidental that Atty. Paraiso was available at the testimony of the Gimpaya spouses that they started from the
moment impugns the finding of the Court of Appeals that Navotas residence of the deceased with a photographer and
although Atty. Paraiso admitted the visit of Isabel Gabriel and Isabel Gabriel herself, then they proceeded by car to Matilde
of her companions to his office on April 15, 1961 was Orobia's house in Philamlife, Quezon City to fetch her and
unexpected as there was no prior appointment with him, but from there, all the three witnesses (the Gimpayas and Orobia)
he explained that he was available for any business passed by a place where Isabel Gabriel stayed for about ten to
transaction on that day and that Isabel Gabriel had earlier fifteen minutes at the clinic of Dr. Chikiamco before they
requested him to help her prepare her will. The finding of the proceeded to Atty. Cipriano Paraiso's office.
It is also evident from the records, as testified to by Atty. when the will was executed, is of no moment for such data
Paraiso, that previous to the day that. the will was executed on appear in the notarial acknowledgment of Notary Public
April 15, 1961, Isabel Gabriel had requested him to help her in Cipriano Paraiso, subscribed and sworn to by the witnesses
the execution of her will and that he told her that if she really on April 15, 1961 following the attestation clause duly
wanted to execute her will, she should bring with her at least executed and signed on the same occasion, April 15, 1961.
the Mayor of Navotas, Rizal and a Councilor to be her And since Exhibit "F" is a notarial will duly acknowledged by
witnesses and that he (Atty. Paraiso) wanted a medical the testatrix and the witnesses before a notary public, the
certificate from a physician notwithstanding the fact that he same is a public document executed and attested through the
believed her to be of sound and disposition mind. From this intervention of the notary public and as such public document
evidence, the appellate court rightly concluded, thus: "It is, is evidence of the facts in clear, unequivocal manner therein
therefore, clear that the presence of Isabel Gabriel and her expressed. It has in its favor the presumption of regularity. To
witnesses Matilde Orobia, Celso Gimpaya and Maria Gimpaya contradict all these, there must be evidence that is clear,
including the photographer in the law office of Atty. Paraiso convincing and more than merely preponderant. (Yturalde vs.
was not coincidental as their gathering was pre-arranged by Azurin, 28 SCRA 407). We find no such evidence pointed by
Isabel Gabriel herself." petitioner in the case at bar.
As to the appellate court's finding that Atty. Paraiso was not Likewise, the conclusion of the Court of Appeals in holding that
previously furnished with the names and residence certificates the fact that the three typewritten lines under the typewritten
of the witnesses as to enable him to type such data into the words "pangalan ' and "tinitirahan" were left blank shows
document Exhibit ' L which the petitioner assails as beyond cavil that the three attesting witnesses were all present
contradictory and irreconcilable with the statement of the Court in the same occasion merits Our approval because tills
that Atty. Paraiso was handed a list (containing the names of conclusion is supported and borne out by the evidence found
the witnesses and their respective residence certificates) by the appellate court, thus: "On page 5 of Exhibit "F", beneath
immediately upon their arrival in the law office by Isabel the typewritten words "names", "Res. Tax Cert. date issued"
Gabriel and this was corroborated by Atty. Paraiso himself who and place issued the only name of Isabel Gabriel with
testified that it was only on said occasion that he received Residence Tax certificate No. A-5113274 issued on February
such list from Isabel Gabriel, We cannot agree with petitioner's 24, 1961 at Navotas Rizal appears to be in typewritten form
contention. We find no contradiction for the, respondent Court while the names, residence tax certificate numbers, dates and
held that on the occasion of the will making on April 15, 1961, places of issuance of said certificates pertaining to the three
the list was given immediately to Atty. Paraiso and that no (3) witnesses were personally handwritten by Atty. Paraiso.
such list was given the lawyer in any previous occasion or date Again, this coincides with Atty. Paraiso's even the sale must be
prior to April 15, 1961. made to close relatives; and the seventh was the appointment
of the appellant Santiago as executrix of the will without bond.
But whether Atty. Paraiso was previously furnished with the The technical description of the properties in paragraph 5 of
names and residence certificates of the witnesses on a prior Exhibit F was not given and the numbers of the certificates of
occasion or on the very occasion and date in April 15, 1961 title were only supplied by Atty. Paraiso. "
It is true that in one disposition, the numbers of the Torrens and Maria Gimpaya. Such factual finding of the appellate court
titles of the properties disposed and the docket number of a is very clear, thus: "On the contrary, the record is replete with
special proceeding are indicated which Atty. Paraiso candidly proof that Matilde Orobia was physically present when the will
admitted were supplied by him, whereupon petitioner contends was signed by Isabel Gabriel on April '15, 1961 along with her
that it was incredible that Isabel Gabriel could have dictated co-witnesses Celso Gimpaya and Maria Gimpaya. The trial
the will Exhibit "F" without any note or document to Atty. court's conclusion that Orobia's admission that she gave piano
Paraiso, considering that Isabel Gabriel was an old and sickly lessons to the child of the appellant on Wednesdays and
woman more than eighty-one years old and had been suffering Saturdays and that April 15, 1961 happened to be a Saturday
from a brain injury caused by two severe blows at her head for which reason Orobia could not have been present to
and died of terminal cancer a few weeks after the execution of witness the will on that — day is purely conjectural. Witness
Exhibit "F". While we can rule that this is a finding of fact which Orobia did not admit having given piano lessons to the
is within the competency of the respondent appellate court in appellant's child every Wednesday and Saturday without fail. It
determining the testamentary capacity of the testatrix and is, is highly probable that even if April 15, 1961 were a Saturday,
therefore, beyond Our power to revise and review, We she gave no piano lessons on that day for which reason she
nevertheless hold that the conclusion reached by the Court of could have witnessed the execution of the will. Orobia spoke
Appeals that the testatrix dictated her will without any note or of occasions when she missed giving piano lessons and had
memorandum appears to be fully supported by the following to make up for the same. Anyway, her presence at the law
facts or evidence appearing on record. Thus, Isabel Gabriel, office of Atty. Paraiso was in the morning of April 15, 1961 and
despite her age, was particularly active in her business affairs there was nothing to preclude her from giving piano lessons on
as she actively managed the affairs of the movie business the afternoon of the same day in Navotas, Rizal."
ISABELITA Theater, paying the aparatistas herself until June
4, 1961, 3 days before her death. She was the widow of the In addition to the testimony of Matilde Orobia, Celso Gimpaya
late Eligio Naval, former Governor of Rizal Province and acted and Maria Gimpaya that Matilde was present on April 15, 1961
as coadministratrix in the Intestate Estate of her deceased and that she signed the attestation clause to the will and on
husband Eligio Naval. The text of the win was in Tagalog, a the left-hand margin of each of the pages of the will, the
dialect known and understood by her and in the light of all the documentary evidence which is the will itself, the attestation
circumstances, We agree with the respondent Court that the clause and the notarial acknowledgment overwhelmingly and
testatrix dictated her will without any note or memorandum, a convincingly prove such fact that Matilde Orobia was present
fact unanimously testified to by the three attesting witnesses on that day of April 15, 1961 and that she witnessed the will by
and the notary public himself. signing her name thereon and acknowledged the same before
the notary public, Atty. Cipriano P. Paraiso. The attestation
Petitioner's sixth assignment of error is also bereft of merit. clause which Matilde Orobia signed is the best evidence as to
The evidence, both testimonial and documentary is, according the date of signing because it preserves in permanent form a
to the respondent court, overwhelming that Matilde Orobia was recital of all the material facts attending the execution of the
physically present when the will was signed on April 15, 1961 will. This is the very purpose of the attestation clause which is
by the testatrix and the other two witnesses, Celso Gimpaya made for the purpose of preserving in permanent form a
record of the facts attending the execution of the will, so that in Gabriel. Such reenactment where Matilde Orobia was
case of failure in the memory of the subscribing witnesses, or admittedly no longer present was wholly unnecessary if not
other casualty they may still be proved. (Thompson on Wills, pointless. What was important was that the will was duly
2nd ed., Sec. 132; Leynez vs. Leynez, 68 Phil. 745). executed and witnessed on the first occasion on April 15, 1961
, " and We agree with the Court's rationalization in conformity
As to the seventh error assigned by petitioner faulting the with logic, law and jurisprudence which do not require picture-
Court of Appeals in holding that the trial court gave undue taking as one of the legal requisites for the execution or
importance to the picture-takings as proof that the win was probate of a will.
improperly executed, We agree with the reasoning of the
respondent court that: "Matilde Orobia's Identification of the Petitioner points to alleged grave contradictions, evasions and
photographer as "Cesar Mendoza", contrary to what the other misrepresentations of witnesses in their respective testimonies
two witnesses (Celso and Maria Gimpaya) and Atty. Paraiso before the trial court. On the other hand, the respondent Court
said that the photographer was Benjamin Cifra, Jr., is at worst of Appeals held that said contradictions, evasions and
a minor mistake attributable to lapse of time. The law does not misrepresentations had been explained away. Such
require a photographer for the execution and attestation of the discrepancies as in the description of the typewriter used by
will. The fact that Miss Orobia mistakenly Identified the Atty. Paraiso which he described as "elite" which to him meant
photographer as Cesar Mendoza scarcely detracts from her big letters which are of the type in which the will was
testimony that she was present when the will was signed typewritten but which was Identified by witness Jolly Bugarin of
because what matters here is not the photographer but the the N.B.I. as pica the mistake in mentioning the name of the
photograph taken which clearly portrays Matilde Orobia photographer by Matilde Orobia to be Cesar Mendoza when
herself, her co-witnesses Celso Gimpaya. " Further, the actually it was Benjamin Cifra, Jr.— these are indeed
respondent Court correctly held: "The trial court gave undue unimportant details which could have been affected by the
importance to the picture takings, jumping therefrom to the lapse of time and the treachery of human memory such that by
conclusion that the will was improperly executed. The themselves would not alter the probative value of their
evidence however, heavily points to only one occasion of the testimonies on the true execution of the will, (Pascual vs. dela
execution of the will on April 15, 1961 which was witnessed by Cruz, 28 SCRA 421, 424) for it cannot be expected that the
Matilde Orobia, Celso Gimpaya and Maria Gimpaya. These testimony of every person win be Identical and coinciding with
witnesses were quite emphatic and positive when they spoke each other with regard to details of an incident and that
of this occasion. Hence, their Identification of some witnesses are not expected to remember all details. Human
photographs wherein they all appeared along with Isabel experience teach us "that contradictions of witnesses generally
Gabriel and Atty. Paraiso was superfluous." occur in the details of certain incidents, after a long series of
questionings, and far from being an evidence of falsehood
Continuing, the respondent Court declared: "It is true that the constitute a demonstration of good faith. In as much as not all
second picture-taking was disclosed at the cross examination those who witness an incident are impressed in like manner, it
of Celso Gimpaya. But this was explained by Atty. Paraiso as a is but natural that in relating their impressions, they should not
reenactment of the first incident upon the insistence of Isabel
agree in the minor details; hence the contradictions in their signing of her will, then it becomes the duty of the appellate
testimony." (Lopez vs. Liboro, 81 Phil. 429). court to reverse findings of fact of the trial court in the exercise
of its appellate jurisdiction over the lower courts.
It is urged of Us by the petitioner that the findings of the trial
court should not have been disturbed by the respondent Still the petitioner insists that the case at bar is an exception to
appellate court because the trial court was in a better position the rule that the judgment of the Court of Appeals is conclusive
to weigh and evaluate the evidence presented in the course of as to the facts and cannot be reviewed by the Supreme Court.
the trial. As a general rule, petitioner is correct but it is subject Again We agree with the petitioner that among the exceptions
to well-established exceptions. The right of the Court of are: (1) when the conclusion is a finding grounded entirely on
Appeals to review, alter and reverse the findings of the trial speculations, surmises or conjectures; (2) when the inference
court where the appellate court, in reviewing the evidence has is manifestly mistaken, absurd or impossible; (3) when there is
found that facts and circumstances of weight and influence a grave abuse of discretion; (4) when the presence of each
have been ignored and overlooked and the significance of other as required by law. " Specifically, We affirm that on April
which have been misinterpreted by the trial court, cannot be 15, 1961 the testatrix Isabel Gabriel, together with Matilde
disputed. Findings of facts made by trial courts particularly Orobia, Celso Gimpaya and his wife Maria Gimpaya, and a
when they are based on conflicting evidence whose evaluation photographer proceeded in a car to the office of Atty. Cipriano
hinges on questions of credibility of contending witnesses hes Paraiso at the Bank of P.I. Building, Manila in the morning of
peculiarly within the province of trial courts and generally, the that day; that on the way, Isabel Gabriel obtained a medical
appellate court should not interfere with the same. In the certificate from one Dr. Chikiamko which she gave to Atty.
instant case, however, the Court of Appeals found that the trial Paraiso upon arriving at the latter's office and told the lawyer
court had overlooked and misinterpreted the facts and that she wanted her will to be made; that Atty. Paraiso asked
circumstances established in the record. Whereas the Isabel Gabriel to dictate what she wanted to be written in the
appellate court said that "Nothing in the record supports the will and the attorney wrote down the dictation of Isabel Gabriel
trial court's unbelief that Isabel Gabriel dictated her will without in Tagalog, a language known to and spoken by her; that Atty.
any note or document to Atty. Paraiso;" that the trial court's Paraiso read back to her what he wrote as dictated and she
conclusion that Matilde Orobia could not have witnessed affirmed their correctness; the lawyer then typed the will and
anybody signing the alleged will or that she could not have after finishing the document, he read it to her and she told him
witnessed Celso Gimpaya and Maria Gimpaya sign the same that it was alright; that thereafter, Isabel Gabriel signed her
or that she witnessed only the deceased signing it, is a name at the end of the will in the presence of the three
conclusion based not on facts but on inferences; that the trial witnesses Matilde Orobia, Celso Gimpaya and Maria Gimpaya
court gave undue importance to the picture-takings, jumping and also at the left-hand margin of each and every page of the
therefrom to the conclusion that the will was improperly document in the presence also of the said three witnesses;
executed and that there is nothing in the entire record to that thereafter Matilde Orobia attested the will by signing her
support the conclusion of the court a quo that the will signing name at the end of the attestation clause and at the left-hand
occasion was a mere coincidence and that Isabel Gabriel margin of pages 1, 2, 3 and 5 of the document in the presence
made an appointment only with Matilde Orobia to witness the of Isabel Gabriel and the other two witnesses, Celso Gimpaya
and Maria Gimpaya; then, Celso Gimpaya signed also the will of paper that she handed to said lawyer she had no note or
at the bottom of the attestation clause and at the left-hand document. This fact jibes with the evidence — which the trial
margin of the other pages of the document in the presence of court itself believed was unshaken — that Isabel Gabriel was
Isabel Gabriel, Matilde Orobia and Maria Gimpaya; that Maria of sound disposing memory when she executed her will.
Gimpaya followed suit, signing her name at the foot of the
attestation clause and at the left-hand margin of every page in Exhibit "F" reveals only seven (7) dispositions which are not
the presence of Isabel Gabriel, Matilde Orobia and Celso complicated but quite simple. The first was Isabel Gabriel's
Gimpaya; that thereafter, Atty. Paraiso notarized the will as wish to be interred according to Catholic rites the second was
Page No. 94, Book No. IV, Series of 1961, in his Notarial a general directive to pay her debts if any; the third provided
Register. On the occasion of the execution and attestation of for P1,000.00 for her sister Praxides Gabriel Vda. de Santiago
the will, a photographer took pictures, one Exhibit "G", and P2,000.00 for her brother Santiago Gabriel; the fourth was
depicting Matilde Orobia, the testatrix Isabel Gabriel, Celso a listing of her 13 nephews and nieces including oppositor-
Gimpaya, Maria Gimpaya and Atty. Paraiso, taken on said appellee Rizalina Gabriel and the amount for each legatee the
occasion of the signing of the will, and another, Exhibit "H", fifth was the institution of the petitioner-appellant, Lutgarda
showing Matilde Orobia signing testimony that he had earlier Santiago as the principal heir mentioning in general terms
advised Isabel Gabriel to bring with her at least the Mayor and seven (7) types of properties; the sixth disposed of the
a Councilor of Navotas, Rizal to be her witnesses for he did remainder of her estate which she willed in favor of appellant
not know beforehand the Identities of the three attesting Lutgarda Santiago but prohibiting the sale of such properties
witnesses until the latter showed up at his law office with to anyone except in extreme situations in which judgment is
Isabel Gabriel on April 15, 1961. Atty. Paraiso's claim which based on a misapprehension of facts; (5) when the findings of
was not controverted that he wrote down in his own hand the fact are conflicting, (6) when the Court of Appeals, in making
date appearing on page 5 of Exhibit "F" dissipates any its findings, went beyond the issues of the case and the same
lingering doubt that he prepared and ratified the will on the is contrary to the admissions of both appellant and appellee.
date in question." (Roque vs. Buan, et al., G.R. No. L-22459, Oct. 31, 1967;
Ramos vs. Pepsi Cola Bottling Co., G.R. No. L-22533, Feb. 9,
It is also a factual finding of the Court of Appeals in holding 1967; Hilarion Jr. vs. City of Manila, G.R. No. L-19570; Sept.
that it was credible that Isabel Gabriel could have dictated the 14, 1967).
will, Exhibit "F", without any note or document to Atty. Paraiso
as against the contention of petitioner that it was incredible. Petitioner's insistence is without merit. We hold that the case
This ruling of the respondent court is fully supported by the at bar does not fall within any of the exceptions enumerated
evidence on record as stated in the decision under review, above. We likewise hold that the findings of fact of the
thus: "Nothing in the record supports the trial court's unbelief respondent appellate court are fully supported by the evidence
that Isabel Gabriel dictated her will without any note or on record. The conclusions are fully sustained by substantial
document to Atty. Paraiso. On the contrary, all the three evidence. We find no abuse of discretion and We discern no
attesting witnesses uniformly testified that Isabel Gabriel misapprehension of facts. The respondent Court's findings of
dictated her will to Atty. Paraiso and that other than the piece fact are not conflicting. Hence, the well-established rule that
the decision of the Court of Appeals and its findings of fact are Petitioner's exacerbation centers on the supposed incredibility
binding and conclusive and should not be disturbed by this of the testimonies of the witnesses for the proponent of the
Tribunal and it must be applied in the case at bar in its full will, their alleged evasions, inconsistencies and contradictions.
force and effect, without qualification or reservation. The above But in the case at bar, the three instrumental witnesses who
holding simply synthesize the resolutions we have heretofore constitute the best evidence of the will making have testified in
made in respect ' to petitioner's previous assignments of error favor of the probate of the will. So has the lawyer who
and to which We have disagreed and, therefore, rejected. prepared it, one learned in the law and long in the practice
thereof, who thereafter notarized it. All of them are
The last assignments of error of petitioner must necessarily be disinterested witnesses who stand to receive no benefit from
rejected by Us as We find the respondent Court acted properly the testament. The signatures of the witnesses and the
and correctly and has not departed from the accepted and testatrix have been identified on the will and there is no claim
usual course of judicial proceedings as to call for the exercise whatsoever and by anyone, much less the petitioner, that they
of the power of supervision by the Supreme Court, and as We were not genuine. In the last and final analysis, the herein
find that the Court of Appeals did not err in reversing the conflict is factual and we go back to the rule that the Supreme
decision of the trial court and admitting to probate Exhibit "F", Court cannot review and revise the findings of facts of the
the last will and testament of the deceased Isabel Gabriel. respondent Court of Appeals.
We rule that the respondent Court's factual findings upon its WHEREFORE, IN VIEW OF THE FOREGOING, the judgment
summation and evaluation of the evidence on record is appealed from is hereby AFFIRMED, with costs against the
unassailable that: "From the welter of evidence presented, we petitioner.
are convinced that the will in question was executed on April
15, 1961 in the presence of Matilde Orobia, Celso Gimpaya SO ORDERED.
and Maria Gimpaya signing and witnessing the same in the
the will on a table with Isabel Gabriel, Celso Gimpaya and Teehankee, Makasiar, De Castro and Herrera, JJ., concur.
Maria Gimpaya sitting around the table. Atty. Paraiso, after
finishing the notarial act, then delivered the original to Isabel
Gabriel and retained the other copies for his file and notarial
register. A few days following the signing of the will, Isabel
Gabriel, Celso Gimpaya and another photographer arrived at
the office of Atty. Paraiso and told the lawyer that she wanted
another picture taken because the first picture did not turn out
good. The lawyer told her that this cannot be done because
the will was already signed but Isabel Gabriel insisted that a
picture be taken, so a simulated signing was performed during
which incident Matilde Orobia was not present.
G.R. No. 76464 February 29, 1988 the order. The petitioners' motion for reconsideration of the
adverse decision proved to be of no avail, hence, this petition.
TESTATE ESTATE OF THE LATE ADRIANA MALOTO,
ALDINA MALOTO CASIANO, CONSTANCIO MALOTO, For a better understanding of the controversy, a factual
PURIFICACION MIRAFLOR, ROMAN CATHOLIC CHURCH account would be a great help.
OF MOLO, AND ASILO DE MOLO, petitioners,
vs. On October 20, 1963, Adriana Maloto died leaving as heirs her
COURT OF APPEALS, PANFILO MALOTO AND FELINO niece and nephews, the petitioners Aldina Maloto-Casiano and
MALOTO, respondents. Constancio, Maloto, and the private respondents Panfilo
Maloto and Felino Maloto. Believing that the deceased did not
leave behind a last will and testament, these four heirs
commenced on November 4, 1963 an intestate proceeding for
SARMIENTO, J.: the settlement of their aunt's estate. The case was instituted in
the then Court of First Instance of Iloilo and was docketed as
This is not the first time that the parties to this case come to Special Proceeding No. 1736. However, while the case was
us. In fact, two other cases directly related to the present one still in progress, or to be exact on February 1, 1964, the parties
and involving the same parties had already been decided by — Aldina, Constancio, Panfilo, and Felino — executed an
us in the past. In G.R. No. L-30479, 1 which was a petition for agreement of extrajudicial settlement of Adriana's estate. The
certiorari and mandamus instituted by the petitioners herein, agreement provided for the division of the estate into four
we dismissed the petition ruling that the more appropriate equal parts among the parties. The Malotos then presented
remedy of the petitioners is a separate proceeding for the the extrajudicial settlement agreement to the trial court for
probate of the will in question. Pursuant to the said ruling, the approval which the court did on March 21, 1964. That should
petitioners commenced in the then Court of First Instance of have signalled the end of the controversy, but, unfortunately, it
Iloilo, Special Proceeding No. 2176, for the probate of the had not.
disputed will, which was opposed by the private respondents
presently, Panfilo and Felino both surnamed Maloto. The trial Three years later, or sometime in March 1967, Atty. Sulpicio
court dismissed the petition on April 30, 1970. Complaining Palma, a former associate of Adriana's counsel, the late Atty.
against the dismissal, again, the petitioners came to this Court Eliseo Hervas, discovered a document entitled "KATAPUSAN
on a petition for review by certiorari. 2 Acting on the said NGA PAGBUBULAT-AN (Testamento)," dated January 3,1940,
petition, we set aside the trial court's order and directed it to and purporting to be the last will and testament of Adriana.
proceed to hear the case on the merits. The trial court, after Atty. Palma claimed to have found the testament, the original
hearing, found the will to have already been revoked by the copy, while he was going through some materials inside the
testatrix. Adriana Maloto, and thus, denied the petition. The cabinet drawer formerly used by Atty. Hervas. The document
petitioners appealed the trial court's decision to the was submitted to the office of the clerk of the Court of First
Intermediate Appellate Court which, on June 7, 1985, affirmed Instance of Iloilo on April 1, 1967. Incidentally, while Panfilo
and Felino are still named as heirs in the said will, Aldina and There is no doubt as to the testamentary capacity of the
Constancio are bequeathed much bigger and more valuable testatrix and the due execution of the will. The heart of the
shares in the estate of Adriana than what they received by case lies on the issue as to whether or not the will was
virtue of the agreement of extrajudicial settlement they had revoked by Adriana.
earlier signed. The will likewise gives devises and legacies to
other parties, among them being the petitioners Asilo de Molo, The provisions of the new Civil Code pertinent to the issue can
the Roman Catholic Church of Molo, and Purificacion Miraflor. be found in Article 830.
Thus, on May 24, 1967, Aldina and Constancio, joined by the Art. 830. No will shall be revoked except in the
other devisees and legatees named in the will, filed in Special following cases:
Proceeding No. 1736 a motion for reconsideration and
annulment of the proceedings therein and for the allowance of (1) By implication of law; or
the will When the trial court denied their motion, the petitioner
came to us by way of a petition for certiorari and mandamus (2) By some will, codicil, or other writing
assailing the orders of the trial court . 3 As we stated earlier, executed as provided in case of wills: or
we dismissed that petition and advised that a separate
proceeding for the probate of the alleged will would be the (3) By burning, tearing, cancelling, or
appropriate vehicle to thresh out the matters raised by the obliterating the will with the intention of
petitioners. revoking it, by the testator himself, or by some
other person in his presence, and by his
Significantly, the appellate court while finding as inconclusive express direction. If burned, torn cancelled, or
the matter on whether or not the document or papers allegedly obliterated by some other person, without the
burned by the househelp of Adriana, Guadalupe Maloto Vda. express direction of the testator, the will may
de Coral, upon instructions of the testatrix, was indeed the will, still be established, and the estate distributed in
contradicted itself and found that the will had been revoked. accordance therewith, if its contents, and due
The respondent court stated that the presence of animus execution, and the fact of its unauthorized
revocandi in the destruction of the will had, nevertheless, been destruction, cancellation, or obliteration are
sufficiently proven. The appellate court based its finding on the established according to the Rules of Court.
facts that the document was not in the two safes in Adriana's (Emphasis Supplied.)
residence, by the testatrix going to the residence of Atty.
Hervas to retrieve a copy of the will left in the latter's It is clear that the physical act of destruction of a will, like
possession, and, her seeking the services of Atty. Palma in burning in this case, does not per se constitute an effective
order to have a new will drawn up. For reasons shortly to be revocation, unless the destruction is coupled with animus
explained, we do not view such facts, even considered revocandi on the part of the testator. It is not imperative that
collectively, as sufficient bases for the conclusion that Adriana the physical destruction be done by the testator himself. It may
Maloto's will had been effectively revoked. be performed by another person but under theexpress
direction and in the presence of the testator. Of course, it goes At this juncture, we reiterate that "(it) is an important matter of
without saying that the document destroyed must be the will public interest that a purported win is not denied legalization
itself. on dubious grounds. Otherwise, the very institution of
testamentary succession will be shaken to its very foundations
In this case, while animus revocandi or the intention to revoke, ...."4
may be conceded, for that is a state of mind, yet that requisite
alone would not suffice. "Animus revocandi is only one of the The private respondents in their bid for the dismissal of the
necessary elements for the effective revocation of a last will present action for probate instituted by the petitioners argue
and testament. The intention to revoke must be accompanied that the same is already barred by res adjudicata. They claim
by the overt physical act of burning, tearing, obliterating, or that this bar was brought about by the petitioners' failure to
cancelling the will carried out by the testator or by another appeal timely from the order dated November 16, 1968 of the
person in his presence and under his express direction. There trial court in the intestate proceeding (Special Proceeding No.
is paucity of evidence to show compliance with these 1736) denying their (petitioners') motion to reopen the case,
requirements. For one, the document or papers burned by and their prayer to annul the previous proceedings therein and
Adriana's maid, Guadalupe, was not satisfactorily established to allow the last will and testament of the late Adriana Maloto.
to be a will at all, much less the will of Adriana Maloto. For This is untenable.
another, the burning was not proven to have been done under
the express direction of Adriana. And then, the burning was not The doctrine of res adjudicata finds no application in the
in her presence. Both witnesses, Guadalupe and Eladio, were present controversy. For a judgment to be a bar to a
one in stating that they were the only ones present at the place subsequent case, the following requisites must concur: (1) the
where the stove (presumably in the kitchen) was located in presence of a final former judgment; (2) the former judgment
which the papers proffered as a will were burned. was rendered by a court having jurisdiction over the subject
matter and the parties; (3) the former judgment is a judgment
The respondent appellate court in assessing the evidence on the merits; and (4) there is, between the first and the
presented by the private respondents as oppositors in the trial second action, Identity of parties, of subject matter, and of
court, concluded that the testimony of the two witnesses who cause of action. 5 We do not find here the presence of all the
testified in favor of the will's revocation appear "inconclusive." enumerated requisites.
We share the same view. Nowhere in the records before us
does it appear that the two witnesses, Guadalupe Vda. de For one, there is yet, strictly speaking, no final judgment
Corral and Eladio Itchon, both illiterates, were unequivocably rendered insofar as the probate of Adriana Maloto's will is
positive that the document burned was indeed Adriana's will. concerned. The decision of the trial court in Special
Guadalupe, we think, believed that the papers she destroyed Proceeding No. 1736, although final, involved only the
was the will only because, according to her, Adriana told her intestate settlement of the estate of Adriana. As such, that
so. Eladio, on the other hand, obtained his information that the judgment could not in any manner be construed to be final with
burned document was the will because Guadalupe told him so, respect to the probate of the subsequently discovered will of
thus, his testimony on this point is double hearsay. the decedent. Neither is it a judgment on the merits of the
action for probate. This is understandably so because the trial SO ORDERED.
court, in the intestate proceeding, was without jurisdiction to
rule on the probate of the contested will . 6 After all, an action Yap (Chairman), Melencio-Herrera, and Paras JJ., concur.
for probate, as it implies, is founded on the presence of a will
and with the objective of proving its due execution and validity, Padilla, J., took no part.
something which can not be properly done in an intestate
settlement of estate proceeding which is predicated on the
assumption that the decedent left no will. Thus, there is
likewise no Identity between the cause of action in intestate
proceeding and that in an action for probate. Be that as it may,
it would be remembered that it was precisely because of our
ruling in G.R. No. L-30479 that the petitioners instituted this
separate action for the probate of the late Adriana Maloto's
will. Hence, on these grounds alone, the position of the private
respondents on this score can not be sustained.
Sometime in 1950 after her last trip abroad, Felicidad From the oppositor's proof it appears that Felicidad Esguerra
Esguerra mentioned to her first cousin, Vicente Esguerra, her had been suffering from heart disease for several years before
desire to make a will. She confided however that it would be her death; that she had been treated by prominent physicians,
useless if her husband discovered or knew about it. Vicente Dr. Agerico Sison, Dr. Agustin Liboro and others; that in May
consulted with Fausto E. Gan, nephew of Felicidad, who was 1950 husband and wife journeyed to the United States
then preparing for the bar examinations. The latter replied it wherein for several weeks she was treated for the disease;
could be done without any witness, provided the document that thereafter she felt well and after visiting interesting places,
was entirely in her handwriting, signed and dated by her. the couple returned to this country in August 1950. However,
Vicente Esguerra lost no time in transmitting the information, her ailment recurred, she suffered several attacks, the most
and on the strength of it, in the morning of November 5, 1951, serious of which happened in the early morning of the first
in her residence at Juan Luna Street, Manila, Felicidad wrote, Monday of November 1951 (Nov. 5). The whole household
signed and dated a holographic will substantially of the tenor was surprised and alarmed, even the teachers of the
above transcribed, in the presence of her niece, Felina Harvardian Colleges occupying the lower floors and of by the
Esguerra (daughter of Vicente), who was invited to read it. In Yap spouses. Physician's help was hurriedly called, and Dr.
the afternoon of that day, Felicidad was visited by a distant Tanjuaquio arrived at about 8:00 a.m., found the patient hardly
breathing, lying in bed, her head held high by her husband. vigorous effort to discredit them. It appears that the same
Injections and oxygen were administered. Following the arguments, or most of them, were presented in the motion to
doctor's advice the patient stayed in bed, and did nothing the reconsider; but they failed to induce the court a quo to change
whole day, her husband and her personal attendant, Mrs. its mind. The oppositor's brief, on the other hand, aptly
Bantique, constantly at her side. These two persons swore answers the criticisms. We deem it unnecessary to go over the
that Mrs. Felicidad Esguerra Yap made no will, and could have same matters, because in our opinion the case should be
made no will on that day. decided not on the weakness of the opposition but on the
strength of the evidence of the petitioner, who has the burden
The trial judge refused to credit the petitioner's evidence for of proof.
several reasons, the most important of which were these: (a) if
according to his evidence, the decedent wanted to keep her The Spanish Civil Code permitted the execution of holographic
will a secret, so that her husband would not know it, it is wills along with other forms. The Code of Civil Procedure (Act
strange she executed it in the presence of Felina Esguerra, 190) approved August 7, 1901, adopted only one form, thereby
knowing as she did that witnesses were unnecessary; (b) in repealing the other forms, including holographic wills.
the absence of a showing that Felina was a confidant of the
decedent it is hard to believe that the latter would have The New Civil Code effective in 1950 revived holographic wills
allowed the former to see and read the will several times; (c) it in its arts. 810-814. "A person may execute a holographic will
is improbable that the decedent would have permitted which must be entirely written, dated, and signed by the hand
Primitivo Reyes, Rosario Gan Jimenez and Socorro Olarte to of the testator himself. It is subject to no other form and may
read her will, when she precisely wanted its contents to remain be made in or out of the Philippines, and need not be
a secret during her lifetime; (d) it is also improbable that her witnessed."
purpose being to conceal the will from her husband she would
carry it around, even to the hospital, in her purse which could This is indeed a radical departure from the form and
for one reason or another be opened by her husband; (e) if it is solemnities provided for wills under Act 190, which for fifty
true that the husband demanded the purse from Felina in the years (from 1901 to 1950) required wills to be subscribed by
U.S.T. Hospital and that the will was there, it is hard to believe the testator and three credible witnesses in each and every
that he returned it without destroying the will, the theory of the page; such witnesses to attest to the number of sheets used
petitioner being precisely that the will was executed behind his and to the fact that the testator signed in their presence and
back for fear he will destroy it. that they signed in the presence of the testator and of each
other.
In the face of these improbabilities, the trial judge had to
accept the oppositor's evidence that Felicidad did not and The object of such requirements it has been said, is to close
could not have executed such holographic will. the door against bad faith and fraud, to prevent substitution of
wills, to guarantee their truth and authencity
In this appeal, the major portion of appellant's brief discussed (Abangan vs. Abangan, 40 Phil., 476) and to avoid those who
the testimony of the oppositor and of his witnesses in a have no right to succeed the testator would succeed him and
be benefited with the probate of same. (Mendoza vs. Pilapil, their opinion of the handwriting, or they may deliberately lie in
40 Off. Gaz., 1855). However, formal imperfections may be affirming it is in the testator's hand. However, the oppositor
brushed aside when authenticity of the instrument is duly may present other witnesses who also know the testator's
proved. (Rodriguez vs Yap, 40 Off. Gaz. 1st Supp. No. 3 p. handwriting, or some expert witnesses, who after comparing
194.) the will with other writings or letters of the deceased, have
come to the conclusion that such will has not been written by
Authenticity and due execution is the dominant requirements the hand of the deceased. (Sec. 50, Rule 123). And the court,
to be fulfilled when such will is submitted to the courts for in view of such contradictory testimony may use its own visual
allowance. For that purpose the testimony of one of the sense, and decide in the face of the document, whether the
subscribing witnesses would be sufficient if there is no will submitted to it has indeed been written by the testator.
opposition (Sec. 5, Rule 77). If there is, the three must testify,
if available. (Cabang vs. Delfinado, 34 Phil., 291; Obviously, when the will itself is not submitted, these means of
Tolentino vs. Francisco, 57 Phil., 742). From the testimony of opposition, and of assessing the evidence are not available.
such witnesses (and of other additional witnesses) the court And then the only guaranty of authenticity3 — the testator's
may form its opinion as to the genuineness and authenticity of handwriting — has disappeared.
the testament, and the circumstances its due execution.
Therefore, the question presents itself, may a holographic will
Now, in the matter of holographic wills, no such guaranties of be probated upon the testimony of witnesses who have
truth and veracity are demanded, since as stated, they need allegedly seen it and who declare that it was in the handwriting
no witnesses; provided however, that they are "entirely written, of the testator? How can the oppositor prove that such
dated, and signed by the hand of the testator himself." The document was not in the testator's handwriting? His witnesses
law, it is reasonable to suppose, regards the document who know testator's handwriting have not examined it. His
itself as material proof of authenticity, and as its own experts can not testify, because there is no way to compare
safeguard, since it could at any time, be demonstrated to be — the alleged testament with other documents admittedly, or
or not to be — in the hands of the testator himself. "In the proven to be, in the testator's hand. The oppositor will,
probate of a holographic will" says the New Civil Code, "it shall therefore, be caught between the upper millstone of his lack of
be necessary that at least one witness who knows the knowledge of the will or the form thereof, and the nether
handwriting and signature of the testator explicitly declare that millstone of his inability to prove its falsity. Again the
the will and the signature are in the handwriting of the testator. proponent's witnesses may be honest and truthful; but they
If the will is contested, at least three such witnesses shall be may have been shown a faked document, and having no
required. In the absence of any such witnesses, (familiar with interest to check the authenticity thereof have taken no pains
decedent's handwriting) and if the court deem it necessary, to examine and compare. Or they may be perjurers boldly
expert testimony may be resorted to." testifying, in the knowledge that none could convict them of
perjury, because no one could prove that they have not "been
The witnesses so presented do not need to have seen the shown" a document which they believed was in the
execution of the holographic will. They may be mistaken in handwriting of the deceased. Of course, the competency of
such perjured witnesses to testify as to the handwriting could summoned so that they may make "any statement they may
be tested by exhibiting to them other writings sufficiently desire to submit with respect to the authenticity of the will." As
similar to those written by the deceased; but what witness or it is universally admitted that the holographic will is usually
lawyer would not foresee such a move and prepare for it? His done by the testator and by himself alone, to prevent others
knowledge of the handwriting established, the witness (or from knowing either its execution or its contents, the above
witnesses) could simply stick to his statement: he has seen article 692 could not have the idea of simply permitting such
and read a document which he believed was in the deceased's relatives to state whether they know of the will, but whether in
handwriting. And the court and the oppositor would practically the face of the document itself they think the testator wrote it.
be at the mercy of such witness (or witnesses) not only as to Obviously, this they can't do unless the will itself is presented
the execution, but also as to the contents of the will. Does the to the Court and to them.
law permit such a situation?
Undoubtedly, the intention of the law is to give the near
The Rules of Court, (Rule 77) approved in 1940 allow proof relatives the choice of either complying with the will if they
(and probate) of a lost or destroyed will by secondary — think it authentic, or to oppose it, if they think it spurious.5 Such
evidence the testimony of witnesses, in lieu of the original purpose is frustrated when the document is not presented for
document. Yet such Rules could not have contemplated their examination. If it be argued that such choice is not
holographic wills which could not then be validly made here. essential, because anyway the relatives may oppose, the
(See also Sec. 46, Rule 123; Art. 830-New Civil Code.) answer is that their opposition will be at a distinct
disadvantage, and they have the right and privilege to comply
Could Rule 77 be extended, by analogy, to holographic wills? with the will, if genuine, a right which they should not be
denied by withholding inspection thereof from them.
Spanish commentators agree that one of the greatest
objections to the holographic will is that it may be lost or We find confirmation of these ideas--about exhibition of the
stolen4 — an implied admission that such loss or theft renders document itself--in the decision of the Supreme Court of Spain
it useless.. of June 5, 1925, which denied protocolization or probate to a
document containing testamentary dispositions in the
This must be so, because the Civil Code requires it to be handwriting of the deceased, but apparently mutilated, the
protocoled and presented to the judge, (Art. 689) who shall signature and some words having been torn from it. Even in
subscribe it and require its identity to be established by the the face of allegations and testimonial evidence (which was
three witnesses who depose that they have no reasonable controverted), ascribing the mutilation to the opponents of the
doubt that the will was written by the testator (Art. 691). And if will. The aforesaid tribunal declared that, in accordance with
the judge considers that the identity of the will has been the provision of the Civil Code (Spanish) the will itself, whole
proven he shall order that it be filed (Art. 693). All these, imply and unmutilated, must be presented; otherwise, it shall
presentation of the will itself. Art. 692 bears the same produce no effect.
implication, to a greater degree. It requires that the surviving
spouse and the legitimate ascendants and descendants be
Considerando que sentado lo anterior, y que todo esto fuere connoscido, el obispo o el juez, o
estableciendose en el parrafo segundo del articulo 688 otras testimonios confirmen el escripto de la manda
del Codigo civil, que para que sea valido el testamento otra vez, y en esta manera vala la manda. (Art. 689,
olografo debera estar escrito todo el y firmado por Scaevola--Codigo Civil.)
testador, con expression del año, mes y dia en que se
otorque, resulta evidente que para la validez y eficacia (According to the Fuero above, the will itself must be
de esos testamentos, no basta la demostracion mas o compared with specimens of the testators handwriting.)
menos cumplida de que cuando se otorgaron se
Ilenaron todos esos requisitos, sino que de la All of which can only mean: the courts will not distribute the
expresada redaccion el precepto legal, y por el tiempo property of the deceased in accordance with his holographic
en que el verbo se emplea, se desprende la necesidad will, unless they are shown his handwriting and signature.7
de que el documento se encuentre en dichas
condiciones en el momento de ser presentado a la Parenthetically, it may be added that even the French Civil
Autoridad competente, para au adveracion y Law considers the loss of the holographic will to be fatal.
protocolizacion; y como consecuencia ineludible de (Planiol y Ripert, Derecho Civil Frances, traduccion por Diaz
ello, forzoso es affirmar que el de autos carece de Cruz, 1946, Tomo V, page 555).
validez y aficacia, por no estarfirmado por el testador,
cualquiera que sea la causa de la falta de firma, y sin Taking all the above circumstances together, we reach the
perjuicio de las acciones que puedan ejercitar los conclusion that the execution and the contents of a lost or
perjudicados, bien para pedir indemnizacion por el destroyed holographic will may not be proved by the bare
perjuicio a la persona culpable, si la hubiere, o su testimony of witnesses who have seen and/or read such will.8
castigo en via criminal si procediere, por constituir
dicha omision un defecto insubsanable . . . .
Under the provisions of Art. 838 of the New Civil Code, we are
empowered to adopt this opinion as a Rule of Court for the
This holding aligns with the ideas on holographic wills in the allowance of such holographic wills. We hesitate, however, to
Fuero Juzgo, admittedly the basis of the Spanish Civil Code make this Rule decisive of this controversy, simultaneously
provisions on the matter.6 with its promulgation. Anyway, decision of the appeal may rest
on the sufficiency, rather the insufficiency, of the evidence
PRECEDENTES LEGALES--Fuero Juzgo, libro presented by petitioner Fausto E. Gan.
segundo, titulo V, ley 15--E depues que los herederos
e sus fijos ovieren esta manda, fasta ... annos At this point, before proceeding further, it might be convenient
muestrenla al obispo de la tierra, o al juez fasta VI to explain why, unlike holographic wills, ordinary wills may be
meses y el obispo o el juez tomen otros tales tres proved by testimonial evidence when lost or destroyed. The
escritos, que fuesen fechos por su mano daquel que difference lies in the nature of the wills. In the first, the only
fizo la manda; e por aquellos escriptos, si semjara la guarantee of authenticity is the handwriting itself; in the
letra de la manda, sea confirmada la manda. E depues second, the testimony of the subscribing or instrumental
witnesses (and of the notary, now). The loss of the holographic One more fundamental difference: in the case of a lost will, the
will entails the loss of the only medium of proof; if the ordinary three subscribing witnesses would be testifying to a fact which
will is lost, the subscribing witnesses are available to they saw, namely the act of the testator of subscribing the will;
authenticate. whereas in the case of a lost holographic will, the witnesses
would testify as to their opinion of the handwriting which they
In the case of ordinary wills, it is quite hard to convince three allegedly saw, an opinion which can not be tested in court, nor
witnesses (four with the notary) deliberately to lie. And then directly contradicted by the oppositors, because the
their lies could be checked and exposed, their whereabouts handwriting itself is not at hand.
and acts on the particular day, the likelihood that they would
be called by the testator, their intimacy with the testator, etc. Turning now to the evidence presented by the petitioner, we
And if they were intimates or trusted friends of the testator they find ourselves sharing the trial judge's disbelief. In addition to
are not likely to end themselves to any fraudulent scheme to the dubious circumstances described in the appealed decision,
distort his wishes. Last but not least, they can not receive we find it hard to believe that the deceased should show her
anything on account of the will. will precisely to relatives who had received nothing from it:
Socorro Olarte and Primitivo Reyes. These could pester her
Whereas in the case of holographic wills, if oral testimony into amending her will to give them a share, or threaten to
were admissible9 only one man could engineer the fraud this reveal its execution to her husband Ildefonso Yap. And this
way: after making a clever or passable imitation of the leads to another point: if she wanted so much to conceal the
handwriting and signature of the deceased, he may contrive to will from her husband, why did she not entrust it to her
let three honest and credible witnesses see and read the beneficiaries? Opportunity to do so was not lacking: for
forgery; and the latter, having no interest, could easily fall for it, instance, her husband's trip to Davao, a few days after the
and in court they would in all good faith affirm its genuineness alleged execution of the will.
and authenticity. The will having been lost — the forger may
have purposely destroyed it in an "accident" — the oppositors In fine, even if oral testimony were admissible to establish and
have no way to expose the trick and the error, because the probate a lost holographic will, we think the evidence
document itself is not at hand. And considering that the submitted by herein petitioner is so tainted with improbabilities
holographic will may consist of two or three pages, and only and inconsistencies that it fails to measure up to that "clear
one of them need be signed, the substitution of the unsigned and distinct" proof required by Rule 77, sec. 6.11
pages, which may be the most important ones, may go
undetected. Wherefore, the rejection of the alleged will must be sustained.
If testimonial evidence of holographic wills be permitted, one Judgment affirmed, with costs against petitioner.
more objectionable feature — feasibility of forgery — would be
added to the several objections to this kind of wills listed by Paras, C. J., Padilla, Montemayor, Reyes, A., Bautista Angelo,
Castan, Sanchez Roman and Valverde and other well-known Concepcion, Reyes, J. B. L., Endencia and Felix, JJ.,concur.
Spanish Commentators and teachers of Civil Law.10
G.R. No. L-58509 December 7, 1982 (1) Appellant was estopped from claiming that
the deceased left a will by failing to produce the
IN THE MATTER OF THE PETITION TO APPROVE THE will within twenty days of the death of the
WILL OF RICARDO B. BONILLA deceased, MARCELA testator as required by Rule 75, section 2 of the
RODELAS, petitioner-appellant, Rules of Court;
vs.
AMPARO ARANZA, ET AL., oppositors-appellees, ATTY. (2) The alleged copy of the alleged holographic
LORENZO SUMULONG, intervenor. will did not contain a disposition of property
after death and was not intended to take effect
Luciano A. Joson for petitioner-appellant. after death, and therefore it was not a will
Cesar Paralejo for oppositor-appellee. (3) The alleged hollographic will itself,and not
an alleged copy thereof, must be produced,
otherwise it would produce no effect, as held in
Gam v. Yap, 104 Phil. 509; and
RELOVA, J.:
(4 ) The deceased did not leave any will,
This case was certified to this Tribunal by the Court of Appeals holographic or otherwise, executed and
for final determination pursuant to Section 3, Rule 50 of the attested as required by law.
Rules of Court.
The appellees likewise moved for the
As found by the Court of Appeals: consolidation of the case with another case Sp.
Proc. No, 8275). Their motion was granted by
... On January 11, 1977, appellant filed a the court in an order dated April 4, 1977.
petition with the Court of First Instance of Rizal
for the probate of the holographic will of Ricardo On November 13, 1978, following the
B. Bonilla and the issuance of letters consolidation of the cases, the appellees
testamentary in her favor. The petition, moved again to dismiss the petition for the
docketed as Sp. Proc. No. 8432, was opposed probate of the will. They argued that:
by the appellees Amparo Aranza Bonilla,
Wilferine Bonilla Treyes Expedita Bonilla Frias (1) The alleged holographic was not a last will
and Ephraim Bonilla on the following grounds: but merely an instruction as to the management
and improvement of the schools and colleges
founded by decedent Ricardo B. Bonilla; and
(2) Lost or destroyed holographic wills cannot before his death his allegedly missing
be proved by secondary evidence unlike Holographic Will.
ordinary wills.
Appellant's motion for reconsideration was denied. Hence, an
Upon opposition of the appellant, the motion to appeal to the Court of Appeals in which it is contended that the
dismiss was denied by the court in its order of dismissal of appellant's petition is contrary to law and well-
February 23, 1979. settled jurisprudence.
The appellees then filed a motion for On July 7, 1980, appellees moved to forward the case to this
reconsideration on the ground that the order Court on the ground that the appeal does not involve question
was contrary to law and settled of fact and alleged that the trial court committed the following
pronouncements and rulings of the Supreme assigned errors:
Court, to which the appellant in turn filed an
opposition. On July 23, 1979, the court set I. THE LOWER COURT ERRED IN HOLDING
aside its order of February 23, 1979 and THAT A LOST HOLOGRAPHIC WILL MAY NOT
dismissed the petition for the probate of the will BE PROVED BY A COPY THEREOF;
of Ricardo B. Bonilla. The court said:
II. THE LOWER COURT ERRED IN HOLDING
... It is our considered opinion that once the THAT THE DECEDENT HAS DISCARDED
original copy of the holographic will is lost, a BEFORE HIS DEATH THE MISSING
copy thereof cannot stand in lieu of the original. HOLOGRAPHIC WILL;
In the case of Gam vs. Yap, 104 Phil. 509, 522, III. THE LOWER COURT ERRED IN
the Supreme Court held that 'in the matter of DISMISSING APPELLANT'S WILL.
holographic wills the law, it is reasonable to
suppose, regards the document itself as the The only question here is whether a holographic will which
material proof of authenticity of said wills. was lost or cannot be found can be proved by means of a
photostatic copy. Pursuant to Article 811 of the Civil Code,
MOREOVER, this Court notes that the alleged probate of holographic wills is the allowance of the will by the
holographic will was executed on January 25, court after its due execution has been proved. The probate
1962 while Ricardo B. Bonilla died on May 13, may be uncontested or not. If uncontested, at least one
1976. In view of the lapse of more than 14 Identifying witness is required and, if no witness is available,
years from the time of the execution of the will experts may be resorted to. If contested, at least three
to the death of the decedent, the fact that the Identifying witnesses are required. However, if the holographic
original of the will could not be located shows to will has been lost or destroyed and no other copy is available,
our mind that the decedent had discarded the will can not be probated because the best and only
evidence is the handwriting of the testator in said will. It is
necessary that there be a comparison between sample
handwritten statements of the testator and the handwritten will.
But, a photostatic copy or xerox copy of the holographic will
may be allowed because comparison can be made with the
standard writings of the testator. In the case of Gam vs. Yap,
104 PHIL. 509, the Court ruled that "the execution and the
contents of a lost or destroyed holographic will may not be
proved by the bare testimony of witnesses who have seen
and/or read such will. The will itself must be presented;
otherwise, it shall produce no effect. The law regards the
document itself as material proof of authenticity." But, in
Footnote 8 of said decision, it says that "Perhaps it may be
proved by a photographic or photostatic copy. Even a
mimeographed or carbon copy; or by other similar means, if
any, whereby the authenticity of the handwriting of the
deceased may be exhibited and tested before the probate
court," Evidently, the photostatic or xerox copy of the lost or
destroyed holographic will may be admitted because then the
authenticity of the handwriting of the deceased can be
determined by the probate court.
SO ORDERED.
The purpose of this action was to obtain the probation of a last That Exhibit A is a mere carbon of its original which
will and testament of Miguel Mamuyac, who died on the 2d remained in the possession of the deceased testator
day of January, 1922, in the municipality of Agoo of the Miguel Mamuyac, who revoked it before his death as
Province of La Union. It appears from the record that on or per testimony of witness Jose Fenoy, who typed the
about the 27th day of July, 1918, the said Miguel Mamuyac will of the testator on April 16, 1919, and Carlos Bejar,
executed a last will and testament (Exhibit A). In the month of who saw on December 30, 1920, the original Exhibit A
January, 1922, the said Francisco Gago presented a petition in (will of 1919) actually cancelled by the testator Miguel
the Court of First Instance of the Province of La Union for the Mamuyac, who assured Carlos Bejar that inasmuch as
probation of that will. The probation of the same was opposed he had sold him a house and the land where the house
by Cornelio Mamuyac, Ambrosio Lariosa, Feliciana Bauzon, was built, he had to cancel it (the will of 1919),
and Catalina Mamuyac (civil cause No. 1144, Province of La executing thereby a new testament. Narcisa Gago in a
Union). After hearing all of the parties the petition for the way corroborates the testimony of Jose Fenoy,
probation of said will was denied by the Honorable C. M. admitting that the will executed by the deceased
Villareal on the 2d day of November, 1923, upon the ground (Miguel Mamuyac) in 1919 was found in the
that the deceased had on the 16th day of April, 1919, executed possession of father Miguel Mamuyac. The opponents
a new will and testament. have successfully established the fact that father
Miguel Mamuyac had executed in 1920 another will.
On the 21st day of February, 1925, the present action was The same Narcisa Gago, the sister of the deceased,
commenced. Its purpose was to secure the probation of the who was living in the house with him, when cross-
said will of the 16th day of April, 1919 (Exhibit 1). To said examined by attorney for the opponents, testified that
petition Cornelio Mamuyac, Ambrosio Lariosa, Feliciana the original Exhibit A could not be found. For the
foregoing consideration and for the reason that the In view of the fat that the original will of 1919 could not be
original of Exhibit A has been cancelled by the found after the death of the testator Miguel Mamuyac and in
deceased father Miguel Mamuyac, the court disallows view of the positive proof that the same had been cancelled,
the probate of Exhibit A for the applicant." From that we are forced to the conclusion that the conclusions of the
order the petitioner appealed. lower court are in accordance with the weight of the evidence.
In a proceeding to probate a will the burden of proofs is upon
The appellant contends that the lower court committed an the proponent clearly to establish not only its execution but its
error in not finding from the evidence that the will in question existence. Having proved its execution by the proponents, the
had been executed with all the formalities required by the law; burden is on the contestant to show that it has been revoked.
that the same had been revoked and cancelled in 1920 before In a great majority of instances in which wills are destroyed for
his death; that the said will was a mere carbon copy and that the purpose of revoking them there is no witness to the act of
the oppositors were not estopped from alleging that fact. cancellation or destruction and all evidence of its cancellation
perishes with the testator. Copies of wills should be admitted
With reference to the said cancellation, it may be stated that by the courts with great caution. When it is proven, however,
there is positive proof, not denied, which was accepted by the by proper testimony that a will was executed in duplicate and
lower court, that will in question had been cancelled in 1920. each copy was executed with all the formalities and
The law does not require any evidence of the revocation or requirements of the law, then the duplicate may be admitted in
cancellation of a will to be preserved. It therefore becomes evidence when it is made to appear that the original has been
difficult at times to prove the revocation or cancellation of wills. lost and was not cancelled or destroyed by the testator.
The fact that such cancellation or revocation has taken place (Borromeo vs. Casquijo, G.R. No. L-26063.)1
must either remain unproved of be inferred from evidence
showing that after due search the original will cannot be found. After a careful examination of the entire record, we are fully
Where a will which cannot be found is shown to have been in persuaded that the will presented for probate had been
the possession of the testator, when last seen, the cancelled by the testator in 1920. Therefore the judgment
presumption is, in the absence of other competent evidence, appealed from is hereby affirmed. And without any finding as
that the same was cancelled or destroyed. The same to costs, it is so ordered.
presumption arises where it is shown that the testator had
ready access to the will and it cannot be found after his death. Street, Malcolm, Villamor, Ostrand, Romualdez and Villa-Real,
It will not be presumed that such will has been destroyed by JJ., concur.
any other person without the knowledge or authority of the
testator. The force of the presumption of cancellation or
revocation by the testator, while varying greatly, being weak or
strong according to the circumstances, is never conclusive, but
may be overcome by proof that the will was not destroyed by
the testator with intent to revoke it.
G.R. No. L-18788 January 31, 1964 scientific venture by said defendant was discontinued when he
became totally blind in October, 1955 in view of which the
ROMULO LOPEZ, ET AL., plaintiffs-appellants, plaintiffs now ask a partition of the estate and the cancellation
vs. of titles of lands allegedly fraudulently transferred by, and in
LUIS GONZAGA, ET AL., defendants, the name of, the defendant.
LUIS GONZAGA and ASUNCION GONZAGA, defendants-
appellants. The defendant filed a motion to dismiss on the grounds of res
judicata and non-inclusion of indispensable parties. The
Lakandola G. Lopez and Romulo Lopez for plaintiffs- plainttiffs amended their petition to include the omitted parties.
appellants. After hearing on the motion to dismiss, the court denied the
Amalia K. del Rosario for defendants-appellants. said motion. Thereupon, the defendant filed their answer,
pleading a denial as to intestacy of deceased, and alleging,
REYES, J.B.L., J.: among others, that a will of Soledad Gonzaga Vda. de Ferrer
instituted Luis Gonzaga as the sole heir estate, and that the
Joint and direct appeal by both parties-plaintiffs an parties- will was duly allowed and probated.
defendants from the decision of the Court of First Instance of
Negros Occidental (in its Civil Case No. 5033 to this Supreme After trial, the court a quo rendered judgment, a both parties
Court, because the properties involved a valued at more than appealed, as aforesaid.
P200,000.00. The appealed decision dismissed the petition of
plaintiffs (appellants) for partition and cancellation of titles of The genuineness of the following documents, and the
registered lands and ordered them to pay defendants jurisdiction of the court with respect to them, are not disputed:
(appellees) P1,000.00 by way of attorney's fees, but refused to
award moral damages in favor of the defendants.
REPUBLIC OF THE PHILIPPINES
The original petition was filed with the court a quo on 6 COURT OF FIRST INSTANCE OF ILOILO
October 1958, alleging, among other things, that on Soledad 11th Judicial District
Gonzaga Vda. de Ferrer died intestate on 11 April 1935
without any issue and leaving real and personal properties December 11, 1958.
worth P400,000.00; that she was survived by the plaintiffs,
who are her nearest of kin, being her brother sisters, nephews, TO WHOM IT MAY CONCERN:
and nieces; that during the lifetime the deceased, she
expressed the wish that as long as her brother, Luis Gonzaga, This is to certify that according to the records of
the principal defendant, was engaged in his coconut oil this office, there is no Expediente No. 2163
experimentation he could use products and rentals of her entitled Estate of Doña Soledad Gonzaga Vda.
properties in furtherance his experiments; that the said
de Ferrer, as all prewar records were burned, lost of First Instance of Iloilo (Exp. No. 2163, Iloilo).
or destroyed during the World War II.
That the project of partition dated February 3,
(Sgd.) CIPRIANO CABALUNA 1936, (Exp. No. 2163, Iloilo) a copy of which is
Clerk of Court. hereto attached, in which the petitioner Luis
Gonzaga y Jesena is the only heir, was approved
UNITED STATES OF AMERICA by the Honorable Court of Iloilo in its order dated
COMMONWEALTH OF THE PHILIPPINES February 8, 1936, a copy of the said order is
COURT OF FIRST INSTANCE OF hereto attached. 1äwphï1.ñët
OCCIDENTAL NEGROS
18th Judicial District WHEREFORE, in view of the foregoing, the
petitioner respectfully prays the Honorable Court
G.L.R.O. CAD. RECORD NO. 214 to order the cancellation of Transfer Certificate of
LOTS NOS. 414 and 424 Title Nos. 11460 and 13855, Office of the Register
CAD. SURVEY OF MANAPLA of Deeds of Occidental Negros, wherein Lots
x---------------------x Nos. 414 and 424 are described, and in lieu
thereof to issue Transfer Certificate of Titles for
PETITION Lots 414 and 424, Cadastral Survey of Manapla,
Occidental Negros, in favor of Luis Gonzaga y
Luis Gonzaga y Jesena through the undersigned Jesena, single of legal age, Filipino and a
attorney, to the Honorable Court respectfully resident of Manila, P. I.
follows:
Iloilo, Iloilo, for Bacolod, Occ. Neg., P.I. March 11,
That Soledad Gonzaga Vda. de Ferrer is the 1936.
registered owner of Lots Nos. 414 and 424,
Cadastral Survey of Manapla, which parcel of (Sgd.) FRANCISCO S. HORTILLAS
land are described in Transfer Certificate of Title Attorney for the petitioner
Nos. 11460 and 13855, respectively. 2 General Luna, Iloilo Iloilo
That Soledad Gonzaga Vda. de Ferrer died on I, Francisco S. Hortillas, of legal age, after having
April 11, 1935, and she left all her properties in been duly sworn, depose and say: That I am the
favor of Luis Gonzaga y Jesena in her will, which attorney for the petitioner in the above case, and
will was probated on May 17, 1935, in the Court that all the allegations contained in the foregoing
petition are true to the best of my information tion
and belief.
(Sgd.) FRANCISCO S. HORTILLAS
(Sgd.) FRANCISCO HORTILLAS
UNITED STATES OF AMERICA
Subscribed and Sworn to before me this 11th day COMMONWEALTH OF THE PHILIPPINES
of March, 1936. He exhibited to me his cedula COURT OF FIRST INSTANCE OF ILOILO
No. E-1250120, issued at Jaro, Iloilo, P.I., on 17th Judicial District
January 16, 1936.
TESTATE PROCEEDINGS OF
(Sgd.) ILLEGIBLE THE DECEASED SOLEDAD
NOTARY PUBLIC GONZAGA VDA. DE FERRER,
Until Dec. 31, 1937 LUIS GONZAGA Y JESENA,
Petitioner.
Doc. No. 49 x-------------------------x
Page No. 60
Book No. 1 CIVIL CASE NO. 2163
Series of 1936
PETITION FOR ADJUDICATION
The Register of Deeds
Bacolod City, Occ. Negros The undersigned administrator to the
Honorable Court respectfully states:
Sir:
That the undersigned administrator, Luis
Please take notice that on Saturday, March 21, Gonzaga y Jesena is the only heir
1936, at 8:00 a.m. or soon thereafter as the mentioned in the probated will of the late
undersigned may be heard, he will submit the Sra. Soledad G. Vda. de Ferrer.
foregoing petition to this Honorable Court for
approval.
TITLE NO. PROVINCE VALUE
(Sgd.) FRANCISCO S. HORTILLAS Manapla Trans. Cert. 8433 Occ. Neg. P25,230.00
I hereby certify that I have sent a copy of the Manapla Trans. Cert. 11460 Occ. Neg.
foregoing petition to the Register of Deeds of
Occidental Negros evidenced by the registry Manapla Trans. Cert. 13855 Occ. Neg.
receipt hereto attached.
Trans. Cert. 13051 Iloilo
The Clerk of Court
Trans. Cert. 13054 Iloilo Iloilo, Iloilo
Sir:
ACCOUNTS COLLECTIBLE AND CASH
Roman Please include the foregoing petition for
Sopena ..................................................... adjudication in the calendar for Saturday,
...... February 8, 1936.
Juan
Sornito ...................................................... (Sgd.) FRANCISCO S. HORTILLAS
.........
A TRUE COPY:
Quintin Mejorada and
others .................................. (Sgd.) TELESFORO GEDANG
Maria Ledesma and Deputy Clerk of Court
others ...................................... 17th Judicial District
Iloilo, P.I.
and
Cash ......................................................... ESTADOS UNIDOS DE AMERICA
............ COMMONWEALTH DE FILIPINAS
JUZGADO DE PRIMERA INSTANCIA DE ILOILO
That there is a pending civil complaint against the 17.0 DISTRITO JUDICIAL
administrator by Consolacion G. de Lopez, et al.,
Civil Case No. 10321, Court, of First Instance of TESTAMENTARIA GONZAGA
Iloilo, demanding payment of the sum of P833.40.
The undersigned administrator is willing to file a Expediente No. 2163
cash bond for the sum object of the complaint in
case this expediente will be closed before the trial AUTO
of the Civil Case No. 10321, Iloilo.
Previa prestacion por Luis Gonzaga y Jesena de
Iloilo, P.I., February 3,1936. una fianza por valor de P1,000.00 que tendra por
objecto responder al resultado de la causa civil
(Sgd.) FRANCISCO S. HORTILLAS No. 10321 de este Juzgado, titulada
Attorney for the Administrator "Consolacion G. de Lopez, et al., demandantes,
2 General Luna, Iloilo. contra Luis Gonzaga", se aprueba la cuenta final
de fecha enero 29, 1936, asi como el proyecto de y 13855, sobre los lotes Nos. 414 y 424,
particion de fecha 3 del actual. Queda cancelada respectivamente, del Catastro de Manapla,
la fianza prestada por el administrador en este Negros Occidental, y la expedicion de otros a
expediente, y archivado el mismo por terminado. favor de Luis Gonzaga y Jesena, filipino, mayor
de edad, soltero y vecino de la ciuda de Manila,
Asi se ordena. I.F., haciendos constar en los certificados que se
han de expedir todos los gravamenes que existen
Iloilo, Iloilo, febrero 8, 1936. el los certificados de transferencia Nos. 11460 y
13855.
M. BUYSON LAMPA
Juez Asi se ordena.
Bacolod, Occ. Negros, 21 de marzo, 1936.
A TRUE COPY:
(FDO.) BRAULIO BAJASA
(Sgd.) TELESFORO GEDANG Juez
Deputy Clerk of Court
17th Judicial District ESTADOS UNIDOS DE AMERICA
ExpedienteIloilo,Cadastral
P. I. No. MANCOMUNIDAD DE FILIPINAS
26 JUZGADO DE PRIMERA INSTANCIA
G.L.R.O. Cad Rec. DE NEGROS OCCIDENTAL
EL GOBIERNO
ESTADOS DEUNIDOS
LAS DE
No.AMERICA
214 18.o Distrito Judicial
ISLAS MANCOMUNIDAD DE FILIPINAS
Lotes Nos. 414 y424
FILIPINAS
JUZGADO DE PRIMERA INSTANCIA
CATASTRO DEDE
Solicitante.NEGROS OCCIDENTAL EL GOBIERNO DE LAS Exp. de Reg. No. 72
MANAPLA
x - - - - - - - - - -18.o
- - - -Distrito
- - - - Judicial ISLAS FILIPINAS, G.L.R.O. Rec. No.
--x Solicitante, 10822
LUIS GONZAGA Y Lote No. 313
AUTO JESENA, MANAPLA
Mocionante.
Vista la peticion del solicitante Sr. Luiz Gonzaga y x----------------x
Jesena, de fecha 11 de marzo de 1936, el
Juzgado, hallando de misma bien fundada; AUTO
Por el presente, ordena la cancelacion de los Vista y considerada la motion del solicitante Luis
certificados de transferencia de titulo Nos. 11460 Gonzaga y Jesena, de Fecha 11 de marzo de
1936, el Juzgado, hallando la misma bien
fundada; JUZGADO DE PRIMERA INSTANCIA DE ILOILO
17.o Distrito Judicial
Por el presents, ordena la cancelacion del
certificado de transferencia de titulo No. 8422 G.L.R.O. RECORD NO. 9959
sobre el Lote No. 313 del catastro de Manapla, LOTES NOS. 1129-B y 1129-C
Negros Occidental, y la expedicion de otro a SITUADO EN EL MUNICIPIO DE
favor de Luis Gonzaga y Jesena, filipino, mayor JARO
de edad; soltero y vecino de la ciudad de Manila. x----------------x
I.F., haciendose constar en al certificado que se
ha de expedir todos los gravamente que existen AUTO
en al certificado de transferencia cancelado, se
tuviere alguno. Vista la peticion de Luis Gonzaga y Jesena
cancelacion de los Certificados de Transferencia
Asi se ordena. de titulo numeros 10051 y 13054 por las razones
expuestas en la misma, y encontrando el
Bacolod, Occidental Negros, 21 de Marzo, 1936. Juzgado la misma bien fundada, por la presente
ordena el Registrado de Titulos de la Provincial
(Sgd.) BRAULIO BEJASA del Iloilo cancela los Certificados de
Juez Transferencia de Titulos numeros 10051 y 13054
y expiden otros en su lugar a nombre de Luis
BB/spm. Gonzaga y Jesen soltero, mayor de edad, filipino
Received the foregoing document at 9:00 A.M. y vecino de Manila, P.I.
on May 7, 1936,and registered under Act 496 as
follows: Asi se ordena.
Day Book, Vol. 6, Entry No. 49684 Iloilo, Iloilo, Marzo 25, 1936
Inscribed on pages 101 of Book Vol. 87 of
Transfer Certificate of Title as Certificate of M. BUYSON LAMP
21151. Juez
Bacolod, Occ. Negros, May 7, 1936
(Sgd.) MARIANO COREOVA As a witness, the defendant's counsel, Atty. Amelia del
Register of Deeds Rosario, testified that the aforequoted records of the probate
court of Iloilo were discovered by her among the records of the
ESTADOS UNIDOS DE AMERICA cadastral court in Negros Occidental.
MANCOMUNIDAD DE FILIPINAS
Due to the destruction of the court and property record of Iloilo affection, conspired with appellee to deprive his own wife and
as a result of the last war, as attested by the Clerk of Court, no children (now some of the present appellants) of the lawful
will or probate order was produce and neither were attested share by intestacy in the properties left by Doña Soledad if it
copies registered with the Office of the Register of Deeds of were untrue that the latter had duly and properly bequeathed
Negros Occidental leave little room for doubt that Doña all her estate to appellee Luis Gonzaga. The authenticity of the
Soledad Gonzaga died leaving a will instituting her nephew the sworn petitions of the late attorney Hortillas (Exhibits a and 1)
appellee Luis Gonzaga y Jesena, as her sole testamentary are not impugned, and they were actually acted upon and
heir, in default forced heirs; that said will was duly probated in granted by the two courts of first instance to which he
1935 or 1936 by the Court of First Instance of Iloilo in its addressed his petitions.
Special Proceedings No. 2163; that the net residue of the
estate was adjudicated by the court of said appellee, subject to Coupled with his undoubted possession as owner and with his
a claim of Consolacion G. de Lopez for P1,000.00 (Exh. 2); own dominical acts exercised over the former properties of
and that, thereafter, upon sworn petition of appellee, through Doña Soledad Gonzaga for twenty-two years (1936-1958), the
his counsel, Francisco S. Hortillas, the Court First Instance of exhibits aforementioned constitute practically conclusive proof
Iloilo (Exhibit 22) and Occidental Negros (Exhibit 3) ordered of the truth of appellee's defenses, as found by the court
the respective Provincial Registers of Deeds to cancel the below, despite the destruction of the original will and decree of
Certificates of Title standing then in the name of the deceased probate.
Soledad Gonzaga and lieu thereof to issue new certificates in
the name of apellee Luis Gonzaga y Jesena, as admittedly Plaintiffs-appellants, however, assail the trial court is
was done. In the course of the years prior to the institution of admission of the said court records on the ground that
this case in 1958, appellee held the properties and dealt with defendant-appellee failed to lay proper basis, or predicate, for
them as sole owner, leasing, encumbering, and selling some their admission. Granting that the original will was destroyed
them. with the court records in the last war, it is averred that appellee
was duty-bound to produce the copy that, according to
We can not fail to be impressed by the statement of attorney appellee's deposition, was in the custody of Encarnacion
Francisco Hortillas, averring under with in clear and Gonzaga, as well as that left with attorney Hortillas. The
unmistakable terms, not only once, but twice before the Courts argument is misleading. There is no proof that copies of the
of First Instance of Iloilo and Negros (Exhibits 1 and 9), that will ever existed other than the one burned while in appellee's
the deceased Doña Soledad, in her probated will, made Luis possession (Dep. p. 23). Page 24 of the appellee's deposition
Gonzaga y Jesena the sole heir to her properties. These is to the effect that —
manifestations are nigh conclusive, for the reason that
attorney Hortillas was himself married to Monserrat Gonzaga, My sister Encarnacion had the custody of the will because she
a sister of Soledad, who would have been one of the latter's was the one who was at the beside of my sister (referring to
heirs intestate had it not been for the testament in favor of the the testatrix Doña Soledad);
appellee. It taxes credulity beyond all reason to imply (as
appellants do) that attorney Hortillas, violating family ties and
but by "the will" was obviously meant the one signed by the of an order of adjudication to a single heir. Since the order
testatrix and the witnesses, not a copy. made evident reference to the petition of January 29, we agree
with the court below that the difference in terminology was an
Similarly, the witness was asked, inadvertent mistake. Anyway, appellants do not claim under
the will or the partition; their theory is that Doña Soledad
When you filed this petition through your lawyer for the probate Gonzaga died intestate.
of the will, am I correct that you also presented a copy of the
will?; The failure of the defendant, Luis Gonzaga, to file with the
Register of Deeds a certified copy of his letters of
to which question the witness answered, administration and the will, as provided in Section 90 of Act
496, and to record the attested copies of the will and of the
The original was the one submitted. allowance thereof by the court under Section 624 of Act 190,
does not negate the validity of the judgment or decree of
From this answer, it certainly can not be inferred that Attorney probate nor the rights of the devisee under the will. Section 90
Hortillas kept a copy of the original submitted to the court. of Act 496 refers to the dealings with registered lands by an
executor or administrator; and while Luis Gonzaga was an
administrator, this is beside the point, because his dealings
Neither do we see that appellee was bound to call, or, account,
with the lands, if any, during his tenure as an administrator are
for the witnesses to the testament. He was not trying to show
not here in question. That the defendant sought judicial orders
that the will complied with the statutory requirements, but that
to effect the transfers to his name of the certificates of title
the will had been admitted to probate and of course, the
after the will was probated, and succeeded in having them so
probate decree conclusively established the due execution.
transferred, are not "dealings" with the property as
administrator under section 90 of the Registration Act. The
Appellants contend that if it were true that the will constituted defendant sought and obtained the change in title in his own
Luis Gonzaga as sole heir, he had no need to ask the court for behalf and capacity. Although the step taken is not exactly
an order of adjudication. There is no merit to this contention. what Section 624 of Act 190 directs, the same purpose was
The order of adjudication is the judicial recognition that in achieved — that of notice to all strangers of the cause and
appointing Luis as her only heir the testatrix did not contravene nature of the transfers; and it does not appear that anyone
the law, and that the heir was in no way disqualified to inherit; was prejudiced by the defect in registration complained of. At
just as a final order admitting a will to probate concludes all any rate, the recording of the judicial orders sufficed as notice
and sundry from thereafter contending that statutory formal to interested parties, and was substantial compliance with the
requirements have not been observed in executing the required recording of the will itself. No one faced by the
testament. Instead of contradicting the testamentary institution recorded documents could ignore the reference therein to the
of heir, the order of adjudication confirms it in this case. It may probated testament; and the rule is that knowledge of what
well be noted, in passing, that the order of February 8, 1936 might have been revealed by proper inquiry is imputable to the
(Exhibit 1 or B) speaks of approval of a "project of partition", inquirer (cf. Emas vs. De Zuzuarregui, 53 Phil. 197, 204).
while the petition of January 29, 1936 referred to therein spoke
As to the fact that Luis Gonzaga paid the inheritance taxes, below; and complainant's failure to appear by themselves, or
since by law, no delivery of properties can be made by counsel, prior to the judgment is mute but eloquent proof
importance. It is usual for an Administrator to pay these taxes, that their allegation that Delfin was not their attorney but a last
since by law, no delivery of properties can be made to the minute attempt to escape the adverse effect the appealed
heirs until and unless the inheritance taxes are paid [Internal decision, a maneuver that deserves no consideration.
Revenue Code, section 95 (c)].
Coming to the defendants' appeal: It is grounded the
The contention that defendant-appellee, having been disallowance of attorney's fees, expense, and moral damages.
appointed Administrator, must be deemed a trustee up to the The lower court granted only P1,000.00 for attorney's fees, but
present is infantile. In the first place, no administration could the defendants urge that the amount should be P41,000.00,
continue to exist after the order of February 8, 1936 had based on an agreement of P1,000.00 Plus 10% of the value of
approved the final account, adjudicate the property to the only the properties if the case is decided in their favor. The other
heir, cancelled the bond of the administrator, and ordered the expenses refer to transportation, board and lodging,
case "archivado el mismo por terminado". No proof exists that stenographic notes, photostatic copies of exhibits, securing
the proceedings were reopened. Secondly, the transfer of the documents, and taking of deposition in the sum of P1,205.00.
certificates title to Luis Gonzaga's own name in 1936 would Moral damages asked is P100,000.00.
constitute an open and clear repudiation of any trust, and the
lapse of more than twenty years' open and adverse The award of attorney's fees against the adverse party is
possession as owner would certainly suffice to vest title by essentially discretionary with the trial court (Francisco vs.
prescription in the appellee, since appellants, who knew of the GSIS, L-18287, 30 March 1963), and, in the absence of an
death of Doña Soledad in 1935, never made any move to abuse of discretion, the same should not be disturbed. The
require Luis to reconvey the property, or any part thereof. The other expenses, unless recoverable as judicial costs, cannot
explanation that Doña Soledad Gonzaga had express the wish be allowed because the complaint, although unmeritorious, is
that all the income should go to Luis while conducted not clearly unfounded; moral damages, likewise, are not
experimental studies on coconut products wholly unconvincing allowable because the suit is not a malicious prosecution
as an excuse for the laches; his right to the income could not under No. 8 of Article 2219 of the Civil Code. The issue is one
have blocked a partition of capital assets among appellants, if primarily addressed to the discretion of the court below, which
they had been at entitled to them. we are not inclined to disturb.
That some of the plaintiffs were denied their day in court is FOR THE FOREGOING REASONS, the appealed decision is
incredible, since all the plaintiffs were represented by counsel hereby affirmed, with costs against the plaintiffs-appellants.
Vicente Delfin, who claimed, and is presumed, to have been
authorized to appear in their behalf, and did appear for them Bengzon, C.J., Padilla, Bautista Angelo, Labrador,
from the inception of the case after the lower court's decision Concepcion, Barrera, Paredes, Dizon, Regala and Makalintal,
was rendered. The authority of said counsel was never JJ., concur.
questioned until the verse decision was rendered by the court
G.R. No. 110427 February 24, 1997 The amended Complaint5 pertinently alleged that plaintiff
Cañiza was the absolute owner of the property in question,
The Incompetent, CARMEN CAÑIZA, represented by her covered by TCT No. 27147; that out of kindness, she had
legal guardian, AMPARO EVANGELISTA, petitioner, allowed the Estrada Spouses, their children, grandchildren and
vs. sons-in-law to temporarily reside in her house, rent-free; that
COURT OF APPEALS (SPECIAL FIRST DIVISION), PEDRO Cañiza already had urgent need of the house on account of
ESTRADA and his wife, LEONORA ESTRADA, respondents. her advanced age and failing health, "so funds could be raised
to meet her expenses for support, maintenance and medical
treatment;" that through her guardian, Cañiza had asked the
Estradas verbally and in writing to vacate the house but they
had refused to do so; and that "by the defendants' act of
unlawfully depriving plaintiff of the possession of the house in
NARVASA, C.J.: question, they . . (were) enriching themselves at the expense
of the incompetent, because, while they . . (were) saving
money by not paying any rent for the house, the
On November 20, 1989, being then ninety-four (94) years of
incompetent . . (was) losing much money as her house could
age, Carmen Cañiza, a spinster, a retired pharmacist, and
not be rented by others." Also alleged was that the complaint
former professor of the College of Chemistry and Pharmacy of
was "filed within one (1) year from the date of of first letter of
the University of the Philippines, was declared incompetent by
demand dated February 3, 1990."
judgment1 of the Regional Trial Court of Quezon City, Branch
107,2 in a guardianship proceeding instituted by her niece,
Amparo A. Evangelista.3 She was so adjudged because of her In their Answer with Counterclaim, the defendants declared
advanced age and physical infirmities which included cataracts that they had been living in Cañiza's house since the 1960's;
in both eyes and senile dementia. Amparo A. Evangelista was that in consideration of their faithful service they had been
appointed legal guardian of her person and estate. considered by Cañiza as her own family, and the latter had in
fact executed a holographic will on September 4, 1988 by
which she "bequeathed" to the Estradas the house and lot in
Cañiza was the owner of a house and lot at No. 61 Tobias St.,
question.
Quezon City. On September 17, 1990, her guardian Amparo
Evangelista commenced a suit in the Metropolitan Trial Court
(MetroTC) of Quezon City (Branch 35) to eject the spouses Judgment was rendered by the MetroTC on April 13, 1992 in
Pedro and Leonora Estrada from said premises.4 The Cañiza's favor,6 the Estradas being ordered to vacate the
complaint was later amended to identify the incompetent premises and pay Cañiza P5,000.00 by way of attorney's fees.
Cañiza as plaintiff, suing through her legal guardian, Amparo
Evangelista. But on appeal,8 the decision was reversed by the Quezon City
Regional Trial Court, Branch 96.9 By judgment rendered on
October 21, 1992, 10 the RTC held that the "action by which
the issue of defendants' possession should be resolved any "contract, express or implied," as contemplated by Section
is accion publiciana, the obtaining factual and legal situation . . 1, Rule 70 of the Rules of Court, their occupancy of the
demanding adjudication by such plenary action for recovery of premises could not be deemed one "terminable upon mere
possession cognizable in the first instance by the Regional demand (and hence never became unlawful) within the context
Trial Court." of the law." Neither could the suit against them be deemed one
of forcible entry, they add, because they had been occupying
Cañiza sought to have the Court of Appeals reverse the the property with the prior consent of the "real owner," Carmen
decision of October 21, 1992, but failed in that attempt. In a Cañiza, which "occupancy can even ripen into full ownership
decision 11 promulgated on June 2, 1993, the Appellate once the holographic will of petitioner Carmen Cañiza is
Court 12 affirmed the RTC's judgment in toto. It ruled that (a) admitted to probate." They conclude, on those postulates, that
the proper remedy for Cañiza was indeed an accion it is beyond the power of Cañiza's legal guardian to oust them
publiciana in the RTC, not an accion interdictal in the MetroTC, from the disputed premises.
since the "defendants have not been in the subject premises
as mere tenants or occupants by tolerance, they have been Carmen Cañiza died on March 19, 1994, 16 and her heirs —
there as a sort of adopted family of Carmen Cañiza," as the aforementioned guardian, Amparo Evangelista, and
evidenced by what purports to be the holographic will of the Ramon C. Nevado, her niece and nephew, respectively —
plaintiff; and (b) while "said will, unless and until it has passed were by this Court's leave, substituted for her. 17
probate by the proper court, could not be the basis of
defendants' claim to the property, . . it is indicative of intent and Three issues have to be resolved: (a) whether or not an
desire on the part of Carmen Cañiza that defendants are to ejectment action is the appropriate judicial remedy for recovery
remain and are to continue in their occupancy and possession, of possession of the property in dispute; (b)
so much so that Cañiza's supervening incompetency can not assuming desahucio to be proper, whether or not Evangelista,
be said to have vested in her guardian the right or authority to as Cañiza's legal guardian had authority to bring said action;
drive the defendants out." 13 and (c) assuming an affirmative answer to both questions,
whether or not Evangelista may continue to represent Cañiza
Through her guardian, Cañiza came to this Court praying for after the latter's death.
reversal of the Appellate Court's judgment. She contends in
the main that the latter erred in (a) holding that she should I
have pursued an accion publiciana, and not an accion
interdictal; and in (b) giving much weight to "a xerox copy of an It is axiomatic that what determines the nature of an action as
alleged holographic will, which is irrelevant to this case." 14 well as which court has jurisdiction over it, are the allegations
of the complaint and the character of the relief sought. 18 An
In the responsive pleading filed by them on this Court's inquiry into the averments of the amended complaint in the
requirement, 15 the Estradas insist that the case against them Court of origin is thus in order. 19
was really not one of unlawful detainer; they argue that since
possession of the house had not been obtained by them by The amended Complaint alleges: 20
6. That the plaintiff Carmen Cañiza, is the sole 13. That this complaint is filed within one (1)
and absolute owner of a house and lot at No. year from the date of first letter of demand
61 Scout Tobias, Quezon City, which property is dated February 3, 1990 (Annex "B") sent by the
now the subject of this complaint; plaintiff to the defendants, by her legal guardian
— Amparo Evangelista;
xxx xxx xxx
14. By the defendants' act of unlawfully
9. That the defendants, their children, depriving the plaintiff of the possession of the
grandchildren and sons-in-law, were allowed to house in question, they are enriching
live temporarily in the house of plaintiff Carmen themselves at the expense of the
Cañiza, for free, out of her kindness; incompetent plaintiff because, while they are
saving money by not paying any rent for the
10. That the plaintiff, through her legal house, the plaintiff is losing much money as her
guardian, has duly notified the defendants, for house could not be rented by others;
them to vacate the said house, but the two (2)
letters of demand were ignored and the 15. That the plaintiff's health is failing and she
defendants refused to vacate the same. . . needs the house urgently, so that funds could
be raised to meet her expenses for her support,
11. That the plaintiff, represented by her legal maintenance and medical treatment;
guardian, Amparo Evangelista, made another
demand on the defendants for them to vacate 16. That because of defendants' refusal to
the premises, before Barangay Captain vacate the house at No. 61 Scout Tobias,
Angelina A. Diaz of Barangay Laging Handa, Quezon City, the plaintiff, through her legal
Quezon City, but after two (2) conferences, the guardian, was compelled to go to court for
result was negative and no settlement was justice, and she has to spend P10,000.00 as
reached. A photocopy of the Certification to File attorney's fees.
Action dated July 4, 1990, issued by said
Barangay Captain is attached, marked Annex Its prayer 21 is quoted below:
"D" and made an integral part hereof;
WHEREFORE, in the interest of justice and the
12. That the plaintiff has given the defendants rule of law, plaintiff, Carmen Cañiza,
more than thirty (30) days to vacate the house, represented by her legal guardian, Amparo
but they still refused to vacate the premises, Evangelista, respectfully prays to this
and they are up to this time residing in the said Honorable Court, to render judgment in favor of
place; plaintiff and against the defendants as follows:
1. To order the defendants, their children, Undoubtedly, a cause of action for desahucio has been
grandchildren, sons-in-law and other persons adequately set out. It is settled that in an action for unlawful
claiming under them, to vacate the house and detainer, it suffices to allege that the defendant is unlawfully
premises at No. 6 1 Scout Tobias, Quezon City, withholding possession from the plaintiff is deemed
so that its possession can be restored to the sufficient, 22 and a complaint for unlawful detainer is sufficient if
plaintiff Carmen Cañiza; and it alleges that the withholding of possession or the refusal to
vacate is unlawful without necessarily employing the
2. To pay attorney's fees in the amount of terminology of the law. 23
P10,000.00;
The Estradas' first proffered defense derives from a literal
3. To pay the costs of the suit. construction of Section 1, Rule 70 of the Rules of Court
which inter alia authorizes the institution of an unlawful
In essence, the amended complaint states: detainer suit when "the possession of any land or building is
unlawfully withheld after the expiration or termination of the
1) that the Estradas were occupying Cañiza's right to hold possession, by virtue of any contract, express or
house by tolerance — having been "allowed to implied." They contend that since they did not acquire
live temporarily . . (therein) for free, out of . . possession of the property in question "by virtue of any
(Cañiza's) kindness;" contract, express or implied" — they having been, to repeat,
"allowed to live temporarily . . (therein) for free, out of . .
2) that Cañiza needed the house "urgently" (Cañiza's) kindness" — in no sense could there be an
because her "health . . (was) failing and she . . "expiration or termination of . . (their) right to hold
(needed) funds . . to meet her expenses for her possession, by virtue of any contract, express or implied." Nor
support, maintenance and medical treatment;" would an action for forcible entry lie against them, since there
is no claim that they had "deprived (Cañiza) of the possession
of . . (her property) by force, intimidation, threat, strategy, or
3) that through her general guardian, Cañiza
stealth.
requested the Estradas several times, orally
and in writing, to give back possession of the
house; The argument is arrant sophistry. Cañiza's act of allowing the
Estradas to occupy her house, rent-free, did not create a
permanent and indefeasible right of possession in the latter's
4) that the Estradas refused and continue to
favor. Common sense, and the most rudimentary sense of
refuse to give back the house to Cañiza, to her
fairness clearly require that that act of liberality be implicitly,
continuing prejudice; and
but no less certainly, accompanied by the necessary burden
on the Estradas of returning the house to Cañiza upon her
5) that the action was filed within one (1) year demand. More than once has this Court adjudged that a
from the last demand to vacate. person who occupies the land of another at the latter's
tolerance or permission without any contract between them is The Estradas' possession of the house stemmed from the
necessarily bound by an implied promise that he will vacate owner's express permission. That permission was
upon demand, failing which a summary action for ejectment is subsequently withdrawn by the owner, as was her right; and it
the proper remedy against him. 24 The situation is not much is immaterial that the withdrawal was made through her judicial
different from that of a tenant whose lease expires but who guardian, the latter being indisputably clothed with authority to
continues in occupancy by tolerance of the owner, in which do so. Nor is it of any consequence that Carmen Cañiza had
case there is deemed to be an unlawful deprivation or executed a will bequeathing the disputed property to the
withholding of possession as of the date of the demand to Estradas; that circumstance did not give them the right to stay
vacate. 25 In other words, one whose stay is merely tolerated in the premises after demand to vacate on the theory that they
becomes a deforciant illegally occupying the land or property might in future become owners thereof, that right of ownership
the moment he is required to leave. 26 Thus, in Asset being at best inchoate, no transfer of ownership being possible
Privatization Trust vs. Court of Appeals, 27 where a company, unless and until the will is duly probated.
having lawfully obtained possession of a plant upon its
undertaking to buy the same, refused to return it after failing to Thus, at the time of the institution of the action of desahucio,
fulfill its promise of payment despite demands, this Court held the Estradas had no legal right to the property, whether as
that "(a)fter demand and its repudiation, . . (its) continuing possessors by tolerance or sufferance, or as owners. They
possession . . became illegal and the complaint for unlawful could not claim the right of possession by sufferance; that had
detainer filed by the been legally ended. They could not assert any right of
. . (plant's owner) was its proper remedy. possession flowing from their ownership of the house; their
status as owners is dependent on the probate of the
It may not be amiss to point out in this connection that where holographic will by which the property had allegedly been
there had been more than one demand to vacate, the one- bequeathed to them — an event which still has to take place;
year period for filing the complaint for unlawful detainer must in other words, prior to the probate of the will, any assertion of
be reckoned from the date of the last demand, 28the reason possession by them would be premature and inefficacious.
being that the lessor has the option to waive his right of action
based on previous demands and let the lessee remain In any case, the only issue that could legitimately be raised
meanwhile in the premises. 29 Now, the complaint filed by under the circumstances was that involving the Estradas'
Cañiza's guardian alleges that the same was "filed within one possession by tolerance, i.e., possession de facto, not de jure.
(1) year from the date of the first letter of demand dated It is therefore incorrect to postulate that the proper remedy for
February 3, 1990." Although this averment is not in accord with Cañiza is not ejectment but accion publiciana, a plenary action
law because there is in fact a second letter of demand to in the RTC or an action that is one for recovery of the right to
vacate, dated February 27, 1990, the mistake is possession de jure.
inconsequential, since the complaint was actually filed on
September 17, 1990, well within one year from II
the second (last) written demand to vacate.
The Estradas insist that the devise of the house to them by ward has no right to possession or control of his property
Cañiza clearly denotes her intention that they remain in during her incompetency. 35 That right to manage the ward's
possession thereof, and legally incapacitated her judicial estate carries with it the right to take possession thereof and
guardian, Amparo Evangelista, from evicting them therefrom, recover it from anyone who retains it, 36 and bring and defend
since their ouster would be inconsistent with the ward's will. such actions as may be needful for this purpose. 37
A will is essentially ambulatory; at any time prior to the Actually, in bringing the action of desahucio, Evangelista was
testator's death, it may be changed or revoked; 30 and until merely discharging the duty to attend to "the comfortable and
admitted to probate, it has no effect whatever and no right can suitable maintenance of the ward" explicitly imposed on her by
be claimed thereunder, the law being quite explicit: "No will Section 4, Rule 96 of the Rules of Court, viz.:
shall pass either real or personal property unless it is proved
and allowed in accordance with the Rules of Court" (ART. Sec. 4. Estate to be managed frugally, and
838, id.). 31 An owner's intention to confer title in the future to proceeds applied to maintenance of ward. — A
persons possessing property by his tolerance, is not guardian must manage the estate of his ward
inconsistent with the former's taking back possession in the frugally and without waste, and apply the
meantime for any reason deemed sufficient. And that in this income and profits thereof, so far as maybe
case there was sufficient cause for the owner's resumption of necessary, to the comfortable and suitable
possession is apparent: she needed to generate income from maintenance of the ward and his family, if there
the house on account of the physical infirmities afflicting her, be any; and if such income and profits be
arising from her extreme age. insufficient for that purpose, the guardian may
sell or encumber the real estate, upon being
Amparo Evangelista was appointed by a competent court the authorized by order to do so, and apply to such
general guardian of both the person and the estate of her aunt, of the proceeds as may be necessary to such
Carmen Cañiza. Her Letters of Guardianship 32 dated maintenance.
December 19, 1989 clearly installed her as the "guardian over
the person and properties of the incompetent CARMEN Finally, it may be pointed out in relation to the Estradas's
CANIZA with full authority to take possession of the property of defenses in the ejectment action, that as the law now stands,
said incompetent in any province or provinces in which it may even when, in forcible entry and unlawful detainer cases, the
be situated and to perform all other acts necessary for the defendant raises the question of ownership in his pleadings
management of her properties . . " 33 By that appointment, it and the question of possession cannot be resolved without
became Evangelista's duty to care for her aunt's person, to deciding the issue of ownership, the Metropolitan Trial Courts,
attend to her physical and spiritual needs, to assure her well- Municipal Trial Courts, and Municipal Circuit Trial Courts
being, with right to custody of her person in preference to nevertheless have the undoubted competence to resolve "the
relatives and friends. 34 It also became her right and duty to get issue of ownership . . only to determine the issue of
possession of, and exercise control over, Cañiza's property, possession." 38
both real and personal, it being recognized principle that the
III may be recovered as costs. The heirs of the
deceased may be allowed to be substituted for
As already stated, Carmen Cañiza passed away during the the deceased, without requiring the
pendency of this appeal. The Estradas thereupon moved to appointment of an executor or
dismiss the petition, arguing that Cañiza's death automatically administrator and the court may appoint
terminated the guardianship, Amaparo Evangelista lost all guardian ad litemfor the minor heirs.
authority as her judicial guardian, and ceased to have legal
personality to represent her in the present appeal. The motion To be sure, an ejectment case survives the death of a party.
is without merit. Cañiza's demise did not extinguish the desahucio suit
instituted by her through her guardian. 42 That action, not being
While it is indeed well-established rule that the relationship of a purely personal one, survived her death; her heirs have
guardian and ward is necessarily terminated by the death of taken her place and now represent her interests in the appeal
either the guardian or the ward, 39 the rule affords no at bar.
advantage to the Estradas. Amparo Evangelista, as niece of
Carmen Cañiza, is one of the latter's only two (2) surviving WHEREFORE, the petition is GRANTED. The Decision of the
heirs, the other being Cañiza's nephew, Ramon C. Nevado. Court of Appeals promulgated on June 2, 1993 — affirming the
On their motion and by Resolution of this Court 40 of June 20, Regional Trial Court's judgment and dismissing petitioner's
1994, they were in fact substituted as parties in the appeal at petition for certiorari — is REVERSED and SET ASIDE, and
bar in place of the deceased, in accordance with Section 17, the Decision dated April 13, 1992 of the Metropolitan Trial
Rule 3 of the Rules of Court, viz.: 41 Court of Quezon City, Branch 35, in Civil Case No. 3410 is
REINSTATED and AFFIRMED. Costs against private
Sec. 18. Death of a party. — After a party dies respondents.
and the claim is not thereby extinguished, the
court shall order, upon proper notice, the legal SO ORDERED.
representative of the deceased to appear and
be substituted for the deceased within a period Narvasa, C.J., Davide, Jr., Melo, Francisco and Panganiban,
of thirty (30) days, or within such time as may JJ., concur.
be granted. If the legal representative fails to
appear within said time, the court may order the
opposing party to procure the appointment of a
legal representative of the deceased within a
time to be specified by the court, and the
representative shall immediately appear for and
on behalf of the interest of the deceased. The
court charges involved in procuring such
appointment, if defrayed by the opposing party,
[G.R. No. 115925. August 15, 2003] including his sister Catalina Sioson (CATALINA) and his
brother Victoriano Sioson (VICTORIANO), were co-owners of
a parcel of land in Tanza, Navotas, Metro Manila. The property,
known as Lot 2 of Plan Psu 13245, had an area of 9,347
SPOUSES RICARDO PASCUAL and CONSOLACION square meters and was covered by Original Certificate of Title
SIOSON, petitioners, vs. COURT OF APPEALS and No. 4207 issued by the Register of Deeds of Rizal. CATALINA,
REMEDIOS S. EUGENIO-GINO, respondents. CANUTO, and VICTORIANO each owned an aliquot 10/70
share or 1,335 square meters of Lot 2. [2]
DECISION
On 20 November 1951, CANUTO had Lot 2 surveyed and
CARPIO, J.: subdivided into eight lots (Lot Nos. 2-A to 2-H) through
Subdivision Plan Psd 34713 which the Director of Lands
approved on 30 May 1952. Lot No. 2-A, with an area of 670
The Case square meters, and Lot No. 2-E, with an area of 2,000 square
meters, were placed under CANUTOs name. Three other
individuals took the remaining lots.[3]
This is a petition for review of the Decision [1] dated 31
January 1994 of the Court of Appeals ordering the Register of On 26 September 1956, CANUTO and CONSOLACION
Deeds of Metro Manila, District III, to place TCT No. (232252) executed a Kasulatan ng Bilihang
1321 in the name of respondent Remedios S. Eugenio- Tuluyan[4] (KASULATAN). Under the KASULATAN, CANUTO
Gino. The Decision ordered the Register of Deeds to cancel sold his 10/70 share in Lot 2 in favor of CONSOLACION
the names of petitioners Ricardo Pascual and Consolacion for P2,250.00. The KASULATAN, notarized by Notary Public
Sioson (petitioners) in TCT No. (232252) 1321. The Decision Jose T. de los Santos of Navotas, provides:
also directed petitioners to pay respondent moral and
exemplary damages and attorneys fees. Na ako, CANUTO SIOSON, mamamayang Pilipino, may
katampatang gulang, kasal kay Raymunda San Diego, at
naninirahan sa Tanza, Navotas, Rizal, sa bisa at pamamagitan
ng kasulatang ito ay nagpapatunay at nagpapatibay:
The Facts
1. Na ako ang lubos at tunay na may-ari ng 10/70
Petitioner Consolacion Sioson (CONSOLACION) and bahaging hindi hati (10/70 porcion pro-
respondent Remedios S. Eugenio-Gino (REMEDIOS) are the indiviso) ng isang lagay na lupa (Lote
niece and granddaughter, respectively, of the late Canuto No. 2, Plano Psu-13245), na nasa sa
Sioson (CANUTO). CANUTO and 11 other individuals, nayon ng Tanza, Municipio ng Navotas,
Provincia ng Rizal, at ang descripcion o favor of CONSOLACION. They also attested that the lots their
pagkakakilanlan ng nasabing lote ay father had sold to CONSOLACION were Lot Nos. 2-A and 2-E
nakasaad sa Certificado Original, de of Subdivision Plan Psd 34713. The JOINT AFFIDAVIT reads:
Titulo No. 4207 ng Oficina ng
Registrador de Titulos ng Rizal, gaya ng KAMING sina FELICIDAD SIOSON at BEATRIZ SIOSON,
sumusunod: pawang mga Pilipino, kapuwa may sapat na gulang at
naninirahan, ang una sa Tanza, Navotas at ang ikalawa sa
xxxx Concepcion, Malabon, lalawigan ng Rizal, sa ilalim ng
isang ganap na panunumpa alinsunod sa batas, ay malayang
2. Na dahil at alang-alang sa halagang Dalawang nagsasalaysay ng mga sumusunod:
Libo Dalawang Daan at Limampung
Piso (P2,250.00), salaping Pilipino, na Na kami ang mga buhay na anak na naiwan ni CANUTO
sa akin ay ibinayad ni CONSOLACION SIOSON na nagmamay-ari ng 10/70 bahaging hindi hati
SIOSON, kasal kay Ricardo S. Pascual, (10/70 porcion pro-indiviso) ng isang lagay na lupa (Lote No.
may sapat na gulang, mamamayang 2, plano Psu-13245), na nasa Nayon ng Tanza, Navotas,
Pilipino, at naninirahan sa Dampalit, Rizal, at ang mga palatandaan nito ay nasasaad sa Certificado
Malabon, Rizal at ang pagkakatanggap Original de Titulo No. 4207 ng Tanggapan ng Registrador de
ng nasabing halaga ay aking inaamin at Titulos ng Rizal;
pinatutunayan, ay aking ipinagbili,
inilipat at isinalin, sa pamamagitan ng Na sa lubos naming kaalaman, ay ipinagbili ng aming Ama na
bilihang tuluyan at walang pasubali a si Canuto Sioson ang kaniyang buong bahagi na 10/70 sa
favor [sic] sa nasabing si nasabing Lote No. 2, kay CONSOLACION SIOSON, may-
CONSOLACION SIOSON, sa kanyang bahay ni Ricardo S. Pascual, na taga Dampalit, Malabon,
tagapagmana at mapaglilipatan ang Rizal, sa halagang P2,250.00, salaping pilipino, noong ika 16
lahat ng aking titulo, karapatan at [sic] ng Septiembre, 1956, sa pamamagitan ng isang
kaparti na binubuo ng 10/70 bahaging KASULATAN NG BILIHANG TULUYAN na pinagtibay sa harap
hindi hati (10/70 porcion pro-indiviso) ng ng Notario Publico Jose T. de los Santos nang pechang
loteng descrito or tinutukoy sa itaas nito. nabanggit, sa Navotas, Rizal, (Doc. No. 194, Page No. 84;
(Emphasis supplied) Book No. IV; Series of 1956);
CONSOLACION immediately took possession of Lot Nos. 2-A Na ang nasabing lupa na ipinagbili ng aming Ama kay
and 2-E. She later declared the land for taxation purposes and Consolacion Sioson ni Pascual, ay nakikilala ngayong mga
paid the corresponding real estate taxes.[5] Lote No. 2-A at Lote 2-E ng Plano de Subdivision Psd-34713;
na pinagtibay ng Assistant Director of Lands noong Mayo 30,
On 23 October 1968, the surviving children of CANUTO,
1952;
namely, Felicidad and Beatriz, executed a joint
affidavit[6] (JOINT AFFIDAVIT) affirming the KASULATAN in
Na aming ngayong pinatitibayan ang pagka-pagbili ng bahagi In its order of 28 April 1988, the trial court denied
ng aming Ama kay Consolacion Sioson ni Pascual ng ngayoy petitioners motion to dismiss. The trial court held that the
nakikilalang Lote No. 2-A at Lote No. 2-E ng Plano de reckoning of the prescriptive period for filing REMEDIOS
Subdivision Psd-34713. (Emphasis supplied) complaint is evidentiary in nature and must await the
presentation of the parties evidence during the trial. During the
On 28 October 1968, CONSOLACION registered the pre-trial stage, REMEDIOS clarified that she was claiming only
KASULATAN and the JOINT AFFIDAVIT with the Office of the CATALINAs 10/70 share in Lot 2, or 1,335 square meters,
Register of Deeds of Rizal (Register of Deeds). Based on which constitute of the area of Lot Nos. 2-A and 2-E. [8] The trial
these documents, the Register of Deeds issued to of the case then ensued.
CONSOLACION Transfer Certificate of Title No. (232252)
1321 covering Lot Nos. 2-A and 2-E of Subdivision Plan Psd
34713 with a total area of 2,670 square meters. The Ruling of the Trial Court
On 4 February 1988, REMEDIOS filed a complaint against
CONSOLACION and her spouse Ricardo Pascual in the On 26 November 1990, the trial court rendered judgment
Regional Trial Court of Malabon, Branch 165, for Annulment or dismissing the case and ordering REMEDIOS to pay
Cancellation of Transfer Certificate [of Title] and Damages. petitioners P10,000 as attorneys fees and the cost of suit. The
REMEDIOS claimed that she is the owner of Lot Nos. 2-A and trial court held that the action filed by REMEDIOS is based on
2-E because CATALINA devised these lots to her in fraud, covered by the four-year prescriptive period. The trial
CATALINAs last will and testament [7] (LAST WILL) dated 29 court also held that REMEDIOS knew of petitioners adverse
May 1964. REMEDIOS added that CONSOLACION obtained title on 19 November 1982 when REMEDIOS testified against
title to these lots through fraudulent means since the area petitioners in an ejectment suit petitioners had filed against
covered by TCT (232252) 1321 is twice the size of CANUTOs their tenants in Lot Nos. 2-A and 2-E. Thus, the complaint of
share in Lot 2. REMEDIOS prayed for the cancellation of REMEDIOS had already prescribed when she filed it on 4
CONSOLACIONs title, the issuance of another title in her February 1988.
name, and the payment to her of damages.
The trial court further ruled that REMEDIOS has no right
Petitioners sought to dismiss the complaint on the ground of action against petitioners because CATALINAs LAST WILL
of prescription. Petitioners claimed that the basis of the action from which REMEDIOS claims to derive her title has not been
is fraud, and REMEDIOS should have filed the action within admitted to probate. Under Article 838 of the Civil Code, no will
four years from the registration of CONSOLACIONs title on 28 passes real or personal property unless it is allowed in probate
October 1968 and not some 19 years later on 4 February in accordance with the Rules of Court. The dispositive portion
1988. REMEDIOS opposed the motion, claiming that she of the trial courts decision provides:
became aware of CONSOLACIONs adverse title only in
February 1987. CONSOLACION maintained that she had WHEREFORE, judgment is hereby rendered in favor of the
timely filed her complaint within the four-year prescriptive on 4 defendants and against plaintiff, ordering:
February 1988.
1. The dismissal of this case; Sioson inscribed over said title as owners of the covered
lot. Defendants-appellees spouses Ricardo Pascual and
2. The plaintiff to pay the defendants the sum of Ten Consolacion Sioson are ordered to pay plaintiff-appellant
Thousand (P10,000.00) Pesos as and for Remedios S. Eugenio-Gino moral damages in the amount
attorneys fees; and of P50,000.00, exemplary damages of P20,000[.00] and
attorneys fees of P20,000.00 and P500.00 per appearance.[10]
3. The plaintiff to pay the costs of suit.[9]
Petitioners sought reconsideration of the ruling. However,
REMEDIOS appealed to the Court of Appeals. the Court of Appeals denied their motion in its order dated 15
June 1994.
Hence, this petition.
The Ruling of the Court of Appeals
xxxx
On March 5, 1980, the PROBATE COURT set the hearing on The order of August 20, 1980 found that as per the
the intrinsic validity of the will for March 25, 1980, but upon holographic will and a written acknowledgment of PASTOR,
objection of PASTOR, JR. and SOFIA on the e ground of JR. dated June 17, 1962, of the above 60% interest in the
pendency of the reconveyance suit, no hearing was held on mining claims belonging to the Pastor Group, 42% belonged to
March 25. Instead, the PROBATE COURT required the parties PASTOR, SR. and only 33% belonged to PASTOR, JR. The
to submit their respective position papers as to how much remaining 25% belonged to E. Pelaez, also of the Pastor
inheritance QUEMADA was entitled to receive under the wig. Group. The PROBATE COURT thus directed ATLAS to remit
Pursuant thereto, PASTOR. JR. and SOFIA submitted their directly to QUEMADA the 42% royalties due decedent's estate,
Memorandum of authorities dated April 10, which in effect of which QUEMADA was authorized to retain 75% for himself
showed that determination of how much QUEMADA should as legatee and to deposit 25% with a reputable banking
receive was still premature. QUEMADA submitted his Position institution for payment of the estate taxes and other obligations
paper dated April 20, 1980. ATLAS, upon order of the Court, of the estate. The 33% share of PASTOR, JR. and/or his
submitted a sworn statement of royalties paid to the Pastor assignees was ordered garnished to answer for the
Group of tsn from June 1966 (when Pastor, Sr. died) to accumulated legacy of QUEMADA from the time of PASTOR,
February 1980. The statement revealed that of the mining SR.'s death, which amounted to over two million pesos.
claims being operated by ATLAS, 60% pertained to the Pastor
Group distributed as follows: The order being "immediately executory", QUEMADA
succeeded in obtaining a Writ of Execution and Garnishment
1. A. Pastor, Jr. ...................................40.5% on September 4, 1980, and in serving the same on ATLAS on
the same day. Notified of the Order on September 6, 1980, the
2. E. Pelaez, Sr. ...................................15.0% oppositors sought reconsideration thereof on the same date
primarily on the ground that the PROBATE COURT gravely
3. B. Quemada .......................................4.5% abused its discretion when it resolved the question of
ownership of the royalties and ordered the payment of
QUEMADA's legacy after prematurely passing upon the
intrinsic validity of the will. In the meantime, the PROBATE had assigned to QUEMADA before PASTOR, SR. died) was to
COURT ordered suspension of payment of all royalties due be garnished and that as regards PASTOR, SR.'s 42% share,
PASTOR, JR. and/or his assignees until after resolution of what was ordered was just the transfer of its possession to the
oppositors' motion for reconsideration. custody of the PROBATE COURT through the special
administrator. Further, the Order granted QUEMADA 6%
Before the Motion for Reconsideration could be resolved, interest on his unpaid legacy from August 1980 until fully paid.]
however, PASTOR, JR., this time joined by his wife Ma. Nonetheless, the Court of Appeals denied reconsideration.
ELENA ACHAVAL DE PASTOR, filed with the Court of Appeals
a Petition for certiorari and Prohibition with a prayer for writ of Hence, this Petition for Review by certiorari with prayer for a
preliminary injunction (CA-G.R. No. SP- 11373-R). They writ of pre y injunction, assailing the decision of the Court of
assailed the Order dated August 20, 1980 and the writ of Appeals dated November 18, 1980 as well as the orders of the
execution and garnishment issued pursuant thereto. The Probate Court dated August 20, 1980, November 11, 1980 and
petition was denied on November 18, 1980 on the grounds (1) December 17, 1980, Med by petitioners on March 26, 1981,
that its filing was premature because the Motion for followed by a Supplemental Petition with Urgent Prayer for
Reconsideration of the questioned Order was still pending Restraining Order.
determination by the PROBATE COURT; and (2) that although
"the rule that a motion for reconsideration is prerequisite for an In April 1981, the Court (First Division) issued a writ of
action for certiorari is never an absolute rule," the Order preliminary injunction, the lifting of which was denied in the
assailed is "legally valid. " Resolution of the same Division dated October 18, 1982,
although the bond of petitioners was increased from
On December 9, 1980, PASTOR, JR. and his wife moved for P50,000.00 to P100,000.00.
reconsideration of the Court of Appeal's decision of November
18, 1980, calling the attention of the appellate court to another Between December 21, 1981 and October 12, 1982, private
order of the Probate Court dated November 11, 1980 (i.e., respondent filed seven successive motions for early resolution.
while their petition for certiorari was pending decision in the Five of these motions expressly prayed for the resolution of
appellate court), by which the oppositors' motion for the question as to whether or not the petition should be given
reconsideration of the Probate Court's Order of August 20, due course.
1980 was denied. [The November 11 Order declared that the
questions of intrinsic validity of the will and of ownership over On October 18, 1982, the Court (First Division) adopted a
the mining claims (not the royalties alone) had been finally resolution stating that "the petition in fact and in effect was
adjudicated by the final and executory Order of December 5, given due course when this case was heard on the merits on
1972, as affirmed by the Court of Appeals and the Supreme September 7, (should be October 21, 1981) and concise
Court, thereby rendering moot and academic the suit for memoranda in amplification of their oral arguments on the
reconveyance then pending in the Court of First Instance of merits of the case were filed by the parties pursuant to the
Cebu, Branch IX. It clarified that only the 33% share of resolution of October 21, 1981 . . . " and denied in a resolution
PASTOR, JR. in the royalties (less than 7.5% share which he dated December 13, 1982, private respondent's "Omnibus
motion to set aside resolution dated October 18, 1982 and to resolved and actually did not decide QUEMADA's entitlement
submit the matter of due course to the present membership of to the legacy. This being so, the Orders for the payment of the
the Division; and to reassign the case to another ponente." legacy in alleged implementation of the Probate Order of 1972
are unwarranted for lack of basis.
Upon Motion for Reconsideration of the October 18, 1982 and
December 13, 1982 Resolutions, the Court en banc resolved Closely related to the foregoing is the issue raised by
to CONFIRM the questioned resolutions insofar as hey QUEMADA The Probate Order of 1972 having become final
resolved that the petition in fact and in effect had been given and executory, how can its implementation (payment of
due course. legacy) be restrained? Of course, the question assumes that
QUEMADA's entitlement to the legacy was finally adjudged in
II. ISSUES: the Probate Order.
Assailed by the petitioners in these proceedings is the validity On the merits, therefore, the basic issue is whether the
of the Order of execution and garnishment dated August 20, Probate Order of December 5, 1972 resolved with finality the
1980 as well as the Orders subsequently issued allegedly to questions of ownership and intrinsic validity. A negative finding
implement the Probate Order of December 5, 1972, to wit: the will necessarily render moot and academic the other issues
Order of November 11, 1980 declaring that the Probate Order raised by the parties, such as the jurisdiction of the Probate
of 1972 indeed resolved the issues of ownership and intrinsic Court to conclusively resolve title to property, and the
validity of the will, and reiterating the Order of Execution dated constitutionality and repercussions of a ruling that the mining
August 20, 1980; and the Order of December 17, 1980 properties in dispute, although in the name of PASTOR, JR.
reducing to P2,251,516.74 the amount payable to QUEMADA and his wife, really belonged to the decedent despite the
representing the royalties he should have received from the latter's constitutional disqualification as an alien.
death of PASTOR, SR. in 1966 up to February 1980.
On the procedural aspect, placed in issue is the propriety of
The Probate Order itself, insofar as it merely allowed the certiorari as a means to assail the validity of the order of
holographic will in probate, is not questioned. But petitioners execution and the implementing writ.
denounce the Probate Court for having acted beyond its
jurisdiction or with grave abuse of discretion when it issued the III. DISCUSSION:
assailed Orders. Their argument runs this way: Before the
provisions of the holographic win can be implemented, the 1. Issue of Ownership —
questions of ownership of the mining properties and the
intrinsic validity of the holographic will must first be resolved (a) In a special proceeding for the probate of a will, the issue
with finality. Now, contrary to the position taken by the Probate by and large is restricted to the extrinsic validity of the will, i.e.,
Court in 1980 — i.e., almost eight years after the probate of whether the testator, being of sound mind, freely executed the
the will in 1972 — the Probate Order did not resolve the two will in accordance with the formalities prescribed by law.
said issues. Therefore, the Probate Order could not have (Rules of Court, Rule 75, Section 1; Rule 76, Section 9.) As a
rule, the question of ownership is an extraneous matter which existence of properties in the Philippines have
the Probate Court cannot resolve with finality. Thus, for the not been established.
purpose of determining whether a certain property should or
should not be included in the inventory of estate properties, Specifically placed in issue with respect to the
the Probate Court may pass upon the title thereto, but such probate proceedings are: (a) whether or not the
determination is provisional, not conclusive, and is subject to holographic will (Exhibit "J") has lost its efficacy
the final decision in a separate action to resolve title. [3 Moran, as the last will and testament upon the death of
Comments on the Rules of Court (1980 ed.), p. 458; Valero Alvaro Pastor, Sr. on June 5, 1966, in Cebu
Vda. de Rodriguez vs. Court of Appeals, 91 SCRA 540.] City, Philippines; (b) Whether or not the said will
has been executed with all the formalities
(b) The rule is that execution of a judgment must conform to required by law; and (c) Did the late
that decreed in the dispositive part of the decision. (Philippine- presentation of the holographic will affect the
American Insurance Co. vs. Honorable Flores, 97 SCRA 811.) validity of the same?
However, in case of ambiguity or uncertainty, the body of the
decision may be scanned for guidance in construing the Issues In the Administration Proceedings are as
judgment. (Heirs of Presto vs. Galang, 78 SCRA 534; Fabular follows: (1) Was the ex- parte appointment of
vs. Court of Appeals, 119 SCRA 329; Robles vs. Timario. 107 the petitioner as special administrator valid and
Phil. 809.) proper? (2) Is there any indispensable
necessity for the estate of the decedent to be
The Order sought to be executed by the assailed Order of placed under administration? (3) Whether or not
execution is the Probate Order of December 5, 1972 which petition is qualified to be a special administrator
allegedly resolved the question of ownership of the disputed of the estate; and (4) Whether or not the
mining properties. The said Probate Order enumerated the properties listed in the inventory (submitted by
issues before the Probate Court, thus: the special administrator but not approved by
the Probate Court) are to be excluded.
Unmistakably, there are three aspects in these
proceedings: (1) the probate of the holographic Then came what purports to be the dispositive portion:
will (2) the intestate estate aspect; and (3) the
administration proceedings for the purported Upon the foregoing premises, this Court rules
estate of the decedent in the Philippines. on and resolves some of the problems and
issues presented in these proceedings, as
In its broad and total perspective the whole follows:
proceedings are being impugned by the
oppositors on jurisdictional grounds, i.e., that (a) The Court has acquired jurisdiction over the
the fact of the decedent's residence and probate proceedings as it hereby allows and
approves the so-called holographic will of
testator Alvaro Pastor, Sr., executed on July 31, a voluntary heir to the extent of the bounty
1961 with respect to its extrinsic validity, the given to him (under) the will insofar as the
same having been duly authenticated pursuant same will not prejudice the legitimes of the
to the requisites or solemnities prescribed by oppositorfor the following reasons:
law. Let, therefore, a certificate of its allowance
be prepared by the Branch Clerk of this Court to 1. To submit a
be signed by this Presiding Judge, and attested complete
by the seal of the Court, and thereafter attached inventory of the
to the will, and the will and certificate filed and estate of the
recorded by the clerk. Let attested copies of the decedent-testator
will and of the certificate of allowance thereof Alvaro Pastor, Sr.
be sent to Atlas Consolidated Mining &
Development Corporation, Goodrich Bldg., 2. To administer
Cebu City, and the Register of Deeds of Cebu and to continue to
or of Toledo City, as the case may be, for put to prolific
recording. utilization of the
properties of the
(b) There was a delay in the granting of the decedent;
letters testamentary or of administration for as a
matter of fact, no regular executor and/or 3. To keep and
administrator has been appointed up to this maintain the
time and - the appointment of a special houses and other
administrator was, and still is, justified under structures and
the circumstances to take possession and belonging to the
charge of the estate of the deceased in the estate, since the
Philippines (particularly in Cebu) until the forced heirs are
problems causing the delay are decided and residing in Spain,
the regular executor and/or administrator and prepare them
appointed. for delivery to the
heirs in good
(c) There is a necessity and propriety of a order after
special administrator and later on an executor partition and when
and/or administrator in these proceedings, in directed by the
spite of this Court's declaration that the Court, but only
oppositors are the forced heirs and the after the payment
petitioner is merely vested with the character of
of estate and Nowhere in the dispositive portion is there a declaration of
inheritance taxes; ownership of specific properties. On the contrary, it is manifest
therein that ownership was not resolved. For it confined itself
(d) Subject to the outcome of the suit for to the question of extrinsic validity of the win, and the need for
reconveyance of ownership and possession of and propriety of appointing a special administrator. Thus it
real and personal properties in Civil Case No. allowed and approved the holographic win "with respect to its
274-T before Branch IX of the Court of First extrinsic validity, the same having been duly authenticated
Instance of Cebu, the intestate estate pursuant to the requisites or solemnities prescribed by law." It
administration aspect must proceed, unless, declared that the intestate estate administration aspect must
however, it is duly proven by the oppositors that proceed " subject to the outcome of the suit for reconveyance
debts of the decedent have already been paid, of ownership and possession of real and personal properties in
that there had been an extrajudicial partition or Civil Case 274-T before Branch IX of the CFI of Cebu."
summary one between the forced heirs, that [Parenthetically, although the statement refers only to the
the legacy to be given and delivered to the "intestate" aspect, it defies understanding how ownership by
petitioner does not exceed the free portion of the estate of some properties could be deemed finally
the estate of the testator, that the respective resolved for purposes of testate administration, but not so
shares of the forced heirs have been fairly for intestate purposes. Can the estate be the owner of a
apportioned, distributed and delivered to the property for testate but not for intestate purposes?] Then
two forced heirs of Alvaro Pastor, Sr., after again, the Probate Order (while indeed it does not direct the
deducting the property willed to the petitioner, implementation of the legacy) conditionally stated that the
and the estate and inheritance taxes have intestate administration aspect must proceed "unless . . . it is
already been paid to the Government thru the proven . . . that the legacy to be given and delivered to the
Bureau of Internal Revenue. petitioner does not exceed the free portion of the estate of the
testator," which clearly implies that the issue of impairment of
The suitability and propriety of allowing legitime (an aspect of intrinsic validity) was in fact not
petitioner to remain as special administrator or resolved. Finally, the Probate Order did not rule on the
administrator of the other properties of the propriety of allowing QUEMADA to remain as special
estate of the decedent, which properties are not administrator of estate properties not covered by the
directly or indirectly affected by the provisions of holographic will, "considering that this (Probate) Order should
the holographic will (such as bank deposits, have been properly issued solely as a resolution on the issue
land in Mactan etc.), will be resolved in another of whether or not to allow and approve the aforestated will. "
order as separate incident, considering that this
order should have been properly issued solely (c) That the Probate Order did not resolve the question of
as a resolution on the issue of whether or not to ownership of the properties listed in the estate inventory was
allow and approve the aforestated will. appropriate, considering that the issue of ownership was the
(Emphasis supplied.) very subject of controversy in the reconveyance suit that was
still pending in Branch IX of the Court of First Instance of the conjugal partnership preparatory to the administration and
Cebu. liquidation of the estate of PASTOR, SR. which will include,
among others, the determination of the extent of the statutory
(d) What, therefore, the Court of Appeals and, in effect, the usufructuary right of his wife until her death. * When the
Supreme Court affirmed en toto when they reviewed the disputed Probate order was issued on December 5, 1972,
Probable Order were only the matters properly adjudged in the there had been no liquidation of the community properties of
said Order. PASTOR, SR. and his wife.
(e) In an attempt to justify the issuance of the Order of (b) So, also, as of the same date, there had been no prior
execution dated August 20, 1980, the Probate Court in its definitive determination of the assets of the estate of PASTOR,
Order of November 11, 1980 explained that the basis for its SR. There was an inventory of his properties presumably
conclusion that the question of ownership had been formally prepared by the special administrator, but it does not appear
resolved by the Probate Order of 1972 are the findings in the that it was ever the subject of a hearing or that it was judicially
latter Order that (1) during the lifetime of the decedent, he was approved. The reconveyance or recovery of properties
receiving royalties from ATLAS; (2) he had resided in the allegedly owned but not in the name of PASTOR, SR. was still
Philippines since pre-war days and was engaged in the mine being litigated in another court.
prospecting business since 1937 particularly in the City of
Toledo; and (3) PASTOR, JR. was only acting as dummy for (c) There was no appropriate determination, much less
his father because the latter was a Spaniard. payment, of the debts of the decedent and his estate. Indeed,
it was only in the Probate Order of December 5, 1972 where
Based on the premises laid, the conclusion is obviously far- the Probate Court ordered that-
fetched.
... a notice be issued and published pursuant to
(f) It was, therefore, error for the assailed implementing Orders the provisions of Rule 86 of the Rules of Court,
to conclude that the Probate Order adjudged with finality the requiring all persons having money claims
question of ownership of the mining properties and royalties, against the decedent to file them in the office of
and that, premised on this conclusion, the dispositive portion the Branch Clerk of this Court."
of the said Probate Order directed the special administrator to
pay the legacy in dispute. (d) Nor had the estate tax been determined and paid, or at
least provided for, as of December 5, 1972.
2. Issue of Intrinsic Validity of the Holographic Will -
(e) The net assets of the estate not having been determined,
(a) When PASTOR, SR. died in 1966, he was survived by his the legitime of the forced heirs in concrete figures could not be
wife, aside from his two legitimate children and one illegitimate ascertained.
son. There is therefore a need to liquidate the conjugal
partnership and set apart the share of PASTOR, SR.'s wife in
(f) All the foregoing deficiencies considered, it was not possible in alleged implementation of the dispositive part of the Probate
to determine whether the legacy of QUEMADA - a fixed share Order of December 5, 1972, must fall for lack of basis.
in a specific property rather than an aliquot part of the entire
net estate of the deceased - would produce an impairment of (b) The ordered payment of legacy would be violative of the
the legitime of the compulsory heirs. rule requiring prior liquidation of the estate of the deceased,
i.e., the determination of the assets of the estate and payment
(g) Finally, there actually was no determination of the intrinsic of all debts and expenses, before apportionment and
validity of the will in other respects. It was obviously for this distribution of the residue among the heirs and legatees.
reason that as late as March 5, 1980 - more than 7 years after (Bernardo vs. Court of Appeals, 7 SCRA 367.)
the Probate Order was issued the Probate Court scheduled on
March 25, 1980 a hearing on the intrinsic validity of the will. (c) Neither has the estate tax been paid on the estate of
PASTOR, SR. Payment therefore of the legacy to QUEMADA
3. Propriety of certiorari — would collide with the provision of the National Internal
Revenue Code requiring payment of estate tax before delivery
Private respondent challenges the propriety of certiorari as a to any beneficiary of his distributive share of the estate
means to assail the validity of the disputed Order of execution. (Section 107 [c])
He contends that the error, if any, is one of judgment, not
jurisdiction, and properly correctible only by appeal, not (d) The assailed order of execution was unauthorized, having
certiorari. been issued purportedly under Rule 88, Section 6 of the Rules
of Court which reads:
Under the circumstances of the case at bar, the challenge
must be rejected. Grave abuse of discretion amounting to lack Sec. 6. Court to fix contributive shares where
of jurisdiction is much too evident in the actuations of the devisees, legatees, or heirs have been in
probate court to be overlooked or condoned. possession. — Where devisees, legatees,
or heirs have entered into possession of
(a) Without a final, authoritative adjudication of the issue as to portions of the estate before the debts and
what properties compose the estate of PASTOR, SR. in the expenses have been settled and paid and have
face of conflicting claims made by heirs and a non-heir (MA. become liable to contribute for the payment of
ELENA ACHAVAL DE PASTOR) involving properties not in the such debts and expenses, the court having
name of the decedent, and in the absence of a resolution on jurisdiction of the estate may, by order for that
the intrinsic validity of the will here in question, there was no purpose, after hearing, settle the amount of
basis for the Probate Court to hold in its Probate Order of their several liabilities, and order how much and
1972, which it did not, that private respondent is entitled to the in what manner each person shall contribute,
payment of the questioned legacy. Therefore, the Order of and may issue execution as circumstances
Execution of August 20, 1980 and the subsequent require.
implementing orders for the payment of QUEMADA's legacy,
The above provision clearly authorizes execution to enforce lack of jurisdiction. Consequently, the rule that certiorari may
payment of debts of estate. A legacy is not a debt of the not be invoked to defeat the right of a prevailing party to the
estate; indeed, legatees are among those against whom execution of a valid and final judgment, is inapplicable. For
execution is authorized to be issued. when an order of execution is issued with grave abuse of
discretion or is at variance with the judgment sought to be
... there is merit in the petitioners' contention enforced (PVTA vs. Honorable Gonzales, 92 SCRA 172),
that the probate court generally cannot issue a certiorari will lie to abate the order of execution.
writ of execution. It is not supposed to issue a
writ of execution because its orders usually (e) Aside from the propriety of resorting to certiorari to assail
refer to the adjudication of claims against the an order of execution which varies the terms of the judgment
estate which the executor or administrator may sought to be executed or does not find support in the
satisfy without the necessity of resorting to a dispositive part of the latter, there are circumstances in the
writ of execution. The probate court, as such, instant case which justify the remedy applied for.
does not render any judgment enforceable by
execution. Petitioner MA. ELENA ACHAVAL DE PASTOR, wife of
PASTOR, JR., is the holder in her own right of three mining
The circumstances that the Rules of Court claims which are one of the objects of conflicting claims of
expressly specifies that the probate court may ownership. She is not an heir of PASTOR, SR. and was not a
issue execution (a) to satisfy (debts of the party to the probate proceedings. Therefore, she could not
estate out of) the contributive shares of appeal from the Order of execution issued by the Probate
devisees, legatees and heirs in possession of Court. On the other hand, after the issuance of the execution
the decedent's assets (Sec. 6. Rule 88), (b) to order, the urgency of the relief she and her co-petitioner
enforce payment of the expenses of partition husband seek in the petition for certiorari states against
(Sec. 3, Rule 90), and (c) to satisfy the costs requiring her to go through the cumbersome procedure of
when a person is cited for examination in asking for leave to intervene in the probate proceedings to
probate proceedings (Sec. 13, Rule 142) may enable her, if leave is granted, to appeal from the challenged
mean, under the rule of inclusion unius est order of execution which has ordered the immediate transfer
exclusion alterius, that those are the only and/or garnishment of the royalties derived from mineral
instances when it can issue a writ of execution. properties of which she is the duly registered owner and/or
(Vda. de Valera vs. Ofilada, 59 SCRA 96, 108.) grantee together with her husband. She could not have
intervened before the issuance of the assailed orders because
(d) It is within a court's competence to order the execution of a she had no valid ground to intervene. The matter of ownership
final judgment; but to order the execution of a final order over the properties subject of the execution was then still
(which is not even meant to be executed) by reading into it being litigated in another court in a reconveyance suit filed by
terms that are not there and in utter disregard of existing rules the special administrator of the estate of PASTOR, SR.
and law, is manifest grave abuse of discretion tantamount to
Likewise, at the time petitioner PASTOR, JR. Med the petition
for certiorari with the Court of Appeals, appeal was not
available to him since his motion for reconsideration of the
execution order was still pending resolution by the Probate
Court. But in the face of actual garnishment of their major
source of income, petitioners could no longer wait for the
resolution of their motion for reconsideration. They needed
prompt relief from the injurious effects of the execution order.
Under the circumstances, recourse to certiorari was the
feasible remedy.
SO ORDERED.
On the same date, May 14, 1934, Apolonio Suntay, In answer to the court's order to present the alleged
eldest son of the deceased by his first marriage, filed will, the brothers Apolonio, Angel, Manuel and Jose
the latter's intestate in the Court of First Instance of Suntay stated that they did not have the said will and
Manila (civil case No. 4892). denied having snatched it from Go Toh.
On October 15, 1934, and in the same court, Maria In view of the allegations of the petition and the answer
Natividad Lim Billian also instituted the present of the brothers Apolonio, Angel, Manuel and Jose
proceedings for the probate of a will allegedly left by Suntay, the questions raised herein are: The loss of the
the deceased. alleged will of the deceased, whether Exhibit B
accompanying the petition is an authentic copy thereof,
According to the petitioner, before the deceased died in and whether it has been executed with all the essential
China he left with her a sealed envelope (Exhibit A) and necessary formalities required by law for its
containing his will and, also another document (Exhibit probate.
B of the petitioner) said to be a true copy of the original
contained in the envelope. The will in the envelope was At the trial of the case on March 26, 1934, the
executed in the Philippines, with Messrs. Go Toh, petitioner put two witnesses upon the stand, Go Toh
Alberto Barretto and Manuel Lopez as attesting and Tan Boon Chong, who corroborated the allegation
witnesses. On August 25, 1934, Go Toh, as attorney-in- that the brothers Apolonio and Angel appropriated the
fact of the petitioner, arrived in the Philippines with the envelope in the circumstances above-mentioned. The
will in the envelope and its copy Exhibit B. While Go oppositors have not adduced any evidence counter to
Toh was showing this envelope to Apolonio Suntay and the testimony of these two witnesses. The court, while
Angel Suntay, children by first marriage of the making no express finding on this fact, took it for
deceased, they snatched and opened it and, after granted in its decision; but it dismissed the petition
getting its contents and throwing away the envelope, believing that the evidence is insufficient to establish
they fled. that the envelope seized from Go Toh contained the
will of the deceased, and that the said will was
Upon this allegation, the petitioner asks in this case executed with all the essential and necessary
that the brothers Apolonio, Angel, Manuel and Jose formalities required by law for its probate.
Suntay, children by the first marriage of the deceased,
who allegedly have the document contained in the
In our opinion, the evidence is sufficient to establish the On June 18, 1947, Silvino Suntay, the herein petitioner, filed a
loss of the document contained in the envelope. petition in the Court of First Instance of Bulacan praying "that
Oppositors' answer admits that, according to Barretto, an order be issued (a) either directing the continuation of the
he prepared a will of the deceased to which he later proceedings in the case remanded by the Supreme Court by
become a witness together with Go Toh and Manuel virtue of its decision in G. R. No. 44276 and fixing a date for
Lopez, and that this will was placed in an envelope the reception of evidence of the contents of the will declared
which was signed by the deceased and by the lost, or the allowance, filing and recording of the will of the
instrumental witnesses. In court there was presented deceased which had been duly probated in China, upon the
and attached to the case an open and empty envelope presentation of the certificates and authentications required by
signed by Jose B. Suntay, Alberto Barretto, Go Toh and Section 41, Rule 123 (Yu Chengco vs. Tiaoqui supra), or both
Manuel Lopez. It is thus undeniable that this envelope proceedings concurrently and simultaneously; (b) that letters
Exhibit A is the same one that contained the will of administration be issued to herein petitioner as co-
executed by the deceased-drafted by Barretto and with administrator of the estate of the deceased together with
the latter, Go Toh and Manuel Lopez as attesting Federico Suntay; and (c) that such other necessary and proper
witnesses. These tokens sufficiently point to the loss of orders be issued which this Honorable Court deems
the will of the deceased, a circumstance justifying the appropriate in the premises." While this petition was opposed
presentation of secondary evidence of its contents and by Federico C. Suntay, son of the deceased Jose B. Suntay
of whether it was executed with all the essential and with his first wife, Manuela T. Cruz, the other children of the
necessary legal formalities. first marriage, namely, Ana Suntay, Aurora Suntay, Concepcion
Suntay, Lourdes Guevara Vda. de Suntay, Manuel Suntay and
The trial of this case was limited to the proof of loss of Emiliano Suntay, filed the following answer stating that they
the will, and from what has taken place we deduce that had no opposition thereto; "Come now the heirs Concepcion
it was not petitioner's intention to raise, upon the Suntay, Ana Suntay, Aurora Suntay, Lourdes Guevara Vda. de
evidence adduced by her, the other points involved Suntay, Manuel Suntay, and Emiliano Suntay, through their
herein, namely, as we have heretofore indicated, undersigned attorney, and, in answer to the alternative petition
whether Exhibit B is a true copy of the will and whether filed in these proceedings by Silvino Suntay, through counsel,
the latter was executed with all the formalities required dated June 18, 1947, to this Honorable Court respectfully state
by law for its probate. The testimony of Alberto Barretto that, since said alternative petition seeks only to put into effect
bears importantly in this connection. the testamentary disposition and wishes of their late father,
they have no opposition thereto."
Wherefore, the loss of the will executed by the
deceased having been sufficiently established, it is After hearing, the Court of First Instance of Bulacan rendered
ordered that this case be remanded to the court of on April 19, 1948, the following decision:
origin for further proceedings in obedience to this
decision, without any pronouncement as to the costs. This action is for the legalization of the alleged will of
So ordered Jose B. Suntay, deceased.
In order to have a comprehensive understanding of this instead of granting the telegraphic motion for
case, it is necessary to state the background on which postponement, dismissed the case in the order dated
the alternative petition of the herein petitioner Silvino February 7, 1938 (Exhibit L).
Suntay has been based.
On July 3, 1947, the petitioner Silvino Suntay filed a
The decision of the Supreme Court (Exhibit O), in re motion for the consolidation of the intestate Estate of
will of the deceased Jose B. Suntay, 63 Phil., 793-797, the deceased Jose B. Suntay, Special Proceeding No.
is hereunder produced: 4892 and the Testate Estate of Jose B. Suntay, Special
Proceeding No. 4952, which latter case is the subject
(As quoted above) of the said alternative petition. The motion for the
merger and consolidation of the two cases was granted
The above quoted decision of the Supreme Court was on July 3, 1947.
promulgated on November 25, 1936 (Exhibit O).
That oppositor, Federico C. Suntay, in the Testate
The Clerk of the Court of Court of First Instance of Proceeding filed a motion to dismiss the alternative
Bulacan notified the parties of the decision on petition on November 14, 1947, which was denied by
December 15, 1936; and the case was set for hearing the court in its resolution of November 22, 1947. The
on February 12, 1937, but it was transferred to March said oppositor not being satisfied with the ruling of this
29, 1937 (Exhibit O), on motion of the then petitioner court denying the motion to dismiss, filed before the
Maria Natividad Lim Billian (Exhibit F). Again, it was Supreme Court a petition for a writ of certiorari with
postponed until "further setting" in the order of court preliminary injunction, which was dismissed for lack of
dated March 18, 1937, upon motion of the petitioner merit on January 27, 1948.
(Exhibit H).
In obedience to the decision of the Supreme Court
In the meantime, the deposition of Go Toh was being (Exhibit O) and upon the alternative petition of Silvino
sought (Exhibit H). Suntay, and, further, upon the dismissal of the petition
for a writ of certiorari with preliminary injunction, the
The hearing of the case was again set for February 7, court was constrained to proceed with the hearing of
1936, by order of the court dated January 5, 1938, the probate of the lost will, the draft of which is Exhibit
upon motion of Emiliano Suntay and Jose Suntay, Jr. B, or the admission and recording of the will which had
On the same day of the hearing which had been set, been probated in Amoy, China.
the petitioner, then, Maria Natividad Lim Billian, sent a
telegram from Amoy, China, addressed to the Court of The evidence for the petitioner, Silvino Suntay, shows
First Instance of Bulacan moving for the postponement that Jose B. Suntay married twice; first to Manuela T.
of the hearing on the ground that Atty. Eriberto de Silva Cruz who died on June 15, 1920 and had begotten with
who was representing her died (Exhibit K). The court, her Apolonio, now deceased, Concepcion, Angel,
Manuel, Federico, Ana, Aurora, Emiliano and Jose, Jr., witnesses, and it was taken to the law office of Barretto
all surnamed Suntay, and second, to Maria Natividad and Teodoro. The law firm of Barretto and Teodoro was
Lim Billian with whom he had as the only child Silvino composed of Atty. Alberto Barretto and Judge
Suntay, the petitioner herein. Anastacio Teodoro. The probate of the will was
entrusted to the junior partner Judge Anastacio
Some time in November 1929, Jose B. Suntay Teodoro; and, upon the presentation of the sealed
executed his last will and testament in the office of Atty. envelope to him, he opened it and examined the said
Alberto Barretto in Manila, which was witnessed by will preparatory to the filing of the petition for probate.
Alberto Barretto, Manuel Lopez and Go Toh. The will There was a disagreement as to the fees to be paid by
was prepared by said Alberto Barretto upon the Maria Natividad Lim Billian, and as she (through Go
instance of Jose B. Suntay, and it was written in the Toh) could not agree to pay, P20,000 as fees, the will
Spanish language which was understood and spoken was returned to Go Toh by Judge Anastacio Teodoro
by said testator. After the due execution of the will, that after the latter had kept it in his safe, in his office, for
is signing every page and the attestation clause by the three days.
testator and the witnesses in the presence of each
other, the will was placed inside the envelope (Exhibit Subsequently, the will inside the envelope was
A), sealed and on the said envelope the testator and snatched from Go Toh by Manuel Suntay and Jose, Jr.,
the three subscribing witnesses also signed, after which fact has been established in the decision of the
which it was delivered to Jose B. Suntay. Supreme Court at the beginning of this decision. Go
Toh could recover the envelope (Exhibit A) and the
A year or so after the execution of the will, Jose B. piece of cloth with which the envelope was wrapped
Suntay together with his second wife Maria Natividad (Exhibit C).
Lim Billian and Silvino Suntay who was then of tender
age went to reside in Amoy, Fookien, China, where he The Testate Proceeding was filed nevertheless and in
died on May 14, 1934. The will was entrusted to the lien of the lost will a draft of the will (Exhibit B) was
widow, Maria Natividad Lim Billian. presented as secondary evidence for probate. It was
disallowed by this court through Judge Buenaventura
Upon the death of Jose B. Suntay on May 14, 1934, Ocampo, but on appeal the Supreme Court remanded
Apolonio Suntay, the oldest son now deceased, the case to this court for further proceeding (Exhibit C).
instituted the Intestate Proceedings No. 4892, upon the
presumption that no will existed. Maria Natividad Lim In the meantime, a Chinese will which was executed in
Billian who remained in Amoy, China, had with her the Amoy Fookien, China, on January 4, 1931, by Jose B.
will and she engaged the services of the law firm of Suntay, written in Chinese characters (Exhibit P) was
Barretto and Teodoro for the probate of the will. Upon discovered in Amoy, China, among the papers left by
the request of the said attorneys the will was brought to Jose B. Suntay, and said will had been allowed to
the Philippines by Go Toh who was one of the attesting probate in the Amoy District Court, China, which is
being also presented by Silvino Suntay for allowance Atty. Alberto Barretto who declared that the first will
and recording in this court. which he drafted and reduced into a plain copy was the
will that was executed by Jose B. Suntay and placed
The said petition is opposed by Federico C. Suntay on inside the envelope (Exhibit A).
the main ground that Maria Natividad Lim Billian and
Silvino Suntay have no more interest in the properties Granting that the first will which Atty. Alberto Barretto
left by Jose B. Suntay, because they have already sold had drafted became the will of Jose B. Suntay and it
their respective shares, interests and participations. was snatched by, and, therefore, it had fallen into the
But such a ground of opposition is not of moment in the hands of, Manuel Suntay and the brothers of the first
instant case, because the proposition involved herein marriage, it stands to reason that said Manuel Suntay
in the legalization of the lost will or the allowance and and brothers would have been primarily interested in
recording of the will which had been probated in Amoy, the production of said will in court, for obvious reasons,
China. namely, that they would have been favored. But it was
suppressed and "evidence willfully suppressed would
It is now incumbent upon this court to delve into the be adverse if produced" (Section 69 (e), Rule 123 of
evidence whether or not Jose B. Suntay, deceased, left the Rules of Court). The contention, therefore, that the
a will (the draft of which is Exhibit B) and another will first will which was drafted by Atty. Barretto was the
which was executed and another will which was one placed inside the envelope (Exhibit A) is
executed and probated in Amoy, China. untenable.
There is no longer any doubt that Jose B. Suntay while It might be said in this connection that the draft of the
he was still residing in the Philippines, had executed a will (Exhibit B) has been admitted by Atty. Alberto
will; such is the conclusion of the Supreme Court in its Barretto as identical in substance and form to the
decision (Exhibit O). That the will was snatched and it second draft which he prepared in typewriting; it differs
has never been produced in court by those who only, according to him, in style. He denied that the
snatched it, and consequently considered lost, is also insertions in long hand in the said draft are in his own
an established fact. handwriting; however, Judge Anastacio Teodoro
averred that the said insertions are the handwriting of
The contention of the oppositor, Federico C. Suntay, is Atty. Alberto Barretto. But when Atty. Alberto Barretto
that the will that was executed by Jose B. Suntay in the was asked to show any manuscript of his for purposes
Philippines contained provisions which provided for of comparison, he declined to do so alleging that he did
equal distribution of the properties among the heirs; not have any document in his possession showing his
hence, the draft (Exhibit B) cannot be considered as handwriting notwithstanding the fact that he was
secondary evidence, because it does not provide for testifying in his own house at 188 Sta. Mesa
equal distribution, but if favors Maria Natividad Lim Boulevard, Manila. He further testified that the first will
Billian and Silvino Suntay. He relies on the testimony of be drafted contained four or five pages, but the second
draft contained twenty-three pages; that he declared in Ana Suntay, one of the heirs and who would be
one breath that he did not read the will any more when affected adversely by the legalization of the will in
it was signed by the testator and the attesting question, also testified on rebuttal that she saw the
witnesses because it would take up much time, and in original will in the possession of Manuel Suntay,
the same breath he declared that he checked it before immediately after the snatching. She read it and she
it was signed; and that he destroyed the draft of the particularly remembers the manner in which the
first will which was in his own handwriting, but he properties were to be distributed. Exhibit B was shown
delivered the draft of the second will which he prepared to her on the witness stand and she declared that the
to Jose B. Suntay in the presence of Manuel Lopez, provision regarding the distribution of the properties in
now deceased. said Exhibit B is the same as that contained in the
original will. Said testimony of Ana Suntay, therefore,
Whether or not the final plain copy of the draft of the belies the testimony of Atty. Alberto Barretto.
will (Exhibit B) was executed by the testator, Jose B.
Suntay, and attested by the subscribing witnesses, Atty. With respect to the proof of lost or destroyed will,
Alberto Barretto, Manuel Lopez and Go Toh, is the Section 6 of Rule 77 provides as follows:
pivotal point in this instant case. Judge Anastacio
Teodoro testified that he opened the sealed envelope "No will shall be proved as a lost or destroyed will
when it was given to him by Go Toh preparatory to the unless the execution and validity of the same be
presentation of the petition for the probate of the said established, and the will is proved to have been in
will. As the lawyer entrusted with that task, he had to existence at the time of the death of the testator, or it is
examine the will and have it copied to be reproduced or shown to have been fraudulently or accidentally
appended to the petition. He could not do otherwise if destroyed in the lifetime of the testator without his
he is worth salt as a good lawyer; he could not perform knowledge, nor unless its provisions are clearly and
the stunt of "blind flying" in the judicial firmament. distinctly proved by at least two credible witnesses.
Every step must be taken with certainty and precision When a lost will is proved, the provisions thereof must
under any circumstances. He could not have talked be distinctly stated and certified by the judge, under the
about the attorney's fees with Go Toh, unless he has seal of the court, and the certificate must be filed and
not examined the will beforehand. And, declaring that it recorded as other wills are filed and recorded."
was the exact draft of the will that was inside the
envelope (Exhibit A), the testimony of Atty. Alberto Section 8 of the same Rule provides as follows:
Barretto to the contrary notwithstanding.
"If it appears at the time fixed for the hearing that the
The testimony of Judge Anastacio Teodoro is subscribing witnesses are dead or insane, or that none
corroborated by Go Toh, one of the attesting witnesses, of them resides in the Philippines the court may admit
in his deposition (Exhibit D-1). the testimony of other witnesses to prove the sanity of
the testator, and the due execution of the will; and as
evidence of the due execution of the will, it may admit Rule 78 of the Rules of Court covers the allowance of
proof of the handwriting of the testator and of the will proved outside of the Philippines and
subscribing witnesses, or any of them." administration of estate thereunder.
Manuel Lopez as one of the subscribing witnesses is Section 1 of said rule provides:
dead. Atty. Alberto Barretto and Go Toh are still living.
The former testified during the hearing, while Go Toh's "Wills proved and allowed in the United States, or any
deposition was introduced in evidence which was state or territory thereof, or in foreign country,
admitted. In the absence of the testimony of Manuel according to the laws of such state, territory, or country,
Lopez, deceased, the testimony of Judge Anastacio may be allowed, filed, and recorded by the proper
Teodoro and Ana Suntay was received. Court of First Instance in the Philippines."
It is an established fact that the will, draft of which is Section 2 of the same rule provides:
Exhibit B, was lost or destroyed; that it was executed
and valid and that it existed at the time of the death of "When a copy of such will and the allowance thereof,
Jose B. Suntay. These circumstances also apply to the duly authenticated, is filed with a petition for allowance
will (Exhibit P) which was executed in Amoy, China. in the Philippines, by the executor or other person
interested, in the court having jurisdiction, such court
The contents of the Chinese will is substantially the shall fix a time and place for the hearing, and cause
same as the draft (Exhibit B). Granting that the will notice thereof to be given as in case of an original will
executed in the Philippines is non-existent as presented for allowance."
contended by the oppositor, although the findings of
this court is otherwise, the will executed and probated This court has delved deep into the evidence adduced
in China should be allowed and recorded in this court. during the hearing with that penetrating scrutiny in
All the formalities of the law in China had been followed order to discovery the real facts; it had used
in its execution, on account of which it was duly unsparingly the judicial scapel; and it has winnowed
probated in the Amoy District Court. There is no cogent the evidenced to separate the grain from the chaff. All
reason, therefore, why it should not be admitted and the facts lead to the inevitable conclusion that Jose B.
recorded in this jurisdiction. Suntay, in his sound and disposing mind and not acting
under duress or undue influence, executed the will
The said will (Exhibit P) in Chinese characters is which is lost, the draft of which is Exhibit B, with all the
presented as an alternate in case the will executed in necessary formalities prescribed by law. He, likewise,
the Philippines would not be allowed to probate, or as a executed the second will (Exhibit P) in Amoy, China,
corroborative evidence that the will, the draft of which which has been duly probated in Amoy District Court,-a
is Exhibit B, has been duly executed in the Philippines corroborative evidence that the testator really executed
by Jose B. Suntay. the will. Copies of the said wills duly certified and under
the seal of the court are appended hereto, marked was executed in Amoy, China, is therefore, the subject
Exhibits B and P, and they form part of this decision. of this instant motion.
In view of the foregoing considerations, the court is of A. As to the legalization of the Lost Will. — There is no
the opinion and so declares that the draft of the will question in the mind of this court that the original will
(Exhibit B) is, to all legal intents and purposes, and which Jose B. Suntay, deceased executed in the
testament of the deceased Jose B. Suntay. With costs Philippines in the year 1929 was lost (Exhibit O,
against the oppositor, Federico C. Suntay. Decision of the Supreme Court). The evidence
adduced by the petitioner during the hearing has
Oppositor Federico C. Suntay filed on May 20, 1948, a motion established through the testimony of Judge Anastacio
for new trial and to set aside the decision rendered on April 19, Teodoro and that of Go Toh (an attesting witness) that
1948, to which the petitioner filed an opposition, followed by a the will was executed by Jose B. Suntay, deceased,
reply filed by the oppositor and an answer on the part of the with all the formalities required by law. For the purpose
petitioner. Without reopening the case and receiving any new of legalizing an original and existing will, the evidence
or additional evidence, the Court of First Instance of Bulacan, on record is sufficient as to the execution and attesting
on September 29, 1948, promulgated the following resolution in the manner required by law.
setting aside his first decision and disallowing the wills sought
to be probated by the petitioner in his alternative petition filed Section 8 of Rule 77 provides as follows:
on June 18, 1947:
"SEC. 8. Proof when witnesses dead or insane or do
This is a motion for new trial and to set aside the not reside in the Philippines. — If it appears at the time
decision legalizing the will of Jose B. Suntay and fixed for the hearing that the subscribing witnesses are
allowing and recording another will executed by him in dead or insane, or that none of them resides in the
Amoy, China. Philippines, the court may admit the testimony of other
witnesses to prove the sanity of the testator, and the
By virtue of this motion, this court is constrained to go due execution of the will; and as evidence of the
over the evidence and the law applicable thereto with execution of the will, may admit proof of the
the view of ascertaining whether or not the motion is handwriting of the testator and of the subscribing
well founded. Both parties have presented extensive witnesses, or any of them."
memoranda in support of their respective contentions.
Section 11 of said rule also provides as follows:
This court has gone over the evidence conscientiously,
and it reiterates its findings of the same facts in this "SEC. 11. Subscribing witnesses produced or
resolution, whether or not the facts established by the accounted for where contest. — If the will is contested,
petitioner, Silvino Suntay, warrant the legalization of the all the subscribing witnesses present in the Philippines
lost will and the allowance and recording of the will that and not insane, must be produced and examined, and
the death, absence, or insanity of any of them must be presented, because it was lost, but an alleged draft
satisfactorily shown to the court. If all or some of the (Exhibit B) of the said original will which does not bear
subscribing witnesses are present in the Philippines, the signature of the testator and any of the attesting
but outside the province where the will has been filed, witness. The original will was duly executed with all the
their deposition must be taken. If all or some of the formalities required by law, but it was unfortunately lost;
subscribing witnesses produced and examined testify and the curtain falls for the next setting.
against the due execution of the will, or do not
remember having attested to it, or are otherwise of The Court is now confronted with the legalization of the
doubtful credibility, the will may be allowed if the court lost will — whether or not the draft (Exhibit B) should
is satisfied from the testimony of other witnesses and be admitted as secondary evidence in lieu of the lost
from all the evidence presented that the will was will and allowed to probate.
executed and attested in the manner required by law."
Section 6. Rule 77 provides as follows:
The three attesting witnesses were Manuel Lopez,
deceased Alberto Barretto and Go Toh. The last two "SEC. 6. Proof of lost or destroyed will — Certificate
witnesses are still living; the former testified against thereupon. — No will shall be proved as a lost will or
and the latter in favor. In other words, the attesting destroyed will unless the execution and validity of the
witness, Go Toh, only, testified in his deposition in favor same be established, and the will is proved to have
of the due execution of the will. Hence, the petitioner been in existence at the time of the death of the
presented another witness, Judge Anastacio Teodoro, testator, or is shown to have been fraudulently or
to establish and prove the due execution of the said accidentally destroyed in the lifetime of the testator
will. Ana Suntay was also presented as a witness in without his knowledge, nor unless its provisions are
rebuttal evidence. The testimony of Go Toh in his clearly and distinctly proved by at least two credible
deposition as an attesting witness, coupled with the witnesses. When a lost will is proved, the provisions
testimony of Judge Anastacio Teodoro who was able to thereof must be distinctly stated and certified by the
examine the original will that was executed by Jose B. Judge, under the seal of the court and the certificate
Suntay, deceased, when it was given to him by Go Toh must be filed and recorded as other wills are filed and
for the purpose of filing the petition in court for its recorded." (Emphasis Court's)
legalization, and could recognize the signatures of the
testator as well as of the three attesting witnesses on From the above quoted provision of the law, it is clear
the said original will is sufficient to convince the court that the petitioner should not only establish the
that the original will was executed by the deceased execution and validity of the will, its existence at the
Jose B. Suntay with all the formalities required by law. time of the death of the testator or its fraudulent and
The original will, therefore, if it was presented in court accidental destruction in the lifetime of the testator
to probate would be allowed to all legal intents and without his knowledge, but also must prove its
purposes. But it was not the original will that was provisions clearly and distinctly by at least two credible
witnesses. The exact language of the clause in the have the contents of the said will, after its execution
above quoted provision of the law is "nor unless its and sealing inside the envelope (Exhibit A), read to him
provisions are clearly and distinctly proved by at least because it was opened only when Judge Teodoro had
two credible witnesses." The legalization of a lost will is examined it and then subsequently snatched from Go
not so easy, therefore, as that of an original will. The Toh. Ana Suntay on rebuttal did not, likewise, prove
question, therefore, is boiled down to, and projected on clearly and distinctly the provisions of the said lost will
the screen, in a very sharp focus; namely, the because she has not had enough schooling and she
execution and validity must be established and the does possess adequate knowledge of the Spanish
provisions must be clearly and distinctly proved by at language as shown by the fact that she had to testify in
least credible witnesses. Tagalog on the witness standing.
Granting that the execution and validity of the lost will It is evident, therefore, that although the petitioner has
have been established through the testimony of Judge established the execution and validity of the lost will,
Anastacio Teodoro and Go Toh, and perhaps yet he had not proved clearly and distinctly the
superficially by the rebuttal witness, Ana Suntay, does provisions of the will by at least two credible witnesses.
it follow that the provisions of the lost will have been
clearly and distinctly proved by at least two credible B. As to the Allowance and Recording of the will
witnesses? A careful review of the evidence has Executed in Amoy, China. — Jose B. Suntay, while he
revealed that at most the only credible witness who was residing in China during the remaining years of his
testified as to the provisions of the will was Judge life, executed also a will, written in Chinese characters,
Anastacio Teodoro, and yet he testified on the the translation of which is marked Exhibit P. It was
provisions of the lost will with the draft (Exhibit B) in his allowed to probate in the District Court of Amoy, China.
hands while testifying. It may be granted, however, that The question is whether or not the said will should be
with or without the draft of the will (Exhibit B) in his allowed and recorded in this jurisdiction.
hands, he could have testified clearly and distinctly on
the provisions of the said lost will, because he had kept Section 1 of Rule 78 provides as follows:
the will in his safe, in his office, for three days, after
opening it, and he is well versed in Spanish language "SEC. 1. Will proved outside Philippines any be
in which the will as written. But did the attesting witness allowed here. — Will proved and allowed in the United
Go Toh, testify in his deposition and prove clearly and States, or any state or territory thereof, or in a foreign
distinctly the provisions of the lost will? He did not, and country, according to the laws of such state, territory, or
he could not have done so even if he tried because the country, may be allowed, filed, and recorded by the
original will was not read to him nor by him before or at proper court of First Instance in the Philippines."
the signing of the same. It was written in Spanish and
he did not and does not understand the Spanish Section 2 of the same Rule also provides:
language. Neither was there any occasion for him to
"SEC. 2. Notice of hearing for allowance. — When a of evidence, the attestation must state, in substance,
copy of such will and the allowance thereof, duly that the copy is a correct copy of the original, or a
authenticated, is filed with a petition for allowance in specific part thereof, as the case may be. The
the Philippines by the executor or other persons attestation must be under the official seal of the
interested, in the Court having jurisdiction, such court attesting officer, if there be any, or if he be the clerk of a
shall fix a time and place for the hearing, and cause court having a seal, under the seal of such court."
notice thereof to be given as in case of an original will
presented for allowance." In the case of Yu Changco vs. Tiaoqui, 11 Phil. 598,
599, 600, our Supreme Court said:
Sections 41 and 42 of Rule 123 provides as follows:
"Section 637 of the Code of Civil Procedure says that
"SEC. 41. Proof of Public or official record. — An will proved and allowed in a foreign country, according
official record or an entry therein, when admissible for to the laws of such country, may be allowed, filed, and
any purpose, may be evidenced by an official recorded in the Court of First Instance of the province
publication thereof or by a copy attested by the officer in which the testator has real or personal estate on
having the legal custody of the record, or by his deputy, which such will may operate; but section 638 requires
and accompanied, if the record is not kept in the that the proof of the authenticity of a will executed in a
Philippines, with a certificate that such officer has the foreign country must be duly "authenticated". Such
custody. If the office in which the record is kept is within authentication, considered as a foreign judicial record,
the United States or its territory, the certificate may be is prescribed by section 304, which requires the
made by a judge of a court of record of the district or attestation of the clerk or of the legal keeper of the
political subdivision in which the record is kept, records with the seal of the court annexed, if there be a
authenticated by the seal of the court, or may be made seal, together with a certificate of the chief judge or
by any public officer having a seal of the office and presiding magistrate that the signature of either of the
having official duties in the district or political functionaries attesting the will is genuine, and, finally,
subdivision in which the record is kept, authenticated the certification of the authenticity of the signature of
by the seal of his office. If the office in which the record such judge or presiding magistrate, by the
is kept is in a foreign country, the certificate may be ambassador, minister, consul, vice consul or consular
made by a secretary of embassy or legation, consul agent of the United States in such foreign country. And,
general, consul, vice consul, or consular agent or by should the will be considered, from an administrative
any officer in the foreign service of the United States point of view, as a mere official document 'of a foreign
stationed in the foreign country in which the record is country', it may be proved, 'by the original, or by a copy
kept, and authenticated by the seal of his office." certified by the legal keeper thereof, with a certificate,
under the seal of the country or sovereign, that the
F. "SEC. 42. What attestation of copy must state. — document is a valid and subsisting document of such
Whenever a copy of writing is attested for the purpose country, and that the copy is duly certified by the officer
having the legal custody of the original. (Sec. 313, par. establish this fact consisted of the recitals in the
8)." alleged will and the testimony of the petitioner.
In the case of Fluemer vs. Hix, 54 Phil. 610, 611, 612, "While the appeal was pending submission in this
and 613, our Supreme Court said: court, the attorney for the appellant presented an
unverified petition asking the court to accept as part of
"It is the theory of the petitioner that the alleged will the evidence the documents attached to the petition.
was executed in Elkins, West Virginia, on November 3, One of these documents discloses that a paper writing
1925, by Hix who had his residence in that jurisdiction, purporting to be the last will and testament of Edward
and that the laws of West Virginia govern. To this end, Randolph Hix, deceased, was presented for probate on
there was submitted a copy of section 3868 of Acts June 8, 1929, to the clerk of Randolph County, State of
1882, c. 84 as found in West Virginia Code, Annotated, West Virginia, in vacation, and was duly proven by the
by Hogg, Charles E., Vol. 2, 1914, p. 1690, and as oaths of Dana Vansley and Joseph L. Madden, the
certified to by the Director of the National Library. But subscribing witnesses thereto, and ordered to be
this was far from compliance with the law. The laws of recorded and filed. It was shown by another document
a foreign jurisdiction do not prove themselves in our that in vacation, on June 8, 1929, the clerk of court of
courts. The courts of the Philippine Islands are not Randolph County, West Virginia, appointed Claude E.
authorized to take judicial notice of the laws of the Maxwell as administrator, cum testamento annexo, of
various States of the American Union. Such laws must the estate of Edward Randolph Hix, deceased ...
be proved as facts. (In re Estate of Johnson (1918), 39 However this may be no attempt has been made to
Phil., 156.) Here the requirements of the law were not comply with the provisions of sections 637, 638, and
met. There was not showing that the book from which 639 of the Code of Civil Procedure, for no hearing on
an extract was taken was printed or published under the question of the allowance of a will said to have
the authority of the State of West Virginia, as provided been proved and allowed in West Virginia has been
in section 300 of the Code of Civil Procedure. Nor was requested. ... ."
the extract from the law attested by the certificate of
the officer having charge of the original under the seal Granting that the will of Jose B. Suntay which was
of the State of West Virginia, as provided in section 301 executed in Amoy, China, was validly done in
of the Code of Civil Procedure. No evidence was accordance with the law of the Republic of China on
introduced to show that the extract from the laws of the matter, is it necessary to prove in this jurisdiction
West Virginia was in force at the time the alleged will the existence of such law in China as a prerequisite to
was executed. the allowance and recording of said will? The answer is
in the affirmative as enunciated in
"It was also necessary for the petitioner to prove that Fluemer vs. Hix, supra, and in Yanez de
the testator had his domicile in West Virginia and not in Barnuevo vs. Fuster, 29 Phil., 606. In the latter case,
the Philippine Islands. The only evidence introduced to the Supreme Court said:
"A foreign law may be proved by the certificate of the provisions of the above mentioned section 41 and 42 of
officer having in charge of the original, under the seal our Rules of Court?
of the state or country. It may also be proved by an
official copy of the same published under the authority This court has its doubts as to the admissibility in
of the particular state and purporting to contain such evidence of the Chinese Consul General in the
law. (Secs. 300 and 301, Act No. 190.), (Syllabus.) Philippines of the existence of the laws of Republic of
China relative to the execution and probate of a will
The provisions of section 300 and 301 of the Code of executed in China. Such law may exist in China, but —
Civil Procedure (Act No. 190) are as follows:
"An official record or an entry therein, when admissible
"SEC. 300. Printed laws of the State or Country. — for any purpose, may be evidence by an official
Books printed or published under the authority of the publication thereof or by a copy attested by the officer
United States, or one of the States of the United having the legal custody of the record, or by his deputy,
States, or a foreign country, and purporting to contain and accompanied, if the record is not kept in the
statutes, codes, or other written law of such State or Philippines, with a certificate that such officer has the
country or proved to be commonly admitted in the custody. ... If the office in which the record is kept is in
tribunals of such State or country an evidence of the a foreign country, the certificate may be made by a
written law thereof, are admissible in the Philippine secretary of embassy or legation, consul general,
Islands are evidence of such law." consul, vice consul, or consular agent or by any officer
in the foreign service of the United States stationed in
"SEC. 301. Attested copy of foreign laws. — A copy of the foreign country in which the record is kept, and
the written law or other public writing of any state or authenticated by the seal of his office." (Sec. 41 of Rule
country, attested by the certificate of the officer having 123.)
charge of the original, under the seal of the state or
country, is admissible as evidence of such law or The law of the Republic of China is a public or official
writing." record and it must be proved in this jurisdiction through
the means prescribed by our Rules of Court. It is,
The petitioner has presented in evidence the therefore, obvious that the Chinese Counsel General in
certification of the Chinese Consul General, Tsutseng the Philippines who certified as to the existence of such
T. Shen, of the existence of the law in China (Exhibit B- law is not the officer having the legal custody of the
3), relative to the execution and probate of the will record, nor is he a deputy of such officer. And, if the
executed by Jose B. Suntay in Amoy, China (Exhibit P). office in which the record is kept is in a foreign country,
Is that evidence admissible, in view of the provisions of the certificate may be made by a secretary of embassy
Sections 41 and 42 of the Rules of the Rules of Court. or legation, consul general, consul, vice consul, or
Is the said certification of the Chinese Consul General consular agent or by any officer in the foreign service
in the Philippines a substantial compliance with the of the United States stationed in the foreign country in
which the record is kept, and authenticated by the seal substantive law relative to descent and distribution. (In
of his office. re Johnson, 39 Phil., 157).
It is clear, therefore, that the above provisions of the IN VIEW OF THE FOREGOING, and upon
Rules of Court (Rule 123, sec. 41) not having been reconsideration, the previous decision rendered in this
complied with, the doubt of this court has been case allowing the will (Exhibit B) and allowing and
dissipated, and it is of the opinion and so holds that the recording the foreign will (Exhibit P) is set aside; and
certification of the Chinese Consul General alone is not this court is of the opinion and so holds that the said
admissible as evidence in the jurisdiction. two wills should be, as they are hereby disallowed.
Without special pronouncement as to costs.
The evidence of record is not clear as to whether Jose
B. Suntay, who was born in China, but resided in the It is very significant that in the foregoing resolution, the Court
Philippines for a long time, has become a Filipino of First Instance of Bulacan "reiterates its finding of the same
citizen by naturalization, or he remained a citizen of the facts in this resolution," and merely proceeds to pose the sole
Republic of China. The record does not, likewise, show question "whether or not the facts established by the petitioner,
with certainty whether or not he had changed his Silvino Suntay, warrant the legalization of the lost will and
permanent domicile from the Philippines to Amoy, allowance and recording of the will that was executed in Amoy,
China. His change of permanent domicile could only be China." The somersault executed by the trial court is premised
inferred. But the question of his permanent domicile on the ground that "although the petitioner has established the
pales into insignificance in view of the overtowering execution and validity of the lost will, yet he has not proved
fact that the law of China pertinent to the allowance clearly and distinctly the provisions of the will by the least two
and recording of the said will in this jurisdiction has credible witnesses"; and that, assuming that the will of Jose B.
been satisfactorily established by the petitioner. Suntay executed in Amoy, China, was in accordance with the
law of the Republic of China, the certification of the Chinese
Both the petitioner and the oppositor have extensively Consul General in the Philippines as the existence of such law
urged in their respective memorandum and in the oral is not admissible evidence in this jurisdiction. In effect the
argument in behalf of the oppositor the question of resolution on the motion for reconsideration promulgated by
estoppel. The consideration of the points raised by the trial court, and the decision of the majority herein, adopt
them would open the door to the appreciation of the the position that the testimony of Judge Anastacio Teodoro as
intrinsic validity of the provisions of the will which is not to the provisions of the lost will, while credible and perhaps
of moment at the present stage of the proceeding. sufficient in extent, is not corroborated by the witnesses Go
While the probate of a will is conclusive as to the Toh and Ana Suntay and, therefore, falls short of the
compliance with all formal requisites necessary to the requirement in section 6, Rule 77, of the Rules of Court that
lawful execution of the will, such probate does not the provisions of the lost will must be "clearly and distinctly
affect the intrinsic validity of the provisions of the will. proved by at least two witnesses." That this requirement was
With respect to the latter the will in governed by the obviously construed, to mean that the exact provisions are to
be established, may be deduced from the following dialogue least two credible witnesses before it can be admitted
between his Honor, Judge Potenciano Pecson, and attorney to probate; but this section must receive a liberal
Teofilo Sison, new counsel for oppositor Federico C. Suntay, construction (Hook vs. Pratt, 8 Hun. 102-109) and its
who appeared for the first time at the ex parte hearing of the spirit is complied with by holding that it applies only to
oppositor's motion for new trial on September 1, 1949: those provisions which affect the disposition of the
testator's property and which are of the substance of
COURT: However, Rule 77, Section 6, provides in the will.
proving a lost will, the provisions of the lost will must be
distinctly stated and certified by the Judge. The allegations of the contents of the will are general,
and under ordinary circumstances, would be in
ATTY. TEOFILO SISON: Yes, Your Honor. sufficient; but the fact alleged, if proven as alleged,
would certainly authorize the establishment of the will
COURT: That presupposes that the judge could only so far as its bequests are concerned. To require that a
certify to the exact provisions of the will from the copy of the will or the language of the bequests, in
evidence presented. detail, should be pleaded, where no copy has been
preserved, and where the memory of the witnesses
ATTY. TEOFILO SISON: That is our contention, does not hold the exact words, would not only deny the
provided that provision is clearly established by two substance for mere form, but would offer a premium
credible witnesses so that the Court could state that in upon the rascality of one whose interests might
the decision, we agree, that is the very point. suggest the destruction of a will. As said in
Anderson vs. Irwin, 101 Ill. 411: "The instrument in
(t. s. n. 75, Session of Sept. 1, 1948) controversy having been destroyed without the fault of
the defendant in error ... and there not appearing to be
any copy of it in existence, it would be equivalent to
The sound rule, however, as we have found it to be, as to the
denying the complainant relief altogether to require her
degree of proof required to establish the contents of a lost or
to prove the very terms in which it was conceived. All
destroyed will, is that there is sufficient compliance if two
that could reasonably be required of her under the
witnesses have substantiated the provisions affecting the
circumstances could be to show in general terms the
disposition of the testator's properties; and this is especially
disposition which the testator made of his property by
necessary to prevent the "perpetration of fraud by permitting a
the instruments; that it purported to be his will and was
presumption to supply the suppressed proof," to keep a wrong-
duly attested by the requisite number of witnesses." In
doer from utilizing the rule as his "most effective weapon," or
Allison vs. Allison, 7 Dana 91, it was said in speaking
to avoid the enjoyment of a "premium from the rascality of one
of the character and extent of proof required in such a
whose interests might suggest the destruction of a will."
case:" nor is there any just ground to object to the proof
because the witnesses have not given the language of
Section 1865 of the Code requires that the provisions the will or the substance thereof. They have given the
of a lost will must be clearly and distinctly proved by at
substance of the different devises as to the property or 576, Preston vs. Preston, 132, Atl. 55, 61. (Re
interest devised, and to whom devised and we would Lambie's Estate, 97 Mich, 55,56 N. W. 225)
not stop, in the case of a destroyed will, to scan with
rigid scrutiny the form of the proof, provided we are Judged from the standard set forth in the foregoing authorities,
satisfied of the substance of its provisions." and bearing in mind that the circumstances of this case lead to
(Jose vs. Casler 139 Ind. 392, 38 N. E. 812). the only conclusion that the loss of the will in question is of
course imputable to those whose interests are adverse to the
The evidence in the case falls short of establishing the petitioner and the widow Lim Billian, we have no hesitancy in
existence of such a writing, except as it may be holding the view that the dispositions of the properties left by
presumed, under the maxim Omnia preasumuntur in the deceased Jose B. Suntay is provided in his will which was
odium spoliateris." There was evidence tending to lost or snatched in the manner recited in the decision of this
show that the second will of Anne Lambie was in the Court in the case of Lim Billian vs. Suntay, 63 Phil., 798-797,
possession of Francis Lambie, and that it came to the had been more than sufficiently proved by the testimony of
hands of the proponents, warranting the inference that Judge Anastacio Teodoro, Go Toh, and Ana Suntay, supported
it has been suppressed or destroyed. If from this conclusively by the draft of the lost will presented in evidence
evidence the jury found such paper destroyed the law as Exhibit "B", and even by the testimony of oppositor
permits the presumption that it was legally drawn and Federico C. Suntay himself.
executed, notwithstanding the terms of the statute,
which requires the revoking instrument to be formally It is to be recalled that the trial Judge, in his first decision of
executed. If a will be lost, secondary evidence may be April 19, 1948, made the following express findings with
given of its contents; if suppressed or destroyed, the respect to the testimony of Judge Teodoro: "Judge Anastacio
same is true; and, if necessary the law will prevent the Teodoro testified that he opened the sealed envelope when it
perpetration of a fraud by permitting a presumption to was given to him by Go Toh preparatory to the presentation of
supply the suppressed proof. We cannot assent to the the petition for the probate of the said will. As the lawyer
proposition that the statute is so right as to be the entrusted with that task, he had to examine the will and have it
wrongdoer's most effective weapons. The misconduct copied to be reproduced or appended to the petition. He could
once established to the satisfaction of the jury, it is no not do otherwise if he is worth his salt as a good lawyer. He
hardship to the wrongdoer to say. "Produce the could not perform the stunt of "blind flying" in the judicial
evidence in your possession, or we will presume that firmament. Every step must be taken with certainty and
your opponent's contention is true." When one precision under any circumstances. He could not have talked
deliberately destroys, or purposely induces another to about the attorney's fees with Go Toh, unless he has not
destroy, a written instrument subsequently become a examined the will beforehand. And, when he was shown
matter of judicial inquiry between the spoliator and an Exhibit B, he did not hesitate in declaring that it was the exact
innocent party, the latter will not be required to make draft of the will that was inside the envelope (Exhibit A), the
strict proof of the contents of such instrument in order testimony of Atty. Alberto Barretto to the contrary
to establish a right founded thereon. Brook, Leg. Max. notwithstanding."
We should not forget, in this connection, that in the resolution postponement of the hearing of the intestate case
on the motion for reconsideration the trial Judge reiterated the because I was asked by Don Alberto Barretto to secure
findings in his decision, although as regards the testimony of the postponement until the will that was executed by
Judge Teodoro admittedly "the only credible witness who the deceased is sent here by the widow from China,
testified as to the provisions of the will," he observed that with whom we communicated with several letters, and
Judge Teodoro had the draft Exhibit "B" in his hands while when the will arrived. I had to check the facts as
testifying. We cannot see any justifying for the observation, appearing in the will, and examined fully in connection
assuming that Judge Teodoro consulted the draft, since even with the facts alleged in the intestate, and there was a
the trial Judge granted that he "could have testified clearly and striking fact in the intestate that Apolonio Suntay has..
distinctly on the provisions of the said lost will, because he had
kept the will in his safe, in his office, for three days, after ATTY. FERRIN: (Interrupting) May we ask that the
opening it, and he is well versed in Spanish language in which witness answer categorically the questions of Atty.
the will was written." As a matter of fact, however, it is not true Recto, it seems that the answers of the witness are
that Judge Teodoro had the draft in question before him while kilometric ...
testifying as may be seen from the following passages of the
transcript: ATTY. RECTO: Sometimes the question cannot be
answered fully unless the witness would relate and
Q. And, have you read that will which was inside this give all the facts.
envelope, Exhibit A? — "A. Yes.
COURT: The Attorney for the Administrator may move
Q. Do you remember more or less the contents of the for the striking out of any testimony that is not
will? responsive to the question.
ATTY. FERRIN: With our objection, the best evidence ATTY. FERRIN: That is why, our objection, the answer
is original will itself, Your Honor. is out of the question.
ATTY. RECTO: We are precisely proving by means of COURT: Atty. Recto may propound another question.
secondary evidence, the contents of the will, because
according to the Supreme Court, and that is a fact ATTY. RECTO: I heard the witness was saying
already decided, that the will of Jose B. Suntay was something and he has not finished the sentence, and I
lost and that is res adjudicata. want to ask the Court just to allow the witness to finish
his sentence.
COURT: Witness may answer.
COURT: You may finish.
WITNESS: I remember the main features of the will
because as I said I was the one fighting for the
WITNESS: "A. There was a sentence, the point I was Q. So the betterment, as I understand from you went to
trying to check first was whether the value of the estate four (4) children?-"A. Yes.
left by the deceased was SIXTY THOUSAND PESOS
(P60,000.00) as Apolonio Suntay made it appear in his Q. Silvino in the second marriage, Concepcion,
petition, and when I looked at the original will, I found Apolonio and Jose in the first marriage? — " A. Yes.
out that it was several hundred thousand pesos,
several thousands of pesos, hundreds of pesos, that Q. What about the free disposal?-" A. The free disposal
was very striking fact to me because the petition for was disposed in favor of the widow, Maria Natividad
intestate was for SIXTY THOUSAND PESOS Lim Billian and Silvino, his minor son in equal parts..
(P60,000.00), and I came to know that it was worth
more than SEVEN HUNDRED THOUSAND Q. What about, if you remember, if there was
(P700,000.00) PESOS. something in the will in connection with that particular
of the usufruct of the widow? — "A. It was somewhat
Q. Do you remember, Judge, the disposition of the will, incorporated into the assets of the estate left by the
the main disposition of the will? — "A. Yes, because deceased.
our client were the widow, Maria Natividad Lim Billian,
and his son, Silvino, the only son in the second Q. Do you remember the number of pages of which
marriage, that was very important for me to know. that will consisted? — "A. Twenty-three (23) pages.
Q. How were the properties distributed according to Q. Do you remember if the pages were signed by the
that will?- "A. The properties were distributed into three testator? — "A. Yes, sir, it was signed.
(3) parts, one part which we call legitima corta, were
equally distributed to the ten (10) children, nine (9) in Q. And the foot of the testament or the end of the
the first marriage, and one (1) in the second marriage testament, was it signed by the testator? — "A. Yes, sir,
with Maria Natividad Lim Billian. The other third, the and the attestation clause was the last page signed by
betterment was given to four (4) children, Concepcion, the three instrumental witnesses, Alberto Barretto, one
and Apolonio getting a quiet substantial share in the Chinaman Go Toh, and Manuel Lopez, my former
betterment, around SIXTY THOUSAND (P60,000.00) Justice of the Peace of Hagonoy.
for Concepcion, Apolonio the amount of SEVENTY
THOUSAND (70,000,00) PESOS or little over, and
Q. Do you remember if there witnesses signed on the
then about ONE HUNDRED THOUSAND
different pages of the will? — "A. Yes, sir, they signed
(P100,000.00) PESOS of the betterment in favor of
with their name signatures.
Silvino, the minor of the second marriage, and to Jose
equal to Concepcion.
Q. Showing you this document consisting of twenty-
three (23) pages in Spanish and which document
appears already attached to this same testamentary
proceedings and already marked as EXHIBIT B, will Go Toh, one of the attesting witnesses, in his deposition
you please tell the Court if and for instance on page (Exhibit D-1)." Yet in setting aside his first decision, he
eight (8) of this document, pagina octavo, it says, there remarked that Go Toh's testimony did not prove clearly and
are handwritings in pencil, some of which read as distinctly the provision of the lost will, because: "He did not,
follows: "Los cinco-octavos (5/8) partes corresponds a and he could not have done so even if he tried because the
mi hijo Emiliano", can you recognize whose original will was not read to him nor by him before or at the
handwriting is that? — "A. From my best estimate it is signing of the same. It was written in Spanish and he did not
the handwriting of Don Alberto Barretto. and does not understand the Spanish language. Neither was
there any occasion for him to have the contents of the said
Q. About the end of the same page eight (8) pagina will, after its execution and sealing inside the envelope (Exhibit
octavo, of the same document Exhibit B, there is also A), read to him, because it was opened only when Judge
the handwriting in pencil which reads: "La otra sexta Teodoro had examined it and then subsequently snatched
parte (6.a) corresponde a Bonifacio Lopez", can you from Go Toh."
recognize that handwriting? — "A. Yes, sir, this is the
handwriting of Don Alberto Barretto, and I wish to call The later position thus taken by Judge Pecson is palpably
the attention of the Court to compare letter "B" which is inconsistent with the following unequivocal statements of Go
in capital letter with the signature of Don Alberto Toh contained in hid disposition taken in Amoy, China, on April
Barretto in the envelope, "Alberto Barretto" and stroke 17, 1938, and in oppositor's Exhibit "6":
identifies one hand as having written those words.
26. State what you know of the contents of that will.
Q. Will you please go over cursorily this document,
Exhibit B composed of twenty-three (23) pages and . . . . Regarding (1) expenditures (2) Philippine
please tell the Court if this document had anything to citizenship; (3) Distribution of estates among children
do with the will which according to you was contained (4) Taking care of grave lot; (5) guardianship of Silvino
in the envelope, Exhibit A? — "A. This is exactly the Suntay and (6) after paying his debts he will have
contents of the original will which I received and kept in approximately 720,000 pesos left. This amount will be
my office inside the safe for three (3) days, and I divided into three equal parts of 240,000 pesos each.
precisely took special case in the credits left by the The first part is to be divided equally among the ten
deceased, and I remember among them, were the De children born by the first and second wives and the
Leon family, and Sandiko, well known to me, and then second part among the three sons Silvino Suntay,
the disposition of the estate, divided into three (3) 75,000 approximately; Apolonio Suntay, 50,000 pesos
equal parts, and I noticed that they are the contents of approximately; Jose Suntay and Concepcion Suntay,
the will read. 36,000 each approximately. The third part is to be
divided between Maria Lim Billian and Silvino Suntay;
His Honor, Judge Pecson, was positive in his first decision that each will get approximately 110,000 pesos. Silvino
"the testimony of Judge Anastacio Teodoro is corroborated by Suntay will get a total of 210,000 pesos approximately,
Maria Natividad Lim Billian a total of 290,000 84. What did Mr. Suntay do after those documents
approximately, and Apolonio Suntay a total of 80,000 were given to him? — ... Jose B. Suntay looked at
approximately, Concepcion Suntay and Jose Suntay them and then gave one copy to Manuel Lopez for
will get 60,000 pesos each approximately. The rest of checking.
the children will get approximately 29,000 each. The
way of distribution of the property of Jose B. Suntay, 85. State whether or not Mr. Suntay gave one of those
movable and immovable, and the outstanding debts to documents to another man. — ... Yes.
be collected was arranged by Jose B. Suntay.
86. In the affirmative case, can you say which of the
xxx xxx xxx two documents was given and who the man was? — ...
Yes he gave Exhibit B to Manuel Lopez.
78. On the occasion of the execution of the testament
of Jose B. Suntay, state whether or not you say Exhibit 87. State whether or not Mr. Suntay said something to
B — ... Yes. the man to whom he gave one of those documents.
— ... Yes.
79. In the affirmative case, state if you know who had
the possession of Exhibit B and the testament the first 88. In the affirmative case can you repeat more or less
time you saw them on that occasion. — ... Yes, I know what Mr. Suntay said to that man? — ... He told him to
who had possession of them. read it for checking.
80. Can you say whether or not Jose B. Suntay 89. State if you know what did the man do with one of
happened to get those documents later on, on that those documents given to him. — ... He took it and
same occasion? — ... He got them after the execution. read it for checking.
81. Please name the person who gave those 90. What did in turn Mr. Suntay do with the other one
documents to Mr. Suntay. — ... Alberto Barretto gave left with him? — ... Jose B. Suntay looked at the
the documents to Jose B. Suntay. original and checked them.
82. Did the person who gave those documents to 91. What was done with those documents later on if
Suntay say anything to him (Suntay) at the time of there was anything done with them? — ... After
giving them? — ... Yes. checking, Jose B. Suntay put Exhibit B in his pocket
and had the original signed and executed.
83. If so what was it that he said, if he said any? — ...
He said, "You had better see if you want any
correction."
92. What was done with the testament of Jose B. As to Ana Suntay's corroborating testimony, Judge Pecson
Suntay after it was signed by the testator and its aptly made the following findings: "Ana Suntay, one of the
witnesses? — ... It was taken away by Jose B. Suntay. heirs and who would be affected adversely by the legalization
(Exhibit D, D-1.) of the will in question, also testified on rebuttal that she saw
the original will in the possession of Manuel Suntay
Q. Did you know the contents of this envelope? — "A. I immediately after the snatching. She read it and she
knew that it was a will. particularly remembers the manner in which the properties
were to be distributed. Exhibit B was shown to her on the
Q. But did you know the provisions of the will? — "A. It witness stand and she declared that the provision regarding
is about the distribution of the property to the heirs. the distribution of the properties in said Exhibit B is the same
as that contained in the original will. Said testimony of Ana
Q. Did you know how the property was distributed Suntay, therefore, belies the testimony of Atty. Alberto
according to the will? — "A. I know that more than Barretto." And yet in the resolution on the motion for new trial,
P500,000 was for the widow and her son, more than the trial Judge had to state that "Ana Suntay on rebuttal did
P100,000 for the heirs that are in the family. (Exhibit not, likewise, prove clearly and distinctly the provisions of the
"6", p. 28). said lost will, because she has not had enough schooling and
she does not possess adequate knowledge of the Spanish
Q. You stated that you were one of the witnesses to the language as shown by the fact that she had to testify in
will and that the will was written in Spanish. Was it Tagalog on the witness stand." The potent error committed by
written in typewriting or in handwriting of somebody? — Judge Pecson in reversing his views as regards Ana's
"A. That will was written in typewriting. testimony, is revealed readily in the following portions of the
transcript:
Q. Did you read the contents of that will, or do you
know the contents of that will? — A. No, sir, because I P. Cuantas paginas tenia aquel documento a que usted
do not know Spanish. se refiere? — "R. Probablemente seria mas de veinte
(20) paginas.
Q. How do you know that it was the will of Jose B.
Suntay ? — "A. Because I was one of the signers and I P. No serian treinta (30) paginas? — "Abogado Recto:
saw it." (Exhibit "6", p. 19.) La testigo ha contestado ya que mas de veinte (20).
22. Do you understand the language in which that will Juzgado: Se estima
was written? — ... I know a little Spanish.
Abogado Mejia:
23. Do you talk or write that language? I can write and
talk a little Spanish. (Exhibits D, D-1.) P. Usted personalmente leyo el documento" — "R. Yo
leyo mi hermano en presencia mia.
P. La pregunta es, si usted personalmente ha leido el P. Sabe usted en que lenguaje estaba redactado el
documento? — " R. Si, lo he visto. documento que usted leyo personalmente? — "R. En
Castellano.
P. No solamente le pregunto a usted si Vd. ha visto el
testamento sino si usted ha leido personalmente el P. Puede usted repetirnos ahora en Castellano algunas
testamento? — "R. Si la parte de la adjudicacion lo he frases o palabras como se hizo la distribucion en aquel
leido para asegurarme a que porcion corresponde a supuesto testamento? —
cada uno de nosotros.
Abogado Recto: Objecion, por falta de base, uno
P. Puede usted repetir poco mas o menos esa porcion puede entender el español y sin embargo no podra
a que se hacia la distribucion del alegado testamento? repetir lo que ha leido, y no se sabe todavia si ha
— "R. Como ya he declarado, que las propiedades de estudiado el español bastante hasta el punto de poder
mi difunto padre se habian dividido en tres partes, una hablarlo.
tercera parte se nos adjudica a nosotros diez (1) hijos
en primeros nupcias y segunda nupcia, la segunda Juzgado: Se estima.
tercera parte los adjudica a la viuda y a Silvino, y la
otra tercera parte se lo adjudica a sus hijos como Abogado Mejia
mejora a Silvino, Apolonio, Concepcion y Jose.
P. Usted dijo que estaba puesto en castellano el
P. Eso, tal como usted personalmente lo leyo en el supuesto testamento que Vda. leyo, usted poso el
documento? — "R. Si Señor. castellano? — "R. Yo entiendo el castellano, pero no
puedo hablar bien.
P. Quiere usted tener la bondad, señora, de repetir
poco mas o menos las palabras en ese documento P. Usted estudio el castellano en algun colegio? — "Rj.
que se distribuia las propiedades del defundo padre Si, señor, En Sta. Catalina.
usted como usted relata aqui? "Abogado Recto:
Objetamos a la pregunta por falta de base, porque elle P. Cuantos años? — "R. Nuestros estudios no han sido
solamente se fijo en la parte como se distribuian las continuous porque mi padre nos ingresaba en el
propiedades pero no ha dicho la testigo que ella lo ha colegio y despues nos sacaba para estar afuera, y no
puesto de memoria, ni Vd. ha preguntado en que era continuo nuestro estudio.
lenguaje estaba escrito el testamento ...
P. Pero en total, como cuantos meses o años estaba
Juzgado: Se estima. usted en el colegio aprendiendo el castelano? — "R.
Unos cuatro o cinco años.
Abogado Mejia:
P. Entonces usted puede leer el castellano con expressly in the resolution on the motion for new trial), should
facilidad, señora? — "R. Si, castellano sencillo puedo control, not only because it is in accordance with the evidence
entender y lo puedo leer. but because the oppositor had failed and did not even attempt
to have the trial Judge reconsider or reverse his factual
P. Usted entiende las preguntas que se le dirigian aqui conclusions. The draft, Exhibit "B," having been positively
en castellano sin interpretacion o sin el interprete? — identified by the witnesses for the petitioner to be an exact
"R. Si, Señor. copy of the lost will of Jose B. Suntay, is therefore conclusive.
Oppositor's effort to show that said draft was never signed in
P. Puede usted contestar en castellano? — "R. Bueno, final form, and was thought of merely to deceive petitioner's
pero como de contestar, por eso quiero que la mother, Lim Billian, and that the will actually executed and put
pregunta se me traduzca antes. asi puedo contestar in the envelope, Exhibit "A", provided that the testator's estate
debidamente. (t.s.n. pp. 533-534.) would be divided equally among his heirs, as in the case of
intestacy, was necessarily futile because, if this allegation is
We are really at a loss to understand why, without any change true, the will would not have been "snatched" from Go Toh —
whatsoever in the evidence, the trial Judge reversed his first and the loss certainly cannot be imputed to the widow Lim
decision, particularly when he announced therein that "it is Billian or the petitioner; the snatched will would have been
now incumbent upon this court to delve into the evidence produced to put an end to petitioner's and his mother's claim
whether or not Jose B. Suntay, deceased, left a will (the draft for greater inheritance or participation under the lost will; and
of which is Exhibit B) and another will which was executed and the envelope containing the first will providing for equal
probated in Amoy, China." His action is indeed surprising when shares, would not have been entrusted to the care and
we take into account the various circumstancial features custody of the widow Lim Billian.
presently to be stated, that clearly confirm the testimony of
Judge Anastacio Teodoro, G. Toh and Ana Suntay, or It is very noteworthy that out of the nine children of the first
otherwise constitute visible indicia of oppositor's desire to marriage, only Angel, Jose and Federico Suntay had opposed
frustrate the wishes of his father, Jose B. Suntay. the probate of the will in question; the rest, namely, Ana,
Aurora, Concepcion, Lourdes, Manuel and Emiliano Suntay,
In our opinion the most important piece of evidence in favor of having expressly manifested in their answer that they had no
the petitioner's case is the draft of the lost will, Exhibit "B." Its opposition thereto, since the petitioner's alternative petition
authenticity cannot be seriously questioned, because "seeks only to put into effect the testamentary disposition and
according to the trial Judge himself, oppositor's own witness, wishes of their late father." This attitude is significantly an
Atty. Alberto Barretto, admitted it to be "identical in substance indication of the justness of petitioner's claim, because it would
and form to the second draft which he prepared in typewriting." have been to their greater advantage if they had sided with
Indeed, all the "A's" and "B's" in the handwritten insertions of oppositor Federico Suntay in his theory of equal inheritance for
the draft are very similar to those in Barretto's admittedly all the children of Jose B. Suntay. Under the lost will or its draft
genuine signature on the envelope, Exhibit "A." The finding of Exhibit "B", each of the Suntay children would receive only
Judge Pecson on the point in his first decision (reiterated some P 25,000.00, whereas in case of intestacy or under the
alleged will providing for equal shares, each of them would are selling everything even the conjugal property. (t. s.
receive some P100,000.00. And yet the Suntay children other n. 228-229.)
than Angel, Jose and Federico had chosen to give their
conformity to the alternative petition in this case. The decision of the majority leans heavily on the testimony of
Atty. Alberto Barretto, forgetful perhaps of the fact that the trial
Another unequivocal confirmation of the lost will is the will Judge gave no credence to said witness. It should be repeated
which Jose B. Suntay executed in Amoy, Fookien, China, on that Judge Pecson reiterated in the resolution on the motion
January 4, 1931, and probated in Amoy District Court, China, for new trial all his findings in the first decision. If as Atty.
containing virtually the same provisions as those in the draft Barretto testified, Lim Billian was entitled under the will actually
Exhibit "B". What better evidence is there of an man's desire or signed by Jose Suntay only to P10,000.00, in addition to
insistence to express his last wishes than the execution of a properties in China value at P15,000.00, the fees of
will reiterating the same provisions contained in an earlier will. P25,000.00 admittedly asked by him would absorb her entire
Assuming that the Chinese will cannot be probated in the inheritance; and this would normally not be done by any law
jurisdiction, its probative value as corroborating evidence practitioner. Upon the other hand, there is evidence to the
cannot be ignored. effect that Atty. Barretto might have become hostile to the
petitioner and his mother Lim Billian in view of the latter's
Oppositor himself had admitted having read the will in question refusal to agree to the amount of P25,000.00 and her offer to
under which the widow Lim Billian was favored; and this again pay only P100.00. There is also evidence tending to show that
in a way goes to corroborate the evidence for the petitioner as as early as 1942, Atty. Barretto was paid by oppositor Federico
to the contents of the will sought to be probated. Suntay the sum of P16,000.00 which, although allegedly for
services in the testate proceedings, was paid out of the
COURT: personal funds of said oppositors to supply Atty. Barretto's
needs. This circumstances perhaps further explains why the
Q. Have you read the supposed will or the alleged will latter had to support the side of Federico Suntay.
of your father? — "A. Yes, sir.
We have quoted in full the decision of this court in the
COURT: "snatching" case and the first decision of Judge Pecson in this
case, both in the hope and in the belief (1) that the first would
Q. Can you tell the court the share or participation in reveal the manner by which those adversely affected had
the inheritance of Maria Natividad Lim Billian according planned to prevent the last wishes of the deceased Jose B.
to the will? — Suntay from being carried on, and (2) that the second, by the
facts correctly recited therein and by the force and accuracy of
its logic would amply show the weakness and utter lack of
A. Yes sir, she will inherit, I think, two-thirds (2/3) of the
foundation of the resolution on the motion for reconsideration.
estate, in other words she is the most favored in the
We have set forth at length pertinent portions of the testimony
will, so when they sold that, they sold everything, they
of various witnesses to demonstrate more plainly the
plausibility of the original decision of Judge Pecson, and the . . . This petition was denied because of the loss of said
latter's consequent bad judgment in having forced himself to will after the filing of the petition and before the hearing
accomplish a somersault, a feat which the majority, in my thereof, . . .
opinion, have mistakenly commended. We have found this to
be one of the cases of this court in which we have had because according to him the "will was lost before not after
occasion to participate, where there can be absolutely no (the) filing of the petition." This slight error, if it is an error at all,
doubt as to the result — outright reversal — for which, with does not, and cannot, after the conclusions and
due respect to the majority opinion, we vote without hesitancy. pronouncements made in the judgment rendered in the case.
In his alternative petition the appellant alleges:
Montemayor and Jugo, JJ., concur.
4. That on October 15, 1934, Marian Natividad Lim
Billian, the mother of herein petitioner filed a petition in
this court for the allowance and probate of a last will
and testament executed, and signed in the Philippines
RESOLUTION in the year 1929 by said deceased Jose B. Suntay. (P.
3, amended record on appeal.)
This is a motion for reconsideration of the decision . . . that one day in November 1934 (p. 273, t. s. n.,
promulgated on 31 July 1954, affirming the decree of the Court hearing of 19 January 1948), ... Go Toh arrived at his
of First Instance of Bulacan which disallowed the alleged last law office in the De Los Reyes Building and left an
will and testament executed in November 1929 and the envelope wrapped in red handkerchief [Exhibit C] (p.
alleged last will and testament executed in Kulangsu, Amoy, 32, t. s. n., hearing of 13 October 19470 . . .
China, on 4 January 1931, by Jose B. Suntay, without
pronouncement as to costs, on grounds that will presently be and —
taken up and discussed.
If the will was snatched after the delivery thereof by Go
Appellant points to an alleged error in the decision where it Toh to Anastacio Teodoro and returned by the latter to
states that — the former because they could not agree on the
amount of fees, . . .
then on 15 October 1934, the date of the filing of the petition, contends that these points already adjudged were overlooked
the will was not yet lost. And if the facts alleged in paragraph 5 in the majority opinion. The decision of this Court in the case
of the appellant's alternative petition which states: referred to does not constitute res judicata on the points
adverted to by the appellant. The only point decided in that
That this Honorable Court, after hearing, denied the case is that "the evidence is sufficient to establish the loss of
aforesaid petition for probate filed by Maria Natividad the document contained in the envelope." In the opinion of this
Lim Billian in view of the loss and/or destruction of said Court, this circumstance justified "the presentation of
will subsequent to the filing of said petition and prior to secondary evidence of its contents and of whether it was
the hearing thereof, and the alleged insufficiency of the executed with all the essential and necessary legal
evidence adduced to established the loss and/or formalities." That is all that was decided. This Court further
destruction of the said will, (Emphasis supplied, P. 3, said:
amended record on appeal.)
The trial of this case was limited to the proof of loss of
may be relied upon, then the alleged error pointed out by the the will, and from what has taken place we deduce that
appellant, if it is an error, is due to the allegation in said it was not petitioner's intention to raise, upon the
paragraph of his alternative petition. Did the appellant allege evidence adduced by her, and other points involved
the facts in said paragraph with reckless abandon? Or, did the herein, namely, as we have heretofore indicated,
appellant make the allegation as erroneously as that which he whether Exhibit B is a true copy of the will and whether
made in paragraph 10 of the alternative petition that "his will the latter was executed with all the formalities required
which was lost and ordered probated by our Supreme Court in by law for its probate. The testimony of Alberto Barretto
G. R. No. 44276, above referred to?" (P. 7, amended record on bears importantly in this connection. (P. 796, supra.)
appeal.) This Court did not order the probate of the will in said
case because if it did, there would have been no further and Appellant's contention that the question before the probate
subsequent proceedings in the case after the decision of this court was whether the draft (Exhibit B) is a true copy or draft of
Court referred to had been rendered and had become final. Be the snatched will is a mistaken interpretation and view of the
that as it may, whether the loss of the will was before or decision of this Court in the case referred to, for if this Court
subsequent to the filing of the petition, as already stated, the did make that pronouncement, which, of course, it did not,
fact would not affect in the slightest degree the conclusions such pronouncement would be contrary to law and would have
and pronouncements made by this Court. been a grievous and irreparable mistake, because what the
Court passed upon and decided in that case, as already
The appellant advances the postulate that the decision of this stated, is that there was sufficient evidence to prove the loss of
Court in the case of Lim Billian vs. Suntay, G. R. No. 44276, the of the will and that the next step was to prove by
63 Phil., 793, constitutes res judicata on these points: (a) that secondary evidence its due execution in accordance with the
only one will was prepared by attorney Barretto, and (b) that formalities of the law and its contents, clearly and districtly, by
the issue to be resolved by the trial court was whether the draft the testimony of at least two credible witnesses.1
(Exhibit B) is a true copy or draft of the snatched will, and
The appellant invokes Rule 133 to argue that Rule 77 should an error. It must be borne in mind that this is not a petition for a
not have been applied to the case but the provisions of section writ of certiorari to review a judgment of the Court of Appeals
623 of the Code of Civil Procedure (Act No. 190), for the on questions of law where the findings of fact by said Court
reason that this case had been commenced before the Rules are binding upon this Court. This is an appeal from the probate
of Court took effect. But Rule 133 cited by the appellant court, because the amount involved in the controversy
provides: exceeds P50,000, and this Court in the exercise of its
appellate jurisdiction must review the evidence and the
These rules shall take effect on July 1, 1940. They findings of fact and legal pronouncements made by the
shall govern all cases brought after they take effect, probate court. If such conclusions and pronouncements are
and also all further proceedings in cases then pending, unjustified and erroneous this Court is in duty bound to correct
except to the extent that in the opinion of the court their them. Not long after entering the first decree the probate court
application would not be feasible or would work was convinced that it had committed a mistake, so it set aside
injustice, in which event the former procedure shall the decree and entered another. This Court affirmed the last
apply. (Emphasis supplied.) decree not precisely upon the facts found by the probate court
but upon facts found by it after a careful review and scrutiny of
So, Rule 77 applies to this case because it was a further the evidence, parole and documentary. After such review this
proceedings in a case then pending. But even if section 623 of Court has found that the provisions of the will had not been
the Code of Civil Procedure were to be applied, still the established clearly and distinctly by at least two credible
evidence to prove the contents and due execution of the will witnesses and that conclusion is unassailable because it is
and the fact of its unauthorized destruction, cancellation, or solidly based on the established facts and in accordance with
obliteration must be established "by full evidence to the law.
satisfaction of the Court." This requirement may even be more
strict and exacting than the two-witness rule provided for in The appellant and the dissent try to make much out of a
section 6, Rule 77. The underlying reason for the exacting pleading filed by five (5) children and the widow of Apolonio
provisions found in section 623 of Act No. 190 and section 6, Suntay, another child of the deceased by the first marriage,
Rule 77, the product of experience and wisdom, is to prevent wherein they state that —
imposters from foisting, or at least to make for them difficult to
foist, upon probate courts alleged last wills or testaments that . . . in answer to the alternative petition filed in these
were never executed. proceedings by Silvino Suntay, through counsel, dated
June 18, 1947, to this Honorable Court respectfully
In commenting unfavorably upon the decree disallowing the state that, since said alternative petition seeks only to
lost will, both the appellant and the dissenting opinion suffer put into effect the testamentary disposition and wishes
from an infirmity born of a mistaken premise that all the of their late father, they have no opposition thereto.
conclusions and pronouncements made by the probate court (Pp. 71-72, amended record on appeal.)
in the first decree which allowed the probate of the lost will of
the late Jose B. Suntay must be accepted by this Court. This is
Does that mean that they were consenting to the probate of Lopez read the draft (Exhibit B) for the purpose of checking it
the lost will? Of course not. If the lost will sought to be up with the original held and read by Jose B. Suntay, Go Toh
probated in the alternative petition was really the will of their should not have understood the provisions of the will because
late father, they, as good children, naturally had, could have, he knew very little of the Spanish language in which the will
no objection to its probate. That is all that their answer implies was written (answer to 22nd and 23rd interrogatories and to X-
and means. But such lack of objection to the probate of the 2 cross-interrogatory). In fact, he testifies in his deposition that
lost will does not relieve the proponent thereof or the party all he knows about the contents of the lost will was revealed to
interested in its probate from establishing its due execution him by Jose B. Suntay at the time it was executed (answers to
and proving clearly and distinctly the provisions thereof at least 25th interrogatory and to X-4 and X-8 cross-interrogatories);
two credible witnesses. It does not mean that they accept the that Jose B. Suntay told him that the contents thereof are the
draft Exhibit B as an exact and true copy of the lost will and same as those of the draft [Exhibit B] (answers to 33rd
consent to its probate. Far from it. In the pleading copied in the interrogatory and to X-8 cross-interrogatory); that Mrs. Suntay
dissent, which the appellant has owned and used as argument had the draft of the will (Exhibit B) translated into Chinese and
in the motion for reconsideration, there is nothing that may he read the translation (answer to the 67th interrogatory); that
bolster up his contention. Even if all the children were he did not read the will and did not compare it (check it up)
agreeable to the probate of said lost will, still the due execution with the draft [Exhibit B] (answers to X-6 and X-20 cross-
of the lost will must be established and the provisions thereof interrogatories). We repeat that —
proved clearly and distinctly by at least two credible witnesses,
as provided for in section 6, Rule 77. The appellant's effort . . . all of Go Toh's testimony by deposition on the
failed to prove what is required by the rule. Even if the children provisions of the alleged lost will is hearsay, because
of the deceased by the first marriage, out of generosity, were he came to know or he learned of them from
willing to donate their shares in the estate of their deceased information given him by Jose B. Suntay and from
father or parts thereof to their step mother and her only child, reading the translation of the draft (Exhibit B) into
the herein appellant, still the donation, if validly made, would Chinese.
not dispense with the proceedings for the probate of the will in
accordance with section 6, Rule 77, because the former may This finding cannot be contested and assailed.
convey by way of donation their shares in the state of their
deceased father or parts thereof to the latter only after the The appellant does not understand how the Court came to the
decree disallowing the will shall have been rendered and shall conclusion that Ana Suntay, a witness for the appellant could
have become final. If the lost will is allowed to probate there not have read the part of the will on adjudication. According to
would be no room for such donation except of their respective her testimony "she did not read the whole will but only the
shares in the probated will. adjudication," which, this Court found, "is inconsistent with her
testimony in chief (to the effect) that "after Apolonio read that
The part of the deposition of Go Toh quoted in the motion for portion, then he turned over the document of Manuel, and he
reconsideration which appellant underscores does not refer to went away." (P. 528, t. s. n., hearing of 24 February 1948.) And
Go Toh but to Manuel Lopez. Even if Go Toh heard Manuel appellant asks the question: "Who went away? Was it Manuel
or Apolonio?" In answer to his own question the appellant Q. When you made that payment, was (it) your
says: "The more obvious inference is that it was Apolonio and intention to charge it to the state or to collect it later
not Manuel who went away." This inference made by the from the estate? — A. Yes, sir.
appellant not only is not obvious but it is also illogical, if it be
borne in mind that Manuel came to the house of Apolonio and Q. More or less when was such payment made, during
it happened that Ana was there, according to her testimony. So the Japanese time, what particular month and year, do
the sentence "he went away" in Ana's testimony must logically you remember? — A. I think in 1942.
and reasonably refer to Manuel, who was a caller or visitor in
the house of his brother Apolonio and not to the latter who was Q. And you said you paid him because of services he
in his house. If it was Apolonio who "went away," counsel for rendered? — A. Upon the order to the Court.
the appellant could have brought that out by a single question.
As the evidence stands could it be said that the one who went Q. And those services were precisely because he
away was Apolonio and not Manuel? The obvious answer is made a will and he made a will which was lost, the will
that it was Manuel. That inference is the result of a straight of Jose B. Suntay? ... (P. 181, t. s. n., supra.) — A. I
process of reasoning and clear thinking. think I remember correctly according to ex-
Representative Vera who is the administrator whom I
There is a veiled insinuation in the dissent that Alberto Barretto followed at that time, that was paid according to the
testified as he did because he had been paid by Federico C. services rendered by Don Alberto Barretto with regard
Suntay the sum of P16,000. Federico C. Suntay testifies on to our case in the testamentaria but he also rendered
the point thus — services to my father.
Q. You mentioned in your direct testimony that you paid Q. At least your Counsel said that there was an order
certain amount to Atty. Alberto Barretto for services of the Court ordering you to pay that, do you have that
rendered, how much did you pay? — A. Around copy of the order? — A. Yes, sir, I have, but I think that
SIXTEEN THOUSAND (P16,000.00). was burned. (P. 184, t. s. n., supra.).
Q. When did you make the payment? — A. During the So the sum of P16,000 was paid upon recommendation of the
Japanese time. former administrator and order of the probate court for
services rendered by Alberto Barretto not only in the probate
Q. Did you state that fact in any accounts you proceedings that also for services rendered to his father. But if
presented to the Court? — A. I do not quite remember this sum of P16,000 paid to Alberto Barretto upon
that. recommendation of the previous administrator and order of the
probate court for professional services rendered in the probate
. . . (P. 180, t. s. n., hearing of 24 October 1947.) proceedings and to the deceased in his lifetime be taken
against his truthfulness and veracity as to affect adversely his
testimony, what about the professional services of Anastacio
Teodoro who appeared in this case as one of the attorneys for
the petitioner-appellant? (P. 2, t. s. n., hearing of 13 October
1947.)Would that not likewise or by the same token affect his
credibility? It is the latter's interest more compelling than the
former's?
CHICO-
NAZARIO, JJ. The RTC decision affirmed that of the Municipal Trial
VICENTA UMENGAN, Promulgated: Court in Cities (MTCC) of the same city, Branch III, which had
rendered judgment in favor of the heirs of Rosendo Lasam and
Respondent. directed the ejectment of respondent Vicenta Umengan from
the lot subject of litigation.
December 6, 2006
DECISION As culled from the records, the backdrop of the present case is
as follows
CALLEJO, SR., J.:
Cuntapay remarried Mariano Lasam. She had two other
The lot subject of the unlawful detainer case is situated
children by him, namely: Trinidad and Rosendo.
in Tuguegarao City, Cagayan. It is the eastern half portion of
Lot No. 5427 and Lot No. 990. The first lot, Lot No. 5427
containing an area of 1,037 square meters, is covered by Sometime in January 2001, the heirs of Rosendo Lasam (son
of Isabel Cuntapay by her second husband) filed with the
Original Certificate of Title (OCT) No. 196. The second lot, Lot MTCC a complaint for unlawful detainer against Vicenta
No. 990 containing an area of 118 sq m, is covered by OCT Umengan, who was then occupying the subject lot. Vicenta
Umengan is the daughter of Abdon Turingan (son of Isabel
No. 1032. These lots are registered in the names of the
Cuntapay by her first husband).
original owners, spouses Pedro Cuntapay and Leona
Bunagan.
In their complaint, the heirs of Rosendo Lasam alleged
that they are the owners of the subject lot, having inherited it
In an instrument denominated as Deed of Confirmation and from their father. Rosendo Lasam was allegedly the sole heir
acknowledged before a notary public on June 14, 1979, the of the deceased Pedro Cuntapay through Isabel
heirs of the said spouses conveyed the ownership of Lots Nos. Cuntapay. During his lifetime, Rosendo Lasam allegedly
990 and 5427 in favor of their two children, Irene Cuntapay temporarily allowed Vicenta Umengan to occupy the subject
and Isabel Cuntapay. In another instrument entitled Partition lot sometime in 1955. The latter and her husband allegedly
Agreement and acknowledged before a notary public promised that they would vacate the subject lot upon
on December 28, 1979, it was agreed that the eastern half demand. However, despite written notice and demand by the
portion (subject lot) of Lots Nos. 990 and 5427 shall belong to heirs of Rosendo Lasam, Vicenta Umengan allegedly
the heirs of Isabel Cuntapay. On the other hand, the remaining unlawfully refused to vacate the subject lot and continued to
portion thereof (the west portion) shall belong to the heirs of possess the same. Accordingly, the heirs of Rosendo Lasam
Irene Cuntapay. The subject lot (eastern half portion) has an were constrained to institute the action for ejectment.
area of 554 sq m.
Prior thereto, Rufo already sold his 1/6 share in the x x x my share 1/5th (one-fifth) of the Cuntapay
subject lot to Vicenta Umengan and her husband as evidenced heirs, bordered on the North by Sr. Elia Canapi;
by the Deed of Sale dated June 14, 1961, appearing as Doc. to the South, by Calle Aguinaldo; to the East, by
No. 539, Page No. 41, Book No. V, series of 1961 of the Calle P. Burgos and the West, by the late Don
notarial book of Atty. Pedro Lagui. Also on June 14, 1961, Luis Alonso; on the property which is my share
Abdon donated his 1/6 share in the subject lot to her daughter stands a house of light materials where I
Vicenta Umengan as evidenced by the Deed of Donation presently reside; this 1/5th (one-fifth) share of
my inheritance from the Cuntapays I leave to
appearing as Doc. No. 538, Page No. 41, Book No. V, series
my son Rosendo Lasam and also the
of 1961 of the notarial book of the same notary public.
aforementioned house of light material x x x[2]
Petitioners argue that the CA erred when it held, on one hand, Petitioners emphasize that in an unlawful detainer case, the
that the MTCC had jurisdiction over the subject matter of the only issue to be resolved is who among the parties is entitled
complaint as the allegations therein make out a case for to the physical or material possession of the property in
unlawful detainer but, on the other hand, proceeded to discuss dispute. On this point, the MTCC held (and the same was
the validity of the last will and testament of Isabel Cuntapay. affirmed by the RTC) that petitioners have a better right since
the merely tolerated possession of the respondent had already
are not sacrosanct. It has been held that while the
expired upon the petitioners formal demand on her to
vacate. In support of this claim, they point to the affidavit of requirements for perfecting an appeal must be strictly followed
Heliodoro Turingan, full brother of the respondent, attesting as they are considered indispensable interdictions against
that the latters possession of the subject lot was by mere
needless delays and for orderly discharge of judicial business,
tolerance of Rosendo Lasam who inherited the same from
Isabel Cuntapay. the law does admit of exceptions when warranted by
circumstances.[8] In the present case, the CA cannot be faulted
According to petitioners, respondents predecessors-in-interest in choosing to overlook the technical defects ofrespondents
from whom she derived her claim over the subject lot by appeal. After all, technicality should not be allowed to stand in
donation and sale could not have conveyed portions thereof to the way of equitably and completely resolving the rights and
her, as she had claimed, because until the present, it is still obligations of the parties.[9]
Dr. Tolentino, an eminent authority on civil law, also explained Contrary to the claim of petitioners, the dismissal of
that [b]efore any will can have force or validity it must be respondents action for partition in Civil Case No. 4917 before
probated. To probate a will means to prove before some the RTC (Branch 3) of Tuguegarao City does not constitute res
officer or tribunal, vested by law with authority for that purpose, judicata on the matter of the validity of the said conveyances
that the instrument offered to be proved is the last will and or even as to the issue of the ownership of the subject lot. The
testament of the deceased person whose testamentary act it is order dismissing respondents action for partition in Civil Case
alleged to be, and that it has been executed, attested and No. 4917 stated thus:
published as required by law, and that the testator was of
For resolution is a motion to dismiss based on
sound and disposing mind. It is a proceeding to establish the defendants [referring to the petitioners herein]
validity of the will.[13] Moreover, the presentation of the will for affirmative defenses consisting inter alia in the
probate is mandatory and is a matter of public policy.[14] discovery of a last will and testament of Isabel
Cuntapay, the original owner of the land in
dispute.
Following the above truisms, the MTCC and RTC, therefore, xxx
erroneously ruled that petitioners have a better right to
possess the subject lot on the basis of the purported last will
It appears, however, that the last will and the merits, is not present between the action for partition and
testament of the late Isabel Cuntapay has not
yet been allowed in probate, hence, there is an the complaint a quo for unlawful detainer.As aptly observed by
imperative need to petition the court for the the CA:
allowance of said will to determine once and for
all the proper legitimes of legatees and Our reading of the Orders (dated June 16,
devisees before any partition of the property 1997 and October 13, 1997) in Civil Case No.
may be judicially adjudicated. 4917 reveals that the RTC, Branch 3,
Tuguegarao, Cagayan, dismissed the complaint
It is an elementary rule in law that testate for partition because of the discovery of the
proceedings take precedence over any other alleged last will and testament of Isabel
action especially where the will evinces the Cuntapay. The court did not declare
intent of the testator to dispose of his whole respondents [referring to the petitioners herein]
estate. the owners of the disputed property.It simply
ordered them to petition the court for the
With the discovery of the will of the late Isabel allowance of the will to determine the proper
Cuntapay in favor of the defendants, the Court legitimes of the heirs prior to any
can order the filing of a petition for the probate partition. Instead of filing the appropriate
of the same by the interested party. petition for the probate of Isabel Cuntapays will,
the respondents filed the present complaint for
WHEREFORE, in light of the foregoing unlawful detainer. Viewed from this perspective,
considerations, let the above-entitled case be we have no doubt that the courts Orders cited
as it is hereby DISMISSED. by the respondents are not judgments on the
merits that would result in the application of the
SO ORDERED.[15] principle of res judicata. Where the trial court
merely refrained from proceeding with the case
and granted the motion to dismiss with some
For there to be res judicata, the following elements must be clarification without conducting a trial on the
present: (1) finality of the former judgment; (2) the court which merits, there is no res judicata.[17]
rendered it had jurisdiction over the subject matter and the
parties; (3) it must be a judgment on the merits; and (4) there Further, it is not quite correct for petitioners to contend that the
must be, between the first and second actions, identity of children of Isabel Cuntapay by her first marriage could not
[16]
parties, subject matter and causes of action. The third have conveyed portions of the subject lot to respondent, as
requisite, i.e., that the former judgment must be a judgment on she had claimed, because until the present, it is still covered
by OCT Nos. 196 and 1032 under the names of Pedro and moment of the death of the decedent, in case
the inheritance is accepted. Where there are
Leona Cuntapay. To recall, it was already agreed by the heirs however, two or more heirs, the whole estate of
of the said spouses in a Partition Agreement dated December the decedent is, before its partition, owned in
common by such heirs.
28, 1979 that the subject lot would belong to Isabel
Cuntapay. The latter died leaving her six children by both The Civil Code, under the provisions of co-
ownership, further qualifies this right. Although
marriages as heirs. Considering that her purported last will and
it is mandated that each co-owner shall have
testament has, as yet, no force and effect for not having been the full ownership of his part and of the fruits
probated, her six children are deemed to be co-owners of the and benefits pertaining thereto, and thus may
alienate, assign or mortgage it, and even
subject lot having their respective pro indiviso shares. The substitute another person in its enjoyment, the
conveyances made by the children of Isabel Cuntapay by her effect of the alienation or the mortgage, with
respect to the co-owners, shall be limited to the
first marriage of their respective pro indiviso shares in the portion which may be allotted to him in the
subject lot to respondent are valid because the law recognizes division upon the termination of the co-
ownership. In other words, the law does not
the substantive right of heirs to dispose of their ideal share in
prohibit a co-owner from selling, alienating or
the co-heirship mortgaging his ideal share in the property held
and/co-ownership among the heirs. The Court had expounded in common.
the principle in this wise: As early as 1942, this Court has recognized
said right of an heir to dispose of property under
This Court had the occasion to rule that there is administration. In the case of Teves de
no doubt that an heir can sell whatever right, Jakosalem vs. Rafols, et al., it was said that the
interest, or participation he may have in the sale made by an heir of his share in an
property under administration. This is a matter inheritance, subject to the result of the pending
which comes under the jurisdiction of the administration, in no wise, stands in the way of
probate court. such administration. The Court then relied on
the provision of the old Civil Code, Article 440
The right of an heir to dispose of the decedents and Article 399 which are still in force as Article
property, even if the same is under 533 and Article 493, respectively, in the new
administration, is based on the Civil Code Civil Code. The Court also cited the words of a
provision stating that the possession of noted civilist, Manresa: Upon the death of a
hereditary property is deemed transmitted to person, each of his heirs becomes the
the heir without interruption and from the
undivided owner of the whole estate left with x x x our ruling on the issue of physical
respect to the part or portion which might be possession does not affect title to the property
adjudicated to him, a community of ownership nor constitute a binding and conclusive
being thus formed among the co-owners of the adjudication on the merits on the issue of
estate which remains undivided.[18] ownership. The parties are not precluded from
filing the appropriate action directly contesting
the ownership of or the title to the property.[19]
Contrary to the assertion of petitioners, therefore, the
conveyances made by the children of Isabel Cuntapay by her
Likewise, it is therefore in this context that the CAs
first marriage to respondent are valid insofar as their pro
finding on the validity of Isabel Cuntapays last will and
indiviso shares are concerned. Moreover, the CA justifiably
testament must be considered. Such is merely a provisional
held that these conveyances, as evidenced by the deed of
ruling thereon for the sole purpose of determining who is
donation and deed of sale presented by respondent, coupled
entitled to possession de facto.
with the fact that she has been in possession of the subject lot
since 1955, establish that respondent has a better right to
possess the same as against petitioners whose claim is largely WHEREFORE, premises considered, the petition
based on Isabel Cuntapays last will and testament which, to is DENIED. The assailed Decision dated February 16,
date, has not been probated; hence, has no force and effect 2005 and the Resolution dated May 17, 2005 of the Court of
and under which no right can be claimed by Appeals in CA-G.R. SP No. 80032 are AFFIRMED.
petitioners. Significantly, the probative value of the other SO ORDERED.
evidence relied upon by petitioners to support their claim,
which was the affidavit of Heliodoro Turingan, was not passed
upon by the MTCC and the RTC. Their respective decisions
did not even mention the same.
(2) When a child or descendant has accused the Segundo’s document, although it may initially come across as
testator of a crime for which the law prescribes a mere disinheritance instrument, conforms to the formalities
imprisonment for six years or more, if the accusation of a holographic will prescribed by law. It is written, dated and
has been found groundless; signed by the hand of Segundo himself. An intent to
dispose mortis causa[9] can be clearly deduced from the terms
(3) When a child or descendant has been convicted of of the instrument, and while it does not make an affirmative
adultery or concubinage with the spouse of the disposition of the latter’s property, the disinheritance of Alfredo,
testator; nonetheless, is an act of disposition in itself. In other words,
the disinheritance results in the disposition of the property of
(4) When a child or descendant by fraud, violence, the testator Segundo in favor of those who would succeed in
intimidation, or undue influence causes the testator to the absence of Alfredo.10
make a will or to change one already made;
Moreover, it is a fundamental principle that the intent or the will
(5) A refusal without justifiable cause to support the of the testator, expressed in the form and within the limits
parents or ascendant who disinherit such child or prescribed by law, must be recognized as the supreme law in
descendant; succession. All rules of construction are designed to ascertain
and give effect to that intention. It is only when the intention of
(6) Maltreatment of the testator by word or deed, by the testator is contrary to law, morals, or public policy that it
the child or descendant;8 cannot be given effect.11
(7) When a child or descendant leads a dishonorable Holographic wills, therefore, being usually prepared by one
or disgraceful life; who is not learned in the law, as illustrated in the present case,
should be construed more liberally than the ones drawn by an
(8) Conviction of a crime which carries with it the expert, taking into account the circumstances surrounding the
penalty of civil interdiction. execution of the instrument and the intention of the
testator.12 In this regard, the Court is convinced that the
document, even if captioned as Kasulatan ng Pag-Aalis ng
Now, the critical issue to be determined is whether the
Mana, was intended by Segundo to be his last testamentary
document executed by Segundo can be considered as a
act and was executed by him in accordance with law in the
holographic will.
form of a holographic will. Unless the will is probated,13 the
disinheritance cannot be given effect.14
A holographic will, as provided under Article 810 of the Civil
Code, must be entirely written, dated, and signed by the hand
With regard to the issue on preterition,15 the Court believes SO ORDERED.
that the compulsory heirs in the direct line were not preterited
in the will. It was, in the Court’s opinion, Segundo’s last
expression to bequeath his estate to all his compulsory heirs,
with the sole exception of Alfredo. Also, Segundo did not
institute an heir16 to the exclusion of his other compulsory
heirs. The mere mention of the name of one of the petitioners,
Virginia, in the document did not operate to institute her as the
universal heir. Her name was included plainly as a witness to
the altercation between Segundo and his son, Alfredo.1âwphi1
No costs.
[G.R. No. 48840. December 29, 1943.] of the estate in accordance with that will without first securing
its allowance or probate of the court: first, because the law
ERNESTO M. GUEVARA, Petitioner-Appellant, v. ROSARIO expressly provides that "no will shall pass either real or
GUEVARA and her husband PEDRO personal estate unless it is proved and allowed in the proper
BUISON, Respondents-Appellees. court" ; and, second, because the probate of a will, which is a
proceeding in rem, cannot be dispensed with and substituted
Primicias, Abad, Mencias & Castillo for Appellant. by any other proceeding, judicial or extrajudicial, without
offending against public policy designed to effectuate the
Pedro C. Quinto for Appellees. testator’s right to dispose of his property by will in accordance
with law and to protect the rights of the heirs and legatees
SYLLABUS under the will thru the means provided by law, among which
are the publication and the personal notices to each and all of
1. WILLS; PRESENTATION OF WILL FOR PROBATE IS said heirs and legatees. Nor may the court approve and allow
MANDATORY; SETTLEMENT OF ESTATE ON BASIS OF the will presented in evidence in such an action for partition,
INTESTACY WHEN DECEDENT LEFT A WILL, AGAINST which is one in personam, any more than it could decree the
THE LAW. — We hold that under section 1 of Rule 74, in registration under the Torrens system of the land involved in
relation to Rule 76, if the decedent left a will and no debts and an ordinary action for reivindicacion or partition.
the heirs and legatees desire to make an extrajudicial partition
of the estate, they must first present that will to the court for 3. TORRENS REGISTRATION; REGISTRATION DOES NOT
probate and divide the estate in accordance with the will. They AFFECT RIGHTS OF PARTITION BETWEEN LEGATEES. —
may not disregard the provisions of the will unless those It results that the interested parties consented to the
provisions are contrary to law. Neither may they do away with registration of the land in question in the name of E. M. G.
the presentation of the will to the court for probate, because alone subject to the implied trust on account of which he is
such suppression of the will is contrary to law and public under obligation to deliver and convey to them their
policy. The law enjoins the probate of the will and public policy corresponding shares after all the debts of the original owner
requires it, because unless the will is probated and notice of said land had been paid. Such finding does not constitute a
thereof given to the whole world, the right of a person to reversal of the decision and decree of registration, which
dispose of his property by will may be rendered nugatory, as is merely confirmed the petitioner’s title; and in the absence of
attempted to be done in the instant case. Absent legatees and any intervening innocent third party, the petitioner may be
devisees, or such of them as may have no knowledge of the compelled to fulfill the promise by virtue of which he acquired
will, could be cheated of their inheritance thru the collusion of his title. That is authorized by section 70 of the Land
some of the heirs who might agree to the partition of the estate Registration Act, cited by the Court of Appeals, and by the
among themselves to the exclusion of others. decision of this Court in Severino v. Severino, 44 Phil., 343,
and the cases therein cited.
2. ID.; ID.; ID. — Even if the decedent left no debts and
nobody raises any question as to the authenticity and due
execution of the will, none of the heirs may sue for the partition
DECISION Guevara y Ernesto M. Guevara y a mis hijastros, Vivencio,
Eduviges, Dionisia, Candida y Pio, apellidados Guevara," a
residential lot with its improvements situate in the town of
OZAETA, J.: Bayambang, Pangasinan, having an area of 960 square
meters and assessed at P540; to his wife Angustia Posadas
he confirmed the donation propter nuptias theretofore made by
Ernesto M. Guevara and Rosario Guevara, legitimate son and him to her of a portion of 25 hectares of the large parcel of
natural daughter, respectively, of the deceased Victorino L. land of 259-odd hectares described in plan Psu-66618. He
Guevara, are litigating here over their inheritance from the also devised to her a portion of 5 hectares of the same parcel
latter. The action was commenced on November 12, 1937, by of land by way of complete settlement of her usufructuary
Rosario Guevara to recover from Ernesto Guevara what she right.
claims to be her strict ligitime as an acknowledged natural
daughter of the deceased — to wit, a portion of 423,492 He set aside 100 hectares of the same parcel of land to be
square meters of a large parcel of land described in original disposed of either by him during his lifetime or by his attorney-
certificate of title No. 51691 of the province of Pangasinan, in-fact Ernesto M. Guevara in order to pay all his pending
issued in the name of Ernesto M. Guevara — and to order the debts and to defray his expenses and those of his family up to
latter to pay her P6,000 plus P2,000 a year as damages for the time of his death.
withholding such legitime from her. The defendant answered
the complaint contending that whatever right or rights the The remander of said parcel of land he disposed of in the
plaintiff might have had, had been barred by the operation of following manner:jgc:chanrobles.com.ph
law.
"(d). — Toda la porcion restante de mi terreno arriba descrito,
It appears that on August 26, 1931, Victorino L. Guevara de la extension superficial aproximada de ciento veintinueve
executed a will (exhibit A), apparently with all the formalities of (129) hectareas setenta (70) areas, y veinticinco (25)
the law, wherein he made the following bequests: To his centiareas, con todas sus mejoras existentes en la misma,
stepdaughter Candida Guevara, a pair of earrings worth P150 dejo y distribuyo, pro-indiviso, a mis siguientes herederos
and a gold chain worth P40; to his son Ernesto M. Guevara, a como sigue:jgc:chanrobles.com.ph
gold ring worth P180 and all the furniture, pictures, statues,
and other religious objects found in the residence of the "A mi hijo legitimo, Ernesto M. Guevara, ciento ocho (108)
testator in Poblacion Sur, Bayambang, Pangasinan; "a mi hija hectareas, ocho (8) areas y cincuenta y cuatro (54) centiareas,
Rosario Guevara," a pair of earrings worth P120; to his hacia la parte que colinda al Oeste de las cien (100) hectareas
stepson Pio Guevara, a ring worth P120; and to his wife by referidas en el inciso (a) de este parrafo del testamento, como
second marriage, Angustia Posadas, various pieces of jewelry su propiedad absoluta y exclusiva, en la cual extension
worth P1,020. superficial estan incluidas cuarenta y tres (43) hectareas,
veintitres (23) areas y cuarenta y dos (42) centiareas que le
He also made the following devises: "A mis hijos Rosario doy en concepto de mejora.
been commenced on November 1, 1932, by Victorino L.
"A mi hija natural reconocida, Rosario Guevara, veintiun (21) Guevara and Ernesto M. Guevara as applicants, with Rosario,
hectareas, sesenta y un (61) areas y setenta y un (71) among others, as oppositor; but before the trial of the case
centiareas, que es la parte restante. Victorino L. Guevara withdrew as applicant and Rosario
Guevara and her co-oppositors also withdrew their opposition,
"Duodecimo. — Nombro por la presente como Albacea thereby facilitating the issuance of the title in the name of
Testamentario a mi hijo Ernesto M. Guevara, con relevacion Ernesto M. Guevara alone.
de fianza. Y una vez legalizado este testamento, y en cuanto
sea posible, es mi deseo, que los herederos y legatarios aqui On September 27, 1933, Victorino L. Guevara died. His last
nombrados se repartan extrajudicialmente mis bienes de will and testament, however, was never presented to the court
conformidad con mis disposiciones arriba consignadas."cralaw for probate, nor has any administration proceeding ever been
virtua1aw library instituted for the settlement of his estate. Whether the various
legatees mentioned in the will have received their respective
Subsequently, and on July 12, 1933, Victorino L. Guevara legacies or have even been given due notice of the execution
executed a deed of sale (exhibit 2) in favor of Ernesto M. of said will and of the dispositions therein made in their favor,
Guevara whereby he conveyed to him the southern half of the does not affirmatively appear from the record of this case.
large parcel of land of which he had theretofore disposed by Ever since the death of Victorino L. Guevara, his only
the will above mentioned, in consideration of the sum of P1 legitimate son Ernesto M. Guevara appears to have
and other valuable considerations, among which were the possessed the land adjudicated to him in the registration
payment of all his debts and obligations amounting to not less proceeding and to have disposed of various portions thereof
than P16,500, his maintenance up to his death, and the for the purpose of paying the debts left by his father.
expenses of his last illness and funeral expenses. As to the
northern half of the same parcel of land, he declared: "Hago In the meantime Rosario Guevara, who appears to have had
constar tambien que reconozco a mi referido hijo Ernesto M. her father’s last will and testament in her custody, did nothing
Guevara como dueño de la mitad norte de la totalidad y judicially to invoke the testamentary dispositions made therein
conjunto de los referidos terrenos por haberlos comprado de in her favor, whereby the testator acknowledged her as his
su propio peculio del Sr. Rafael T. Puzon a quien habia natural daughter and, aside from certain legacies and
vendido con anterioridad."cralaw virtua1aw library bequests, devised to her a portion of 21.6171 hectares of the
large parcel of land described in the will. But a little over four
On September 27, 1933, final decree of registration was years after the testator’s demise, she (assisted by her
issued in land registration case No. 15174 of the Court of First husband) commenced the present action against Ernesto M.
Instance of Pangasinan, and pursuant thereto original Guevara alone for the purpose hereinbefore indicated; and it
certificate of title No. 51691 of the same province was issued was only during the trial of this case that she presented the will
on October 12 of the same year in favor of Ernesto M. to the court, not for the purpose of having it probated but only
Guevara over the whole parcel of land described in the deed to prove that the deceased Victorino L. Guevara had
of sale above referred to. The registration proceeding had acknowledged her as his natural daughter. Upon that proof of
acknowledgment she claimed her share of the inheritance "Sec. 627. Executor to Present Will and Accept or Refuse
from him, but on the theory or assumption that he died Trust. — A person named as executor in a will, shall within
intestate, because the will had not been probated, for which thirty days after he knows of the death of the testator, or within
reason, she asserted, the betterment therein made by the thirty days after he knows that he is named executor, if he
testator in favor of his legitimate son Ernesto M. Guevara obtained such knowledge after knowing of the death of the
should be disregarded. Both the trial court and the Court of testator, present such will to the court which has jurisdiction,
Appeals sustained that theory. unless the will has been otherwise returned to said court, and
shall, within such period, signify to the court his acceptance of
Two principal questions are before us for determination: (1) the the trust, or make known in writing his refusal to accept it.
legality of the procedure adopted by the plaintiff (respondent
herein) Rosario Guevara; and (2) the efficacy of the deed of "Sec. 628. Penalty. — A person who neglects any of the duties
sale exhibit 2 and the effect of the certificate of title issued to required in the two preceding sections, unless he gives a
the defendant (petitioner herein) Ernesto M. Guevara. satisfactory excuse to the court, shall be subject to a fine not
exceeding one thousand dollars.
I
"Sec. 629. Person Retaining Will may be Committed. — If a
person having custody of a will after the death of the testator
We cannot sanction the procedure adopted by the respondent neglects without reasonable cause to deliver the same to the
Rosario Guevara, it being in our opinion in violation of court having jurisdiction, after notice by the court so to do, he
procedural law and an attempt to circumvent and disregard the may be committed to the prison of the province by a warrant
last will and testament of the decedent. The Code of Civil issued by the court, and there kept in close confinement until
Procedure, which was in force up to the time this case was he delivers the will."cralaw virtua1aw library
decided by the trial court, contains the following pertinent
provisions:jgc:chanrobles.com.ph The foregoing provisions are now embodied in Rule 76 of the
new Rules of Court, which took effect on July 1, 1940.
"Sec. 625. Allowance Necessary, and Conclusive as to
Execution. — No will shall pass either the real or personal The proceeding for the probate of a will is one in rem, with
estate, unless it is proved and allowed in the Court of First notice by publication to the whole world and with personal
Instance, or by appeal to the Supreme Court; and the notice to each of the known heirs, legatees, and devisees of
allowance by the court of a will of real and personal estate the testator (section 630, C. C. P., and sections 3 and 4, Rule
shall be conclusive as to its due execution. 77). Altho not contested (section 5, Rule 77), the due
execution of the will and the fact that the testator at the time of
"Sec. 626. Custodian of Will to Deliver. — The person who has its execution was of sound and disposing mind and not acting
the custody of a will shall, within thirty days after he knows of under duress, menace, and undue influence or fraud, must be
the death of the testator, deliver the will into the court which proved to the satisfaction of the court, and only then may the
has jurisdiction, or to the executor named in the will. will be legalized and given effect by means of a certificate of
its allowance, signed by the judge and attested by the seal of virtua1aw library
the court; and when the will devises real property, attested
copies thereof and of the certificate of allowance must be Let us look into the validity of these considerations. Section 1
recorded in the register of deeds of the province in which the of Rule 74 provides as follows:jgc:chanrobles.com.ph
land lies. (Section 12, Rule 77, and section 624, C. C. P.)
"Section 1. Extrajudicial settlement by agreement between
It will readily be seen from the above provisions of the law that heirs. — If the decedent left no debts and the heirs and
the presentation of a will to the court for probate is mandatory legatees are all of age, or the minors are represented by their
and its allowance by the court is essential and indispensable judicial guardians, the parties may, without securing letters of
to its efficacy. To assure and compel the probate of a will, the administration, divide the estate among themselves as they
law punishes a person who neglects his duty to present it to see fit by means of a public instrument filed in the office of the
the court with a fine not exceeding P2,000, and if he should register of deeds, and should they disagree, they may do so in
persist in not presenting it, he may be committed to prison and an ordinary action of partition. If there is only one heir or one
kept there until he delivers the will. legatee, he may adjudicate to himself the entire estate by
means of an affidavit filed in the office of the register of deeds.
The Court of Appeals took express notice of these It shall be presumed that the decedent left no debts if no
requirements of the law and held that a will, unless probated, creditor files a petition for letters of administration within two
is ineffective. Nevertheless it sanctioned the procedure years after the death of the decedent."cralaw virtua1aw library
adopted by the respondent for the following
reasons:jgc:chanrobles.com.ph That is a modification of section 596 of the Code of Civil
Procedure, which reads as follows:jgc:chanrobles.com.ph
"The majority of the Court is of the opinion that if this case is
dismissed ordering the filing of testate proceedings, it would "Sec. 596. Settlement of Certain Intestates Without Legal
cause injustice, inconvenience, delay, and much expense to Proceedings. — Whenever all the heirs of a person who died
the parties, and that therefore, it is preferable to leave them in intestate are of lawful age and legal capacity and there are no
the very status which they themselves have chosen, and to debts due from the estate, or all the debts have been paid the
decide their controversy once and for all, since, in a similar heirs may, by agreement duly executed in writing by all of
case, the Supreme Court applied that same criterion (Leaño v. them, and not otherwise, apportion and divide the estate
Leaño, supra), which is now sanctioned by section 1 of Rule among themselves, as they may see fit, without proceedings in
74 of the Rules of Court. Besides, section 6 of Rule 124 court."cralaw virtua1aw library
provides that, if the procedure which the court ought to follow
in the exercise of its jurisdiction is not specifically pointed out The implication is that by the omission of the word "intestate"
by the Rules of Court, any suitable process or mode of and the use of the word "legatees" in section 1 of Rule 74, a
procedure may be adopted which appears most consistent to summary extrajudicial settlement of a deceased person’s
the spirit of the said Rules. Hence, we declare the action estate, whether he died testate or intestate, may be made
instituted by the plaintiff to be in accordance with law."cralaw under the conditions specified. Even if we give retroactive
effect to section 1 of Rule 74 and apply it here, as the Court of In the instant case there is no showing that the various
Appeals did, we do not believe it sanctions the legatees other than the present litigants had received their
nonpresentation of a will for probate and much less the respective legacies or that they had knowledge of the
nullification of such will thru the failure of its custodian to existence and of the provisions of the will. Their right under the
present it to the court for probate; for such a result is precisely will cannot be disregarded, nor may those rights be obliterated
what Rule 76 sedulously provides against. Section 1 of Rule on account of the failure or refusal of the custodian of the will
74 merely authorizes the extrajudicial or judicial partition of the to present it to the court for probate.
estate of a decedent "without securing letters of
administration." It does not say that in case the decedent left a Even if the decedent left no debts and nobody raises any
will the heirs and legatees may divide the estate among question as to the authenticity and due execution of the will,
themselves without the necessity of presenting the will to the none of the heirs may sue for the partition of the estate in
court for probate. The petition to probate a will and the petition accordance with that will without first securing its allowance or
to issue letters of administration are two different things, altho probate by the court, first, because the law expressly provides
both may be made in the same case. The allowance of a will that "no will shall pass either real or personal estate unless it is
precedes the issuance of letters testamentary or of proved and allowed in the proper court" ; and, second,
administration (section 4, Rule 78). One can have a will because the probate of a will, which is a proceeding in rem,
probated without necessarily securing letters testamentary or cannot be dispensed with and substituted by any other
of administration. We hold that under section 1 of Rule 74, in proceeding, judicial or extrajudicial, without offending against
relation to Rule 76, if the decedent left a will and no debts and public policy designed to effectuate the testator’s right to
the heirs and legatees desire to make an extrajudicial partition dispose of his property by will in accordance with law and to
of the estate, they must first present that will to the court for protect the rights of the heirs and legatees under the will thru
probate and divide the estate in accordance with the will. They the means provided by law, among which are the publication
may not disregard the provisions of the will unless those and the personal notices to each and all of said heirs and
provisions are contrary to law. Neither may they do away with legatees. Nor may the court approve and allow the will
the presentation of the will to the court for probate, because presented in evidence in such an action for partition, which is
such suppression of the will is contrary to law and public one in personam, any more than it could decree the
policy. The law enjoins the probate of the will and public policy registration under the Torrens system of the land involved in
requires it, because unless the will is probated and notice an ordinary action for reivindicacion or partition.
thereof given to the whole world, the right of a person to
dispose of his property by will may be rendered nugatory, as is We therefore believe and so hold that section 1 of Rule 74,
attempted to be done in the instant case. Absent legatees and relied upon by the Court of Appeals, does not sanction the
devisees, or such of them as may have no knowledge of the procedure adopted by the Respondent.
will, could be cheated of their inheritance thru the collusion of
some of the heirs who might agree to the partition of the estate The case of Leaño v. Leaño (25 Phil., 180), cited by the Court
among themselves to the exclusion of others. of Appeals, like section 1 of Rule 74, sanctions the
extrajudicial partition by the heirs of the properties left by a
decedent, but not the nonpresentation of a will for probate. In testamentary dispositions made by him by not presenting the
that case one Paulina Ver executed a will on October 11, will to the court for probate and by claiming her legitime as an
1902, and died on November 1, 1902. Her will was presented acknowledged natural child on the basis of intestacy; and that
for probate on November 10, 1902, and was approved and in the face of express mandatory provisions of the law
allowed by the Court on August 16, 1904. In the meantime, requiring her to present the will to the court for probate.
and on November 10, 1902, the heirs went ahead and divided
the properties among themselves and some of them In the subsequent case of Riosa v. Rocha (1926), 48 Phil. 737,
subsequently sold and disposed of their shares to third this Court departed from the procedure sanctioned by the trial
persons. It does not affirmatively appear in the decision in that court and impliedly approved by this Court in the Leaño case,
case that the partition made by the heirs was not in by holding that an extrajudicial partition is not proper in testate
accordance with the will or that they in any way disregarded succession. In the Riosa case the Court, speaking thru Chief
the will. In closing the case by its order dated September 1, Justice Avanceña, held:jgc:chanrobles.com.ph
1911, the trial court validated the partition, and one of the
heirs, Cunegunda Leaño, appealed. In deciding the appeal this "1. EXTRAJUDICIAL PARTITION; NOT PROPER IN TESTATE
Court said:jgc:chanrobles.com.ph SUCCESSION. — Section 596 of the Code of Civil Procedure,
authorizing the heirs of a person who died intestate to make
"The principal assignment of error is that the lower court extrajudicial partition of the property of the deceased, without
committed an error in deciding that the heirs and legatees of going into any court of justice, makes express reference to
the estate of Dña. Paulina Ver had voluntarily divided the intestate succession, and therefore excludes testate
estate among themselves."cralaw virtua1aw library succession.
In resolving that question this Court "2. ID.; EFFECTS OF; TESTATE SUCCESSION. — In the
said:jgc:chanrobles.com.ph instant case, which is a testate succession, the heirs made an
extrajudicial partition of the estate and at the same time
"In view of the positive finding of the judge of the lower court instituted proceeding for the probate of the will and the
that there had been a voluntary partition of the estate among administration of the estate. When the time came for making
the heirs and legatees, and in the absence of positive proof to the partition, they submitted to the court the extrajudicial
the contrary, we must conclude that the lower court had some partition previously made by them, which the court approved.
evidence to support its conclusion."cralaw virtua1aw library Held: That for the purposes of the reservation and the rights
and obligations created thereby, in connection with the
Thus it will be seen that as a matter of fact no question of law relatives benefited, the property must not be deemed
was raised and decided in that case. That decision cannot be transmitted to the heirs from the time the extrajudicial partition
relied upon as an authority for the unprecedented and unheard was made, but from the time said partition was approved by
of procedure adopted by the respondent whereby she seeks to the court." (Syllabus.)
prove her status as an acknowledged natural child of the
decedent by his will and attempts to nullify and circumvent the The Court of Appeals also cites section 6 of Rule 124, which
provides that if the procedure which the court ought to follow in
the exercise of its jurisdiction is not specifically pointed out by It is apparent that the defendant Ernesto M. Guevara, who was
the Rules of Court, any suitable process or mode of named executor in said will, did not take any step to have it
proceeding may be adopted which appears most conformable presented to the court for probate and did not signify his
to the spirit of the said Rules. That provision is not applicable acceptance of the trust or refusal to accept it as required by
here for the simple reason that the procedure which the court section 3 of Rule 76 (formerly section 627 of the Code of Civil
ought to follow in the exercise of its jurisdiction is specifically Procedure), because his contention is that said will, insofar as
pointed out and prescribed in detail by Rules 74, 76, and 77 of the large parcel of land in litigation is concerned, has been
the Rules of Court. superseded by the deed of sale exhibit 2 and by the
subsequent issuance of the Torrens certificate of title in his
The Court of Appeals also said "that if this case is dismissed, favor.
ordering the filing of testate proceedings, it would cause
injustice, inconvenience, delay, and much expense to the II
parties." We see no injustice in requiring the plaintiff not to
violate but to comply with the law. On the contrary, an injustice
might be committed against the other heirs and legatees This brings us to the consideration of the second question,
mentioned in the will if the attempt of the plaintiff to nullify said referring to the efficacy of the deed of sale exhibit 2 and the
will by not presenting it to the court for probate should be effect of the certificate of title issued to the defendant Ernesto
sanctioned. As to the inconvenience, delay, and expense, the M. Guevara. So that the parties may not have litigated here in
plaintiff herself is to blame because she was the custodian of vain insofar as that question is concerned, we deem it proper
the will and she violated the duty imposed upon her by to decide it now and obviate the necessity of a new action.
sections 2, 4, and 5 of Rule 76, which command her to deliver
said will to the court on pain of a fine not exceeding P2,000 The deed of sale exhibit 2 executed by and between Victorino
and of imprisonment for contempt of court. As for the L. Guevara and Ernesto M. Guevara before a notary public on
defendant, he is not complaining of inconvenience, delay, and July 12, 1933, may be divided into two parts: (a) insofar as it
expense, but on the contrary he is insisting that the procedure disposes of and conveys to Ernesto M. Guevara the southern
prescribed by law be followed by the plaintiff. half of Victorino L. Guevara’s hacienda of 259-odd hectares in
consideration of P1 and other valuable considerations therein
Our conclusion is that the Court of Appeals erred in declaring mentioned; and (b) insofar as it declares that Ernesto M.
the action instituted by the plaintiff to be in accordance with Guevara became the owner of the northern half of the same
law. It also erred in awarding relief to the plaintiff in this action hacienda by repurchasing it with his own money from Rafael T.
on the basis of intestacy of the decedent notwithstanding the Puzon.
proven existence of a will left by him and solely because said
will has not been probated due to the failure of the plaintiff as A. As to the conveyance of the southern half of the hacienda to
custodian thereof to comply with the duty imposed upon her by Ernesto M. Guevara in consideration of the latter’s assumption
the law. of the obligation to pay all the debts of the deceased, the Court
of Appeals found it to be valid and efficacious because:" (a) it
has not been proven that the charges imposed as a condition of the latter’s promise that after paying all the debts of their
is [are] less than the value of the property; and (b) neither has father, he would deliver to her and to the widow their
it been proven that the defendant did not comply with the corresponding shares. As their father then was still alive, there
conditions imposed upon him in the deed of transfer." As a was no reason to require the delivery of her share and that
matter of fact the Court of Appeals found: "It appears that the was why she did not insist on her opposition, trusting on the
defendant has been paying the debts left by his father. To reliability and sincerity of her brother’s promise. The evidence
accomplish this, he had to alienate considerable portions of shows that such promise was really made. The registration of
the above-mentioned land. And we cannot brand such land under the Torrens system does not have the effect of
alienation as anomalous unless it is proven that they have altering the laws of succession, or the rights of partition
exceeded the value of what he has acquired by virtue of the between coparceners, joint tenants, and other cotenants nor
deed of July 12, 1933, and that of his corresponding share in does it change or affect in any other way any other rights and
the inheritance." The finding of the Court of Appeals on this liabilities created by law and applicable to unregistered land
aspect of the case is final and conclusive upon the (sec. 70, Land Registration Law). The plaintiff is not, then, in
respondent, who did not appeal therefrom. estoppel, nor can the doctrine of res judicata be invoked
against her claim. Under these circumstances, she has the
B. With regard to the northern half of the hacienda, the right to compel the defendant to deliver her corresponding
findings of fact and of law made by the Court of Appeals are as share in the estate left by the deceased, Victorino L.
follows:jgc:chanrobles.com.ph Guevara."cralaw virtua1aw library
"The defendant has tried to prove that with his own money, he In his tenth to fourteenth assignments of error the petitioner
bought from Rafael Puzon one-half of the land in question, but assails the foregoing findings of the Court of Appeals. But the
the Court a quo, after considering the evidence, found it not findings of fact made by said court are final and not reviewable
proven; we hold that such conclusion is well founded. The by us on certiorari. The Court of Appeals found that the money
acknowledgment by the deceased, Victorino L. Guevara, of with which the petitioner repurchased the northern half of the
the said transactions, which was inserted incidentally in the land in question from Rafael Puzon was not his own but his
document of July 12, 1933, is clearly belied by the fact that the father’s, it being the proceeds of the sale of a parcel of land
money paid to Rafael Puzon came from Silvestre P. Coquia, to made by the latter to Silvestre P. Coquia. Said court also found
whom Victorino L. Guevara had sold a parcel of land with the that the respondent withdrew her opposition to the registration
right of repurchase. The defendant, acting for his father, of the land in the name of the petitioner upon the latter’s
received the money and delivered it to Rafael Puzon to promise that after paying all the debts of their father he would
redeem the land in question, and instead of executing a deed deliver to her and to the widow their corresponding shares.
of redemption in favor of Victorino L. Guevara, the latter From these facts, it results that the interested parties
executed a deed of sale in favor of the defendant. consented to the registration of the land in question in the
name of Ernesto M. Guevara alone subject to the implied trust
"The plaintiff avers that she withdrew her opposition to the on account of which he is under obligation to deliver and
registration of the land in the name of the defendant, because convey to them their corresponding shares after all the debts
of the original owner of said land had been paid. Such finding exhibit A to the proper court for probate in accordance with
does not constitute a reversal of the decision and decree of law, without prejudice to such action as the provincial fiscal of
registration, which merely confirmed the petitioner’s title; and Pangasinan may take against the responsible party or parties
in the absence of any intervening innocent third party, the under section 4 of Rule 76. After the said document is
petitioner may be compelled to fulfill the promise by virtue of approved and allowed by the court as the last will and
which he acquired his title. That is authorized by section 70 of testament of the deceased Victorino L. Guevara, the heirs and
the Land Registration Act, cited by the Court of Appeals, and legatees therein named may take such action, judicial or
by the decision of this Court in Severino v. Severino, 44 Phil., extrajudicial, as may be necessary to partition the estate of the
343, and the cases therein cited. testator, taking into consideration the pronouncements made
in part II of this opinion. No finding as to costs in any of the
Upon this phase of the litigation, we affirm the finding of the three instances.
Court of Appeals that the northern half of the land described in
the will exhibit A and in original certificate of title No. 51691 still Yulo, C.J., and Hontiveros, 1 J., concur.
belongs to the estate of the deceased Victorino L. Guevara. In
the event the petitioner Ernesto M. Guevara has alienated any Separate Opinions
portion thereof, he is under obligation to compensate the
estate with an equivalent portion from the southern half of said
land that has not yet been sold. In other words, to the estate of BOCOBO, J., concurring:chanrob1es virtual 1aw library
Victorino L. Guevara still belongs one half of the total area of
the land described in said original certificate of title, to be I concur in the result. Extrajudicial settlement by agreement
taken from such portions as have not yet been sold by the among the heirs is authorized by section 1 of Rule 74 only "if
petitioner, the other half having been lawfully acquired by the the decedent left no debts." In this case, according to the
latter in consideration of his assuming the obligation to pay all findings of the Court of Appeals, Ernesto M. Guevara "has
the debts of the deceased. been paying the debts left by his father." It is true that said
Ernesto M. Guevara, in consideration of the conveyance to
Wherefore, that part of the decision of the Court of Appeals him of the southern half of the hacienda, assumed all the
which declares in effect that notwithstanding exhibit 2 and the debts of the deceased, but this agreement is binding only upon
issuance of original certificate of title No. 51691 in the name of the parties to the contract but not upon the creditors who did
Ernesto M. Guevara, one half of the land described in said not consent thereto. (Art. 1205, Civil Code.) There being debts
certificate of title belongs to the estate of Victorino L. Guevara when the father died, section 1 of Rule 74 is not applicable.
and the other half to Ernesto M. Guevara in consideration of
the latter’s assumption of the obligation to pay all the debts of MORAN, J., concurring in part and dissenting in
the deceased, is hereby affirmed; but the judgment of said part:chanrob1es virtual 1aw library
court insofar as it awards any relief to the respondent Rosario
Guevara in this action is hereby reversed and set aside, and I would be agreeable to the majority decision but for a
the parties herein are hereby ordered to present the document statement therein made which in my view repeals by an
erroneous interpretation the provisions of Rule 74, section 1,
of the Rules of Court, which reads as executed in writing by all of them, and not otherwise, apportion
follows:jgc:chanrobles.com.ph and divide the estate among themselves, as they may see fit,
without proceedings in court."cralaw virtua1aw library
"EXTRAJUDICIAL SETTLEMENT BY AGREEMENT
BETWEEN HEIRS. — If the decedent left no debts and the It must be observed that the procedure contemplated in this
heirs and legatees are all of age, or the minors are legal provision is completely extrajudicial and the same
represented by their judicial guardians, the parties may, procedure intended in section 1 of Rule 74 above quoted
without securing letters of administration, divide the estate which is captioned "Extrajudicial Settlement by Agreement . . ."
among themselves as they see fit by means of a public Justice Laurel, who was one of the members of this Court
instrument filed in the office of the register of deeds, and when the new Rules were promulgated, in commenting upon
should they disagree, they may do so in an ordinary action of Rule 74, said:jgc:chanrobles.com.ph
partition. If there is only one heir or one legatee, he may
adjudicate to himself the entire estate by means of an affidavit "RULE 74. SUMMARY SETTLEMENT OF ESTATES. — The
filed in the office of the register of deeds. It shall be presumed corresponding provisions in the Code of Civil Procedure are
that the decedent left no debts if no creditor files a petition for sections 596-598. There is substantial analogy between the
letters of administration within two years after the death of the provisions of the Code of Civil Procedure and those of Rule
decedent."cralaw virtua1aw library 74, save that: (1) Under section 1 of Rule 74, there may be
extrajudicial settlement whether a person died testate or
The majority holds that under this provision, the heirs and intestate, while under section 596 of the Code of Civil
legatees, even if all of them are of age, and there are no debts Procedure extrajudicial settlement can be had only when a
to be paid, cannot make an extrajudicial settlement of the person died intestate. (2) Under Rule 74, section 1,
estate left by the decedent without first submitting in court for extrajudicial settlement may take place ’if the decedent left no
probate the will left by the testator. This erroneous debts,’ while under section 596 of the Code of Civil Procedure
interpretation clearly overlooks not only the letter and the spirit it may take place ’when there are no debts due from the
but more specially the whole background of the provision. estate, or all the debts have been paid.’ (3) Under section 596
of the Code of Civil Procedure, extrajudicial settlement may
It is admitted that the provision has been taken from section take place when all the heirs are of lawful age and legal
596 of Act No. 190 but with a modification consisting in that it capacity, while under section 1 of Rule 74 it may take place
is made to apply in testate succession. Said section 596 when ’the heirs and legatees are all of legal age, or the minors
reads:jgc:chanrobles.com.ph are represented by their judicial guardians’. (4) Unlike the
Code of Civil Procedure, section 596, section 1 of Rule 74
"SETTLEMENT OF CERTAIN INTESTATE ESTATES requires the extrajudicial agreement to be filed in the office of
WITHOUT LEGAL PROCEEDINGS. — Whenever all the heirs the register of deeds; provides that should the heirs disagree,
of a person who died intestate are of lawful age and legal ’they may do so in an ordinary action of partition’, and that ’if
capacity, and there are no debts due from the estate, or all the there is only one heir or one legatee, he may adjudicate to
debts have been paid the heirs may, by agreement duly himself the entire estate by means of an affidavit filed in the
office of the register of deeds’, and that ’it shall be presumed country."cralaw virtua1aw library
that the decedent left no debts if no creditor files a petition for
letters of administration within two years after the death of the If judicial administration and distribution is made unnecessary
decedent.’" [(Italics mine); Laurel, Procedural Reform in the by section 1 of Rule 74, then, I repeat, the probate of the will
Philippines, pp. 137-138]. being purposeless, becomes unnecessary. If the parties have
already divided the estate in accordance with the will, the
The phrase "extrajudicial settlement" unquestionably means probate of the will is a useless ceremony. If they have divided
liquidation and distribution of the estate without judicial the estate in a different manner, the probate of the will is worse
proceeding. In other words, even in cases of testate than useless; it is ridiculous. The following words of this Court
succession, the heirs and legatees, when they are all of age or in a previous case may well be here
are represented by their judicial guardians, and there are no reiterated:jgc:chanrobles.com.ph
debts to be paid, are allowed by section 1 of Rule 74 of the
Rules of Court to liquidate and distribute among themselves "These sections provide for the voluntary division of the whole
the estate left by the decedent and need not go to court even property of the decedent without proceedings in court. The
for the probate of the will. Unless legal terms mean nothing, provisions which they contain are extremely important. The
this is clearly what is meant in said provision by the words wisdom which underlies them is apparent. It is the undisputed
"extrajudicial settlement" and by the clause." . . the parties policy of every people which maintains the principle of private
may, without securing letters of administration, divide the ownership of property that he who owns a thing shall not be
estate among themselves as they see fit." . . When judicial deprived of its possession or use except for the most urgent
administration is made unnecessary by the provision, the and imperative reasons and then only so long as is necessary
inevitable implication is that the probate of the will is also to make the rights which underlie those reasons effective. It is
unnecessary, the probate having no other object than a principle of universal acceptance which declares that one
administration for purposes of distribution according to the has the instant right to occupy and use that which he owns,
provisions of the will. That is why section 4 of Rule 78 and it is only in the presence of reasons of the strongest and
provides:jgc:chanrobles.com.ph most urgent nature that that principle is prevented from
accomplishing the purpose which underlies it. The force which
"ESTATE, HOW ADMINISTERED. — When a will is thus gave birth to this stern and imperious principle is the same
allowed, the court shall grant letters testamentary, or letters of force which destroyed the feudal despotism and created the
administration with the will annexed, and such letters democracy of private owners.
testamentary or of administration shall extend to all the estate
of the testator in the Philippines. Such estate, after the "These provisions should, therefore, be given the most liberal
payment of just debts and expenses of administration, shall be construction so that the intent of the framers may be fully
disposed of according to such will, so far as such will may carried out. They should not be straitened or narrowed but
operate upon it; and the residue, if any, shall be disposed of as should rather be given that wideness and fullness of
is provided by law in cases of estates in the Philippines application without which they cannot produce their most
belonging to persons who are inhabitants of another state or beneficial effects.
accordance therewith, because as soon as the routine is over,
". . . The purpose which underlies them, as we have already they are of course free to make such transfers to one another
intimated, is to put into one’s hands the property which as will be necessary to effect a partition which they would have
belongs to him not only at the earliest possible moment but made if they were allowed to settle the estate extrajudicially. It
also with the least possible expense. By permitting the is true that there are provisions in the Rules of Court
partition and division without proceedings in court no time is compelling the delivery of a will to the competent court and
lost and substantially all expense and waste are saved. This is punishing omissions to do so, but said provisions are
as it should be. The State fails wretchedly in its duty to its calculated to protect the interests of the persons entitled to
citizens if the machinery furnished by it for the division and share in the inheritance. The latter may waive such benefit.
distribution of the property of a decedent is so cumbersome, This waiver cannot be said to be a withdrawal or diminution of
unwieldly and expensive that a considerable portion of the the jurisdiction of the court, since it only implies a desire of the
estate is absorbed in the process of such division.." . . parties not to litigate. The fear that "absent legatees and
(McMicking v. Sy Conbieng, 21 Phil., 211; 219-220). devisees, or such of them as may have no knowledge of the
will, could be cheated of their inheritance thru the collusion of
Indeed, there can be no valid reason why the probate of a will some of the heirs who might agree to the partition of the estate
may not be dispensed with by agreement of all the parties among themselves to the exclusion of others", is wisely
interested and the estate left by the decedent settled provided against in the requirement of the Rule that all the
extrajudicially among all the heirs and legatees, as is now parties interested and all the beneficiaries under the will
provided in section 1 of Rule 74. It is well recognized that the should be parties to the extrajudicial settlement. The
allowance of a will gives conclusiveness merely to its due participation of all the interested parties excludes the
execution, but not to the intrinsic validity of its provisions which probability of fraud or collusion and, even in that eventuality,
are governed by the substantive law regarding descent and the aggrieved beneficiaries are not without adequate remedy
distribution. If so, why cannot all the parties interested agree, for the voidance of the partition under the Civil Code.
without going to court, that the will of the decedent is in form
valid (this being the only point to be litigated in a probate And this is in accordance with the weight of authority in this
proceeding), and that they will divide the inheritance in the and other jurisdictions. In Leaño v. Leaño (25 Phil., 180), all
manner acceptable to them? The procedure would not be the heirs and legatees have made an extrajudicial partition of
against public policy or the law placing in the hands of the the estate left by the decedent and then filed the will in court
courts the probate of wills, because what the courts are which was probated. Nine years of costly probate proceedings
enjoined to do for the benefit of the parties, the latter have have followed after which the extrajudicial partition was made
already done. As long as the extrajudicial partition of the estate known to court. Such extrajudicial partition was objected to by
does not affect the rights of third parties and is not rendered one party upon the ground that it was not in conformity with
invalid by any provision of the substantive law, no possible the provisions of the will. But the trial Court
objection can be raised thereto. On practical considerations, it held:jgc:chanrobles.com.ph
would be useless to force the parties, at their expense, to go
thru the formality of probating a will and dividing the estate in "Naturally the partition made by the heirs voluntarily and
spontaneously must produce and has produced a legal status, pass unnoticed to the members of this Court who drafted the
which cannot be annulled merely for the caprice of one new Rules of Court. The solemn admonition made by this
person. And it cannot be said that, because the partition was Court in a previous case (McMicking v. Sy Conbieng, supra)
not made in accordance with the will, if such be the case, the when it said that "the State fails wretchedly in its duty to its
latter has to be annulled, for by voluntarily and spontaneously citizens if the machinery furnished by it for the division and
concurring therein they implicitly renounced the effects of said distribution of the property of a decedent is so cumbersome,
will, of which they were aware." (See p. 183). unwieldly and expensive that a considerable portion of the
estate is absorbed in the process of such division", rang with
On appeal, this Court affirmed the ruling with the following re-echoing insistence and was heeded to when the new Rules
pronouncement:jgc:chanrobles.com.ph of Court was drafted and promulgated. The fundamental policy
pervading the whole system of procedure adopted in said
"In view of the positive finding of the judge of the lower court Rules is speed, economy and justice. Thus, features of
that there had been a voluntary partition of the estate among procedure were done away with when, without them, the same
the heirs and legatees and in the absence of positive proof to purpose may be achieved. The result is brevity and simplicity
the contrary, we must conclude that the lower court had some of procedure with such guarantees as are necessary to assure
evidence to support his conclusion. If the heirs and legatees due process. And to remedy such evil as is disclosed in the
had voluntarily divided the estate among themselves, then Leaño case, a completely extrajudicial settlement is allowed
their division is conclusive, unless and until it is shown that even in testate succession with the probate of the will
there were debts existing against the estate which had not dispensed with, when the heirs and legatees who are all of
been paid. No claim is made whatever by third parties nor age or represented by their judicial guardians, so agree, and
objections of any character are made by others than the heirs there are no debts to be paid. Thus, the scope of section 596
against said partition. We see no reason why the heirs and of Act No. 190 was amplified and with it the ruling of this Court
legatees should not be bound by their voluntary acts." (Pages in Riosa v. Rocha (48 Phil. 737). The procedure is in
183-184). consonance with the almost unanimous weight of authority in
other jurisdictions:jgc:chanrobles.com.ph
This case furnishes precisely a valuable experience as to the
practical wisdom underlying the procedure established in "The complaint, to which a demurrer was sustained, shows
section 1 of Rule 74. After the will was probated and after nine that all the persons interested in a decedent’s estate, as
years of costly administration proceedings, nothing — widow, heirs, distributees, legatees, or devisees, including the
absolutely nothing — was accomplished by the court except to person appointed executrix by the will, and the husbands of
make the belated pronouncement that the extrajudicial femes covert, (all being adults), by agreement divided among
partition made by the parties prior to the institution of the themselves all the property of the estate according to the
proceedings was proper and binding upon them. Thus, the direction of the will, paid off all debts against the estate, and
whole proceedings for nine years have proved no more than a delivered the note described to the plaintiff, as a part of her
futile chronicle of wasted time and money for the parties and share; and all this was done without probate of the will, or
the court. This disgraceful experience could not and did not administration of the estate. The effect of such a division was
to invest the plaintiff with an equitable title to the note. In the and their contract is otherwise free from contemplated fraud or
absence of the will, the decisions of this court, heretofore violation of any law, no one else has any such interest as
made, would meet every argument in favor of an opposite warrants complaint. Such was the character of contract
conclusion. (Anderson v. Anderson, 37 Ala., 683; Marshall v. involved in Spangenberg v. Spangenberg (App.) , 126 Pac.,
Crow, 29 Ala., 278; Vanderveer v. Alston, 16 Ala., 494; Miller v. 379, especially relied on by plaintiff here, where the contract
Eatman, 11 Ala., 609). Does the presence of an unprobated purported to affect only such property of the deceased as
will, as a feature of this case, take it out of the principle of should in fact be received by the parties thereto. In Estate of
those decisions? We can perceive no sufficient reason why it Garcelon, 104 Cal., 570; 38 Pac., 414; 32 L. R. A., 595; 43
should. All the parties interested, or to be affected, may as well Am. St. Rep., 134, another case much relied on by plaintiff, a
by agreement divide property, where there is a will, without contract by an heir to refrain from contesting a will was
employing the agency of courts, as in case of intestacy. involved. It was said that the contract was one that concerned
Parties, competent to act, ought to do that, without the agency the parties alone, and one that did not appear to be against
of courts, which the courts would ultimately accomplish. To public policy." (Gugolz v. Gehrkens, 130 Pac. Rep., 8, 10; 164
deny them the privilege of so doing, would manifest a judicial Cal., 596).
abhorrence of harmony. By the probate of the will, the claims
of heirs and distributees, and of the widow, would have been "The question of public policy is introduced. The disposition of
subordinated to the directions of the will. This has been one’s property after death is controlled by statute. One of the
accomplished by agreement. There being no debts, the next of kin has no vested interest in such property. In cases of
executrix would have had no other duty to perform, than to intestacy, a next of kin has such interest as the statute
divide the property according to the will. This, too, has been declares. In case there is a will, he has an interest which gives
done by agreement of competent parties. All the ends and him a standing and right to contest the will. This right is his
objects of judicial proceedings have been accomplished, by alone; in it the public has no interest; he may refrain from
agreement of the parties; and that agreement must be exercising it, or he may dispose of it as he wishes, by release
effective." (Carter v. Owens, 41 Ala., 215; 216-217). or assignment or settlement, and the law of public policy is not
of offended." (In re Cook’s Will, 217 N. Y. S., 176, 180-181).
"The absence of sound objection on this ground to a contract
having for its sole purpose the disposition of property in a "Agreement. — ’It has been definitely decided by the courts of
manner different from that proposed by a testator, even where this state, and of many other states, that the beneficiaries
the contract contemplates the rejection of the will when offered under a will have a right to agree among themselves upon any
for probate or its setting aside when admitted to probate, when distribution they see proper of the property bequeathed to
it is entirely free from fraud, and is made by all the parties in them . . . That holding is based upon the proposition that the
interest, may be freely conceded. As has often been property is theirs. No one else is interested in its disposition,
substantially said, the public generally has no interest in the and they may, with propriety, make any distribution of it that
matter of the probate of a will; and only those interested in the suits them, so long as they do not invade the rights of other
estate under the will or otherwise are affected by such a parties or infringe some rule of public policy’." (Fore v.
contract. If they all agree upon some course to be followed, McFadden, 276 N. W., 327; 329).
the legatees." (Stringfellow v. Early, 40 SW. 871, 873-874; 15
"The first assignment of error presented by appellants Tex. Civ. App., 597).
complains of the action of the court in sustaining exceptions to
averments asking the enforcement of the agreement that the "The contention that the complaint does not state a cause of
will should not be probated, and that the estate should be action, because the contract sued on is against public policy,
divided among the parties as they would be entitled as heirs at and therefore void, is made here for the first time. It is to the
law of the deceased, the proponent of the will surrendering interest of the public generally that the right to make contract
thereby his rights as principal legatee. This assignment must should not be unduly restricted, and no agreement will be
be sustained. It cannot be seen that the agreement is contrary pronounced void, as being against public policy, unless it
to public policy. Parties may make any contract with reference clearly contravenes that which has been declared by statutory
to their property rights that is not illegal, may adjust by enactment or by judicial decisions to be public policy, or unless
compromise their differences and disputes concerning the the agreement manifestly tends in some way to injure the
same and, as they bind themselves, so shall they be bound. It public. Whether or not a contract in any given case is contrary
is difficult to understand why this cannot be effected by an to public policy is a question of law, to be determined from the
agreement not to probate a will, or how it interferes with public circumstances of each particular case. Smith v. Du Bose, 78
policy. The power to litigate and to establish a right by appeal Ga., 413; 3 SE., 309-316; 6 Am. St. Rep., 260; Weber v. Shay,
to the courts is as much the subject of contract as any other 56 Ohio St., 116; 46 NE., 377; 37 L. R. A., 230; 60 Am. St.
right in property. Such adjustments by contract are favored by Rep., 743; Pierce v. Randolph, 12 Tex., 290; Printing
the law and the courts, and are not deemed to be an Numerical Registering Co. v. Sampson, 19 L. R. Eq. Cas.,
unwarranted interference with the jurisdiction of the courts, or 465.
against public policy. On the contrary, public policy favors
them. "The contract in controversy is in effect but an agreement
whereby the parties thereto, ’because of their love and
"Appellants have cited a case in point, — the case of Phillips v. affection for one another’ and ’being desirous of avoiding
Phillips, 8 Watts, 197, in which it is held competent for litigation over the estate’ of their father ’in case of his death,’
devisees and legatees to bind themselves by a written or parol agreed to ignore his will in the event that he made one, and
agreement to destroy a will before probate, and that a party to then share his estate equally as if he had died intestate. In
the agreement would be estopped from claiming any interest other words, the contract was but an agreement of heirs
under the will. The court says: ’It cannot admit of doubt that apparent not to contest the will of an ancestor. There is
before probate the parties in interest under a will would have nothing to be found in our code or statutory law prohibiting the
the right to set aside a will, and such an act would be favored, making and enforcement of such a contract, and it has been
when the object was to avert a family controversy’. The held in this state that a contract, made after the death of the
agreement that the will should not be probated, and that the deceased, not to contest his will, is purely personal to the
parties would take the property as heirs at law of the parties making it, that it is not against public policy, and that,
deceased, destroyed the legal effect of the will; and it could when fairly made, it will be enforced." (Spangenberg v.
not thereafter have legal existence in conferring rights upon Spangenberg, 126 Pac. Rep., 379, 382; 19 Cal. App., 439).
all the persons affected thereby, and all the parties thereto
"Probate Dispensed With. — Probate of a will may be must be competent to make the agreement, and either they or
dispened with by an agreement between the persons their representative must fully execute it, and, under some
interested; or it may be dispensed with where the testator, statutes, it must be properly approved by the court." ([Italics
before his death, conveyed to the devisees all the property supplied] 68 C. J., pp. 909-910).
which he had devised to them, or where the will makes no
other disposition of the testator’s property than the law would "As to Probate. — The operation and effect of the agreement
have done had he died intestate, and the rights sought to be may be not to supersede the provisions of the will, but to carry
established are admitted by all concerned. But where the out its provisions without a probate, and under such an
language of the will expressly invokes the jurisdiction of the agreement the parties are precluded from denying the probate,
probate court the fact that no administration is necessary does or insisting on the invalidating of the will for want of probate.
not affect the power of the court to probate the will." (68 C. J., So, also, a person who agrees not to contest the will is
pp. 877-878). precluded from opposing probate; or the probate of a will may
be dispensed with, and the persons interested in the estate
"Agreement between Persons Interested: a. Requisites and under the will given at least an equitable interest in the
Validity. (1) In General. — It has been held that, since the property, where they, being under no disability, divide the
nature of a probate proceeding is one in rem, the parties estate, pursuant to an agreement among themselves. Where
cannot submit a controversy arising therein to arbitration. The the effect of the agreement of all interested parties is to
law, however, favors the settlement, in good faith, of will repudiate or renounce the will, it will not be probated,
contests, by a so-called ’family settlement’, although it especially where the agreement expressly so provides; but it
changes the mode of disposition of the estate; and, therefore, has been held that, where the executor, defending a torn will,
subject to the limitation that a contestant cannot compromise agrees, for a consideration, not to probate it, the court should
anything beyond his own personal interest in the contest, not refuse probate without notifying other beneficiaries and
persons, such as devisees, legatee, heirs, or next of kin, requiring testimony as to the tearing of the will by the testator.
having interests in the will or estate, sufficient to entitle them to Probate, however, is not prevented by an agreement executed
oppose probate or contest the will, may enter into an by a part only of the beneficiaries, and the parties to such
agreement which, in the absence of fraud or agreement are not prevented thereby from taking under the
misrepresentation, is valid and binding on all the parties will which is probated by another interested person." ([Italics
thereto, whereby they waive probate of the will and bind supplied] 68 C. J., pp. 914-915).
themselves to abide by its provisions, or whereby they agree
that the will is not to be probated or is to be superseded or "Thus, where the parties, being in doubt as to the instrument
destroyed; or whereby any controversy relative to the probate being construed as a will, and for the purpose of saving a
or contest of the will is compromised or settled, and a contest family controversy and for the purpose of dividing the estate,
is avoided, whether or not there were, in fact, valid grounds for enter into a compromise and settlement agreement, under the
the contest. Such an agreement, in order to be valid, must not terms of which the entire estate is to be, and has in part been,
exclude anyone entitled under the will, must be entered into by divided, and agree that the instrument shall not be offered for
probate, it is sufficient to prevent a probate." (Brown v. Burk, R. A. says the following:jgc:chanrobles.com.ph
26 NW [2d ed. ], 415).
"No case has been found other than Re Dardis wherein any
"Validity of Agreements to Dispense with Probate or to Modify court passed upon the validity of a stipulation to secure the
or Set Aside Will. — Though in some jurisdictions an denial to probate of a will theretofore offered for probate, on
agreement to dispense with the probate of a will has been the ground that the testator was mentally incompetent to make
declared to be against public policy and void, in a majority of a will at the time of its execution. The decision of the court is
the decisions on the point it has been held that all the persons based upon the doctrine therein enunciated, that proceedings
interested in a decedent’s estate may by agreement divide the to probate a will are proceedings in rem, which public interest
estate among themselves, without probating such decedent’s demands should be pursued to a final adjudication, regardless
will or administering the estate, and the validity of a contract of the wishes of the interested parties. In this connection and
having for its sole purpose the disposition of property in a with reference to this broader question, it is of interest to note
manner different from that proposed by a testator, even where that courts of other jurisdictions, although generally
the contract contemplates the rejection of the will when offered recognizing that proceedings to probate a will are proceedings
for probate or its setting aside when admitted to probate, when in rem, hold that the proceeding is inter partes to the extent
it is entirely free from fraud, and is made by all the parties in that all the parties in interest may control the probate
interest, would seem to be freely conceded. Thus it has been proceedings, even to the extent of doing away with the
held that all the parties in interest may agree to eliminate from probate." (23 L. R. A. [N.S. ], p. 783).
a will a clause providing for survivorship among them. But an
agreement to resist the probate of a will and procure it to be For the sake of fixity in judicial policy, this Court in the exercise
set aside so as to cut off the interest of one who is not a party of its constitutional powers, has solemnly given a form of a rule
to such agreement is against public policy. Nor does the right — section 1, Rule 74 — to what was merely the consensus of
of all the parties in interest to set aside or disregard a will judicial opinion. We cannot now repudiate the procedure
extend to the case of an active trust, for a definite term, outlined in said provision unless we amend it by another rule.
created by a testator as he deems proper for the protection of
his beneficiaries. A contract between the next of kin of a The majority, however, expresses fear that abuses may easily
decedent, that they will each have a certain portion of the be committed under the Rules. Such fears have always been
estate, does not amount to an agreement to divide the estate the bugbear set up against all task of procedural reforms. To
without probating the will." (28 R. C. L., pp. 357-358). be sure, there has never been any provision of law that is not
liable to abuses. If by a mere possibility of abuse we are to
The minority decision pointed out in the last quotation from the disregard clear provisions of a procedural law, the result would
Ruling Case Law (Vol. 28, pp. 357-358) is from the Supreme be not only the abrogation of all laws but also the abolition of
Court of only one State — that of Wisconsin, in re Will of all courts. When a procedural law is calculated to remedy an
Dardis (135 Wis., 457; 115 NW., 332). All the other States held evil under a specific situation therein contemplated, it must be
the contrary doctrine that is now embodied in section 1 of Rule deemed good even if other situations may be simulated or
74. Commenting upon the Wisconsin rule, the Editor of the L. falsified and placed within its purview. And when that law is
duly enacted, it is no concern of the courts to pass upon its provision is not applicable, its requirements not being present.
wisdom, their duty being to apply its provisions in a manner And I would be wholly agreeable to this conclusion because
which shall not defeat the intention underlying it. Laws are the beneficiaries under the will do not appear to have made an
promulgated to be obeyed and when they are abused there extrajudicial settlement of the estate left by the deceased
are the courts to check up the abuse. Courts must deal with Victorino L. Guevara, nor the action brought by the natural
the specific circumstances of each case and construe the daughter, Rosario Guevara, is one for partition against all such
provisions in such a manner as to make it impregnable if beneficiaries founded either on an extrajudicial settlement or
possible to further abuses. This is constructive, not on the provisions of the will as accepted by all parties to be
destructive, jurisprudence. This explains why laws are more valid and binding. Upon the contrary, Rosario Guevara
often worded so broadly as to lay merely general principles — appears to be wishing to take advantage of the will in so far as
a skeleton — the flesh to be supplied with judicial decisions. it is favorable to her, and repudiate it in so far as it is favorable
Judicial statemanship requires that courts in deciding judicial to others. Apparently, Rosario Guevara was in possession of
controversies should be careful not to advance opinions which the will and the other heirs and legatees were not aware of its
are not necessary to a proper disposition of the case. Judicial contents. The situation not being the one contemplated by
experience has shown that such advanced opinions may not section 1 of Rule 74, plaintiff may not invoke its provisions.
infrequently place the court in an embarrassing position when
a proper case with the proper factual environment is properly
presented with all its angles before the court. Jurisprudence
must be carefully progressive and not impetuously aggressive.
For instance, the majority, impressed by the awful
circumstances of the present case, has found it dangerous to
hold that the probate of the will may be dispensed with. While
this conclusion is constructive under the peculiar facts of the
case, to generalize it is to make destructive. If a proper case is
presented to the court wherein all the heirs and legatees who
are all of age have agreed to dispense with the probate of a
will and have actually made an extrajudicial partition, and if it
appears further that each of the recipients is in peaceful
enjoyment of his share in the estate, I am sure that the
majority, with the practical wisdom they have shown in other
cases, would not dare disturb the peace enjoyed by such heirs
and legatees and compel them to go into court and litigate.
Upon private respondents motion, Judge Salvador Abad Acting on the ORDER dated 28 August 1996 of
Santos of Branch 65 issued an order, dated June 28, 1996, Branch 65, this Court, transferring this case to
appointing her as special administrator of Dr. De Santoss this Branch 61 on the ground that this case is
estate. related with a case before this Court, let this
case be returned to Branch 65 with the
On July 29, 1996, petitioner sought to intervene in Sp. Proc. information that there is no related case
No. M-4343 and to set aside the appointment of private involving the ESTATE OF DECEDENT
respondent as special administrator. He reiterated that he was ARTURO DE SANTOS pending before this
the sole and full blooded nephew and nearest of kin of the Branch.
testator; that he came to know of the existence of Sp. Proc.
No. M-4343 only by accident; that the probate proceedings in There is, however, a case filed by ARTURO DE
Sp. Proc. No. M-4223 before Branch 61 of the same court was SANTOS, as petitioner under Rule 76 of the
still pending; that private respondent misdeclared the true Rules of Court for the Allowance of his will
worth of the testators estate; that private respondent was not during his lifetime docketed as SP. PROC. NO.
fit to be the special administrator of the estate; and that M-4223 which was already decided on 16
petitioner should be given letters of administration for the February 1996 and has become final.
estate of Dr. De Santos.
It is noted on records of Case No. M-4223 that
On August 28, 1996, Judge Abad Santos ordered the transfer after it became final, herein Petitioner Pacita de
of Sp. Proc. No. M-4343 to Branch 61, on the ground that "[it] los Reyes Phillips filed a MOTION FOR THE
is related to the case before Judge Gorospe of RTC Branch 61 ISSUANCE OF LETTERS TESTAMENTARY,
. . ." which was subsequently withdrawn after this
Court, during the hearing, already ruled that the
motion could not be admitted as the subject
matter involves a separate case under Rule 78 branch (Regional Trial Court Branch 65) shall
of the Rules of Court, and movant withdrew her take cognizance of the petition if only to
motion and filed this case (No. 4343). expedite the proceedings, and under the
concept that the Regional Trial Court of Makati
Octavio de Santos Maloles [II] filed a MOTION City is but one court. Jo spped
FOR INTERVENTION before Case No. M-4223
and this motion was already DENIED in the Furnish a copy of this order to the Office of the
order (Branch 61) of 26 August 1996 likewise Chief justice and the Office of the Court
for the same grounds that the matter is for a Administrator, of the Supreme Court; the Hon.
separate case to be filed under Rule 78 of the Fernando V. Gorospe, Jr.; Pacita De Los Reyes
Rules of Court and cannot be included in this Phillips, Petitioner; and Octavio de Santos
case filed under Rule 76 of the Rules of Court. Maloles, Intervenor.
It is further noted that it is a matter of policy that On November 4, 1996, Judge Abad Santos granted petitioners
consolidation of cases must be approved by the motion for intervention. Private respondent moved for a
Presiding Judges of the affected Branches. reconsideration but her motion was denied by the trial court.
She then filed a petition for certiorari in the Court of Appeals
Initially, in his decision dated September 23, 1996,[5] Judge which, on February 26, 1997, rendered a decision[6] setting
Abad Santos appeared firm in his position that " . . . it would be aside the trial courts order on the ground that petitioner had
improper for (Branch 65) to hear and resolve the petition (Sp. not shown any right or interest to intervene in Sp. Proc. No. M-
Proc. No. M-4343)," considering that the probate proceedings 4343.
were commenced with Branch 61. He thus ordered the
transfer of the records back to the latter branch. However, he Hence, these petitions which raise the following issues:
later recalled his decision and took cognizance of the case "to
expedite the proceedings." Thus, in his Order, dated October 1. Whether or not the Honorable Regional Trial
21, 1996, he stated: Court - Makati, Branch 61 has lost jurisdiction to
proceed with the probate proceedings upon its
Considering the refusal of the Hon. Fernando V. issuance of an order allowing the will of Dr.
Gorospe, Jr. of Branch 61 to continue hearing Arturo de Santos
this case notwithstanding the fact that said
branch began the probate proceedings of the 2. Whether or not the Honorable (Regional Trial
estate of the deceased and must therefore Court - Makati, Branch 65) acquired jurisdiction
continue to exercise its jurisdiction to the over the petition for issuance of letters
exclusion of all others, until the entire estate of testamentary filed by (private) respondent.
the testator had been partitioned and distributed
as per Order dated 23 September 1996, this
3. Whether or not the petitioner, being a creditor testamentary and settle the estate of the testator. The cases
of the late Dr. Arturo de Santos, has a right to cited by petitioner are of such nature. In fact, in most
intervene and oppose the petition for issuance jurisdictions, courts cannot entertain a petition for probate of
of letters testamentary filed by the respondent. the will of a living testator under the principle of ambulatory
nature of wills.[10]
4. Whether or not (private) respondent is guilty
of forum shopping in filing her petition for However, Art. 838 of the Civil Code authorizes the filing of a
issuance of letters testamentary with the petition for probate of the will filed by the testator himself. It
Regional Trial Court - Makati, Branch 65 provides:
knowing fully well that the probate proceedings
involving the same testate estate of the Civil Code, Art. 838. No will shall pass either
decedent is still pending with the Regional Trial real or personal property unless it is proved and
Court - Makati, Branch 61. Spped jo allowed in accordance with the Rules of Court.
First. Petitioner contends that the probate proceedings in The testator himself may, during his lifetime,
Branch 61 of RTC-Makati did not terminate upon the issuance petition the court having jurisdiction for the
of the order allowing the will of Dr. De Santos. Citing the cases allowance of his will. In such case, the pertinent
of Santiesteban v. Santiesteban[7] and Tagle v. Manalo,[8] he provisions of the Rules of Court for the
argues that the proceedings must continue until the estate is allowance of wills after the testators death shall
fully distributed to the lawful heirs, devisees, and legatees of govern. Miso
the testator, pursuant to Rule 73, 1 of the Rules of Court.
Consequently, petitioner contends that Branch 65 could not The Supreme Court shall formulate such
lawfully act upon private respondents petition for issuance of additional Rules of Court as may be necessary
letters testamentary. for the allowance of wills on petition of the
testator.
The contention has no merit.
Subject to the right of appeal, the allowance of
In cases for the probate of wills, it is well-settled that the the will, either during the lifetime of the testator
authority of the court is limited to ascertaining the extrinsic or after his death, shall be conclusive as to its
validity of the will, i.e., whether the testator, being of sound due execution.
mind, freely executed the will in accordance with the
formalities prescribed by law.[9] Rule 76, 1 likewise provides:
Ordinarily, probate proceedings are instituted only after the Sec. 1 Who may petition for the allowance of
death of the testator, so much so that, after approving and will. - Any executor, devisee, or legatee named
allowing the will, the court proceeds to issue letters in a will, or any other person interested in the
estate, may, at any time after the death of the After a will has been probated during the
testator, petition the court having jurisdiction to lifetime of the testator, it does not necessarily
have the will allowed, whether the same be in mean that he cannot alter or revoke the same
his possession or not, or is lost or destroyed. before his death. Should he make a new will, it
would also be allowable on his petition, and if
The testator himself may, during his lifetime, he should die before he has had a chance to
petition in the court for the allowance of his will. present such petition, the ordinary probate
proceeding after the testators death would be in
The rationale for allowing the probate of wills during the order.[11]
lifetime of testator has been explained by the Code
Commission thus: Thus, after the allowance of the will of Dr. De Santos on
February 16, 1996, there was nothing else for Branch 61 to do
Most of the cases that reach the courts involve except to issue a certificate of allowance of the will pursuant to
either the testamentary capacity of the testator Rule 73, 12 of the Rules of Court. There is, therefore, no basis
or the formalities adopted in the execution of for the ruling of Judge Abad Santos of Branch 65 of RTC-
wills. There are relatively few cases concerning Makati that -Nex old
the intrinsic validity of testamentary
dispositions. It is far easier for the courts to Branch 61 of the Regional Trial Court of Makati
determine the mental condition of a testator having begun the probate proceedings of the
during his lifetime than after his death. Fraud, estate of the deceased, it continues and shall
intimidation and undue influence are minimized. continue to exercise said jurisdiction to the
Furthermore, if a will does not comply with the exclusion of all others. It should be noted that
requirements prescribed by law, the same may probate proceedings do not cease upon the
be corrected at once. The probate during the allowance or disallowance of a will but
testators life, therefore, will lessen the number continues up to such time that the entire estate
of contest upon wills. Once a will is probated of the testator had been partitioned and
during the lifetime of the testator, the only distributed.
questions that may remain for the courts to
decide after the testators death will refer to the The fact that the will was allowed during the
intrinsic validity of the testamentary lifetime of the testator meant merely that the
dispositions. It is possible, of course, that even partition and distribution of the estate was to be
when the testator himself asks for the suspended until the latters death. In other
allowance of the will, he may be acting under words, the petitioner, instead of filing a new
duress or undue influence, but these are rare petition for the issuance of letters testamentary,
cases. should have simply filed a manifestation for the
same purpose in the probate court.[12]
Petitioner, who defends the order of Branch 65 allowing him to such legal provision is contained in a law of
intervene, cites Rule 73, 1 which states: procedure dealing merely with procedural
matters. Procedure is one thing, jurisdiction
Where estate of deceased persons settled. - If over the subject matter is another. The power or
the decedent is an inhabitant of the Philippines authority of the court over the subject matter
at the time of his death, whether a citizen or an "existed was fixed before procedure in a given
alien, his will shall be proved, or letters of cause began." That power or authority is not
administration granted, and his estate settled, in altered or changed by procedure, which simply
the Court of First Instance in the province in directs the manner in which the power or
which he resides at the time of his death, and if authority shall be fully and justly exercised.
he is an inhabitant of a foreign country, the There are cases though that if the power is not
Court of First Instance of any province in which exercised conformably with the provisions of
he had estate. The court first taking cognizance the procedural law, purely, the court attempting
of the settlement of the estate of a decedent, to exercise it loses the power to exercise it
shall exercise jurisdiction to the exclusion of all legally. However, this does not amount to a loss
other courts. The jurisdiction assumed by a of jurisdiction over the subject matter. Rather, it
court, so far as it depends on the place of means that the court may thereby lose
residence of the decedent, or of the location of jurisdiction over the person or that the judgment
his estate, shall not be contested in a suit or may thereby be rendered defective for lack of
proceeding, except in an appeal from that court, something essential to sustain it. The
in the original case, or when the want of appearance of this provision in the procedural
jurisdiction appears on the record. law at once raises a strong presumption that it
has nothing to do with the jurisdiction of the
The above rule, however, actually provides for the venue of court over the subject matter. In plain words, it
actions for the settlement of the estate of deceased persons. is just a matter of method, of convenience to
In Garcia Fule v. Court of Appeals, it was held:[13] the parties. Mani kx
The aforequoted Section 1, Rule 73 (formerly Indeed, the jurisdiction over probate proceedings and
Rule 75, Section 1), specifically the clause "so settlement of estates with approximate value of over
far as it depends on the place of residence of P100,000.00 (outside Metro Manila) or P200,000.00 (in Metro
the decedent, or of the location of the state," is Manila) belongs to the regional trial courts under B.P. Blg. 129,
in reality a matter of venue, as the caption of as amended. The different branches comprising each court in
the Rule indicates: "Settlement of Estate of one judicial region do not possess jurisdictions independent of
Deceased Persons. Venue and Processes." It and incompatible with each other.[14]
could not have been intended to define the
jurisdiction over the subject matter, because
It is noteworthy that, although Rule 73, 1 applies insofar as the Second. Petitioner claims the right to intervene in and oppose
venue of the petition for probate of the will of Dr. De Santos is the petition for issuance of letters testamentary filed by private
concerned, it does not bar other branches of the same court respondent. He argues that, as the nearest next of kin and
from taking cognizance of the settlement of the estate of the creditor of the testator, his interest in the matter is material and
testator after his death. As held in the leading case of Bacalso direct. In ruling that petitioner has no right to intervene in the
v. Ramolote:[15] proceedings before Branch 65 of RTC-Makati City, the Court of
Appeals held:
The various branches of the Court of First
Instance of Cebu under the Fourteenth Judicial The private respondent herein is not an heir or
District, are a coordinate and co-equal courts, legatee under the will of the decedent Arturo de
and the totality of which is only one Court of Santos. Neither is he a compulsory heir of the
First Instance. The jurisdiction is vested in the latter. As the only and nearest collateral relative
court, not in the judges. And when a case is of the decedent, he can inherit from the latter
filed in one branch, jurisdiction over the case only in case of intestacy. Since the decedent
does not attach to the branch or judge alone, to has left a will which has already been probated
the exclusion of the other branches. Trial may and disposes of all his properties the private
be held or proceedings continue by and before respondent can inherit only if the said will is
another branch or judge. It is for this reason annulled. His interest in the decedents estate is,
that Section 57 of the Judiciary Act expressly therefore, not direct or immediate. Maniks
grants to the Secretary of Justice, the
administrative right or power to apportion the His claim to being a creditor of the estate is a
cases among the different branches, both for belated one, having been raised for the first
the convenience of the parties and for the time only in his reply to the opposition to his
coordination of the work by the different motion to intervene, and, as far as the records
branches of the same court. The apportionment show, not supported by evidence.
and distribution of cases does not involve a
grant or limitation of jurisdiction, the jurisdiction . . . . [T]he opposition must come from one with
attaches and continues to be vested in the a direct interest in the estate or the will, and the
Court of First Instance of the province, and the private respondent has none. Moreover, the
trials may be held by any branch or judge of the ground cited in the private respondents
court. opposition, that the petitioner has deliberately
misdeclared the truth worth and value of the
Necessarily, therefore, Branch 65 of the RTC of Makati City estate, is not relevant to the question of her
has jurisdiction over Sp. Proc. No. M-4343. competency to act as executor. Section 2, Rule
76 of the Rules of Court requires only an
allegation of the probable value and character
of the property of the estate. The true value can provisions of this Code with regard to the
be determined later on in the course of the legitimate of said heirs.
settlement of the estate.[16]
Compulsory heirs are limited to the testators -
Rule 79, 1 provides:
(1) Legitimate children and descendants, with
Opposition to issuance of letters testamentary. respect to their legitimate parents and
Simultaneous petition for administration. - Any ascendants;
person interested in a will may state in writing
the grounds why letters testamentary should (2) In default of the foregoing, legitimate
not issue to the persons named therein as parents and ascendants, with respect to their
executors, or any of them, and the court, after legitimate children and descendants;
hearing upon notice, shall pass upon the
sufficiency of such grounds. A petition may, at (3) The widow or widower;
the same time, be filed for letters of
administration with the will annexed. (4) Acknowledged natural children, and natural
children by legal fiction;
Under this provision, it has been held that an "interested
person" is one who would be benefited by the estate, such as (5) Other illegitimate children referred to in
an heir, or one who has a claim against the estate, such as a Article 287 of the Civil Code.[18]
creditor, and whose interest is material and direct, not merely
incidental or contingent.[17] Petitioner, as nephew of the testator, is not a compulsory heir
who may have been preterited in the testators will.
Even if petitioner is the nearest next of kin of Dr. De Santos,
he cannot be considered an "heir" of the testator. It is a Nor does he have any right to intervene in the settlement
fundamental rule of testamentary succession that one who has proceedings based on his allegation that he is a creditor of the
no compulsory or forced heirs may dispose of his entire estate deceased. Since the testator instituted or named an executor
by will. Thus, Art. 842 of the Civil Code provides: in his will, it is incumbent upon the Court to respect the desires
of the testator. As we stated in Ozaeta v. Pecson:[19]
One who has no compulsory heirs may dispose
by will of all his estate or any part of it in favor The choice of his executor is a precious
of any person having capacity to prerogative of a testator, a necessary
succeed. Manikan concomitant of his right to dispose of his
property in the manner he wishes. It is natural
One who has compulsory heirs may dispose of that the testator should desire to appoint one of
his estate provided he does not contravene the his confidence, one who can be trusted to carry
out his wishes in the disposal of his estate. The WHEREFORE, the petition is DENIED and the decisions of
curtailment of this right may be considered a the Court of Appeals are hereby AFFIRMED.
curtailment of the right to dispose.
SO ORDERED.
Only if the appointed executor is incompetent, refuses the
trust, or fails to give bond may the court appoint other persons Bellosillo, (Chairman), Quisumbing, Buena, and De Leon, Jr.,
to administer the estate.[20] None of these circumstances is JJ., concur.
present in this case.
(d) If it was procured by undue and improper (5) If the signature of the testator
pressure and influence, on the part of the was procured by fraud;
beneficiary, or of some other person for his
benefit; (6) If the testator acted by
mistake or did not intend that the
(e) If the signature of the testator was procured instrument he signed should be
by fraud or trick, and he did not intend that the his will at the time of affixing his
instrument should be his will at the time of fixing signature thereto.
his signature thereto.
These lists are exclusive; no other grounds can serve to
In the same vein, Article 839 of the New Civil Code disallow a will. 5 Thus, in a petition to admit a holographic will
reads: to probate, the only issues to be resolved are: (1) whether the
instrument submitted is, indeed, the decedent's last will and
Art. 839: The will shall be disallowed in any of testament; (2) whether said will was executed in accordance
the following cases; with the formalities prescribed by law; (3) whether the
decedent had the necessary testamentary capacity at the time
(1) If the formalities required by the will was executed; and, (4) whether the execution of the
law have not been complied will and its signing were the voluntary acts of the decedent. 6
with;
In the case at bench, respondent court held that the
(2) If the testator was insane, or holographic will of Anne Sand was not executed in accordance
otherwise mentally incapable of with the formalities prescribed by law. It held that Articles 813
making a will, at the time of its and 814 of the New Civil Code, ante, were not complied with,
execution; hence, it disallowed the probate of said will. This is erroneous.
(3) If it was executed through We reiterate what we held in Abangan vs. Abangan, 40 Phil.
force or under duress, or the 476, 479 (1919), that:
influence of fear, or threats;
The object of the solemnities surrounding the
(4) If it was procured by undue execution of wills is to close the door against
and improper pressure and bad faith and fraud, to avoid substitution of wills
influence, on the part of the and testaments and to guaranty their truth and
authenticity. Therefore, the laws on this subject
should be interpreted in such a way as to attain dispositions cannot be effectuated. Such failure, however,
these primordial ends. But, on the other hand, does not render the whole testament void.
also one must not lose sight of the fact that it is
not the object of the law to restrain and curtail Likewise, a holographic will can still be admitted to probate,
the exercise of the right to make a will. So when notwithstanding non-compliance with the provisions of Article
an interpretation already given assures such 814. In the case of Kalaw vs. Relova 132 SCRA 237
ends, any other interpretation whatsoever, that 242 (1984), this Court held:
adds nothing but demands more requisites
entirely unnecessary, useless and frustrative of Ordinarily, when a number of erasures,
the testator's last will, must be disregarded. corrections, and interlineations made by the
testator in a holographic Will have not been
For purposes of probating non-holographic wills, these formal noted under his signature, . . . the Will is not
solemnities include the subscription, attestation, and thereby invalidated as a whole, but at most only
acknowledgment requirements under Articles 805 and 806 of as respects the particular words erased,
the New Civil Code. corrected or interlined. Manresa gave an
identical commentary when he said "la omission
In the case of holographic wills, on the other hand, what de la salvedad no anula el testamento, segun la
assures authenticity is the requirement that they be totally regla de jurisprudencia establecida en la
autographic or handwritten by the testator himself, 7 as sentencia de 4 de Abril de 1985." 8 (Citations
provided under Article 810 of the New Civil Code, thus: omitted.)
A person may execute a holographic will which Thus, unless the unauthenticated alterations, cancellations or
must be entirely written, dated, and signed by insertions were made on the date of the holographic will or on
the hand of the testator himself. It is subject to testator's signature, 9 their presence does not invalidate the
no other form, and may be made in or out of the will itself. 10 The lack of authentication will only result in
Philippines, and need not be witnessed. disallowance of such changes.
(Emphasis supplied.)
It is also proper to note that the requirements of authentication
Failure to strictly observe other formalities will not of changes and signing and dating of dispositions appear in
result in the disallowance of a holographic will that is provisions (Articles 813 and 814) separate from that which
unquestionably handwritten by the testator. provides for the necessary conditions for the validity of the
holographic will (Article 810). The distinction can be traced to
A reading of Article 813 of the New Civil Code shows that its Articles 678 and 688 of the Spanish Civil Code, from which the
requirement affects the validity of the dispositions contained in present provisions covering holographic wills are taken. They
the holographic will, but not its probate. If the testator fails to read as follows:
sign and date some of the dispositions, the result is that these
Art. 678: A will is called holographic when the pass upon certain provisions of the will. 11 In the case at
testator writes it himself in the form and with the bench, decedent herself indubitably stated in her holographic
requisites required in Article 688. will that the Cabadbaran property is in the name of her late
father, John H. Sand (which led oppositor Dr. Jose Ajero to
Art. 688: Holographic wills may be executed question her conveyance of the same in its entirety). Thus, as
only by persons of full age. correctly held by respondent court, she cannot validly dispose
of the whole property, which she shares with her father's other
In order that the will be valid it must be drawn heirs.
on stamped paper corresponding to the year of
its execution, written in its entirety by the IN VIEW WHEREOF, the instant petition is GRANTED. The
testator and signed by him, and must contain a Decision of the Court of Appeals in CA-G.R. CV No. 22840,
statement of the year, month and day of its dated March 30, 1992, is REVERSED and SET ASIDE, except
execution. with respect to the invalidity of the disposition of the entire
house and lot in Cabadbaran, Agusan del Norte. The Decision
If it should contain any erased, corrected, or of the Regional Trial Court of Quezon City, Branch 94 in Sp.
interlined words, the testator must identify them Proc. No. Q-37171, dated November 19, 1988, admitting to
over his signature. probate the holographic will of decedent Annie Sand, is hereby
REINSTATED, with the above qualification as regards the
Foreigners may execute holographic wills in Cabadbaran property. No costs.
their own language.
SO ORDERED.
This separation and distinction adds support to the
interpretation that only the requirements of Article 810 of the Narvasa, C.J., Padilla, Regalado and Mendoza, JJ.,
New Civil Code — and not those found in Articles 813 and 814 concur.
of the same Code — are essential to the probate of a
holographic will.
On March 4, 1963, the lower court heard the respondent The complaint in intervention filed in the lower court assails the
Benita's motion. Both sides subsequently submitted their legality of the tie which the respondent Perfecto Cruz and his
respective memoranda, and finally, the lower court issued an brothers and sisters claim to have with the decedent. The
order on June 4, 1963, delimiting the petitioners' intervention lower court had, however, assumed, by its orders in question,
to the properties of the deceased which were not disposed of that the validity or invalidity of the adoption is not material nor
in the will. decisive on the efficacy of the institution of heirs; for, even if
the adoption in question were spurious, the respondents
The petitioners moved the lower court to reconsider this latest Perfecto Cruz, et al., will nevertheless succeed not as
order, eliciting thereby an opposition, from the respondents. compulsory heirs but as testamentary heirs instituted in
On October 25, 1963 the same court denied the petitioners' Basilia's will. This ruling apparently finds support in article, 842
motion for reconsideration. of the Civil Code which reads:
One who has no compulsory heirs may dispose Coming closer to the center of the controversy, the petitioners
of by will all his estate or any part of it in favor have called the attention of the lower court and this Court to
of any person having capacity to succeed. the following pertinent portions of the will of the deceased
which recite:
One who has compulsory heirs may dispose of
his estate provided he does not contravene the III
provisions of this Code with regard to the
legitime of said heirs. Ang aking mga sapilitang tagapagmana
(herederos forzosos) ay ang aking itinuturing na
The lower court must have assumed that since the petitioners mga anak na tunay (Hijos legalmente
nephews and niece are not compulsory heirs, they do not adoptados) na sina Perfecto, Alberto, Luz,
possess that interest which can be prejudiced by a free- Benita at Isagani, na pawang may apelyidong
wheeling testamentary disposition. The petitioners' interest is Cruz.
confined to properties, if any, that have not been disposed of in
the will, for to that extent intestate succession can take place xxx xxx xxx
and the question of the veracity of the adoption acquires
relevance. Kung ako ay bawian ng Dios ng buhay, ay aking
ipinamamana ang aking mga ari-ariang
The petitioners nephews and niece, upon the other hand, maiiwan, sa kaparaanang sumusunod:
insist that the entire estate should descend to them by
intestacy by reason of the intrinsic nullity of the institution of A.—Aking ipinamamana sa aking nabanggit na
heirs embodied in the decedent's will. They have thus raised limang anak na sina Perfecto, Alberto, Luz,
squarely the issue of whether or not such institution of heirs Benita at Isagani, na pawang may apelyidong
would retain efficacy in the event there exists proof that the Cruz, na parepareho ang kaparti ng bawa't isa
adoption of the same heirs by the decedent is false. at walang lamangan (en partes iguales), bilang
kanilang sapilitang mana (legiti[ma]), ang
The petitioners cite, as the controlling rule, article 850 of the kalahati (½) ng aking kaparti sa lahat ng aming
Civil Code which reads: ari-ariang gananciales ng aking yumaong
asawang Pedro Cruz na napapaloob sa
The statement of a false cause for the Actuacion Especial No. 640 ng Hukumang
institution of an heir shall be considered as not Unang Dulugan ng Rizal at itinutukoy sa No. 1
written, unless it appears from the will that the ng parafo IV ng testamentong ito, ang kalahati
testator would not have made such institution if (½) ng mga lagay na lupa at palaisdaan na
he had known the falsity of such cause. nasa Obando at Polo, Bulacan, na namana ko
sa aking yumaong ama na si Calixto Austria, at
ang kalahati (½) ng ilang lagay na lupa na nasa
Tinejeros, Malabon, Rizal, na aking namana sa legitimes. Her express adoption of the rules on legitimes
yumao kong kapatid na si Fausto Austria. should very well indicate her complete agreement with that
statutory scheme. But even this, like the petitioners' own
The tenor of the language used, the petitioners argue, gives proposition, is highly speculative of what was in the mind of
rise to the inference that the late Basilia was deceived into the testatrix when she executed her will. One fact prevails,
believing that she was legally bound to bequeath one-half of however, and it is that the decedent's will does not state in a
her entire estate to the respondents Perfecto Cruz, et al. as specific or unequivocal manner the cause for such institution
the latter's legitime. The petitioners further contend that had of heirs. We cannot annul the same on the basis of guesswork
the deceased known the adoption to be spurious, she would or uncertain implications.
not have instituted the respondents at all — the basis of the
institution being solely her belief that they were compulsory And even if we should accept the petitioners' theory that the
heirs. Proof therefore of the falsity of the adoption would cause decedent instituted the respondents Perfecto Cruz, et al. solely
a nullity of the institution of heirs and the opening of the estate because she believed that the law commanded her to do so,
wide to intestacy. Did the lower court then abuse its discretion on the false assumption that her adoption of these
or act in violation of the rights of the parties in barring the respondents was valid, still such institution must stand.
petitioners nephews and niece from registering their claim
even to properties adjudicated by the decedent in her will? Article 850 of the Civil Code, quoted above, is a positive
injunction to ignore whatever false cause the testator may
Before the institution of heirs may be annulled under article have written in his will for the institution of heirs. Such
850 of the Civil Code, the following requisites must institution may be annulled only when one is satisfied, after an
concur: First, the cause for the institution of heirs must be examination of the will, that the testator clearly would not have
stated in the will; second, the cause must be shown to be made the institution if he had known the cause for it to be
false; and third, it must appear from the face of the will that the false. Now, would the late Basilia have caused the revocation
testator would not have made such institution if he had known of the institution of heirs if she had known that she was
the falsity of the cause. mistaken in treating these heirs as her legally adopted
children? Or would she have instituted them nonetheless?
The petitioners would have us imply, from the use of the terms,
"sapilitang tagapagmana" (compulsory heirs) and "sapilitang The decedent's will, which alone should provide the answer, is
mana" (legitime), that the impelling reason or cause for the mute on this point or at best is vague and uncertain. The
institution of the respondents was the testatrix's belief that phrases, "mga sapilitang tagapagmana" and "sapilitang
under the law she could not do otherwise. If this were indeed mana," were borrowed from the language of the law on
what prompted the testatrix in instituting the respondents, she succession and were used, respectively, to describe the class
did not make it known in her will. Surely if she was aware that of heirs instituted and the abstract object of the inheritance.
succession to the legitime takes place by operation of law, They offer no absolute indication that the decedent would have
independent of her own wishes, she would not have found it willed her estate other than the way she did if she had known
convenient to name her supposed compulsory heirs to their that she was not bound by law to make allowance for
legitimes. Her disposition of the free portion of her estate (libre At all events, the legality of the adoption of the respondents by
disposicion) which largely favored the respondent Perfecto the testatrix can be assailed only in a separate action brought
Cruz, the latter's children, and the children of the respondent for that purpose, and cannot be the subject of a collateral
Benita Cruz, shows a perceptible inclination on her part to give attack.5
to the respondents more than what she thought the law
enjoined her to give to them. Compare this with the relatively To the petitioners' charge that the lower court had no power to
small devise of land which the decedent had left for her blood reverse its order of December 22, 1959, suffice it to state that,
relatives, including the petitioners Consuelo Austria-Benta and as borne by the records, the subsequent orders complained of
Lauro Mozo and the children of the petitioner Ruben Austria. served merely to clarify the first — an act which the court could
Were we to exclude the respondents Perfecto Cruz, et al. from legally do. Every court has the inherent power to amend and
the inheritance, then the petitioners and the other nephews control its processes and orders so as to make them
and nieces would succeed to the bulk of the testate by conformable to law and justices.6 That the court a quo has
intestacy — a result which would subvert the clear wishes of limited the extent of the petitioners' intervention is also within
the decedent. its powers as articulated by the Rules of Court.7
Whatever doubts one entertains in his mind should be swept ACCORDINGLY, the present petition is denied, at petitioners
away by these explicit injunctions in the Civil Code: "The cost.
words of a will are to receive an interpretation which will give
to every expression some effect, rather than one which will Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar,
render any of the expressions inoperative; and of two modes Fernando, Teehankee, Barredo and Villamor, JJ., concur.
of interpreting a will, that is to be preferred which will prevent
intestacy." 1
On the strength of the Supplemental Deed in its favor, WHEREFORE, premises considered, by preponderance of
petitioner sought the registration of the subject lot in its name. evidence, this Court finds judgment in favor of the defendant
A court, so it appeared, issued an order [11] cancelling OCT No. and against the plaintiff, and thus hereby orders:
5203 in the name of spouses Don Julian and Antonia on 12
November 1979, and on the same date TCT No. T-375 was (1) That complaint be dismissed;
issued in the name of petitioner.[12] Since then, petitioner has
been paying taxes assessed on the subject lot.[13] (2) That plaintiffs vacate the subject land, particularly
Meanwhile, Milagros Donio and her children had identified as Lot No. 63 registered under
immediately taken possession over the subject lot after the Transfer Certificate of Title No. T-375;
execution of the Compromise Agreement. In 1974, they
(3) That plaintiffs pay costs. no hereditary rights thereto except as to the conjugal share of
Don Julian, which they could claim only upon the death of the
Finding no basis on the counterclaim by defendant, the same latter.[26]
is hereby ordered dismissed.[19]
The trial court ruled that at the time of Don Julians death
on 14 April 1974, Lot No. 63 was no longer a part of his estate
The trial court ruled that the resolution of the case since he had earlier assigned it to petitioner on 31 July 1973.
specifically hinged on the interpretation of paragraph 13 of Consequently, the lot could not be a proper subject of
the Compromise Agreement.[20] It added that the direct extrajudicial partition by Milagros Donio and her children, and
adjudication of the properties listed in the Compromise not being the owners they could not have sold it. Had
Agreement was only in favor of Don Julian and his two respondents exercised prudence before buying the subject lot
children by the first marriage, Josefa and Emilio. [21] Paragraph by investigating the registration of the same with the Registry
13 served only as an amplification of the terms of the of Deeds, they would have discovered that five (5) years
adjudication in favor of Don Julian and his two children by the earlier, OCT No. 5203 had already been cancelled and
first marriage. replaced by TCT No. T-375 in the name of petitioner, the trial
According to the trial court, the properties adjudicated in court added.[27]
favor of Josefa and Emilio comprised their shares in the estate The Court of Appeals, however, reversed the trial courts
of their deceased mother Antonia, as well as their potential decision. The decretal part of the appellate decision reads:
share in the estate of Don Julian upon the latters death. Thus,
upon Don Julians death, Josefa and Emilio could not claim any
WHEREFORE, premises considered, the decision appealed
share in his estate, except their proper share in the Hacienda
from is hereby REVERSED and SET ASIDE and a new one is
Medalla Milagrosa which was adjudicated in favor of Don
entered declaring the Transfer Certificate of Title No. T-375
Julian in the Compromise Agreement. As such, the properties
registered in the name of J.L.T. Agro, Inc. as null and void.
adjudicated in favor of Don Julian, except Hacienda Medalla
Milagrosa, were free from the forced legitimary rights of Josefa
and Emilio, and Don Julian was under no impediment to With costs against defendant J.L.T. Agro, Inc. represented by
its Manager, Julian L. Teves.
allocate the subject lot, among his other properties, to Milagros
Donio and her four (4) children.[22]
SO ORDERED.[28]
The trial court further stressed that with the use of the
words shall be, the adjudication in favor of Milagros Donio and Per the appellate court, the Compromise
her four (4) children was not final and operative, as the lot was Agreement incorporated in CFI decision dated 31 January
still subject to future disposition by Don Julian during his 1964, particularly paragraph 13 thereof, determined,
lifetime.[23] It cited paragraph 14[24] of the Compromise adjudicated and reserved to Don Julians two sets of heirs their
Agreement in support of his conclusion.[25] With Lot No. 63 future legitimes in his estate except as regards his (Don
being the conjugal property of Don Julian and Antonia, the trial Julians) share in Hacienda Medalla Milagrosa.[29] The two sets
court also declared that Milagros Donio and her children had of heirs acquired full ownership and possession of the
properties respectively adjudicated to them in the CFI decision Being the key adjudicative provision, paragraph 13 of
and Don Julian himself could no longer dispose of the same, the Compromise Agreement has to be quoted again:
including Lot No. 63. The disposition in the CFI decision
constitutes res judicata.[30] Don Julian could have disposed of 13. That in the event of death of Julian L. Teves, the properties
only his conjugal share in the Hacienda Medalla Milagrosa.[31] herein adjudicated to Josefa Teves Escao and Emilio B. Teves,
(excluding the properties comprised as Hacienda Medalla
The appellate court likewise emphasized that nobody in
Milagrosa together with all its accessories and accessions)
his right judgment would preterit his legal heirs by simply
shall be understood as including not only their one-half share
executing a document like the Supplemental Deed which
which they inherited from their mother but also the legitimes
practically covers all properties which Don Julian had reserved
and other successional rights which would correspond to them
in favor of his heirs from the second marriage. It also found out
of the other half belonging to their father, Julian L.Teves. In
that the blanks reserved for the Book No. and Page No. at the
other words, the properties now selected and adjudicated
upper right corner of TCT No. T-375, to identify the exact
to Julian L. Teves (not including his share in the Hacienda
location where the said title was registered or transferred,
Medalla Milagrosa) shall exclusively be adjudicated to the
were not filled up, thereby indicating that the TCT is spurious
wife in second marriage of Julian L. Teves and his four
and of dubious origin.[32]
minor children, namely, Milagros Donio Teves, his two
Aggrieved by the appellate courts decision, petitioner acknowledged natural children Milagros Reyes Teves and
elevated it to this Court via a petition for review on certiorari, Pedro Reyes Teves and his two legitimated children Maria
raising pure questions of law. Evelyn Donio Teves and Jose Catalino Donio
Teves. (Emphasis supplied)
Before this Court, petitioner assigns as errors the
following rulings of the appellate court, to wit: (a) that future
With the quoted paragraph as basis, the Court of Appeals
legitime can be determined, adjudicated and reserved prior to
ruled that the adjudication in favor of the heirs of Don Julian
the death of Don Julian; (b) that Don Julian had no right to
from the second marriage became automatically operative
dispose of or assign Lot No. 63 to petitioner because he
upon the approval of the Compromise Agreement, thereby
reserved the same for his heirs from the second marriage
vesting on them the right to validly dispose of Lot No. 63 in
pursuant to the Compromise Agreement; (c) that
favor of respondents.
the Supplemental Deed was tantamount to a preterition of his
heirs from the second marriage; and (d) that TCT No. T-375 in Petitioner argues that the appellate court erred in holding
the name of petitioner is spurious for not containing entries on that future legitime can be determined, adjudicated and
the Book No. and Page No.[33] reserved prior to the death of Don Julian. The Court agrees.
Our declaration in Blas v. Santos[34] is relevant, where we
While most of petitioners legal arguments have merit, the
defined future inheritance as any property or right not in
application of the appropriate provisions of law to the facts
existence or capable of determination at the time of the
borne out by the evidence on record nonetheless warrants the
contract, that a person may in the future acquire by
affirmance of the result reached by the Court of Appeals in
succession. Article 1347 of the New Civil Code explicitly
favor of respondents.
provides:
ART. 1347. All things which are not outside the commerce of ART. 1080. Should a person make a partition of his estate by
men, including future things, may be the object of a contract. an act inter vivos, or by will, such partition shall be respected,
All rights which are not intransmissible may also be the object insofar as it does not prejudice the legitime of the compulsory
of contracts. heirs.
Custodio O. Partade for petitioner and appellant. The court's order of November 8, 1963, held that "the will in
Beltran, Beltran and Beltran for oppositors and appellees. question is a complete nullity and will perforce create intestacy
of the estate of the deceased Rosario Nuguid" and dismissed
SANCHEZ, J.: the petition without costs.
Rosario Nuguid, a resident of Quezon City, died on December A motion to reconsider having been thwarted below, petitioner
30, 1962, single, without descendants, legitimate or came to this Court on appeal.
illegitimate. Surviving her were her legitimate parents, Felix
Nuguid and Paz Salonga Nuguid, and six (6) brothers and 1. Right at the outset, a procedural aspect has engaged our
sisters, namely: Alfredo, Federico, Remedios, Conrado, attention. The case is for the probate of a will. The court's area
Lourdes and Alberto, all surnamed Nuguid. of inquiry is limited — to an examination of, and resolution on,
the extrinsic validity of the will. The due execution thereof, the
On May 18, 1963, petitioner Remedios Nuguid filed in the testatrix's testamentary capacity, and the compliance with the
Court of First Instance of Rizal a holographic will allegedly requisites or solemnities by law prescribed, are the
executed by Rosario Nuguid on November 17, 1951, some 11 questions solely to be presented, and to be acted upon, by the
years before her demise. Petitioner prayed that said will be court. Said court at this stage of the proceedings — is not
admitted to probate and that letters of administration with the called upon to rule on the intrinsic validity or efficacy of the
will annexed be issued to her. provisions of the will, the legality of any devise or legacy
therein.1
On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid,
concededly the legitimate father and mother of the deceased A peculiar situation is here thrust upon us. The parties shunted
Rosario Nuguid, entered their opposition to the probate of her aside the question of whether or not the will should be allowed
will. Ground therefor, inter alia, is that by the institution of probate. For them, the meat of the case is the intrinsic validity
petitioner Remedios Nuguid as universal heir of the deceased, of the will. Normally, this comes only after the court has
oppositors — who are compulsory heirs of the deceased in the declared that the will has been duly authenticated.2 But
direct ascending line — were illegally preterited and that in petitioner and oppositors, in the court below and here on
consequence the institution is void. appeal, travelled on the issue of law, to wit: Is the will
intrinsically a nullity?
We pause to reflect. If the case were to be remanded for ART. 854. The preterition or omission of one, some, or
probate of the will, nothing will be gained. On the contrary, this all of the compulsory heirs in the direct line, whether
litigation will be protracted. And for aught that appears in the living at the time of the execution of the will or born
record, in the event of probate or if the court rejects the will, after the death of the testator, shall annul the institution
probability exists that the case will come up once again before of heir; but the devises and legacies shall be valid
us on the same issue of the intrinsic validity or nullity of the insofar as they are not inofficious. ...
will. Result: waste of time, effort, expense, plus added anxiety.
These are the practical considerations that induce us to a Except for inconsequential variation in terms, the foregoing is
belief that we might as well meet head-on the issue of the a reproduction of Article 814 of the Civil Code of Spain of
validity of the provisions of the will in question.3 After all, there 1889, which is similarly herein copied, thus —
exists a justiciable controversy crying for solution.
Art. 814. The preterition of one or all of the forced heirs
2. Petitioner's sole assignment of error challenges the in the direct line, whether living at the time of the
correctness of the conclusion below that the will is a complete execution of the will or born after the death of the
nullity. This exacts from us a study of the disputed will and the testator, shall void the institution of heir; but the
applicable statute. legacies and betterments4 shall be valid, in so far as
they are not inofficious. ...
Reproduced hereunder is the will:
A comprehensive understanding of the
Nov. 17, 1951 term preterition employed in the law becomes a necessity. On
this point Manresa comments:
I, ROSARIO NUGUID, being of sound and disposing mind and
memory, having amassed a certain amount of property, do La pretericion consiste en omitar al heredero en el
hereby give, devise, and bequeath all of the property which I testamento. O no se le nombra siquiera o aun
may have when I die to my beloved sister Remedios Nuguid, nombrandole como padre, hijo, etc., no se le instituya
age 34, residing with me at 38-B Iriga, Q.C. In witness heredero ni se le deshereda expresamente ni se le
whereof, I have signed my name this seventh day of asigna parte alguna de los bienes, resultando privado
November, nineteen hundred and fifty-one. de un modo tacito de su derecho a legitima.
(Sgd.) Illegible Para que exista pretericion, con arreglo al articulo 814,
basta que en el testamento omita el testador a uno
T/ ROSARIO NUGUID cualquiera de aquellos a quienes por su muerte
corresponda la herencia forzosa.
The statute we are called upon to apply in Article 854 of the
Civil Code which, in part, provides:
Se necesita, pues, a) Que la omision se refiera a un specific legacies or bequests are therein provided for. It is in
heredero forzoso. b) Que la omision sea completa; que this posture that we say that the nullity is complete. Perforce,
el heredero forzoso nada reciba en el testamento. Rosario Nuguid died intestate. Says Manresa:
It may now appear trite bat nonetheless helpful in giving us a En cuanto a la institucion de heredero, se anula. Lo
clear perspective of the problem before us, to have on hand a que se anula deja de existir, en todo o en parte? No se
clear-cut definition of the word annul: añade limitacion alguna, como en el articulo 851, en el
que se expresa que se anulara la institucion de
To "annul" means to abrogate, to make void ... In heredero en cuanto prejudique a la legitima del
re Morrow's Estate, 54 A. 342, 343, 204 Pa. 484.6 deseheredado Debe, pues, entenderse que la
anulacion es completa o total, y que este articulo como
The word "annul" as used in statute requiring court to especial en el caso que le motiva rige con preferencia
annul alimony provisions of divorce decree upon wife's al 817. 10
remarriage means to reduce to nothing; to annihilate;
obliterate; blot out; to make void or of no effect; to The same view is expressed by Sanchez Roman: —
nullify; to abolish. N.J.S.A. 2:50 — 38 (now N.J.S.
2A:34-35). Madden vs. Madden, 40 A. 2d 611, 614, La consecuencia de la anulacion o nulidad de la
136 N..J Eq. 132.7 institucion de heredero por pretericion de uno, varios o
todos los forzosos en linea recta, es la apertura de la
ANNUL. To reduce to nothing; annihilate; obliterate; to sucesion intestada total o parcial. Sera total, cuando el
make void or of no effect; to nullify; to abolish; to do testador que comete la pretericion, hubiese dispuesto
away with. Ex parte Mitchell, 123 W. Va. 283, 14 S.E. de todos los bienes por titulo universal de herencia en
2d. 771, 774.8 favor de los herederos instituidos, cuya institucion se
anula, porque asi lo exige la generalidad del precepto
And now, back to the facts and the law. The deceased Rosario legal del art. 814, al determinar, como efecto de la
Nuguid left no descendants, legitimate or illegitimate. But she pretericion, el de que "anulara la institucion de
left forced heirs in the direct ascending line her parents, now heredero." ... 11
oppositors Felix Nuguid and Paz Salonga Nuguid. And, the will
completely omits both of them: They thus received nothing by Really, as we analyze the word annul employed in the statute,
the testament; tacitly, they were deprived of their legitime; there is no escaping the conclusion that the universal
neither were they expressly disinherited. This is a clear case of institution of petitioner to the entire inheritance results in totally
preterition. Such preterition in the words of Manresa "anulara abrogating the will. Because, the nullification of such institution
siempre la institucion de heredero, dando caracter absoluto a of universal heir — without any other testamentary disposition
este ordenamiento referring to the mandate of Article 814, now in the will — amounts to a declaration that nothing at all was
854 of the Civil Code.9 The one-sentence will here institutes written. Carefully worded and in clear terms, Article 854 offers
petitioner as the sole, universal heir — nothing more. No no leeway for inferential interpretation. Giving it an expansive
meaning will tear up by the roots the fabric of the statute. On anulando por este procedimiento lo que el legislador
this point, Sanchez Roman cites the "Memoria annual del quiere establecer. 12
Tribunal Supreme, correspondiente a 1908", which in our
opinion expresses the rule of interpretation, viz: 3. We should not be led astray by the statement in Article 854
that, annullment notwithstanding, "the devises and legacies
... El art. 814, que preceptua en tales casos de shall be valid insofar as they are not inofficious". Legacies and
pretericion la nulidad de la institucion de heredero, no devises merit consideration only when they are so expressly
consiente interpretacion alguna favorable a la persona given as such in a will. Nothing in Article 854 suggests that
instituida en el sentido antes expuesto aun cuando the mere institution of a universal heir in a will — void because
parezca, y en algun caso pudiera ser, mas o menos of preterition — would give the heir so instituted a share in the
equitativa, porque una nulidad no significa en Derecho inheritance. As to him, the will is inexistent. There must be, in
sino la suposicion de que el hecho o el acto no se ha addition to such institution, a testamentary disposition granting
realizado, debiendo por lo tanto procederse sobre tal him bequests or legacies apart and separate from the nullified
base o supuesto, y consiguientemente, en un institution of heir. Sanchez Roman, speaking of the two
testamento donde falte la institucion, es obligado component parts of Article 814, now 854, states that preterition
llamar a los herederos forzosos en todo caso, como annuls the institution of the heir "totalmente por la pretericion";
habria que llamar a los de otra clase, cuando el but added (in reference to legacies and bequests) "pero
testador no hubiese distribudo todos sus bienes en subsistiendo ... todas aquellas otras disposiciones que no se
legados, siendo tanto mas obligada esta consecuencia refieren a la institucion de heredero ... . 13 As Manresa puts it,
legal cuanto que, en materia de testamentos, sabido annulment throws open to intestate succession the entire
es, segun tiene declarado la jurisprudencia, con inheritance including "la porcion libre (que) no hubiese
repeticion, que no basta que sea conocida la voluntad dispuesto en virtud de legado, mejora o donacion. 14
de quien testa si esta voluntad no aparece en la forma
y en las condiciones que la ley ha exigido para que sea As aforesaid, there is no other provision in the will before us
valido y eficaz, por lo que constituiria una except the institution of petitioner as universal heir. That
interpretacion arbitraria, dentro del derecho positivo, institution, by itself, is null and void. And, intestate succession
reputar como legatario a un heredero cuya institucion ensues.
fuese anulada con pretexto de que esto se acomodaba
mejor a la voluntad del testador, pues aun cuando asi 4. Petitioner's mainstay is that the present is "a case of
fuese, sera esto razon para modificar la ley, pero no ineffective disinheritance rather than one of preterition". 15From
autoriza a una interpretacion contraria a sus terminos y this, petitioner draws the conclusion that Article 854 "does not
a los principios que informan la testamentifaccion, apply to the case at bar". This argument fails to appreciate the
pues no porque parezca mejor una cosa en el terreno distinction between pretention and disinheritance.
del Derecho constituyente, hay razon para convereste
juicio en regla de interpretacion, desvirtuando y Preterition "consists in the omission in the testator's will of the
forced heirs or anyone of them, either because they are not
mentioned therein, or, though mentioned, they are neither derecho a todo; desheredados, solo les corresponde un tercio
instituted as heirs nor are expressly o dos tercios, 22 el caso. 23
disinherited." 16 Disinheritance, in turn, "is
a testamentary disposition depriving any compulsory heir of 5. Petitioner insists that the compulsory heirs ineffectively
his share in the legitime for a cause authorized by law. " 17 In disinherited are entitled to receive their legitimes, but that the
Manresa's own words: "La privacion expresa de la legitima institution of heir "is not invalidated," although the inheritance
constituye la desheredacion. La privacion tacita de la misma of the heir so instituted is reduced to the extent of said
se denomina pretericion." 18 Sanchez Roman emphasizes the legitimes. 24
distinction by stating that disinheritance "es
siempre voluntaria"; preterition, upon the other hand, is This is best answered by a reference to the opinion of Mr.
presumed to be "involuntaria". 19 Express as disinheritance Chief Justice Moran in the Neri case heretofore cited, viz:
should be, the same must be supported by a legal cause
specified in the will itself. 20 But the theory is advanced that the bequest made by
universal title in favor of the children by the second
The will here does not explicitly disinherit the testatrix's marriage should be treated as legado and mejora and,
parents, the forced heirs. It simply omits their names accordingly, it must not be entirely annulled but merely
altogether. Said will rather than be labeled ineffective reduced. This theory, if adopted, will result in a
disinheritance is clearly one in which the said forced heirs complete abrogation of Articles 814 and 851 of the Civil
suffer from preterition. Code. If every case of institution of heirs may be made
to fall into the concept of legacies and betterments
On top of this is the fact that the effects flowing from preterition reducing the bequest accordingly, then the provisions
are totally different from those of disinheritance. Preterition of Articles 814 and 851 regarding total or partial nullity
under Article 854 of the Civil Code, we repeat, "shall annul the of the institution, would. be absolutely meaningless and
institution of heir". This annulment is in toto, unless in the will will never have any application at all. And the
there are, in addition, testamentary dispositions in the form of remaining provisions contained in said article
devises or legacies. In ineffective disinheritance under Article concerning the reduction of inofficious legacies or
918 of the same Code, such disinheritance shall also "annul betterments would be a surplusage because they
the institution of heirs", put only "insofar as it may prejudice the would be absorbed by Article 817. Thus, instead of
person disinherited", which last phrase was omitted in the case construing, we would be destroying integral provisions
of preterition. 21 Better stated yet, in disinheritance the nullity of the Civil Code.
is limited to that portion of the estate of which the disinherited
heirs have been illegally deprived. Manresa's expressive The destructive effect of the theory thus advanced is
language, in commenting on the rights of the preterited heirs in due mainly to a failure to distinguish institution of heirs
the case of preterition on the one hand and legal from legacies and betterments, and a general from a
disinheritance on the other, runs thus: "Preteridos, adquiren el special provision. With reference to article 814, which
is the only provision material to the disposition of this
case, it must be observed that the institution of heirs is
therein dealt with as a thing separate and distinct from
legacies or betterments. And they are separate and
distinct not only because they are distinctly and
separately treated in said article but because they are
in themselves different. Institution of heirs is a bequest
by universal title of property that is undetermined.
Legacy refers to specific property bequeathed by a
particular or special title. ... But again an institution of
heirs cannot be taken as a legacy. 25
The amount of P21,428.58 is on deposit in the plaintiff's name 3. The lower court erred in making the injunction
with the association known as La Urbana in Manila, as the permanent and condemning defendant to pay the
final payment of the liquidated credit of Ana Maria Alcantara, costs.
deceased, whose heiress is said plaintiff, against Andres
Garchitorena, also deceased, represented by his son, the The question here raised is confined to the scope and
defendant Mariano Garchitorena. meaning of the institution of heirs made in the will of the late
Ana Maria Alcantara already admitted to probate, and whose
And as said Mariano Garchitorena held a judgment for legal force and effect is not in dispute.
P7,872.23 against Joaquin Perez Alcantara, husband of the
plaintiff, Carmen G. de Perez, the sheriff pursuant to the writ of The clauses of said will relevant to the points in dispute,
execution issued in said judgment, levied an attachment on between the parties are the ninth, tenth, and eleventh, quoted
said amount deposited with La Urbana. below:
The plaintiff, alleging that said deposit belongs to the Ninth. Being single and without any forced heir, to
fideicommissary heirs of the decedent Ana Maria Alcantara, show my gratitude to my niece-in-law, Carmen
secured a preliminary injunction restraining the execution of Garchitorena, of age, married to my nephew, Joaquin
said judgment on the sum so attached. The defendants Perez Alcantara, and living in this same house with me,
contend that the plaintiff is the decedent's universal heiress, I institute her as my sole and universal heiress to the
and pray for the dissolution of the injunction. remainder of my estate after the payment of my debts
and legacies, so that upon my death and after probate
of this will, and after the report of the committee on inheritance, or incapacity to accept it. As a matter of fact,
claims and appraisal has been rendered and approved, however, clause XI provides for the administration of the
she will receive from my executrix and properties estate in case the heiress instituted should die after the
composing my hereditary estate, that she may enjoy testatrix and while the substitute heirs are still under age. And
them with God's blessing and my own. it is evident that, considering the nature of simple substitution
by the heir's death before the testator, and the fact that by
Tenth. Should my heiress Carmen Garchitorena die, I clause XI in connection with clause X, the substitution is
order that my whole estate shall pass unimpaired to ordered where the heiress instituted dies after the testatrix,
her surviving children; and should any of these die, his this cannot be a case of simple substitution.
share shall serve to increase the portions of his
surviving brothers (and sisters) by accretion, in such The existence of a substitution in the will is not and cannot be
wise that my estate shall never pass out of the hands denied, and since it cannot be a simple substitution in the light
of my heiress or her children in so far as it is legally of the considerations above stated, let us now see whether the
possible. instants case is a fideicommissary substitution.
Eleventh. Should my aforesaid heiress, Carmen In clause IX, the testatrix institutes the plaintiff herein her sole
Garchitorena, die after me while her children are still in and universal heiress, and provides that upon her death (the
their minority, I order that my estate be administered by testatrix's) and after probate of the will and approval of the
my executrix, Mrs. Josefa Laplana, and in her default, report of the committee on claims and appraisal, said heiress
by Attorney Ramon Salinas and in his default, by his shall receive and enjoy the whole hereditary estate. Although
son Ramon Salinas; but the direction herein given must this clause provides nothing explicit about substitution, it does
not be considered as an indication of lack of not contain anything in conflict with the idea of
confidence in my nephew Joaquin Perez Alcantara, fideicommissary substitution. The fact that the plaintiff was
whom I relieve from the duties of administering my instituted the sole and universal heiress does not prevent her
estate, because I recognize that his character is not children from receiving, upon her death and in conformity with
adapted to management and administration. the express desire of the testatrix, the latter's hereditary
estate, as provided in the following (above quoted) clauses
The appellants contend that in these clauses the testatrix has which cannot be disregarded if we are to give a correct
ordered a simple substitution, while the appellee contends that interpretation of the will. The word sole does not necessarily
it is a fideicommissary substitution. exclude the idea of substitute heirs; and taking these three
clauses together, such word means that the plaintiff is the sole
This will certainly provides for a substitution of heirs, and of the heiress instituted in the first instance.
three cases that might give rise to a simple substitution (art.
774, Civil Code), only the death of the instituted heiress before The disposition contained in clause IX, that said heiress shall
the testatrix would in the instant case give place to such receive and enjoy the estate, is not incompatible with a
substitution, inasmuch as nothing is said of the waiver of fideicommissary substitution (it certainly is incompatible with
the idea of simple substitution, where the heiress instituted It should also be noted that said clause IX vests in the heiress
does not receive the inheritance). In fact the enjoyment of the only the right to enjoy but not the right to dispose of the estate.
inheritance is in conformity with the idea of fideicommissary It says, she may enjoy it, but does not say she may dispose of
substitution, by virtue of which the heir instituted receives the it. This is an indication of the usufruct inherent in
inheritance and enjoys it, although at the same time he fideicommissary substitution.
preserves it in order to pass it on the second heir. On this point
the illustrious Manresa, in his Civil Code (Vol. 6, pp. 142 and Clause X expressly provides for the substitution. It is true that
143, 5th ed.), says: it does not say whether the death of the heiress herein
referred to is before or after that of the testatrix; but from the
Or, what amounts to the same thing, the whole context it appears that in making the provisions
fideicommissary substitution, as held in the Resolution contained in this clause X, the testatrix had in mind a
of June 25, 1895, February 10, 1899, and July 19, fideicommissary substitution, since she limits the transmission
1909, requires three things: of her estate to the children of the heiress by this provision, "in
such wise that my estate shall never pass out of the hands of
1. A first heir called primarily to the enjoyment of the my heiress or her children in so far as it is legally possible."
estate. Here it clearly appears that the testatrix tried to avoid the
possibility that the substitution might later be legally declared
2. An obligation clearly imposed upon him to preserve null for transcending the limits fixed by article 781 of the Civil
and transmit to a third person the whole or a part of the Code which prescribed that fideicommissary substitutions shall
estate. be valid "provided they do not go beyond the second degree."
2. An obligation clearly imposed upon the heir to The judgment appealed from is affirmed, with costs against the
preserve and transmit to a third person the whole or a appellant, Mariano Garchitorena. So ordered.
part of the estate. Such an obligation is imposed in
clause X which provides that the "whole estate shall Johnson, Malcolm, Villamor, Ostrand, Johns and Villa-Real,
pass unimpaired to her (heiress's) surviving children;" JJ., concur.
thus, instead of leaving the heiress at liberty to dispose Street, J., reserves his vote.
of the estate by will, or of leaving the law to take its
course in case she dies intestate, said clause not only
disposes of the estate in favor of the heiress instituted,
but also provides for the disposition thereof in case she
should die after the testatrix.
This will was subsequently probated in aforementioned 3. — That during the lifetime of Linnie Jane
Special Proceedings No. 1307 of respondent court on June Hodges, herein petitioner was engaged in the
28, 1957, with the widower Charles Newton Hodges being business of buying and selling personal and
appointed as Executor, pursuant to the provisions thereof. real properties, and do such acts which
petitioner may think best.
Previously, on May 27, 1957, the said widower (hereafter to be
referred to as Hodges) had been appointed Special 4. — That deceased Linnie Jane Hodges died
Administrator, in which capacity he filed a motion on the same leaving no descendants or ascendants, except
date as follows: brothers and sisters and herein petitioner as
executor surviving spouse, to inherit the
URGENT EX-PARTE MOTION TO ALLOW OR properties of the decedent.
AUTHORIZE PETITIONER TO CONTINUE
THE BUSINESS IN WHICH HE WAS 5. — That the present motion is submitted in
ENGAGED AND TO PERFORM ACTS WHICH order not to paralyze the business of petitioner
HE HAD BEEN DOING WHILE DECEASED and the deceased, especially in the purchase
WAS LIVING and sale of properties. That proper accounting
will be had also in all these transactions.
Come petitioner in the above-entitled special proceedings, thru
his undersigned attorneys, to the Hon. Court, most respectfully WHEREFORE, it is most respectfully prayed
states: that, petitioner C. N. Hodges (Charles Newton
Hodges) be allowed or authorized to continue
1. — That Linnie Jane Hodges died leaving her the business in which he was engaged and to
last will and testament, a copy of which is perform acts which he had been doing while
attached to the petition for probate of the same. deceased Linnie Jane Hodges was living.
City of Iloilo, May 27, 1957. (Annex "D", 1. — That according to the last will and
Petition.) testament of the deceased Linnie Jane Hodges,
the executor as the surviving spouse and
which the respondent court immediately granted in the legatee named in the will of the deceased; has
following order: the right to dispose of all the properties left by
the deceased, portion of which is quoted as
It appearing in the urgent ex-parte motion filed follows:
by petitioner C. N. Hodges, that the business in
which said petitioner and the deceased were Second: I give, devise and bequeath all of the
engaged will be paralyzed, unless and until the rest, residue and remainder of my estate, both
Executor is named and appointed by the Court, personal and real, wherever situated, or
the said petitioner is allowed or authorized to located, to my beloved husband, Charles
continue the business in which he was engaged Newton Hodges, to have and to hold unto him,
and to perform acts which he had been doing my said husband, during his natural lifetime.
while the deceased was living.
Third: I desire, direct and provide that my
SO ORDERED. husband, Charles Newton Hodges, shall have
the right to manage, control, use and enjoy said
City of Iloilo May 27, 1957. (Annex "E", estate during his lifetime, and he is hereby
Petition.) given the right to make any changes in the
physical properties of said estate, by sale or
Under date of December 11, 1957, Hodges filed as such any part thereof which he may think best, and
Executor another motion thus: the purchase of any other or additional property
as he may think best; to execute
MOTION TO APPROVE ALL SALES, conveyances with or without general or special
CONVEYANCES, LEASES, MORTGAGES warranty, conveying in fee simple or for any
THAT THE EXECUTOR HAD MADE FURTHER other term or time, any property which he may
AND SUBSEQUENT TRANSACTIONS WHICH deem proper to dispose of; to lease any of the
THE EXECUTOR MAY DO IN ACCORDANCE real property for oil, gas and/or other minerals,
WITH THE LAST WISH OF THE DECEASED and all such deeds or leases shall pass the
LINNIE JANE HODGES. absolute fee simple title to the interest so
conveyed in such property as he may elect to
sell. All rents, emoluments and income from
Comes the Executor in the above-entitled
said estate shall belong to him, and he is further
proceedings, thru his undersigned attorney, to
authorized to use any part of the principal of
the Hon. Court, most respectfully states:
said estate as he may need or desire. ...
2. — That herein Executor, is not only part 6. — That the Executor is under obligation to
owner of the properties left as conjugal, but submit his yearly accounts, and the properties
also, the successor to all the properties left by conveyed can also be accounted for, especially
the deceased Linnie Jane Hodges. That during the amounts received.
the lifetime of herein Executor, as Legatee has
the right to sell, convey, lease or dispose of the WHEREFORE, it is most respectfully prayed
properties in the Philippines. That inasmuch as that, all the sales, conveyances, leases, and
C.N. Hodges was and is engaged in the buy mortgages executed by the Executor, be
and sell of real and personal properties, even approved by the Hon. Court, and also the
before the death of Linnie Jane Hodges, a subsequent sales, conveyances, leases, and
motion to authorize said C.N. Hodges was filed mortgages in consonance with the wishes of
in Court, to allow him to continue in the the deceased contained in her last will and
business of buy and sell, which motion was testament, be with authorization and approval
favorably granted by the Honorable Court. of the Hon. Court.
3. — That since the death of Linnie Jane City of Iloilo, December 11, 1967.
Hodges, Mr. C.N. Hodges had been buying and
selling real and personal properties, in (Annex "G", Petition.)
accordance with the wishes of the late Linnie
Jane Hodges. which again was promptly granted by the respondent court on
December 14, 1957 as follows:
4. — That the Register of Deeds for Iloilo, had
required of late the herein Executor to have all ORDER
the sales, leases, conveyances or mortgages
made by him, approved by the Hon. Court. As prayed for by Attorney Gellada, counsel for
the Executor for the reasons stated in his
5. — That it is respectfully requested, all the motion dated December 11, 1957, which the
sales, conveyances leases and mortgages Court considers well taken all the sales,
executed by the Executor, be approved by the conveyances, leases and mortgages of all
Hon. Court. and subsequent sales properties left by the deceased Linnie Jane
conveyances, leases and mortgages in Hodges executed by the Executor Charles N.
compliances with the wishes of the late Linnie Hodges are hereby APPROVED. The said
Jane Hodges, and within the scope of the terms Executor is further authorized to execute
of the last will and testament, also be approved; subsequent sales, conveyances, leases and
mortgages of the properties left by the said
deceased Linnie Jane Hodges in consonance
with the wishes conveyed in the last will and substantial compliance with the requirements of
testament of the latter. the Rules of Court.
(c) That the PCIB should countersign the check As may be noted, in this order, the respondent court required
in the amount of P250 in favor of Administratrix that all collections from the properties in the name of Hodges
should be deposited in a joint account of the two estates, Philippines. On February 1, 1964 (pp. 934-935,
which indicates that seemingly the so-called modus CFI Rec., S.P. No. 1672) this Honorable Court
operandi was no longer operative, but again there is nothing to amended its order of January 24, 1964 but in
show when this situation started. no way changed its recognition of the afore-
described basic demand by the PCIB as
Likewise, in paragraph 3 of the petitioner's motion of administrator of the estate of C.N. Hodges to
September 14, 1964, on pages 188-201 of the Green Record one hundred percent (100%) of the assets
on Appeal, (also found on pp. 83-91 of the Yellow Record on claimed by both estates.
Appeal) it is alleged that:
but no copy of the mentioned agreement of joint administration
3. On January 24, 1964 virtually all of the heirs of the two estates exists in the record, and so, We are not
of C.N. Hodges, Joe Hodges and Fernando P. informed as to what exactly are the terms of the same which
Mirasol acting as the two co-administrators of could be relevant in the resolution of the issues herein.
the estate of C.N. Hodges, Avelina A. Magno
acting as the administratrix of the estate of On the other hand, the appealed order of November 3, 1965,
Linnie Jane Hodges and Messrs. William Brown on pages 313-320 of the Green Record on Appeal, authorized
and Ardell Young acting for all of the Higdon payment by respondent Magno of, inter alia, her own fees as
family who claim to be the sole beneficiaries of administratrix, the attorney's fees of her lawyers, etc., as
the estate of Linnie Jane Hodges and various follows:
legal counsel representing the aforementioned
parties entered into an amicable agreement, Administratrix Magno thru Attys. Raul S.
which was approved by this Honorable Court, Manglapus and Rizal. R. Quimpo filed a
wherein the parties thereto agreed that certain Manifestation and Urgent Motion dated June
sums of money were to be paid in settlement of 10, 1964 asking for the approval of the
different claims against the two estates and that Agreement dated June 6, 1964 which
the assets (to the extent they existed) of both Agreement is for the purpose of retaining their
estates would be administered jointly by the services to protect and defend the interest of
PCIB as administrator of the estate of C.N. the said Administratrix in these proceedings and
Hodges and Avelina A. Magno as administratrix the same has been signed by and bears the
of the estate of Linnie Jane Hodges, subject, express conformity of the attorney-in-fact of the
however, to the aforesaid October 5, 1963 late Linnie Jane Hodges, Mr. James L. Sullivan.
Motion, namely, the PCIB's claim to exclusive It is further prayed that the Administratrix of the
possession and ownership of one hundred Testate Estate of Linnie Jane Hodges be
percent (100%) (or, in the alternative, seventy- directed to pay the retailers fee of said lawyers,
five percent (75%) of all assets owned by C.N. said fees made chargeable as expenses for the
Hodges or Linnie Jane Hodges situated in the
administration of the estate of Linnie Jane Linnie Jane Hodges will cause prejudice to the
Hodges (pp. 1641-1642, Vol. V, Sp. 1307). estate of C. N. Hodges, in like manner the very
agreement which provides for the payment of
An opposition has been filed by the attorney's fees to the counsel for the PCIB will
Administrator PCIB thru Atty. Herminio Ozaeta also be prejudicial to the estate of Linnie Jane
dated July 11, 1964, on the ground that Hodges (pp. 1801-1814, Vol. V, Sp. 1307).
payment of the retainers fee of Attys.
Manglapus and Quimpo as prayed for in said Atty. Herminio Ozaeta filed a rejoinder dated
Manifestation and Urgent Motion is prejudicial August 10, 1964 to the reply to the opposition to
to the 100% claim of the estate of C. N. the Manifestation and Urgent Motion alleging
Hodges; employment of Attys. Manglapus and principally that the estates of Linnie Jane
Quimpo is premature and/or unnecessary; Hodges and C. N. Hodges are not similarly
Attys. Quimpo and Manglapus are representing situated for the reason that C. N. Hodges is an
conflicting interests and the estate of Linnie heir of Linnie Jane Hodges whereas the latter is
Jane Hodges should be closed and terminated not an heir of the former for the reason that
(pp. 1679-1684, Vol, V, Sp. 1307). Linnie Jane Hodges predeceased C. N. Hodges
(pp. 1839-1848, Vol. V, Sp. 1307); that Attys.
Atty. Leon P. Gellada filed a memorandum Manglapus and Quimpo formally entered their
dated July 28, 1964 asking that the appearance in behalf of Administratrix of the
Manifestation and Urgent Motion filed by Attys. estate of Linnie Jane Hodges on June 10, 1964
Manglapus and Quimpo be denied because no (pp. 1639-1640, Vol. V, Sp. 1307).
evidence has been presented in support
thereof. Atty. Manglapus filed a reply to the Atty. Manglapus filed a manifestation dated
opposition of counsel for the Administrator of December 18, 1964 stating therein that Judge
the C. N. Hodges estate wherein it is claimed Bellosillo issued an order requiring the parties
that expenses of administration include to submit memorandum in support of their
reasonable counsel or attorney's fees for respective contentions. It is prayed in this
services to the executor or administrator. As a manifestation that the Manifestation and Urgent
matter of fact the fee agreement dated Motion dated June 10, 1964 be resolved (pp.
February 27, 1964 between the PCIB and the 6435-6439, Vol. VII, Sp. 1307).
law firm of Ozaeta, Gibbs & Ozaeta as its
counsel (Pp. 1280-1284, Vol. V, Sp. 1307) Atty. Roman Mabanta, Jr. for the PCIB filed a
which stipulates the fees for said law firm has counter- manifestation dated January 5, 1965
been approved by the Court in its order dated asking that after the consideration by the court
March 31, 1964. If payment of the fees of the of all allegations and arguments and pleadings
lawyers for the administratrix of the estate of of the PCIB in connection therewith (1) said
manifestation and urgent motion of Attys. clerk Albis (Sec. 1, Rule 36, New Civil Code)
Manglapus and Quimpo be denied (pp. 6442- (Pp. 6600-6606, Vol. VIII, Sp. 1307).
6453, Vol. VII, Sp. 1307). Judge Querubin
issued an order dated January 4, 1965 Atty. Roman Mabanta, Jr. for the PCIB filed a
approving the motion dated June 10, 1964 of motion for reconsideration dated February 23,
the attorneys for the administratrix of the estate 1965 asking that the order dated January 4,
of Linnie Jane Hodges and agreement annexed 1964 be reversed on the ground that:
to said motion. The said order further states:
"The Administratrix of the estate of Linnie Jane 1. Attorneys retained must render services to
Hodges is authorized to issue or sign whatever the estate not to the personal heir;
check or checks may be necessary for the
above purpose and the administrator of the 2. If services are rendered to both, fees should
estate of C. N. Hodges is ordered to be pro-rated between them;
countersign the same. (pp. 6518-6523, Vol VII,
Sp. 1307). 3. Attorneys retained should not represent
conflicting interests; to the prejudice of the other
Atty. Roman Mabanta, Jr. for the PCIB filed a heirs not represented by said attorneys;
manifestation and motion dated January 13,
1965 asking that the order of January 4, 1965 4. Fees must be commensurate to the actual
which was issued by Judge Querubin be services rendered to the estate;
declared null and void and to enjoin the clerk of
court and the administratrix and administrator in
5. There must be assets in the estate to pay for
these special proceedings from all proceedings
said fees (Pp. 6625-6636, Vol. VIII, Sp. 1307).
and action to enforce or comply with the
provision of the aforesaid order of January 4,
1965. In support of said manifestation and Atty. Quimpo for Administratrix Magno of the
motion it is alleged that the order of January 4, estate of Linnie Jane Hodges filed a motion to
1965 is null and void because the said order submit dated July 15, 1965 asking that the
was never delivered to the deputy clerk Albis of manifestation and urgent motion dated June 10,
Branch V (the sala of Judge Querubin) and the 1964 filed by Attys. Manglapus and Quimpo and
alleged order was found in the drawer of the other incidents directly appertaining thereto be
late Judge Querubin in his office when said considered submitted for consideration and
drawer was opened on January 13, 1965 after approval (pp. 6759-6765, Vol. VIII, Sp. 1307).
the death of Judge Querubin by Perfecto
Querubin, Jr., the son of the judge and in the Considering the arguments and reasons in
presence of Executive Judge Rovira and deputy support to the pleadings of both the
Administratrix and the PCIB, and of Atty.
Gellada, hereinbefore mentioned, the Court implement the approval of the agreement
believes that the order of January 4, 1965 is annexed to the motion and the administrator of
null and void for the reason that the said order the estate of C. N. Hodges is directed to
has not been filed with deputy clerk Albis of this countersign the said check or checks as the
court (Branch V) during the lifetime of Judge case may be.
Querubin who signed the said order. However,
the said manifestation and urgent motion dated SO ORDERED.
June 10, 1964 is being treated and considered
in this instant order. It is worthy to note that in thereby implying somehow that the court assumed the
the motion dated January 24, 1964 (Pp. 1149- existence of independent but simultaneous administrations.
1163, Vol. V, Sp. 1307) which has been filed by
Atty. Gellada and his associates and Atty. Gibbs Be that as it may, again, it appears that on August 6, 1965, the
and other lawyers in addition to the stipulated court, acting on a motion of petitioner for the approval of deeds
fees for actual services rendered. However, the of sale executed by it as administrator of the estate of Hodges,
fee agreement dated February 27, 1964, issued the following order, also on appeal herein:
between the Administrator of the estate of C. N.
Hodges and Atty. Gibbs which provides for Acting upon the motion for approval of deeds of
retainer fee of P4,000 monthly in addition to sale for registered land of the PCIB,
specific fees for actual appearances, Administrator of the Testate Estate of C. N.
reimbursement for expenditures and contingent Hodges in Sp. Proc. 1672 (Vol. VII, pp. 2244-
fees has also been approved by the Court and 2245), dated July 16, 1965, filed by Atty. Cesar
said lawyers have already been paid. (pp. T. Tirol in representation of the law firms of
1273-1279, Vol. V, Sp. Proc. 1307 pp. 1372- Ozaeta, Gibbs and Ozaeta and Tirol and Tirol
1373, Vol. V, Sp. Proc. 1307). and the opposition thereto of Atty. Rizal R.
Quimpo (Vol. VIII, pp. 6811-6813) dated July
WHEREFORE, the order dated January 4, 22, 1965 and considering the allegations and
1965 is hereby declared null and void. reasons therein stated, the court believes that
the deeds of sale should be signed jointly by
The manifestation and motion dated June 10, the PCIB, Administrator of the Testate Estate of
1964 which was filed by the attorneys for the C. N. Hodges and Avelina A. Magno,
administratrix of the testate estate of Linnie Administratrix of the Testate Estate of Linnie
Jane Hodges is granted and the agreement Jane Hodges and to this effect the PCIB should
annexed thereto is hereby approved. take the necessary steps so that Administratrix
Avelina A. Magno could sign the deeds of sale.
The administratrix of the estate of Linnie Jane
Hodges is hereby directed to be needed to
SO ORDERED. (p. 248, Green Record on lower court on July 27, 1964. It was followed by
Appeal.) another motion dated August 4, 1964 for the
approval of one final deed of sale again signed
Notably this order required that even the deeds executed by by appellee Avelina A. Magno and D. R. Paulino
petitioner, as administrator of the Estate of Hodges, involving (CFI Record, Sp. Proc. No. 1307. Vol. V, pp.
properties registered in his name, should be co-signed by 1825-1828), which was again approved by the
respondent Magno.3 And this was not an isolated instance. lower court on August 7, 1964. The gates
having been opened, a flood ensued: the
In her brief as appellee, respondent Magno states: appellant subsequently filed similar motions for
the approval of a multitude of deeds of sales
After the lower court had authorized appellee and cancellations of mortgages signed by both
Avelina A. Magno to execute final deeds of sale the appellee Avelina A. Magno and the
pursuant to contracts to sell executed by C. N. appellant.
Hodges on February 20, 1963 (pp. 45-46,
Green ROA), motions for the approval of final A random check of the records of Special
deeds of sale (signed by appellee Avelina A. Proceeding No. 1307 alone will show Atty.
Magno and the administrator of the estate of C. Cesar T. Tirol as having presented for court
N. Hodges, first Joe Hodges, then Atty. approval deeds of sale of real properties signed
Fernando Mirasol and later the appellant) were by both appellee Avelina A. Magno and D. R.
approved by the lower court upon petition of Paulino in the following numbers: (a) motion
appellee Magno's counsel, Atty. Leon P. dated September 21, 1964 — 6 deeds of sale;
Gellada, on the basis of section 8 of Rule 89 of (b) motion dated November 4, 1964 — 1 deed
the Revised Rules of Court. Subsequently, the of sale; (c) motion dated December 1, 1964 —
appellant, after it had taken over the bulk of the 4 deeds of sale; (d) motion dated February 3,
assets of the two estates, started presenting 1965 — 8 deeds of sale; (f) motion dated May
these motions itself. The first such attempt was 7, 1965 — 9 deeds of sale. In view of the very
a "Motion for Approval of Deeds of Sale for extensive landholdings of the Hodges spouses
Registered Land and Cancellations of and the many motions filed concerning deeds of
Mortgages" dated July 21, 1964 filed by Atty. sale of real properties executed by C. N.
Cesar T. Tirol, counsel for the appellant, thereto Hodges the lower court has had to constitute
annexing two (2) final deeds of sale and two (2) special separate expedientes in Special
cancellations of mortgages signed by appellee Proceedings Nos. 1307 and 1672 to include
Avelina A. Magno and D. R. Paulino, Assistant mere motions for the approval of deeds of sale
Vice-President and Manager of the appellant of the conjugal properties of the Hodges
(CFI Record, Sp. Proc. No. 1307, Vol. V, pp. spouses.
1694-1701). This motion was approved by the
As an example, from among the very many, Benjamin Rolando, Jaro, Iloilo
under date of February 3, 1965, Atty. Cesar T. City
Tirol, as counsel for the appellant, filed "Motion
for Approval of Deeds of Sale for Registered and cancellations of mortgages in favor of —
Land and Cancellations of Mortgages" (CFI
Record, Sp. Proc. No. 1307, Vol. VIII, pp. 6570- Pablo Manzano, Oton, Iloilo
6596) the allegations of which read: Ricardo M. Diana, Dao, San
Jose, Antique
"1. In his lifetime, the late C. N. Hodges Simplicio Tingson, Iloilo City
executed "Contracts to Sell" real property, and Amado Magbanua, Pototan,
the prospective buyers under said contracts Iloilo
have already paid the price and complied with Roselia M. Baes, Bolo, Roxas
the terms and conditions thereof; City
William Bayani, Rizal
"2. In the course of administration of both Estanzuela, Iloilo City
estates, mortgage debtors have already paid Elpidio Villarete, Molo, Iloilo City
their debts secured by chattel mortgages in Norma T. Ruiz, Jaro, Iloilo City
favor of the late C. N. Hodges, and are now
entitled to release therefrom; "4. That the approval of the
aforesaid documents will not
"3. There are attached hereto documents reduce the assets of the estates
executed jointly by the Administratrix in Sp. so as to prevent any creditor
Proc. No. 1307 and the Administrator in Sp. from receiving his full debt or
Proc. No. 1672, consisting of deeds of sale in diminish his dividend."
favor —
And the prayer of this motion is indeed very
Fernando Cano, Bacolod City, revealing:
Occ. Negros
Fe Magbanua, Iloilo City "WHEREFORE, it is respectfully prayed that,
Policarpio M. Pareno, La Paz, under Rule 89, Section 8 of the Rules of Court,
Iloilo City this honorable court approve the aforesaid
Rosario T. Libre, Jaro, Iloilo City deeds of sale and cancellations of mortgages."
Federico B. Torres, Iloilo City (Pp. 113-117, Appellee's Brief.)
Reynaldo T. Lataquin, La Paz,
Iloilo City None of these assertions is denied in Petitioner's reply brief.
Anatolio T. Viray, Iloilo City
Further indicating lack of concrete perspective or orientation Considering that the expenses subject of the
on the part of the respondent court and its hesitancy to clear motion to approve payment of overtime pay
up matters promptly, in its other appealed order of November dated December 10, 1964, are reasonable and
23, 1965, on pages 334-335 of the Green Record on Appeal, are believed by this Court to be a proper charge
said respondent court allowed the movant Ricardo Salas, of administration chargeable to the testate
President of appellee Western Institute of Technology estate of the late Linnie Jane Hodges, the said
(successor of Panay Educational Institutions, Inc.), one of the expenses are hereby APPROVED and to be
parties with whom Hodges had contracts that are in question charged against the testate estate of the late
in the appeals herein, to pay petitioner, as Administrator of the Linnie Jane Hodges. The administrator of the
estate of Hodges and/or respondent Magno, as Administrator testate estate of the late Charles Newton
of the estate of Mrs. Hodges, thus: Hodges is hereby ordered to countersign the
check or checks necessary to pay the said
Considering that in both cases there is as yet overtime pay as shown by the bills marked
no judicial declaration of heirs nor distribution of Annex "A", "B" and "C" of the motion.
properties to whomsoever are entitled thereto,
the Court believes that payment to both the SO ORDERED.
administrator of the testate estate of C. N.
Hodges and the administratrix of the testate (Pp. 221-222, Green Record on Appeal.)
estate of Linnie Jane Hodges or to either one of
the two estates is proper and legal. Likewise, the respondent court approved deeds of sale
executed by respondent Magno alone, as Administratrix of the
WHEREFORE, movant Ricardo T. Salas can estate of Mrs. Hodges, covering properties in the name of
pay to both estates or either of them. Hodges, pursuant to "contracts to sell" executed by Hodges,
irrespective of whether they were executed by him before or
SO ORDERED. after the death of his wife. The orders of this nature which are
also on appeal herein are the following:
(Pp. 334-335, Green Record on Appeal.)
1. Order of March 30, 1966, on p. 137 of the Green Record on
On the other hand, as stated earlier, there were instances Appeal, approving the deed of sale executed by respondent
when respondent Magno was given authority to act alone. For Magno in favor of appellee Lorenzo Carles on February 24,
instance, in the other appealed order of December 19, 1964, 1966, pursuant to a "contract to sell" signed by Hodges on
on page 221 of the Green Record on Appeal, the respondent June 17, 1958, after the death of his wife, which contract
court approved payments made by her of overtime pay to petitioner claims was cancelled by it for failure of Carles to pay
some employees of the court who had helped in gathering and the installments due on January 7, 1965.
preparing copies of parts of the records in both estates as
follows:
2. Order of April 5, 1966, on pp. 139-140, id., approving the to sell" signed by Hodges on June 9, 1959 and November 27,
deed of sale executed by respondent Magno in favor of 1961, respectively, after the death of his wife.
appellee Salvador Guzman on February 28, 1966 pursuant to
a "contract to sell" signed by Hodges on September 13, 1960, 8. Order of December 2, 1966, on pp. 303-304, id., approving
after the death of his wife, which contract petitioner claims it the deed of sale executed by respondent Magno in favor of
cancelled on March 3, 1965 in view of failure of said appellee appellees Espiridion Partisala, Winifredo Espada and Rosario
to pay the installments on time. Alingasa on September 6, 1966, August 17, 1966 and August
3, 1966, respectively, pursuant to "contracts to sell" signed by
3. Order of April 20, 1966, on pp. 167-168, id., approving the Hodges on April 20, 1960, April 18, 1960 and August 25, 1958,
deed of sale executed by respondent Magno in favor of respectively, that is, after the death of his wife.
appellee Purificacion Coronado on March 28, 1966 pursuant to
a "contract to sell" signed by Hodges on August 14, 1961, after 9. Order of April 5, 1966, on pp. 137-138, id., approving the
the death of his wife. deed of sale executed by respondent Magno in favor of
appellee Alfredo Catedral on March 2, 1966, pursuant to a
4. Order of April 20, 1966, on pp. 168-169, id., approving the "contract to sell" signed by Hodges on May 29, 1954, before
deed of sale executed by respondent Magno in favor of the death of his wife, which contract petitioner claims it had
appellee Florenia Barrido on March 28, 1966, pursuant to a cancelled on February 16, 1966 for failure of appellee Catedral
"contract to sell" signed by Hodges on February 21, 1958, to pay the installments due on time.
after the death of his wife.
10. Order of April 5, 1966, on pp. 138-139, id., approving the
5. Order of June 7, 1966, on pp. 184-185, id., approving the deed of sale executed by respondent Magno in favor of
deed of sale executed by respondent Magno in favor of appellee Jose Pablico on March 7, 1966, pursuant to a
appellee Belcezar Causing on May 2, 1966, pursuant to a "contract to sell" signed by Hodges on March 7, 1950, after the
"contract to sell" signed by Hodges on February 10, 1959, death of his wife, which contract petitioner claims it had
after the death of his wife. cancelled on June 29, 1960, for failure of appellee Pablico to
pay the installments due on time.
6. Order of June 21, 1966, on pp. 211-212, id., approving the
deed of sale executed by respondent Magno in favor of 11. Order of December 2, 1966, on pp. 303-304, id., insofar as
appellee Artheo Thomas Jamir on June 3, 1966, pursuant to a it approved the deed of sale executed by respondent Magno in
"contract to sell" signed by Hodges on May 26, 1961, after the favor of appellee Pepito Iyulores on September 6, 1966,
death of his wife. pursuant to a "contract to sell" signed by Hodges on February
5, 1951, before the death of his wife.
7. Order of June 21, 1966, on pp. 212-213, id., approving the
deed of sale executed by respondent Magno in favor of 12. Order of January 3, 1967, on pp. 335-336, id., approving
appellees Graciano Lucero and Melquiades Batisanan on three deeds of sale executed by respondent Magno, one in
June 6 and June 3, 1966, respectively, pursuant to "contracts favor of appellees Santiago Pacaonsis and two in favor of
appellee Adelfa Premaylon on December 5, 1966 and URGENT MOTION FOR AN
November 3, 1966, respectively, pursuant to separate ACCOUNTING AND DELIVERY
"promises to sell" signed respectively by Hodges on May 26, TO ADMINISTRATION OF THE
1955 and January 30, 1954, before the death of his wife, and ESTATE OF C. N. HODGES OF
October 31, 1959, after her death. ALL OF THE ASSETS OF THE
CONJUGAL PARTNERSHIP OF
In like manner, there were also instances when respondent THE DECEASED LINNIE JANE
court approved deeds of sale executed by petitioner alone and HODGES AND C N. HODGES
without the concurrence of respondent Magno, and such EXISTING AS OF MAY 23, 1957
approvals have not been the subject of any appeal. No less PLUS ALL THE RENTS,
than petitioner points this out on pages 149-150 of its brief as EMOLUMENTS AND INCOME
appellant thus: THEREFROM.
The points of fact and law pertaining to the two COMES NOW the co-administrator of the
abovecited assignments of error have already estate of C. N. Hodges, Joe Hodges, through
been discussed previously. In the first his undersigned attorneys in the above-entitled
abovecited error, the order alluded to was proceedings, and to this Honorable Court
general, and as already explained before, it respectfully alleges:
was, as admitted by the lower court itself,
superseded by the particular orders approving (1) On May 23, 1957 Linnie Jane Hodges died
specific final deeds of sale executed by the in Iloilo City.
appellee, Avelina A. Magno, which are subject
of this appeal, as well as the particular orders (2) On June 28, 1957 this Honorable Court
approving specific final deeds of sale executed admitted to probate the Last Will and Testament
by the appellant, Philippine Commercial and of the deceased Linnie Jane Hodges executed
Industrial Bank, which were never appealed by November 22, 1952 and appointed C. N.
the appellee, Avelina A. Magno, nor by any Hodges as Executor of the estate of Linnie
party for that matter, and which are now Jane Hodges (pp. 24-25, Rec. Sp. Proc. 1307).
therefore final.
(3) On July 1, 1957 this Honorable Court issued
Now, simultaneously with the foregoing incidents, others of Letters Testamentary to C. N. Hodges in the
more fundamental and all embracing significance developed. Estate of Linnie Jane Hodges (p. 30, Rec. Sp.
On October 5, 1963, over the signature of Atty. Allison J. Gibbs Proc. 1307).
in representation of the law firm of Ozaeta, Gibbs & Ozaeta, as
counsel for the co-administrators Joe Hodges and Fernando P. (4) On December 14, 1957 this Honorable
Mirasol, the following self-explanatory motion was filed: Court, on the basis of the following allegations
in a Motion dated December 11, 1957 filed by (p. 46, Rec. Sp. Proc. 1307;
Leon P. Gellada as attorney for the executor C. emphasis supplied.)
N. Hodges:
(5) On April 21, 1959 this Honorable Court
"That herein Executor, (is) not approved the inventory and accounting
only part owner of the properties submitted by C. N. Hodges through his counsel
left as conjugal, but also, the Leon P. Gellada on April 14, 1959 wherein he
successor to all the properties alleged among other things
left by the deceased Linnie Jane
Hodges." "That no person interested in the
Philippines of the time and place
(p. 44, Rec. Sp. Proc. 1307; of examining the herein account,
emphasis supplied.) be given notice, as herein
executor is the only devisee or
issued the following order: legatee of the deceased, in
accordance with the last will and
"As prayed for by Attorney testament already probated by
Gellada, counsel for the the Honorable Court."
Executory, for the reasons stated
in his motion dated December (pp. 77-78, Rec. Sp. Proc. 1307;
11, 1957 which the court emphasis supplied.).
considers well taken, all the
sales, conveyances, leases and (6) On July 30, 1960 this Honorable Court
mortgages of all properties left approved the "Annual Statement of Account"
by the deceased Linnie Jane submitted by C. N. Hodges through his counsel
Hodges are hereby APPROVED. Leon P. Gellada on July 21, 1960 wherein he
The said executor is further alleged among other things:
authorized to execute
subsequent sales, conveyances, "That no person interested in the
leases and mortgages of the Philippines of the time and place
properties left by the said of examining the herein account,
deceased Linnie Jane Hodges in be given notice as herein
consonance with the wishes executor is the only devisee or
contained in the last will and legatee of the deceased Linnie
testament of the latter." Jane Hodges, in accordance
with the last will and testament of
the deceased, already probated estate of Charles Newton Hodges, in the latter
by this Honorable Court." case, because the last will of said Charles
Newton Hodges is still kept in his vault or iron
(pp. 81-82. Rec. Sp. Proc. 1307; safe and that the real and personal properties
emphasis supplied.) of both spouses may be lost, damaged or go to
waste, unless a Special Administratrix is
(7) On May 2, 1961 this Honorable court appointed."
approved the "Annual Statement of Account By
The Executor for the Year 1960" submitted (p. 100. Rec. Sp. Proc. 1307)
through Leon P. Gellada on April 20, 1961
wherein he alleged: (10) On December 26, 1962 Letters of
Administration were issued to Avelina Magno
That no person interested in the pursuant to this Honorable Court's aforesaid
Philippines be given notice, of Order of December 25, 1962
the time and place of examining
the herein account, as herein "With full authority to take
Executor is the only devisee or possession of all the property of
legatee of the deceased Linnie said deceased in any province or
Jane Hodges, in accordance provinces in which it may be
with the last will and testament situated and to perform all other
of the deceased, already acts necessary for the
probated by this Honorable preservation of said property,
Court. said Administratrix and/or
Special Administratrix having
(pp. 90-91. Rec. Sp. Proc. 1307; filed a bond satisfactory to the
emphasis supplied.) Court."
(8) On December 25, 1962, C.N. Hodges died. (p. 102, Rec. Sp. Proc. 1307)
(9) On December 25, 1962, on the Urgent Ex- (11) On January 22, 1963 this Honorable Court
parte Motion of Leon P. Gellada filed only in on petition of Leon P. Gellada of January 21,
Special Proceeding No. 1307, this Honorable 1963 issued Letters of Administration to:
Court appointed Avelina A. Magno
(a) Avelina A. Magno as Administratrix of the
"Administratrix of the estate of Linnie Jane estate of Linnie Jane Hodges;
Hodges and as Special Administratrix of the
(b) Avelina A. Magno as Special Administratrix (p. 117, Sp. Proc. 1307).
of the Estate of Charles Newton Hodges; and
[Par 1 (c), Reply to Motion For
(c) Joe Hodges as Co-Special Administrator of Removal of Joe Hodges]
the Estate of Charles Newton Hodges.
(13) On September l6, 1963 Leon P. Gellada,
(p. 43, Rec. Sp. Proc. 1307) acting as attorney for Avelina A. Magno as
Administratrix of the estate of Linnie Jane
(12) On February 20, 1963 this Honorable Hodges, alleges:
Court on the basis of a motion filed by Leon P.
Gellada as legal counsel on February 16, 1963 3. — That since January, 1963,
for Avelina A. Magno acting as Administratrix of both estates of Linnie Jane
the Estate of Charles Newton Hodges (pp. 114- Hodges and Charles Newton
116, Sp. Proc. 1307) issued the following order: Hodges have been receiving in
full, payments for those
"... se autoriza a aquella (Avelina "contracts to sell" entered into by
A. Magno) a firmar escrituras de C. N. Hodges during his lifetime,
venta definitiva de propiedades and the purchasers have been
cubiertas por contratos para demanding the execution of
vender, firmados, en vida, por el definite deeds of sale in their
finado Charles Newton Hodges, favor.
cada vez que el precio
estipulado en cada contrato este 4. — That hereto attached are
totalmente pagado. Se autoriza thirteen (13) copies deeds of
igualmente a la misma a firmar sale executed by the
escrituras de cancelacion de Administratrix and by the co-
hipoteca tanto de bienes reales administrator (Fernando P.
como personales cada vez que Mirasol) of the estate of Linnie
la consideracion de cada Jane Hodges and Charles
hipoteca este totalmente Newton Hodges respectively, in
pagada. compliance with the terms and
conditions of the respective
"Cada una de dichas escrituras "contracts to sell" executed by
que se otorguen debe ser the parties thereto."
sometida para la aprobacion de
este Juzgado."
(14) The properties involved in the aforesaid (18) Avelina A. Magno has submitted no
motion of September 16, 1963 are all registered inventory and accounting of her administration
in the name of the deceased C. N. Hodges. as Administratrix of the estate of Linnie Jane
Hodges and Special Administratrix of the estate
(15) Avelina A. Magno, it is alleged on of C. N. Hodges. However, from manifestations
information and belief, has been advertising in made by Avelina A. Magno and her legal
the newspaper in Iloilo thusly: counsel, Leon P. Gellada, there is no question
she will claim that at least fifty per cent (50%) of
For Sale the conjugal assets of the deceased spouses
and the rents, emoluments and income
Testate Estate of Linnie Jane Hodges and therefrom belong to the Higdon family who are
Charles Newton Hodges. named in paragraphs Fourth and Fifth of the
Will of Linnie Jane Hodges (p. 5, Rec. Sp. Proc.
All Real Estate or Personal Property will be sold 1307).
on First Come First Served Basis.
WHEREFORE, premises considered, movant
Avelina A. Magno respectfully prays that this Honorable Court,
Administratrix after due hearing, order:
(16) Avelina A. Magno, it is alleged on (1) Avelina A. Magno to submit an inventory and
information and belief, has paid and still is accounting of all of the funds, properties and
paying sums of money to sundry persons. assets of any character belonging to the
deceased Linnie Jane Hodges and C. N.
Hodges which have come into her possession,
(17) Joe Hodges through the undersigned
with full details of what she has done with them;
attorneys manifested during the hearings before
this Honorable Court on September 5 and 6,
1963 that the estate of C. N. Hodges was (2) Avelina A. Magno to turn over and deliver to
claiming all of the assets belonging to the the Administrator of the estate of C. N. Hodges
deceased spouses Linnie Jane Hodges and C. all of the funds, properties and assets of any
N. Hodges situated in Philippines because of character remaining in her possession;
the aforesaid election by C. N. Hodges wherein
he claimed and took possession as sole owner (3) Pending this Honorable Court's adjudication
of all of said assets during the administration of of the aforesaid issues, Avelina A. Magno to
the estate of Linnie Jane Hodges on the ground stop, unless she first secures the conformity of
that he was the sole devisee and legatee under Joe Hodges (or his duly authorized
her Last Will and Testament. representative, such as the undersigned
attorneys) as the Co-administrator and PLUS ALL OF THE RENTS,
attorney-in-fact of a majority of the beneficiaries EMOLUMENTS AND INCOME
of the estate of C. N. Hodges: THEREFROM OF OCTOBER 5,
1963.
(a) Advertising the sale and the sale of the
properties of the estates: COMES NOW Philippine Commercial and
Industrial Bank (hereinafter referred to as
(b) Employing personnel and paying them any PCIB), the administrator of the estate of C. N.
compensation. Hodges, deceased, in Special Proceedings No.
1672, through its undersigned counsel, and to
(4) Such other relief as this Honorable Court this Honorable Court respectfully alleges that:
may deem just and equitable in the premises.
(Annex "T", Petition.) 1. On October 5, 1963, Joe Hodges acting as
the co-administrator of the estate of C. N.
Almost a year thereafter, or on September 14, 1964, after the Hodges filed, through the undersigned
co-administrators Joe Hodges and Fernando P. Mirasol were attorneys, an "Urgent Motion For An Accounting
replaced by herein petitioner Philippine Commercial and and Delivery To Administrator of the Estate of C.
Industrial Bank as sole administrator, pursuant to an N. Hodges of all Of The Assets Of The Conjugal
agreement of all the heirs of Hodges approved by the court, Partnership of The Deceased Linnie Jane
and because the above motion of October 5, 1963 had not yet Hodges and C. N. Hodges Existing as Of May,
been heard due to the absence from the country of Atty. Gibbs, 23, 1957 Plus All Of The Rents, Emoluments
petitioner filed the following: and Income Therefrom" (pp. 536-542, CFI Rec.
S. P. No. 1672).
MANIFESTATION AND
MOTION, INCLUDING MOTION 2. On January 24, 1964 this Honorable Court,
TO SET FOR HEARING AND on the basis of an amicable agreement entered
RESOLVE "URGENT MOTION into on January 23, 1964 by the two co-
FOR AN ACCOUNTING AND administrators of the estate of C. N. Hodges
DELIVERY TO and virtually all of the heirs of C. N. Hodges (p.
ADMINISTRATORS OF THE 912, CFI Rec., S. P. No. 1672), resolved the
ESTATE OF C. N. HODGES OF dispute over who should act as administrator of
ALL THE ASSETS OF THE the estate of C. N. Hodges by appointing the
CONJUGAL PARTNERSHIP OF PCIB as administrator of the estate of C. N.
THE DECEASED LINNIE JANE Hodges (pp. 905-906, CFI Rec. S. P. No. 1672)
HODGES AND C. N. HODGES and issuing letters of administration to the
EXISTING AS OF MAY 23, 1957 PCIB.
3. On January 24, 1964 virtually all of the heirs 4. On February 15, 1964 the PCIB filed a
of C. N. Hodges, Joe Hodges and Fernando P. "Motion to Resolve" the aforesaid Motion of
Mirasol acting as the two co-administrators of October 5, 1963. This Honorable Court set for
the estate of C. N. Hodges, Avelina A. Magno hearing on June 11, 1964 the Motion of October
acting as the administratrix of the estate of 5, 1963.
Linnie Jane Hodges, and Messrs. William
Brown and Ardel Young Acting for all of the 5. On June 11, 1964, because the undersigned
Higdon family who claim to be the sole Allison J. Gibbs was absent in the United
beneficiaries of the estate of Linnie Jane States, this Honorable Court ordered the
Hodges and various legal counsel representing indefinite postponement of the hearing of the
the aforenamed parties entered into an Motion of October 5, 1963.
amicable agreement, which was approved by
this Honorable Court, wherein the parties 6. Since its appointment as administrator of the
thereto agreed that certain sums of money were estate of C. N. Hodges the PCIB has not been
to be paid in settlement of different claims able to properly carry out its duties and
against the two estates and that the assets (to obligations as administrator of the estate of C.
the extent they existed)of both estates would N. Hodges because of the following acts,
be administrated jointly by the PCIB as among others, of Avelina A. Magno and those
administrator of the estate of C. N. Hodges and who claim to act for her as administratrix of the
Avelina A. Magno as administratrix of the estate estate of Linnie Jane Hodges:
of Linnie Jane Hodges, subject, however, to the
aforesaid October 5, 1963 Motion, namely, the (a) Avelina A. Magno illegally
PCIB's claim to exclusive possession and acts as if she is in exclusive
ownership of one-hundred percent (10017,) (or, control of all of the assets in the
in the alternative, seventy-five percent [75%] of Philippines of both estates
all assets owned by C. N. Hodges or Linnie including those claimed by the
Jane Hodges situated in the Philippines. On estate of C. N. Hodges as
February 1, 1964 (pp. 934-935, CFI Rec., S. P. evidenced in part by her locking
No. 1672) this Honorable Court amended its the premises at 206-208 Guanco
order of January 24, 1964 but in no way Street, Iloilo City on August 31,
changes its recognition of the aforedescribed 1964 and refusing to reopen
basic demand by the PCIB as administrator of same until ordered to do so by
the estate of C. N. Hodges to one hundred this Honorable Court on
percent (100%) of the assets claimed by both September 7, 1964.
estates.
(b) Avelina A. Magno illegally 7. Under and pursuant to the orders of this
acts as though she alone may Honorable Court, particularly those of January
decide how the assets of the 24 and February 1, 1964, and the mandate
estate of C.N. Hodges should be contained in its Letters of Administration issued
administered, who the PCIB on January 24, 1964 to the PCIB, it has
shall employ and how much they
may be paid as evidenced in "full authority to
party by her refusal to sign take possession
checks issued by the PCIB of all the property
payable to the undersigned of the deceased
counsel pursuant to their fee C. N. Hodges
agreement approved by this
Honorable Court in its order "and to perform all other acts
dated March 31, 1964. necessary for the preservation of
said property." (p. 914, CFI Rec.,
(c) Avelina A. Magno illegally S.P. No. 1672.)
gives access to and turns over
possession of the records and 8. As administrator of the estate of C. N.
assets of the estate of C.N. Hodges, the PCIB claims the right to the
Hodges to the attorney-in-fact of immediate exclusive possession and control of
the Higdon Family, Mr. James L. all of the properties, accounts receivables, court
Sullivan, as evidenced in part by cases, bank accounts and other assets,
the cashing of his personal including the documentary records evidencing
checks. same, which existed in the Philippines on the
date of C. N. Hodges' death, December 25,
(d) Avelina A. Magno illegally 1962, and were in his possession and
refuses to execute checks registered in his name alone. The PCIB knows
prepared by the PCIB drawn to of no assets in the Philippines registered in the
pay expenses of the estate of C. name of Linnie Jane Hodges, the estate of
N. Hodges as evidenced in part Linnie Jane Hodges, or, C. N. Hodges,
by the check drawn to reimburse Executor of the Estate of Linnie Jane Hodges
the PCIB's advance of on December 25, 1962. All of the assets of
P48,445.50 to pay the 1964 which the PCIB has knowledge are either
income taxes reported due and registered in the name of C. N. Hodges, alone
payable by the estate of C.N. or were derived therefrom since his death on
Hodges. December 25, 1962.
9. The PCIB as the current administrator of the (c) On January 22, 1963, with
estate of C. N. Hodges, deceased, succeeded the conformity of Avelina A.
to all of the rights of the previously duly Magno, Harold K. Davies
appointed administrators of the estate of C. N. resigned in favor of Joe Hodges
Hodges, to wit: (pp. 35-36, CFI Rec., S.P. No.
1672) who thereupon was
(a) On December 25, 1962, date appointed on January 22, 1963
of C. N. Hodges' death, this by this Honorable Court as
Honorable Court appointed Miss special co-administrator of the
Avelina A. Magno simultaneously estate of C.N. Hodges (pp. 38-40
as: & 43, CFI Rec. S.P. No. 1672)
along with Miss Magno who at
(i) Administratrix of the estate of that time was still acting as
Linnie Jane Hodges (p. 102, CFI special co-administratrix of the
Rec., S.P. No. 1307) to replace estate of C. N. Hodges.
the deceased C. N. Hodges who
on May 28, 1957 was appointed (d) On February 22, 1963,
Special Administrator (p. 13. CFI without objection on the part of
Rec. S.P. No. 1307) and on July Avelina A. Magno, this
1, 1957 Executor of the estate of Honorable Court appointed Joe
Linnie Jane Hodges (p. 30, CFI Hodges and Fernando P. Mirasol
Rec., S. P. No. 1307). as co-administrators of the
estate of C.N. Hodges (pp. 76-
(ii) Special Administratrix of the 78, 81 & 85, CFI Rec., S.P. No.
estate of C. N. Hodges (p. 102, 1672).
CFI Rec., S.P. No. 1307).
10. Miss Avelina A. Magno, pursuant to the
(b) On December 29, 1962 this orders of this Honorable Court of December 25,
Honorable Court appointed 1962, took possession of all Philippine Assets
Harold K. Davies as co-special now claimed by the two estates. Legally, Miss
administrator of the estate of Magno could take possession of the assets
C.N. Hodges along with Avelina registered in the name of C. N. Hodges alone
A. Magno (pp. 108-111, CFI only in her capacity as Special Administratrix of
Rec., S. P. No. 1307). the Estate of C.N. Hodges. With the
appointment by this Honorable Court on
February 22, 1963 of Joe Hodges and
Fernando P. Mirasol as the co-administrators of Higdon family who claim to be
the estate of C.N. Hodges, they legally were the only heirs of Linnie Jane
entitled to take over from Miss Magno the full Hodges (pp. 18, 25-33, CFI
and exclusive possession of all of the assets of Rec., S. P. No. 1672).
the estate of C.N. Hodges. With the
appointment on January 24, 1964 of the PCIB Note: This accounting was approved by this
as the sole administrator of the estate of C.N. Honorable Court on January 22, 1963 (p. 34,
Hodges in substitution of Joe Hodges and CFI Rec., S. P. No. 1672).
Fernando P. Mirasol, the PCIB legally became
the only party entitled to the sole and exclusive (b) The accounting of Joe
possession of all of the assets of the estate of Hodges and Fernando P. Mirasol
C. N. Hodges. as of January 23, 1964, filed
February 24, 1964 (pp. 990-
11. The PCIB's predecessors submitted their 1000, CFI Rec. S.P. No. 1672
accounting and this Honorable Court approved and pp. 1806-1848, CFI Rec.
same, to wit: S.P. No. 1307).
(a) The accounting of Harold K. Note: This accounting was approved by this
Davies dated January 18, 1963 Honorable Court on March 3, 1964.
(pp. 16-33, CFI Rec. S.P. No.
1672); which shows or its face (c) The PCIB and its
the: undersigned lawyers are aware
of no report or accounting
(i) Conformity of Avelina A. submitted by Avelina A. Magno
Magno acting as "Administratrix of her acts as administratrix of
of the Estate of Linnie Jane the estate of Linnie Jane Hodges
Hodges and Special or special administratrix of the
Administratrix of the Estate of C. estate of C.N. Hodges, unless it
N. Hodges"; is the accounting of Harold K.
Davies as special co-
(ii) Conformity of Leslie Echols, a administrator of the estate of
Texas lawyer acting for the heirs C.N. Hodges dated January 18,
of C.N. Hodges; and 1963 to which Miss Magno
manifested her conformity
(iii) Conformity of William Brown, (supra).
a Texas lawyer acting for the
12. In the aforesaid agreement of January 24, 1964, Miss 1964. On September 1, 1964 Miss Magno
Avelina A. Magno agreed to receive P10,000.00 locked the premises at 206-208 Guanco Street
and denied the PCIB access thereto. Upon the
"for her services as Urgent Motion of the PCIB dated September 3,
administratrix of the estate of 1964, this Honorable Court on September 7,
Linnie Jane Hodges" 1964 ordered Miss Magno to reopen the
aforesaid premises at 206-208 Guanco Street
and in addition she agreed to be employed, and permit the PCIB access thereto no later
starting February 1, 1964, at than September 8, 1964.
"a monthly salary of P500.00 for 15. The PCIB pursuant to the aforesaid orders
her services as an employee of of this Honorable Court is again in physical
both estates." possession of all of the assets of the estate of
C. N. Hodges. However, the PCIB is not in
24 ems. exclusive control of the aforesaid records,
properties and assets because Miss Magno
13. Under the aforesaid agreement of January continues to assert the claims hereinabove
24, 1964 and the orders of this Honorable Court outlined in paragraph 6, continues to use her
of same date, the PCIB as administrator of the own locks to the doors of the aforesaid
estate of C. N. Hodges is entitled to the premises at 206-208 Guanco Street, Iloilo City
exclusive possession of all records, properties and continues to deny the PCIB its right to
and assets in the name of C. N. Hodges as of know the combinations to the doors of the vault
the date of his death on December 25, 1962 and safes situated within the premises at 206-
which were in the possession of the deceased 208 Guanco Street despite the fact that said
C. N. Hodges on that date and which then combinations were known to only C. N. Hodges
passed to the possession of Miss Magno in her during his lifetime.
capacity as Special Co-Administratrix of the
estate of C. N. Hodges or the possession of Joe 16. The Philippine estate and inheritance taxes
Hodges or Fernando P. Mirasol as co- assessed the estate of Linnie Jane Hodges
administrators of the estate of C. N. Hodges. were assessed and paid on the basis that C. N.
Hodges is the sole beneficiary of the assets of
14. Because of Miss Magno's refusal to comply the estate of Linnie Jane Hodges situated in the
with the reasonable request of PCIB concerning Philippines. Avelina A. Magno and her legal
the assets of the estate of C. N. Hodges, the counsel at no time have questioned the validity
PCIB dismissed Miss Magno as an employee of of the aforesaid assessment and the payment
the estate of C. N. Hodges effective August 31, of the corresponding Philippine death taxes.
17. Nothing further remains to be done in the estate of C. N. Hodges all of the funds,
estate of Linnie Jane Hodges except to resolve properties and assets of any character
the aforesaid Motion of October 5, 1963 and remaining in her possession;
grant the PCIB the exclusive possession and
control of all of the records, properties and (4) Pending this Honorable Court's adjudication
assets of the estate of C. N. Hodges. of the aforesaid issues, order Avelina A. Magno
and her representatives to stop interferring with
18. Such assets as may have existed of the the administration of the estate of C. N. Hodges
estate of Linnie Jane Hodges were ordered by by the PCIB and its duly authorized
this Honorable Court in special Proceedings representatives;
No. 1307 to be turned over and delivered to C.
N. Hodges alone. He in fact took possession of (5) Enjoin Avelina A. Magno from working in the
them before his death and asserted and premises at 206-208 Guanco Street, Iloilo City
exercised the right of exclusive ownership over as an employee of the estate of C. N. Hodges
the said assets as the sole beneficiary of the and approve her dismissal as such by the PCIB
estate of Linnie Jane Hodges. effective August 31, 1964;
WHEREFORE, premises considered, the PCIB (6) Enjoin James L. Sullivan, Attorneys
respectfully petitions that this Honorable court: Manglapus and Quimpo and others allegedly
representing Miss Magno from entering the
(1) Set the Motion of October 5, 1963 for premises at 206-208 Guanco Street, Iloilo City
hearing at the earliest possible date with notice or any other properties of C. N. Hodges without
to all interested parties; the express permission of the PCIB;
(2) Order Avelina A. Magno to submit an (7) Order such other relief as this Honorable
inventory and accounting as Administratrix of Court finds just and equitable in the premises.
the Estate of Linnie Jane Hodges and Co- (Annex "U" Petition.)
Administratrix of the Estate of C. N. Hodges of
all of the funds, properties and assets of any On January 8, 1965, petitioner also filed a motion for "Official
character belonging to the deceased Linnie Declaration of Heirs of Linnie Jane Hodges Estate" alleging:
Jane Hodges and C. N. Hodges which have
come into her possession, with full details of COMES NOW Philippine Commercial and Industrial Bank
what she has done with them; (hereinafter referred to as PCIB), as administrator of the estate
of the late C. N. Hodges, through the undersigned counsel,
(3) Order Avelina A. Magno to turn over and and to this Honorable Court respectfully alleges that:
deliver to the PCIB as administrator of the
1. During their marriage, spouses Charles unto him, my said husband
Newton Hodges and Linnie Jane Hodges, during his natural lifetime.
American citizens originally from the State of
Texas, U.S.A., acquired and accumulated THIRD: I desire, direct and
considerable assets and properties in the provide that my husband,
Philippines and in the States of Texas and Charles Newton Hodges, shall
Oklahoma, United States of America. All said have the right to manage,
properties constituted their conjugal estate. control, use and enjoy said
estate during his lifetime, and he
2. Although Texas was the domicile of origin of is hereby given the right to make
the Hodges spouses, this Honorable Court, in any changes in the physical
its orders dated March 31 and December 12, properties of said estate by sale
1964 (CFI Record, Sp. Proc. No. 1307, pp. ----; of any part thereof which he
Sp. Proc. No. 1672, p. ----), conclusively found think best, and the purchase of
and categorically ruled that said spouses had any other or additional property
lived and worked for more than 50 years in Iloilo as he may think best; to execute
City and had, therefore, acquired a domicile of conveyances with or without
choice in said city, which they retained until the general or special warranty,
time of their respective deaths. conveying in fee simple or for
any other term or time, any
3. On November 22, 1952, Linnie Jane Hodges property which he may deem
executed in the City of Iloilo her Last Will and proper to dispose of; to lease
Testament, a copy of which is hereto attached any of the real property for oil,
as Annex "A". The bequests in said will gas and/or other minerals, and
pertinent to the present issue are the second, all such deeds or leases shall
third, and fourth provisions, which we quote in pass the absolute fee simple title
full hereunder. to the interest so conveyed in
such property as he may elect to
SECOND: I give, devise and sell. All rents, emoluments and
bequeath all of the rest, residue income from said estate shall
and remainder of my estate, both belong to him, and he is further
personal and real, wherever authorized to use any part of the
situated, or located, to my principal of said estate as he
husband, Charles Newton may need or desire. It is
Hodges, to have and to hold provided herein, however, that
he shall not sell or otherwise
dispose of any of the improved 5. On May 23, 1957 Linnie Jane Hodges died in
property now owned by us Iloilo City, predeceasing her husband by more
located at, in or near the City of than five (5) years. At the time of her death, she
Lubbock, Texas, but he shall had no forced or compulsory heir, except her
have the full right to lease, husband, C. N. Hodges. She was survived also
manage and enjoy the same by various brothers and sisters mentioned in
during his lifetime, as above her Will (supra), which, for convenience, we
provided. He shall have the right shall refer to as the HIGDONS.
to sub-divide any farmland and
sell lots therein, and may sell 6. On June 28, 1957, this Honorable Court
unimproved town lots. admitted to probate the Last Will and Testament
of the deceased Linnie Jane Hodges (Annex
FOURTH: At the death of my "A"), and appointed C. N. Hodges as executor
said husband, Charles Newton of her estate without bond. (CFI Record, Sp.
Hodges, I give, devise and Proc. No. 1307, pp. 24-25). On July 1, 1957,
bequeath all of the rest, residue this Honorable Court issued letters
and remainder of my estate both testamentary to C. N. Hodges in the estate of
real and personal, wherever Linnie Jane Hodges. (CFI Record, Sp. Proc.
situated or located, to be equally No. 1307, p. 30.)
divided among my brothers and
sisters, share and share alike, 7. The Will of Linnie Jane Hodges, with respect
namely: to the order of succession, the amount of
successional rights, and the intrinsic of its
"Esta Higdon, Emma Howell, testamentary provisions, should be governed by
Leonard Higdon, Roy Higdon, Philippine laws because:
Sadie Rascoe, Era Boman and
Nimray Higdon." (a) The testatrix, Linnie Jane
Hodges, intended Philippine
4. On November 14, 1953, C. N. Hodges laws to govern her Will;
executed in the City of Iloilo his Last Will and
Testament, a copy of which is hereto attached (b) Article 16 of the Civil Code
as Annex "B ". In said Will, C. N. Hodges provides that "the national law of
designated his wife, Linnie Jane Hodges, as his the person whose succession is
beneficiary using the identical language she under consideration, whatever
used in the second and third provisos of her may be the nature of the
Will, supra. property and regardless of the
country wherein said property those within the jurisdiction of
may be found", shall prevail. this motion Court in the two
However, the Conflict of Law of above-captioned Special
Texas, which is the "national law" Proceedings.
of the testatrix, Linnie Jane
Hodges, provide that the 8. Under Philippine and Texas law, the conjugal
domiciliary law (Philippine law — or community estate of spouses shall, upon
see paragraph 2, supra) should dissolution, be divided equally between them.
govern the testamentary Thus, upon the death of Linnie Jane Hodges on
dispositions and successional May 23, 1957, one-half (1/2) of the entirety of
rights over movables (personal the assets of the Hodges spouses constituting
properties), and the law of the their conjugal estate pertained automatically to
situs of the property (also Charles Newton Hodges, not by way of
Philippine law as to properties inheritance, but in his own right as partner in
located in the Philippines) with the conjugal partnership. The other one-half
regards immovable (real (1/2) portion of the conjugal estate constituted
properties). Thus applying the the estate of Linnie Jane Hodges. This is the
"Renvoi Doctrine", as approved only portion of the conjugal estate capable of
and applied by our Supreme inheritance by her heirs.
Court in the case of "In The
Matter Of The Testate Estate of 9. This one-half (1/2) portion of the conjugal
Eduard E. Christensen", G.R. assets pertaining to Linnie Jane Hodges
No. cannot, under a clear and specific provision of
L-16749, promulgated January her Will, be enhanced or increased by income,
31, 1963, Philippine law should earnings, rents, or emoluments accruing after
apply to the Will of Linnie Jane her death on May 23, 1957. Linnie Jane
Hodges and to the successional Hodges' Will provides that "all rents,
rights to her estate insofar as emoluments and income from said estate shall
her movable and immovable ass belong to him (C. N. Hodges) and he is further
ets in the Philippines are authorized to use any part of the principal of
concerned. We shall not, at this said estate as he may need or desire."
stage, discuss what law should (Paragraph 3, Annex "A".) Thus, by specific
govern the assets of Linnie Jane provision of Linnie Jane Hodges' Will, "all rents,
Hodges located in Oklahoma emoluments and income" must be credited to
and Texas, because the only the one-half (1/2) portion of the conjugal estate
assets in issue in this motion are pertaining to C. N. Hodges. Clearly, therefore,
the estate of Linnie Jane Hodges, capable of of succession and legitime, which we have cited
inheritance by her heirs, consisted exclusively above, C. N. Hodges, by specific testamentary
of no more than one-half (1/2) of the conjugal designation of his wife, was entitled to the
estate, computed as of the time of her death on entirely to his wife's estate in the Philippines.
May 23, 1957.
12. Article 777 of the New Civil Code provides
10. Articles 900, 995 and 1001 of the New Civil that "the rights of the successor are transmitted
Code provide that the surviving spouse of a from the death of the decedent". Thus, title to
deceased leaving no ascendants or the estate of Linnie Jane Hodges was
descendants is entitled, as a matter of right and transmitted to C. N. Hodges immediately upon
by way of irrevocable legitime, to at least one- her death on May 23, 1957. For the
half (1/2) of the estate of the deceased, and no convenience of this Honorable Court, we
testamentary disposition by the deceased can attached hereto as Annex "C" a graph of how
legally and validly affect this right of the the conjugal estate of the spouses Hodges
surviving spouse. In fact, her husband is should be divided in accordance with Philippine
entitled to said one-half (1/2) portion of her law and the Will of Linnie Jane Hodges.
estate by way of legitime. (Article 886, Civil
Code.) Clearly, therefore, immediately upon the 13. In his capacity as sole heir and successor to
death of Linnie Jane Hodges, C. N. Hodges the estate of Linnie Jane Hodges as above-
was the owner of at least three-fourths (3/4) or stated, C. N. Hodges, shortly after the death of
seventy-five (75%) percent of all of the conjugal Linnie Jane Hodges, appropriated to himself the
assets of the spouses, (1/2 or 50% by way of entirety of her estate. He operated all the
conjugal partnership share and 1/4 or 25% by assets, engaged in business and performed all
way of inheritance and legitime) plus all "rents, acts in connection with the entirety of the
emoluments and income" accruing to said conjugal estate, in his own name alone, just as
conjugal estate from the moment of Linnie Jane he had been operating, engaging and doing
Hodges' death (see paragraph 9, supra). while the late Linnie Jane Hodges was still
alive. Upon his death on December 25, 1962,
11. The late Linnie Jane Hodges designated her therefore, all said conjugal assets were in his
husband C.N. Hodges as her sole and sole possession and control, and registered in
exclusive heir with full authority to do what he his name alone, not as executor, but as
pleased, as exclusive heir and owner of all the exclusive owner of all said assets.
assets constituting her estate, except only with
regards certain properties "owned by us, 14. All these acts of C. N. Hodges were
located at, in or near the City of Lubbock, authorized and sanctioned expressly and
Texas". Thus, even without relying on our laws
impliedly by various orders of this Honorable deceased Linnie Jane Hodges in consonance
Court, as follows: with the wishes contained in the last will and
testament of the latter." (CFI Record. Sp. Proc.
(a) In an Order dated May 27, 1957, this No. 1307, p. 46; emphasis supplied.)
Honorable Court ruled that C. N. Hodges "is
allowed or authorized to continue the business 24 ems
in which he was engaged, and to perform acts
which he had been doing while the deceased (c) On April 21, 1959, this Honorable Court
was living." (CFI Record, Sp. Proc. No. 1307, p. approved the verified inventory and accounting
11.) submitted by C. N. Hodges through his counsel
Leon P. Gellada on April 14, 1959 wherein he
(b) On December 14, 1957, this Honorable alleged among other things,
Court, on the basis of the following fact, alleged
in the verified Motion dated December 11, 1957 "That no person interested in the
filed by Leon P. Gellada as attorney for the Philippines of the time and place
executor C. N. Hodges: of examining the herein account,
be given notice, as herein
That herein Executor, (is) not only part owner of executor is the only devisee or
the properties left as conjugal, but also, the legatee of the deceased, in
successor to all the properties left by the accordance with the last will and
deceased Linnie Jane Hodges.' (CFI Record, testament already probated by
Sp. Proc. No. 1307, p. 44; emphasis supplied.) the Honorable Court." (CFI
Record, Sp. Proc. No. 1307, pp.
issued the following order: 77-78; emphasis supplied.)
"As prayed for by Attorney Gellada, counsel for (d) On July 20, 1960, this Honorable Court
the Executor, for the reasons stated in his approved the verified "Annual Statement of
motion dated December 11, 1957, which the Account" submitted by C. N. Hodges through
Court considers well taken, all the sales, his counsel Leon P. Gellada on July 21, 1960
conveyances, leases and mortgages of all the wherein he alleged, among other things.
properties left by the deceased Linnie Jane
Hodges executed by the Executor, Charles "That no person interested in the
Newton Hodges are hereby APPROVED. The Philippines of the time and place
said Executor is further authorized to execute of examining the herein account,
subsequent sales, conveyances, leases and be given notice as herein
mortgages of the properties left by the said executor is the only devisee or
legatee of the deceased Linnie 16. By expressly authorizing C. N. Hodges to
Jane Hodges, in accordance act as he did in connection with the estate of his
with the last will and testament wife, this Honorable Court has (1) declared C.
ofthe deceased, already N. Hodges as the sole heir of the estate of
probated by this Honorable Linnie Jane Hodges, and (2) delivered and
Court." (CFI Record, Sp. Proc. distributed her estate to C. N. Hodges as sole
No. 1307, pp. 81-82; emphasis heir in accordance with the terms and
supplied.) conditions of her Will. Thus, although the
"estate of Linnie Jane Hodges" still exists as a
(e) On May 2, 1961, this Honorable Court legal and juridical personality, it had no assets
approved the verified "Annual Statement of or properties located in the Philippines
Account By The Executor For the Year 1960" registered in its name whatsoever at the time of
submitted through Leon P. Gellada on April 20, the death of C. N. Hodges on December 25,
1961 wherein he alleged: 1962.
"That no person interested in the Philippines be 17. The Will of Linnie Jane Hodges (Annex "A"),
given notice, ofthe time and place of examining fourth paragraph, provides as follows:
the herein account, as herein executor is the
only devisee or legatee of the deceased Linnie "At the death of my said
Jane Hodges, in accordance with the last will husband, Charles Newton
and testament ofthe deceased, already Hodges, I give, devise and
probated by this Honorable Court." (CFI bequeath all of the rest, residue
Record, Sp. Proc. No. 1307, pp. 90-91; and remainder of my estate both
emphasis supplied.) real and personal, wherever
situated or located, to be equally
15. Since C. N. Hodges was the sole and divided among my brothers and
exclusive heir of Linnie Jane Hodges, not only sisters, share and share alike,
by law, but in accordance with the dispositions namely:
of her will, there was, in fact, no need to
liquidate the conjugal estate of the spouses. "Esta Higdon,
The entirely of said conjugal estate pertained to Emma Howell,
him exclusively, therefore this Honorable Court Leonard Higdon,
sanctioned and authorized, as above-stated, C. Roy Higdon,
N. Hodges to manage, operate and control all Sadie Rascoe,
the conjugal assets as owner. Era Boman and
Nimray Higdon."
Because of the facts hereinabove set out there provide that no charge, condition
is no "rest, residue and remainder", at least to or substitution whatsoever upon
the extent of the Philippine assets, which the legitime can be imposed by a
remains to vest in the HIGDONS, assuming this testator. Thus, under the
proviso in Linnie Jane Hodges' Will is valid and provisions of Articles 900, 995
binding against the estate of C. N. Hodges. and 1001 of the New Civil Code,
the legitime of a surviving
18. Any claims by the HIGDONS under the spouse is 1/2 of the estate of the
above-quoted provision of Linnie Jane Hodges' deceased spouse. Consequently,
Will is without merit because said provision is the above-mentioned provision
void and invalid at least as to the Philippine in the Will of Linnie Jane Hodges
assets. It should not, in anyway, affect the rights is clearly invalid insofar as the
of the estate of C. N. Hodges or his heirs to the legitime of C. N. Hodges was
properties, which C. N. Hodges acquired by concerned, which consisted of
way of inheritance from his wife Linnie Jane 1/2 of the 1/2 portion of the
Hodges upon her death. conjugal estate, or 1/4 of the
entire conjugal estate of the
(a) In spite of the above- deceased.
mentioned provision in the Will of
Linnie Jane Hodges, C. N. (c) There are generally only two
Hodges acquired, not merely a kinds of substitution provided for
usufructuary right, but absolute and authorized by our Civil Code
title and ownership to her estate. (Articles 857-870), namely,
In a recent case involving a very (1) simple or
similar testamentary provision, common substitution, sometimes
the Supreme Court held that the referred to as vulgar substitution
heir first designated acquired full (Article 859), and (2)
ownership of the property fideicommissary substitution
bequeathed by the will, not mere (Article 863). All other
usufructuary rights. (Consolacion substitutions are merely
Florentino de Crisologo, et al., variations of these. The
vs. Manuel Singson, G. R. No. L- substitution provided for by
13876, February 28, 1962.) paragraph four of the Will of
Linnie Jane Hodges is not
(b) Article 864, 872 and 886 of fideicommissary substitution,
the New Civil Code clearly because there is clearly no
obligation on the part of C. N. esta su verdadera intencion. ...".
Hodges as the first heir (6 Manresa, 7 a ed., pag. 175.)
designated, to preserve the In other words, when another
properties for the substitute heir is designated to inherit upon
heirs. (Consolacion Florentino de the death of a first heir, the
Crisologo et al. vs. Manuel second designation can have
Singson, G. R. No. effect only in case the first
L-13876.) At most, it is instituted heir dies before the
a vulgar or simple substitution. testator, whether or not that was
However, in order that the true intention of said testator.
a vulgar or simple substitution Since C. N. Hodges did not die
can be valid, three alternative before Linnie Jane Hodges, the
conditions must be present, provision for substitution
namely, that the first designated contained in Linnie Jane Hodges'
heir (1) should die before the Willis void.
testator; or (2) should not wish to
accept the inheritance; or (3) (d) In view of the invalidity of the
should be incapacitated to do so. provision for substitution in the
None of these conditions apply Will, C. N. Hodges' inheritance to
to C. N. Hodges, and, therefore, the entirety of the Linnie Jane
the substitution provided for by Hodges estate is irrevocable and
the above-quoted provision of final.
the Will is not authorized by the
Code, and, therefore, it is void. 19. Be that as it may, at the time of C. N.
Manresa, commenting on these Hodges' death, the entirety of the conjugal
kisses of substitution, estate appeared and was registered in him
meaningfully stated that: "... exclusively as owner. Thus, the presumption is
cuando el testador instituyeun that all said assets constituted his estate.
primer heredero, y por Therefore —
fallecimiento de este nombra
otro u otros, ha de entenderse (a) If the HIGDONS wish to enforce their
que estas segundas dubious rights as substituted heirs to 1/4 of the
designaciones solo han de llegar conjugal estate (the other 1/4 is covered by the
a tener efectividad en el caso de legitime of C. N. Hodges which can not be
que el primer instituido muera affected by any testamentary disposition), their
antes que el testador, fuera o no remedy, if any, is to file their claim against the
estate of C. N. Hodges, which should be the "rents, emoluments and income" above-
entitled at the present time to full custody and mentioned, now constitutes the estate of C. N.
control of all the conjugal estate of the spouses. Hodges, capable of distribution to his heirs
upon termination of Special Proceedings No.
(b) The present proceedings, in which two 1672;
estates exist under separate administration,
where the administratrix of the Linnie Jane 6. That PCIB, as administrator of the estate of
Hodges estate exercises an officious right to C. N. Hodges, is entitled to full and exclusive
object and intervene in matters affecting custody, control and management of all said
exclusively the C. N. Hodges estate, is properties; and
anomalous.
7. That Avelina A. Magno, as administratrix of
WHEREFORE, it is most respectfully prayed the estate of Linnie Jane Hodges, as well as the
that after trial and reception of evidence, this HIGDONS, has no right to intervene or
Honorable Court declare: participate in the administration of the C. N.
Hodges estate.
1. That the estate of Linnie Jane Hodges was
and is composed exclusively of one-half (1/2) PCIB further prays for such and other relief as
share in the conjugal estate of the spouses may be deemed just and equitable in the
Hodges, computed as of the date of her death premises."
on May 23, 1957;
(Record, pp. 265-277)
2. That the other half of the conjugal estate
pertained exclusively to C. N. Hodges as his Before all of these motions of petitioner could be resolved,
share as partner in the conjugal partnership; however, on December 21, 1965, private respondent Magno
filed her own "Motion for the Official Declaration of Heirs of the
3. That all "rents, emoluments and income" of Estate of Linnie Jane Hodges" as follows:
the conjugal estate accruing after Linnie Jane
Hodges' death pertains to C. N. Hodges; COMES NOW the Administratrix of the Estate
of Linnie Jane Hodges and, through
4. That C. N. Hodges was the sole and undersigned counsel, unto this Honorable Court
exclusive heir of the estate of Linnie Jane most respectfully states and manifests:
Hodges;
1. That the spouses Charles Newton Hodges
5. That, therefore, the entire conjugal estate of and Linnie Jane Hodges were American
the spouses located in the Philippines, plus all citizens who died at the City of Iloilo after
having amassed and accumulated extensive 6. That the last will and testament of Linnie
properties in the Philippines; Jane Hodges already admitted to probate
contains an institution of heirs in the following
2. That on November 22, 1952, Linnie Jane words:
Hodges executed a last will and testament (the
original of this will now forms part of the records "SECOND: I give, devise and
of these proceedings as Exhibit "C" and bequeath all of the rest, residue
appears as Sp. Proc. No. 1307, Folio I, pp. 17- and remainder of my estate, both
18); personal and real, wherever
situated or located, to my
3. That on May 23, 1957, Linnie Jane Hodges beloved husband, Charles
died at the City of Iloilo at the time survived by Newton Hodges to have and to
her husband, Charles Newton Hodges, and hold unto him, my said husband,
several relatives named in her last will and during his natural lifetime.
testament;
THIRD: I desire, direct and
4. That on June 28, 1957, a petition therefor provide that my husband,
having been priorly filed and duly heard, this Charles Newton Hodges, shall
Honorable Court issued an order admitting to have the right to manage,
probate the last will and testament of Linnie control, use and enjoy said
Jane Hodges (Sp. Proc. No. 1307, Folio I, pp. estate during his lifetime, and, he
24-25, 26-28); is hereby given the right to make
any changes in the physical
5. That the required notice to creditors and to all properties of said estate, by sale
others who may have any claims against the of any part thereof which he may
decedent, Linnie Jane Hodges has already think best, and the purchase of
been printed, published and posted (Sp. Proc. any other or additional property
No. 1307, Folio I. pp. 34-40) and the as he may think best; to execute
reglamentary period for filing such claims has conveyances with or without
long ago lapsed and expired without any claims general or special warranty,
having been asserted against the estate of conveying in fee simple or for
Linnie Jane Hodges, approved by the any other term or time, any
Administrator/Administratrix of the said estate, property which he may deem
nor ratified by this Honorable Court; proper to dispose of; to lease
any of the real property for oil,
gas and/or other minerals, and
all such deeds or leases shall Esta Higdon, Emma Howell,
pass the absolute fee simple title Leonard Higdon, Roy Higdon,
to the interest so conveyed in Sadie Rascoe, Era Boman and
such property as he elect to sell. Nimroy Higdon.
All rents, emoluments and
income from said estate shall FIFTH: In case of the death of
belong to him, and he is further any of my brothers and/or sisters
authorized to use any part of the named in item Fourth, above,
principal of said estate as he prior to the death of my husband,
may need or desire. It is Charles Newton Hodges, then it
provided herein, however, that is my will and bequest that the
he shall not sell or otherwise heirs of such deceased brother
dispose of any of the improved or sister shall take jointly the
property now owned by us share which would have gone to
located at, in or near the City of such brother or sister had she or
Lubbock Texas, but he shall he survived."
have the full right to lease,
manage and enjoy the same 7. That under the provisions of the last will and
during his lifetime, above testament already above-quoted, Linnie Jane
provided. He shall have the right Hodges gave a life-estate or a usufruct over all
to subdivide any farm land and her estate to her husband, Charles Newton
sell lots therein, and may sell Hodges, and a vested remainder-estate or the
unimproved town lots. naked title over the same estate to her relatives
named therein;
FOURTH: At the death of my
said husband, Charles Newton 8. That after the death of Linnie Jane Hodges
Hodges, I give, devise and and after the admission to probate of her last
bequeath all of the rest, residue will and testament, but during the lifetime of
and remainder of my estate, both Charles Newton Hodges, the said Charles
real and personal, wherever Newton Hodges with full and complete
situated or located, to be equally knowledge of the life-estate or usufruct
divided among my brothers and conferred upon him by the will since he was
sisters, share and share alike, then acting as Administrator of the estate and
namely: later as Executor of the will of Linnie Jane
Hodges, unequivocably and clearly through oral
and written declarations and sworn public
statements, renounced, disclaimed and having been continually devoted to the
repudiated his life-estate and usufruct over the business of the spouses as if they were alive;
estate of Linnie Jane Hodges;
12. That the one-half interest of Linnie Jane
9. That, accordingly, the only heirs left to Hodges in the combined conjugal estate was
receive the estate of Linnie Jane Hodges earning "rents, emoluments and income" until
pursuant to her last will and testament, are her her death on May 23, 1957, when it ceased to
named brothers and sisters, or their heirs, to be saddled with any more charges or
wit: Esta Higdon, Emma Howell, Leonard expenditures which are purely personal to her
Higdon, Aline Higdon and David Higdon, the in nature, and her estate kept on earning such
latter two being the wife and son respectively of "rents, emoluments and income" by virtue of
the deceased Roy Higdon, Sadie Rascoe Era their having been expressly renounced,
Boman and Nimroy Higdon, all of legal ages, disclaimed and repudiated by Charles Newton
American citizens, with residence at the State Hodges to whom they were bequeathed for life
of Texas, United States of America; under the last will and testament of Linnie Jane
Hodges;
10. That at the time of the death of Linnie Jane
Hodges on May 23, 1957, she was the co- 13. That, on the other hand, the one-half
owner (together with her husband Charles interest of Charles Newton Hodges in the
Newton Hodges) of an undivided one-half combined conjugal estate existing as of May
interest in their conjugal properties existing as 23, 1957, while it may have earned exactly the
of that date, May 23, 1957, which properties are same amount of "rents, emoluments and
now being administered sometimes jointly and income" as that of the share pertaining to Linnie
sometimes separately by the Administratrix of Jane Hodges, continued to be burdened by
the estate of Linnie Jane Hodges and/or the charges, expenditures, and other dispositions
Administrator of the estate of C. N. Hodges but which are purely personal to him in nature, until
all of which are under the control and the death of Charles Newton Hodges himself on
supervision of this Honorable Court; December 25, 1962;
11. That because there was no separation or 14. That of all the assets of the combined
segregation of the interests of husband and conjugal estate of Linnie Jane Hodges and
wife in the combined conjugal estate, as there Charles Newton Hodges as they exist today, the
has been no such separation or segregation up estate of Linnie Jane Hodges is clearly entitled
to the present, both interests have continually to a portion more than fifty percent (50%) as
earned exactly the same amount of "rents, compared to the portion to which the estate of
emoluments and income", the entire estate Charles Newton Hodges may be entitled, which
portions can be exactly determined by the liquidation of her estate, segregate them from
following manner: the conjugal estate, and distribute them to her
heirs pursuant to her last will and testament.
a. An inventory must be made of
the assets of the combined WHEREFORE, premises considered, it is most
conjugal estate as they existed respectfully moved and prayed that this
on the death of Linnie Jane Honorable Court, after a hearing on the factual
Hodges on May 23, 1957 — matters raised by this motion, issue an order:
one-half of these assets belong
to the estate of Linnie Jane a. Declaring the following persons, to wit: Esta
Hodges; Higdon, Emma Howell, Leonard Higdon, Aline
Higdon, David Higdon, Sadie Rascoe, Era
b. An accounting must be made Boman and Nimroy Higdon, as the sole heirs
of the "rents, emoluments and under the last will and testament of Linnie Jane
income" of all these assets — Hodges and as the only persons entitled to her
again one-half of these belong to estate;
the estate of Linnie Jane
Hodges; b. Determining the exact value of the estate of
Linnie Jane Hodges in accordance with the
c. Adjustments must be made, system enunciated in paragraph 14 of this
after making a deduction of motion;
charges, disbursements and
other dispositions made by c. After such determination ordering its
Charles Newton Hodges segregation from the combined conjugal estate
personally and for his own and its delivery to the Administratrix of the
personal account from May 23, estate of Linnie Jane Hodges for distribution to
1957 up to December 25, 1962, the heirs to whom they properly belong and
as well as other charges, appertain.
disbursements and other
dispositions made for him and in (Green Record on Appeal, pp. 382-391)
his behalf since December 25,
1962 up to the present; whereupon, instead of further pressing on its motion of
January 8, 1965 aforequoted, as it had been doing before,
15. That there remains no other matter for petitioner withdrew the said motion and in addition to opposing
disposition now insofar as the estate of Linnie the above motion of respondent Magno, filed a motion on April
Jane Hodges is concerned but to complete the 22, 1966 alleging in part that:
1. That it has received from the counsel for the d. Manifestation of September
administratrix of the supposed estate of Linnie 14, 1964, detailing acts of
Jane Hodges a notice to set her "Motion for interference of Avelina Magno
Official Declaration of Heirs of the Estate of under color of title as
Linnie Jane Hodges"; administratrix of the Estate of
Linnie Jane Hodges;
2. That before the aforesaid motion could be
heard, there are matters pending before this which are all prejudicial, and which involve no
Honorable Court, such as: issues of fact, all facts involved therein being
matters of record, and therefore require only the
a. The examination already resolution of questions of law;
ordered by this Honorable Court
of documents relating to the 3. That whatever claims any alleged heirs or
allegation of Avelina Magno that other persons may have could be very easily
Charles Newton Hodges threshed out in the Testate Estate of Charles
"through ... written declarations Newton Hodges;
and sworn public statements,
renounced, disclaimed and 4. That the maintenance of two separate estate
repudiated life-estate and proceedings and two administrators only results
usufruct over the estate of Linnie in confusion and is unduly burdensome upon
Jane Hodges'; the Testate Estate of Charles Newton Hodges,
particularly because the bond filed by Avelina
b. That "Urgent Motion for An Magno is grossly insufficient to answer for the
Accounting and Delivery to the funds and property which she has inofficiously
Estate of C. N. Hodges of All the collected and held, as well as those which she
Assets of the Conjugal continues to inofficiously collect and hold;
Partnership of the Deceased
Linnie Jane Hodges and C. N. 5. That it is a matter of record that such state of
Hodges Existing as of May 23, affairs affects and inconveniences not only the
1957 Plus All the Rents, estate but also third-parties dealing with it;"
Emoluments and Income (Annex "V", Petition.)
Therefrom";
and then, after further reminding the court, by quoting them, of
c. Various motions to resolve the the relevant allegations of its earlier motion of September 14,
aforesaid motion; 1964, Annex U, prayed that:
1. Immediately order Avelina Magno to account consideration of this motion, immediately order
for and deliver to the administrator of the Estate Avelina Magno to turn over all her collections to
of C. N. Hodges all the assets of the conjugal the administrator PCIB; (3) Declare the Testate
partnership of the deceased Linnie Jane Estate of Linnie Jane Hodges (Sp. Proc. No.
Hodges and C. N. Hodges, plus all the rents, 1307) closed; and (4) Defer the hearing and
emoluments and income therefrom; consideration of the motion for declaration of
heirs in the Testate Estate of Linnie Jane
2. Pending the consideration of this motion, Hodges until the matters hereinabove set forth
immediately order Avelina Magno to turn over are resolved.
all her collections to the administrator Philippine
Commercial & Industrial Bank; This motion is predicated on the fact that there
are matters pending before this court such as
3. Declare the Testate Estate of Linnie Jane (a) the examination already ordered by this
Hodges (Sp. Proc. No. 1307) closed; Honorable Court of documents relating to the
allegation of Avelina Magno that Charles
4. Defer the hearing and consideration of the Newton Hodges thru written declaration and
motion for declaration of heirs in the Testate sworn public statements renounced, disclaimed
Estate of Linnie Jane Hodges until the matters and repudiated his life-estate and usufruct over
hereinabove set forth are resolved. the estate of Linnie Jane Hodges (b) the urgent
(Prayer, Annex "V" of Petition.) motion for accounting and delivery to the estate
of C. N. Hodges of all the assets of the conjugal
On October 12, 1966, as already indicated at the outset of this partnership of the deceased Linnie Jane
opinion, the respondent court denied the foregoing motion, Hodges and C. N. Hodges existing as of May
holding thus: 23, 1957 plus all the rents, emoluments and
income therefrom; (c) various motions to
ORDER resolve the aforesaid motion; and (d)
manifestation of September 14, 1964, detailing
acts of interference of Avelina Magno under
On record is a motion (Vol. X, Sp. 1672, pp.
color of title as administratrix of the estate of
4379-4390) dated April 22, 1966 of
Linnie Jane Hodges.
administrator PCIB praying that (1) Immediately
order Avelina Magno to account for and deliver
to the administrator of the estate of C. N. These matters, according to the instant motion,
Hodges all assets of the conjugal partnership of are all pre-judicial involving no issues of facts
the deceased Linnie Jane Hodges and C. N. and only require the resolution of question of
Hodges, plus all the rents, emoluments and law; that in the motion of October 5, 1963 it is
income therefrom; (2) Pending the alleged that in a motion dated December 11,
1957 filed by Atty. Leon Gellada as attorney for That during the hearing on September 5 and 6,
the executor C. N. Hodges, the said executor C. 1963 the estate of C. N. Hodges claimed all the
N. Hodges is not only part owner of the assets belonging to the deceased spouses
properties left as conjugal but also the Linnie Jane Hodges and C. N. Hodges situated
successor to all the properties left by the in the Philippines; that administratrix Magno has
deceased Linnie Jane Hodges. executed illegal acts to the prejudice of the
testate estate of C. N. Hodges.
Said motion of December 11, 1957 was
approved by the Court in consonance with the An opposition (Sp. 1672, Vol. X, pp. 4415-4421)
wishes contained in the last will and testament dated April 27, 1966 of administratrix Magno
of Linnie Jane Hodges. has been filed asking that the motion be denied
for lack of merit and that the motion for the
That on April 21, 1959 this Court approved the official declaration of heirs of the estate of
inventory and accounting submitted by C. N. Linnie Jane Hodges be set for presentation and
Hodges thru counsel Atty. Leon Gellada in a reception of evidence.
motion filed on April 14, 1959 stating therein
that executor C. N. Hodges is the only devisee It is alleged in the aforesaid opposition that the
or legatee of Linnie Jane Hodges in accordance examination of documents which are in the
with the last will and testament already possession of administratrix Magno can be
probated by the Court. made prior to the hearing of the motion for the
official declaration of heirs of the estate of
That on July 13, 1960 the Court approved the Linnie Jane Hodges, during said hearing.
annual statement of accounts submitted by the
executor C. N. Hodges thru his counsel Atty. That the matters raised in the PCIB's motion of
Gellada on July 21, 1960 wherein it is stated October 5, 1963 (as well as the other motion)
that the executor, C. N. Hodges is the only dated September 14, 1964 have been
devisee or legatee of the deceased Linnie Jane consolidated for the purpose of presentation
Hodges; that on May 2, 1961 the Court and reception of evidence with the hearing on
approved the annual statement of accounts the determination of the heirs of the estate of
submitted by executor, C. N. Hodges for the Linnie Jane Hodges. It is further alleged in the
year 1960 which was submitted by Atty. Gellada opposition that the motion for the official
on April 20, 1961 wherein it is stated that declaration of heirs of the estate of Linnie Jane
executor Hodges is the only devisee or legatee Hodges is the one that constitutes a prejudicial
of the deceased Linnie Jane Hodges; question to the motions dated October 5 and
September 14, 1964 because if said motion is
found meritorious and granted by the Court, the
PCIB's motions of October 5, 1963 and December 11, 1957 only sought the approval of
September 14, 1964 will become moot and all conveyances made by C. N. Hodges and
academic since they are premised on the requested the Court authority for all subsequent
assumption and claim that the only heir of conveyances that will be executed by C. N.
Linnie Jane Hodges was C. N. Hodges. Hodges; that the order dated December 14,
1957 only approved the conveyances made by
That the PCIB and counsel are estopped from C. N. Hodges; that C. N. Hodges represented
further questioning the determination of heirs in by counsel never made any claim in the estate
the estate of Linnie Jane Hodges at this stage of Linnie Jane Hodges and never filed a motion
since it was PCIB as early as January 8, 1965 to declare himself as the heir of the said Linnie
which filed a motion for official declaration of Jane Hodges despite the lapse of more than
heirs of Linnie Jane Hodges that the claim of five (5) years after the death of Linnie Jane
any heirs of Linnie Jane Hodges can be Hodges; that it is further alleged in the rejoinder
determined only in the administration that there can be no order of adjudication of the
proceedings over the estate of Linnie Jane estate unless there has been a prior express
Hodges and not that of C. N. Hodges, since the declaration of heirs and so far no declaration of
heirs of Linnie Jane Hodges are claiming her heirs in the estate of Linnie Jane Hodges (Sp.
estate and not the estate of C. N. Hodges. 1307) has been made.
A reply (Sp. 1672, Vol. X, pp. 4436-4444) dated Considering the allegations and arguments in
May 11, 1966 of the PCIB has been filed the motion and of the PCIB as well as those in
alleging that the motion dated April 22, 1966 of the opposition and rejoinder of administratrix
the PCIB is not to seek deferment of the Magno, the Court finds the opposition and
hearing and consideration of the motion for rejoinder to be well taken for the reason that so
official declaration of heirs of Linnie Jane far there has been no official declaration of
Hodges but to declare the testate estate of heirs in the testate estate of Linnie Jane
Linnie Jane Hodges closed and for Hodges and therefore no disposition of her
administratrix Magno to account for and deliver estate.
to the PCIB all assets of the conjugal
partnership of the deceased spouses which has WHEREFORE, the motion of the PCIB dated
come to her possession plus all rents and April 22, 1966 is hereby DENIED.
income. (Annex "W", Petition)
A rejoinder (Sp. 1672, Vol. X, pp. 4458-4462) of In its motion dated November 24, 1966 for the reconsideration
administratrix Magno dated May 19, 1966 has of this order, petitioner alleged inter alia that:
been filed alleging that the motion dated
It cannot be over-stressed that the motion of This Honorable Court, in its order of December
December 11, 1957 was based on the fact that: 14, 1957, "for the reasons stated" in the
aforesaid motion, granted the same, and not
a. Under the last will and only approved all the sales, conveyances,
testament of the deceased, leases and mortgages of all properties left by
Linnie Jane Hodges, the late the deceased Linnie Jane Hodges executed by
Charles Newton Hodges was the the late Charles Newton Hodges, but also
sole heir instituted insofar as her authorized "all subsequent sales, conveyances,
properties in the Philippines are leases and mortgages of the properties left by
concerned; the said deceased Linnie Jane Hodges. (Annex
"X", Petition)
b. Said last will and testament
vested upon the said late and reiterated its fundamental pose that the Testate Estate of
Charles Newton Hodges rights Linnie Jane Hodges had already been factually, although not
over said properties which, in legally, closed with the virtual declaration of Hodges and
sum, spell ownership, absolute adjudication to him, as sole universal heir of all the properties
and in fee simple; of the estate of his wife, in the order of December 14, 1957,
Annex G. Still unpersuaded, on July 18, 1967, respondent
c. Said late Charles Newton court denied said motion for reconsideration and held that "the
Hodges was, therefore, "not only court believes that there is no justification why the order of
part owner of the properties left October 12, 1966 should be considered or modified", and, on
as conjugal, but also, the July 19, 1967, the motion of respondent Magno "for official
successor to all the properties declaration of heirs of the estate of Linnie Jane Hodges",
left by the deceased Linnie Jane already referred to above, was set for hearing.
Hodges.
In consequence of all these developments, the present petition
Likewise, it cannot be over-stressed that the was filed on August 1, 1967 (albeit petitioner had to pay
aforesaid motion was granted by this Honorable another docketing fee on August 9, 1967, since the orders in
Court "for the reasons stated" therein. question were issued in two separate testate estate
proceedings, Nos. 1307 and 1672, in the court below).
Again, the motion of December 11, 1957 prayed
that not only "all the sales, conveyances, Together with such petition, there are now pending before Us
leases, and mortgages executed by" the late for resolution herein, appeals from the following:
Charles Newton Hodges, but also all "the
subsequent sales, conveyances, leases, and 1. The order of December 19, 1964 authorizing
mortgages ..." be approved and authorized. payment by respondent Magno of overtime pay,
(pp. 221, Green Record on Appeal) together Carles, Catedral, Pablito, Guzman, Coronado,
with the subsequent orders of January 9, 1965, Barrido, Causing, Javier, Lucero and Batisanan,
(pp. 231-232,id.) October 27, 1965, (pp. (see pp. 35 to 37 of this opinion), together with
227, id.) and February 15, 1966 (pp. 455- the two separate orders both dated December
456, id.) repeatedly denying motions for 2, 1966 (pp. 306-308, and pp. 308-309, Yellow
reconsideration thereof. Record on Appeal) denying reconsideration of
said approval.
2. The order of August 6, 1965 (pp. 248, id.)
requiring that deeds executed by petitioner to 7. The order of January 3, 1967, on pp. 335-
be co-signed by respondent Magno, as well as 336, Yellow Record on Appeal, approving
the order of October 27, 1965 (pp. 276-277) similar deeds of sale executed by respondent
denying reconsideration. Magno, as those in No. 6, in favor of appellees
Pacaonsis and Premaylon, as to which no
3. The order of October 27, 1965 (pp. 292- motion for reconsideration was filed.
295, id.) enjoining the deposit of all collections
in a joint account and the same order of 8. Lastly, the order of December 2, 1966, on pp.
February 15, 1966 mentioned in No. 1 above 305-306, Yellow Record on Appeal, directing
which included the denial of the reconsideration petitioner to surrender to appellees Lucero,
of this order of October 27, 1965. Batisanan, Javier, Pablito, Barrido, Catedral,
Causing, Guzman, and Coronado, the
4. The order of November 3, 1965 (pp. 313- certificates of title covering the lands involved in
320, id.) directing the payment of attorney's the approved sales, as to which no motion for
fees, fees of the respondent administratrix, etc. reconsideration was filed either.
and the order of February 16, 1966 denying
reconsideration thereof. Strictly speaking, and considering that the above orders deal
with different matters, just as they affect distinctly different
5. The order of November 23, 1965 (pp. 334- individuals or persons, as outlined by petitioner in its brief as
335, id.) allowing appellee Western Institute of appellant on pp. 12-20 thereof, there are, therefore, thirty-three
Technology to make payments to either one or (33) appeals before Us, for which reason, petitioner has to pay
both of the administrators of the two estates as also thirty-one (31) more docket fees.
well as the order of March 7, 1966 (p. 462, id.)
denying reconsideration. It is as well perhaps to state here as elsewhere in this opinion
that in connection with these appeals, petitioner has assigned
6. The various orders hereinabove earlier a total of seventy-eight (LXXVIII) alleged errors, the respective
enumerated approving deeds of sale executed discussions and arguments under all of them covering also the
by respondent Magno in favor of appellees fundamental issues raised in respect to the petition
for certiorari and prohibition, thus making it feasible and more THE APPELLEES, PEPITO G. IYULORES,
practical for the Court to dispose of all these cases together.4 ESPIRIDION PARTISALA, WINIFREDO C.
ESPADA AND ROSARIO ALINGASA, WHILE
The assignments of error read thus: ACTING AS A PROBATE COURT.
I to IV XIII to XV
THE ORDER COURT ERRED IN APPROVING THE LOWER COURT ERRED IN APPROVING
THE FINAL DEEDS OF SALE IN FAVOR OF THE FINAL DEEDS OF SALE IN FAVOR OF
THE APPELLEES, PEPITO G. IYULORES, THE APPELLEES ADELFA PREMAYLON (LOT
ESPIRIDION PARTISALA, WINIFREDO C. NO. 102), SANTIAGO PACAONSIS, AND
ESPADA AND ROSARIO ALINGASA, ADELFA PREMAYLON (LOT NO. 104),
EXECUTED BY THE APPELLEE, AVELINA A. EXECUTED BY THE APPELLEE, AVELINA A.
MAGNO, COVERING PARCELS OF LAND MAGNO, COVERING PARCELS OF LAND
OWNED BY THE DECEASED, CHARLES OWNED BY THE DECEASED, CHARLES
NEWTON HODGES, AND THE CONTRACTS NEWTON HODGES, AND THE CONTRACTS
TO SELL COVERING WHICH WERE TO SELL COVERING WHICH WERE
EXECUTED BY HIM DURING HIS LIFETIME. EXECUTED BY HIM DURING HIS LIFETIME.
THE LOWER COURT ERRED IN APPROVING THE LOWER COURT ERRED IN APPROVING
THE DEEDS OF SALE IN FAVOR OF THE THE DEEDS OF SALE IN FAVOR OF THE
APPELLEES, PEPITO G. IYULORES, APPELLEES ADELFA PREMAYLON (LOT NO.
ESPIRIDION PARTISALA, WINIFREDO C. 102), SANTIAGO PACAONSIS, AND ADELFA
ESPADA AND ROSARIO ALINGASA, PREMAYLON (LOT NO. 104) COVERING
COVERING PARCELS OF LAND FOR WHICH PARCELS OF LAND FOR WHICH THEY HAVE
THEY HAVE NEVER PAID IN FULL IN NEVER PAID IN FULL IN ACCORDANCE
ACCORDANCE WITH THE ORIGINAL WITH THE ORIGINAL CONTRACTS TO SELL.
CONTRACTS TO SELL.
XIX to XXI
IX to XII
THE LOWER COURT ERRED IN
THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF
DETERMINING THE RIGHTS OF OWNERSHIP OVER REAL PROPERTY OF
OWNERSHIP OVER REAL PROPERTY OF THE APPELLEES ADELFA PREMAYLON (LOT
NO. 102), SANTIAGO PACAONSIS, AND GUZMAN, WHILE ACTING AS A PROBATE
ADELFA PREMAYLON (LOT NO. 104) WHILE COURT.
ACTING AS A PROBATE COURT.
XXXV to XXXVI
XXII to XXV
THE LOWER COURT ERRED IN APPROVING
THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN FAVOR OF
THE FINAL DEEDS OF SALE IN FAVOR OF THE APPELLEES, FLORENIA BARRIDO AND
THE APPELLEES LORENZO CARLES, JOSE PURIFICACION CORONADO, EXECUTED BY
PABLICO, ALFREDO CATEDRAL AND THE APPELLEE, AVELINA A. MAGNO,
SALVADOR S. GUZMAN, EXECUTED BY THE COVERING PARCELS OF LAND OWNED BY
APPELLEE, AVELINA A. MAGNO, COVERING THE DECEASED, CHARLES NEWTON
PARCELS OF LAND OWNED BY THE HODGES, AND THE CONTRACTS TO SELL
DECEASED, CHARLES NEWTON HODGES, COVERING WHICH WERE EXECUTED BY
AND THE CONTRACTS TO SELL COVERING HIM DURING HIS LIFETIME.
WHICH WERE EXECUTED BY HIM DURING
HIS LIFETIME. XXXVII to XXXVIII
LXVII LXXI
LOWER COURT ERRED IN ALLOWING THE THE LOWER COURT ERRED IN ORDERING
CONTINUATION OF PAYMENTS BY THE THE PREMATURE DISTRIBUTION OF
APPELLEE, WESTERN INSTITUTE OF ESTATE ASSETS TO ALLEGED HEIRS OR
TECHNOLOGY, UPON A CONTRACT TO BENEFICIARIES THEREOF, BY WAY OF
SELL EXECUTED BY IT AND THE RETAINER'S FEES.
DECEASED, CHARLES NEWTON HODGES,
TO A PERSON OTHER THAN HIS LAWFULLY LXXII
APPOINTED ADMINISTRATOR.
THE LOWER COURT ERRED IN ORDERING
LXVIII THAT ALL FINAL DEEDS OF SALE
EXECUTED PURSUANT TO CONTRACTS TO
THE LOWER COURT ERRED IN ORDERING SELL ENTERED INTO BY THE DECEASED,
THE PAYMENT OF RETAINER'S FEES FROM CHARLES NEWTON HODGES, DURING HIS
THE SUPPOSED ESTATE OF THE LIFETIME, BE SIGNED JOINTLY BY THE
DECEASED, LINNIE JANE HODGES, WHEN APPELLEE, AVELINA A. MAGNO, AND THE
THERE IS NEITHER SUCH ESTATE NOR APPELLANT, PHILIPPINE COMMERCIAL AND
ASSETS THEREOF. INDUSTRIAL BANK, AND NOT BY THE
LATTER ONLY AS THE LAWFULLY
LXIX APPOINTED ADMINISTRATOR OF HIS
ESTATE.
THE LOWER COURT ERRED IN ORDERING
THE PAYMENT OF RETAINER'S FEES OF LXXIII
LAWYERS OF ALLEGED HEIRS TO THE
SUPPOSED ESTATE OF THE DECEASED, THE LOWER COURT ERRED IN ORDERING
LINNIE JANE HODGES. THE PAYMENT OF LEGAL EXPENSES FROM
THE SUPPOSED ESTATE OF THE
LXX DECEASED, LINNIE JANE HODGES, WHEN
THERE IS NEITHER SUCH ESTATE NOR
THE LOWER COURT ERRED IN ASSETS THEREOF.
IMPLEMENTING THE ALLEGED AGREEMENT
BETWEEN THE HEIRS OF THE SUPPOSED LXXIV
THE LOWER COURT ERRED IN ORDERING LXXVIII
THE PAYMENT OF LEGAL EXPENSES OF
LAWYERS OF ALLEGED HEIRS TO THE THE LOWER COURT ERRED IN ORDERING
SUPPOSED ESTATE OF THE DECEASED, THAT THE APPELLEE, AVELINA A. MAGNO,
LINNIE JANE HODGES. BE GIVEN EQUAL ACCESS TO THE
RECORDS OF THE TESTATE ESTATE OF
LXXV THE DECEASED, CHARLES NEWTON
HODGES, WHEN SHE IS A COMPLETE
THE LOWER COURT ERRED IN ORDERING STRANGER TO THE AFORESAID ESTATE.
THE PREMATURE DISTRIBUTION OF (Pp. 73-83, Appellant's Brief.)
ESTATE ASSETS TO ALLEGED HEIRS OR
BENEFICIARIES THEREOF, BY WAY OF To complete this rather elaborate, and unavoidably extended
LEGAL EXPENSES. narration of the factual setting of these cases, it may also be
mentioned that an attempt was made by the heirs of Mrs.
LXXVI Hodges to have respondent Magno removed as administratrix,
with the proposed appointment of Benito J. Lopez in her place,
THE LOWER COURT ERRED IN ORDERING and that respondent court did actually order such proposed
THE PAYMENT OF COMPENSATION TO THE replacement, but the Court declared the said order of
PURPORTED ADMINISTRATRIX OF THE respondent court violative of its injunction of August 8, 1967,
SUPPOSED ESTATE OF THE DECEASED, hence without force and effect (see Resolution of September
LINNIE JANE HODGES, THE INSTANT 8, 1972 and February 1, 1973). Subsequently, Atty. Efrain B.
APPELLEE, AVELINA A. MAGNO, WHEN Trenas, one of the lawyers of said heirs, appeared no longer
THERE IS NEITHER SUCH ESTATE NOR for the proposed administrator Lopez but for the heirs
ASSETS THEREOF. themselves, and in a motion dated October 26, 1972 informed
the Court that a motion had been filed with respondent court
LXXVII for the removal of petitioner PCIB as administrator of the
estate of C. N. Hodges in Special Proceedings 1672, which
THE LOWER COURT ERRED IN ORDERING removal motion alleged that 22.968149% of the share of C. N.
THAT THE FUNDS OF THE TESTATE ESTATE Hodges had already been acquired by the heirs of Mrs.
OF THE DECEASED, CHARLES NEWTON Hodges from certain heirs of her husband. Further, in this
HODGES, BE PLACED IN A JOINT ACCOUNT connection, in the answer of PCIB to the motion of respondent
OF THE APPELLANT, PHILIPPINE Magno to have it declared in contempt for disregarding the
COMMERCIAL AND INDUSTRIAL BANK, AND Court's resolution of September 8, 1972 modifying the
THE APPELLEE, AVELINA A. MAGNO, WHO injunction of August 8, 1967, said petitioner annexed thereto a
IS A COMPLETE STRANGER TO THE joint manifestation and motion, appearing to have been filed
AFORESAID ESTATE. with respondent court, informing said court that in addition to
the fact that 22% of the share of C. N. Hodges had already Such contention fails to take into account that there is a
been bought by the heirs of Mrs. Hodges, as already stated, common thread among the basic issues involved in all these
certain other heirs of Hodges representing 17.343750% of his thirty-three appeals which, unless resolved in one single
estate were joining cause with the heirs of Mrs. Hodges as proceeding, will inevitably cause the proliferation of more or
against PCIB, thereby making somewhat precarious, if not less similar or closely related incidents and consequent
possibly untenable, petitioners' continuation as administrator of eventual appeals. If for this consideration alone, and without
the Hodges estate. taking account anymore of the unnecessary additional effort,
expense and time which would be involved in as many
RESOLUTION OF ISSUES IN THE CERTIORARI AND individual appeals as the number of such incidents, it is logical
PROHIBITION CASES and proper to hold, as We do hold, that the remedy of appeal
is not adequate in the present cases. In determining whether
I or not a special civil action of certiorari or prohibition may be
resorted to in lieu of appeal, in instances wherein lack or
As to the Alleged Tardiness excess of jurisdiction or grave abuse of discretion is alleged, it
of the Present Appeals is not enough that the remedy of appeal exists or is possible. It
is indispensable that taking all the relevant circumstances of
The priority question raised by respondent Magno relates to the given case, appeal would better serve the interests of
the alleged tardiness of all the aforementioned thirty-three justice. Obviously, the longer delay, augmented expense and
appeals of PCIB. Considering, however, that these appeals trouble and unnecessary repetition of the same work attendant
revolve around practically the same main issues and that it is to the present multiple appeals, which, after all, deal with
admitted that some of them have been timely taken, and, practically the same basic issues that can be more
moreover, their final results hereinbelow to be stated and expeditiously resolved or determined in a single special civil
explained make it of no consequence whether or not the action, make the remedies of certiorari and prohibition,
orders concerned have become final by the lapsing of the pursued by petitioner, preferable, for purposes of resolving the
respective periods to appeal them, We do not deem it common basic issues raised in all of them, despite the
necessary to pass upon the timeliness of any of said appeals. conceded availability of appeal. Besides, the settling of such
common fundamental issues would naturally minimize the
areas of conflict between the parties and render more simple
II
the determination of the secondary issues in each of them.
Accordingly, respondent Magno's objection to the present
The Propriety Here of Certiorari and remedy of certiorariand prohibition must be overruled.
Prohibition instead of Appeal
We come now to the errors assigned by petitioner-appellant,
The other preliminary point of the same respondent is alleged Philippine Commercial & Industrial Bank, (PCIB, for short) in
impropriety of the special civil action of certiorari and the petition as well as in its main brief as appellant.
prohibition in view of the existence of the remedy of appeal
which it claims is proven by the very appeals now before Us.
III proceedings to be less than definite, plain and specific in
making orders in such regard, if for no other reason than that
On Whether or Not There is Still Any Part of the Testate all parties concerned, like the heirs, the creditors, and most of
Estate Mrs. Hodges that may be Adjudicated to her brothers all the government, the devisees and legatees, should know
and sisters as her estate, of which respondent Magno is the with certainty what are and when their respective rights and
unquestioned Administratrix in special Proceedings 1307. obligations ensuing from the inheritance or in relation thereto
would begin or cease, as the case may be, thereby avoiding
In the petition, it is the position of PCIB that the respondent precisely the legal complications and consequent litigations
court exceeded its jurisdiction or gravely abused its discretion similar to those that have developed unnecessarily in the
in further recognizing after December 14, 1957 the existence present cases. While it is true that in instances wherein all the
of the Testate Estate of Linnie Jane Hodges and in sanctioning parties interested in the estate of a deceased person have
purported acts of administration therein of respondent Magno. already actually distributed among themselves their respective
Main ground for such posture is that by the aforequoted order shares therein to the satisfaction of everyone concerned and
of respondent court of said date, Hodges was already allowed no rights of creditors or third parties are adversely affected, it
to assert and exercise all his rights as universal heir of his wife would naturally be almost ministerial for the court to issue the
pursuant to the provisions of her will, quoted earlier, hence, final order of declaration and distribution, still it is
nothing else remains to be done in Special Proceedings 1307 inconceivable that the special proceeding instituted for the
except to formally close it. In other words, the contention of purpose may be considered terminated, the respective rights
PCIB is that in view of said order, nothing more than a formal of all the parties concerned be deemed definitely settled, and
declaration of Hodges as sole and exclusive heir of his wife the executor or administrator thereof be regarded as
and the consequent formal unqualified adjudication to him of automatically discharged and relieved already of all functions
all her estate remain to be done to completely close Special and responsibilities without the corresponding definite orders
Proceedings 1307, hence respondent Magno should be of the probate court to such effect.
considered as having ceased to be Administratrix of the
Testate Estate of Mrs. Hodges since then. Indeed, the law on the matter is specific, categorical and
unequivocal. Section 1 of Rule 90 provides:
After carefully going over the record, We feel constrained to
hold that such pose is patently untenable from whatever angle SECTION 1. When order for distribution of
it is examined. residue made. — When the debts, funeral
charges, and expenses of administration, the
To start with, We cannot find anywhere in respondent Order of allowance to the widow and inheritance tax, if
December 14, 1957 the sense being read into it by PCIB. The any, chargeable to the estate in accordance
tenor of said order bears no suggestion at all to such effect. with law have been paid, the court, on the
The declaration of heirs and distribution by the probate court of application of the executor or administrator, or
the estate of a decedent is its most important function, and this of a person interested in the estate, and after
Court is not disposed to encourage judges of probate hearing upon notice, shall assign the residue of
the estate to the persons entitled to the same, administration, allowance to the widow, and
naming them and the proportions, or parts, to inheritance tax shall have been effected that the
which each is entitled, and such persons may court should make a declaration of heirs or of
demand and recover their respective shares such persons as are entitled by law to the
from the executor or administrator, or any other residue. (Moran, Comments on the Rules of
person having the same in his possession. If Court, 2nd ed., Vol. II, p. 397, citing Capistrano
there is a controversy before the court as to vs. Nadurata, 49 Phil., 726; Lopez vs. Lopez,
who are the lawful heirs of the deceased person 37 Off. Gaz., 3091.) (JIMOGA-ON v.
or as to the distributive shares to which each BELMONTE, 84 Phil. 545, 548) (p. 86,
person is entitled under the law, the controversy Appellee's Brief)
shall be heard and decided as in ordinary
cases. xxx xxx xxx
No distribution shall be allowed until the Under Section 753 of the Code of Civil
payment of the obligations above mentioned Procedure, (corresponding to Section 1, Rule
has been made or provided for, unless the 90) what brings an intestate (or testate)
distributees, or any of them give a bond, in a proceeding to a close is the order of distribution
sum to be fixed by the court, conditioned for the directing delivery of the residue to the persons
payment of said obligations within such time as entitled thereto after paying the indebtedness, if
the court directs. any, left by the deceased. (Santiesteban vs.
Santiesteban, 68 Phil. 367, 370.)
These provisions cannot mean anything less than that in order
that a proceeding for the settlement of the estate of a In the cases at bar, We cannot discern from the voluminous
deceased may be deemed ready for final closure, (1) there and varied facts, pleadings and orders before Us that the
should have been issued already an order of distribution or above indispensable prerequisites for the declaration of heirs
assignment of the estate of the decedent among or to those and the adjudication of the estate of Mrs. Hodges had already
entitled thereto by will or by law, but (2) such order shall not be been complied with when the order of December 14, 1957 was
issued until after it is shown that the "debts, funeral expenses, issued. As already stated, We are not persuaded that the
expenses of administration, allowances, taxes, etc. chargeable proceedings leading to the issuance of said order, constituting
to the estate" have been paid, which is but logical and proper. barely of the motion of May 27, 1957, Annex D of the petition,
(3) Besides, such an order is usually issued upon proper and the order of even date, Annex E, and the motion of December
specific application for the purpose of the interested party or 11, 1957, Annex H, all aforequoted, are what the law
parties, and not of the court. contemplates. We cannot see in the order of December 14,
1957, so much relied upon by the petitioner, anything more
... it is only after, and not before, the payment of than an explicit approval of "all the sales, conveyances, leases
all debts, funeral charges, expenses of and mortgages of all the properties left by the deceased Linnie
Jane Hodges executed by the Executor Charles N. Hodges" persuaded that the quoted allegations of said motions read
(after the death of his wife and prior to the date of the motion), together cannot be construed as a repudiation of the rights
plus a general advance authorization to enable said "Executor unequivocally established in the will in favor of Mrs. Hodges'
— to execute subsequent sales, conveyances, leases and brothers and sisters to whatever have not been disposed of by
mortgages of the properties left the said deceased Linnie Jane him up to his death.
Hodges in consonance with wishes conveyed in the last will
and testament of the latter", which, certainly, cannot amount to Indeed, nowhere in the record does it appear that the trial
the order of adjudication of the estate of the decedent to court subsequently acted upon the premise suggested by
Hodges contemplated in the law. In fact, the motion of petitioner. On the contrary, on November 23, 1965, when the
December 11, 1957 on which the court predicated the order in court resolved the motion of appellee Western Institute of
question did not pray for any such adjudication at all. What is Technology by its order We have quoted earlier, it categorically
more, although said motion did allege that "herein Executor held that as of said date, November 23, 1965, "in both cases
(Hodges) is not only part owner of the properties left as (Special Proceedings 1307 and 1672) there is as yet no
conjugal, but also, the successor to all the properties left by judicial declaration of heirs nor distribution of properties to
the deceased Linnie Jane Hodges", it significantly added that whomsoever are entitled thereto." In this connection, it may be
"herein Executor, as Legatee (sic), has the right to sell, stated further against petitioner, by way of some kind of
convey, lease or dispose of the properties in the Philippines — estoppel, that in its own motion of January 8, 1965, already
during his lifetime", thereby indicating that what said motion quoted in full on pages 54-67 of this decision, it prayed inter
contemplated was nothing more than either the enjoyment by alia that the court declare that "C. N. Hodges was the sole and
Hodges of his rights under the particular portion of the exclusive heir of the estate of Linnie Jane Hodges", which it
dispositions of his wife's will which were to be operative only would not have done if it were really convinced that the order
during his lifetime or the use of his own share of the conjugal of December 14, 1957 was already the order of adjudication
estate, pending the termination of the proceedings. In other and distribution of her estate. That said motion was later
words, the authority referred to in said motions and orders is in withdrawn when Magno filed her own motion for determination
the nature of that contemplated either in Section 2 of Rule 109 and adjudication of what should correspond to the brothers
which permits, in appropriate cases, advance or partial and sisters of Mrs. Hodges does not alter the indubitable
implementation of the terms of a duly probated will before final implication of the prayer of the withdrawn motion.
adjudication or distribution when the rights of third parties
would not be adversely affected thereby or in the established It must be borne in mind that while it is true that Mrs. Hodges
practice of allowing the surviving spouse to dispose of his own bequeathed her whole estate to her husband and gave him
share of he conjugal estate, pending its final liquidation, when what amounts to full powers of dominion over the same during
it appears that no creditors of the conjugal partnership would his lifetime, she imposed at the same time the condition that
be prejudiced thereby, (see the Revised Rules of Court by whatever should remain thereof upon his death should go to
Francisco, Vol. V-B, 1970 ed. p. 887) albeit, from the tenor of her brothers and sisters. In effect, therefore, what was
said motions, We are more inclined to believe that Hodges absolutely given to Hodges was only so much of his wife's
meant to refer to the former. In any event, We are fully estate as he might possibly dispose of during his lifetime;
hence, even assuming that by the allegations in his motion, he Petitioner cites the case of Austria vs. Ventenilla, G. R. No. L-
did intend to adjudicate the whole estate to himself, as 10018, September 19, 1956, (unreported but a partial digest
suggested by petitioner, such unilateral act could not have thereof appears in 99 Phil. 1069) in support of its insistence
affected or diminished in any degree or manner the right of his that with the orders of May 27 and December 14, 1957, the
brothers and sisters-in-law over what would remain thereof closure of Mrs. Hodges' estate has become a mere formality,
upon his death, for surely, no one can rightly contend that the inasmuch as said orders amounted to the order of adjudication
testamentary provision in question allowed him to so and distribution ordained by Section 1 of Rule 90. But the
adjudicate any part of the estate to himself as to prejudice parallel attempted to be drawn between that case and the
them. In other words, irrespective of whatever might have present one does not hold. There the trial court had in fact
been Hodges' intention in his motions, as Executor, of May 27, issued a clear, distinct and express order of adjudication and
1957 and December 11, 1957, the trial court's orders granting distribution more than twenty years before the other heirs of
said motions, even in the terms in which they have been the deceased filed their motion asking that the administratrix
worded, could not have had the effect of an absolute and be removed, etc. As quoted in that decision, the order of the
unconditional adjudication unto Hodges of the whole estate of lower court in that respect read as follows:
his wife. None of them could have deprived his brothers and
sisters-in-law of their rights under said will. And it may be En orden a la mocion de la administradora, el
added here that the fact that no one appeared to oppose the juzgado la encuentra procedente bajo la
motions in question may only be attributed, firstly, to the failure condicion de que no se hara entrega ni
of Hodges to send notices to any of them, as admitted in the adjudicacion de los bienes a los herederos
motion itself, and, secondly, to the fact that even if they had antes de que estos presten la fianza
been notified, they could not have taken said motions to be for correspondiente y de acuerdo con lo prescrito
the final distribution and adjudication of the estate, but merely en el Art. 754 del Codigo de Procedimientos:
for him to be able, pending such final distribution and pues, en autos no aparece que hayan sido
adjudication, to either exercise during his lifetime rights of nombrados comisionados de avaluo y
dominion over his wife's estate in accordance with the bequest reclamaciones. Dicha fianza podra ser por un
in his favor, which, as already observed, may be allowed under valor igual al de los bienes que correspondan a
the broad terms of Section 2 of Rule 109, or make use of his cada heredero segun el testamento. Creo que
own share of the conjugal estate. In any event, We do not no es obice para la terminacion del expediente
believe that the trial court could have acted in the sense el hecho de que la administradora no ha
pretended by petitioner, not only because of the clear presentado hasta ahora el inventario de los
language of the will but also because none of the interested bienes; pues, segun la ley, estan exentos de
parties had been duly notified of the motion and hearing esta formalidad os administradores que son
thereof. Stated differently, if the orders of May 27, 1957 and legatarios del residuo o remanente de los
December 4, 1957 were really intended to be read in the bienes y hayan prestado fianza para responder
sense contended by petitioner, We would have no hesitancy in de las gestiones de su cargo, y aparece en el
declaring them null and void.
testamento que la administradora Alejandra revelandole toda responsabilidad a la
Austria reune dicha condicion. administradora, y cancelando su fianza.
Under date of April 14, 1959, C. N. Hodges filed Under date of April 20, 1961, C. N. Hodges filed
his first "Account by the Executor" of the estate his third "Annual Statement of Account by the
of Linnie Jane Hodges. In the "Statement of Executor for the year 1960" of the estate of
Networth of Mr. C. N. Hodges and the Estate of Linnie Jane Hodges. In the "Statement of Net
Linnie Jane Hodges" as of December 31, 1958 Worth of Mr. C. N. Hodges and the Estate of
annexed thereto, C. N. Hodges reported that Linnie Jane Hodges" as of December 31, 1960
the combined conjugal estate earned a net annexed thereto, C. N. Hodges reported that
income of P328,402.62, divided evenly between the combined conjugal estate earned a net
him and the estate of Linnie Jane Hodges. income of P314,857.94, divided of Linnie Jane
Pursuant to this, he filed an "individual income Hodges. Pursuant to this, he filed an "individual
tax return" for calendar year 1958 on the estate evenly between him and the estate income tax
of Linnie Jane Hodges reporting, under oath, return" for calendar year 1960 on the estate of
the said estate as having earned income of Linnie Jane Hodges reporting, under oath, the
P164,201.31, exactly one-half of the net income said estate as having earned income of
of his combined personal assets and that of the P157,428.97, exactly one-half of the net income
estate of Linnie Jane Hodges. (p. 91, Appellee's of his combined personal assets and that of the
Brief.) estate of Linnie Jane Hodges. (pp. 92-93, id.)
Under date of July 21, 1960, C. N. Hodges filed In the petition for probate that he (Hodges) filed,
his second "Annual Statement of Account by he listed the seven brothers and sisters of
the Executor" of the estate of Linnie Jane Linnie Jane as her "heirs" (see p. 2, Green
Hodges. In the "Statement of Networth of Mr. C. ROA). The order of the court admitting the will
N. Hodges and the Estate of Linnie Jane to probate unfortunately omitted one of the
Hodges" as of December 31, 1959 annexed heirs, Roy Higdon (see p. 14, Green ROA).
thereto, C. N. Hodges reported that the Immediately, C. N. Hodges filed a verified
combined conjugal estate earned a net income motion to have Roy Higdon's name included as
of P270,623.32, divided evenly between him an heir, stating that he wanted to straighten the
and the estate of Linnie Jane Hodges. Pursuant records "in order (that) the heirs of deceased
to this, he filed an "individual income tax return" Roy Higdon may not think or believe they were
omitted, and that they were really and are Hodges" wherein it was alleged that "in accordance with the
interested in the estate of deceased Linnie Jane provisions of the last will and testament of Linnie Jane
Hodges". Hodges, whatever real properties that may remain at the death
of her husband, Charles Newton Hodges, the said properties
Thus, he recognized, if in his own way, the separate identity of shall be equally divided among their heirs." And it appearing
his wife's estate from his own share of the conjugal partnership that said attorney was Hodges' lawyer as Executor of the
up to the time of his death, more than five years after that of estate of his wife, it stands to reason that his understanding of
his wife. He never considered the whole estate as a single one the situation, implicit in his allegations just quoted, could
belonging exclusively to himself. The only conclusion one can somehow be reflective of Hodges' own understanding thereof.
gather from this is that he could have been preparing the basis
for the eventual transmission of his wife's estate, or, at least, As a matter of fact, the allegations in the motion of the same
so much thereof as he would not have been able to dispose of Atty. Gellada dated July 1, 1957, a "Request for Inclusion of
during his lifetime, to her brothers and sisters in accordance the Name of Roy Higdon in the Order of the Court dated July
with her expressed desire, as intimated in his tax return in the 19, 1957, etc.", reference to which is made in the above
United States to be more extensively referred to anon. And quotation from respondent Magno's brief, are over the oath of
assuming that he did pay the corresponding estate and Hodges himself, who verified the motion. Said allegations
inheritance taxes in the Philippines on the basis of his being read:
sole heir, such payment is not necessarily inconsistent with his
recognition of the rights of his co-heirs. Without purporting to 1. — That the Hon. Court issued orders dated
rule definitely on the matter in these proceedings, We might June 29, 1957, ordering the probate of the will.
say here that We are inclined to the view that under the
peculiar provisions of his wife's will, and for purposes of the 2. — That in said order of the Hon. Court, the
applicable inheritance tax laws, Hodges had to be considered relatives of the deceased Linnie Jane Hodges
as her sole heir, pending the actual transmission of the were enumerated. However, in the petition as
remaining portion of her estate to her other heirs, upon the well as in the testimony of Executor during the
eventuality of his death, and whatever adjustment might be hearing, the name Roy Higdon was mentioned,
warranted should there be any such remainder then is a but deceased. It was unintentionally omitted the
matter that could well be taken care of by the internal revenue heirs of said Roy Higdon who are his wife Aline
authorities in due time. Higdon and son David Higdon, all of age, and
residents of Quinlan, Texas, U.S.A.
It is to be noted that the lawyer, Atty. Leon P. Gellada, who
signed the motions of May 27, 1957 and December 11, 1957 3. — That to straighten the records, and in
and the aforementioned statements of account was the very order the heirs of deceased Roy Higdon may
same one who also subsequently signed and filed the motion not think or believe they were omitted, and that
of December 26, 1962 for the appointment of respondent they were really and are interested in the estate
Magno as "Administratrix of the Estate of Mrs. Linnie Jane of deceased Linnie Jane Hodges, it is
requested of the Hon. Court to insert the names and to have further stated under the item, "Description of
of Aline Higdon and David Higdon, wife and son property interests passing to surviving spouse" the following:
of deceased Roy Higdon in the said order of the
Hon. Court dated June 29, 1957. (pars. 1 to 3, None, except for purposes of administering the
Annex 2 of Magno's Answer — Record, p. 260) Estate, paying debts, taxes and other legal
charges. It is the intention of the surviving
As can be seen, these italicized allegations indicate, more or husband of deceased to distribute the
less, the real attitude of Hodges in regard to the testamentary remaining property and interests of the
dispositions of his wife. deceased in their Community Estate to the
devisees and legatees named in the will when
In connection with this point of Hodges' intent, We note that the debts, liabilities, taxes and expenses of
there are documents, copies of which are annexed to administration are finally determined and paid.
respondent Magno's answer, which purportedly contain (Annex 4, Answer — Record, p. 263)
Hodges' own solemn declarations recognizing the right of his
co-heirs, such as the alleged tax return he filed with the United In addition, in the supposed affidavit of Hodges, Annex 5, it is
States Taxation authorities, identified as Schedule M, (Annex 4 stated:
of her answer) and his supposed affidavit of renunciation,
Annex 5. In said Schedule M, Hodges appears to have I, C. N. Hodges, being duly sworn, on oath
answered the pertinent question thus: affirm that at the time the United States Estate
Tax Return was filed in the Estate of Linnie
2a. Had the surviving spouse the right to Jane Hodges on August 8, 1958, I renounced
declare an election between (1) the provisions and disclaimed any and all right to receive the
made in his or her favor by the will and (11) rents, emoluments and income from said
dower, curtesy or a statutory interest? (X) Yes estate, as shown by the statement contained in
( ) No Schedule M at page 29 of said return, a copy of
which schedule is attached to this affidavit and
2d. Does the surviving spouse contemplate made a part hereof.
renouncing the will and electing to take dower,
curtesy, or a statutory interest? (X) Yes ( ) No The purpose of this affidavit is to ratify and
confirm, and I do hereby ratify and confirm, the
3. According to the information and belief of the declaration made in Schedule M of said
person or persons filing the return, is any action return and hereby formally disclaim and
described under question 1 designed or renounce any right on my part to receive any of
contemplated? ( ) Yes (X) No (Annex 4, Answer the said rents, emoluments and income from
— Record, p. 263) the estate of my deceased wife, Linnie Jane
Hodges. This affidavit is made to absolve me or
my estate from any liability for the payment of It is provided in article 1418 of the Civil Code
income taxes on income which has accrued to that upon the dissolution of the conjugal
the estate of Linnie Jane Hodges since the partnership, an inventory shall immediately be
death of the said Linnie Jane Hodges on May made and this court in construing this provision
23, 1957. (Annex 5, Answer — Record, p. 264) in connection with section 685 of the Code of
Civil Procedure (prior to its amendment by Act
Although it appears that said documents were not duly No. 3176 of November 24, 1924) has
presented as evidence in the court below, and We cannot, repeatedly held that in the event of the death of
therefore, rely on them for the purpose of the present the wife, the law imposes upon the husband the
proceedings, still, We cannot close our eyes to their existence duty of liquidating the affairs of the partnership
in the record nor fail to note that their tenor jibes with Our without delay (desde luego) (Alfonso vs.
conclusion discussed above from the circumstances related to Natividad, 6 Phil., 240; Prado vs. Lagera, 7
the orders of May 27 and December 14, 1957. 5 Somehow, Phil., 395; De la Rama vs. De la Rama, 7 Phil.,
these documents, considering they are supposed to be copies 745; Enriquez vs. Victoria, 10 Phil., 10; Amancio
of their originals found in the official files of the governments of vs. Pardo, 13 Phil., 297; Rojas vs. Singson
the United States and of the Philippines, serve to lessen any Tongson, 17 Phil., 476; Sochayseng vs. Trujillo,
possible apprehension that Our conclusion from the other 31 Phil., 153; Molera vs. Molera, 40 Phil., 566;
evidence of Hodges' manifest intent vis-a-vis the rights of his Nable Jose vs. Nable Jose, 41 Phil., 713.)
co-heirs is without basis in fact.
In the last mentioned case this court quoted
Verily, with such eloquent manifestations of his good intentions with approval the case of Leatherwood vs.
towards the other heirs of his wife, We find it very hard to Arnold (66 Texas, 414, 416, 417), in which that
believe that Hodges did ask the court and that the latter court discussed the powers of the surviving
agreed that he be declared her sole heir and that her whole spouse in the administration of the community
estate be adjudicated to him without so much as just property. Attention was called to the fact that
annotating the contingent interest of her brothers and sisters in the surviving husband, in the management of
what would remain thereof upon his demise. On the contrary, it the conjugal property after the death of the wife,
seems to us more factual and fairer to assume that Hodges was a trustee of unique character who is liable
was well aware of his position as executor of the will of his wife for any fraud committed by him with relation to
and, as such, had in mind the following admonition made by the property while he is charged with its
the Court in Pamittan vs. Lasam, et al., 60 Phil., 908, at pp. administration. In the liquidation of the conjugal
913-914: partnership, he had wide powers (as the law
stood prior to Act No. 3176) and the high
Upon the death of Bernarda in September, degree of trust reposed in him stands out more
1908, said lands continued to be conjugal clearly in view of the fact that he was the owner
property in the hands of the defendant Lasam. of a half interest in his own right of the conjugal
estate which he was charged to administer. He PCIB insists, however, that to read the orders of May 27 and
could therefore no more acquire a title by December 14, 1957, not as adjudicatory, but merely as
prescription against those for whom he was approving past and authorizing future dispositions made by
administering the conjugal estate than could a Hodges in a wholesale and general manner, would necessarily
guardian against his ward or a judicial render the said orders void for being violative of the provisions
administrator against the heirs of estate. of Rule 89 governing the manner in which such dispositions
Section 38 of Chapter III of the Code of Civil may be made and how the authority therefor and approval
Procedure, with relation to prescription, thereof by the probate court may be secured. If We sustained
provides that "this chapter shall not apply ... in such a view, the result would only be that the said orders
the case of a continuing and subsisting trust." should be declared ineffective either way they are understood,
The surviving husband in the administration and considering We have already seen it is legally impossible to
liquidation of the conjugal estate occupies the consider them as adjudicatory. As a matter of fact, however,
position of a trustee of the highest order and is what surges immediately to the surface, relative to PCIB's
not permitted by the law to hold that estate or observations based on Rule 89, is that from such point of view,
any portion thereof adversely to those for the supposed irregularity would involve no more than some
whose benefit the law imposes upon him the non-jurisdictional technicalities of procedure, which have for
duty of administration and liquidation. No their evident fundamental purpose the protection of parties
liquidation was ever made by Lasam — hence, interested in the estate, such as the heirs, its creditors,
the conjugal property which came into his particularly the government on account of the taxes due it; and
possession on the death of his wife in since it is apparent here that none of such parties are
September, 1908, still remains conjugal objecting to said orders or would be prejudiced by the
property, a continuing and subsisting trust. He unobservance by the trial court of the procedure pointed out by
should have made a liquidation immediately PCIB, We find no legal inconvenience in nor impediment to
(desde luego). He cannot now be permitted to Our giving sanction to the blanket approval and authority
take advantage of his own wrong. One of the contained in said orders. This solution is definitely preferable
conditions of title by prescription (section 41, in law and in equity, for to view said orders in the sense
Code of Civil Procedure) is possession "under a suggested by PCIB would result in the deprivation of
claim of title exclusive of any other right". For a substantive rights to the brothers and sisters of Mrs. Hodges,
trustee to make such a claim would be a whereas reading them the other way will not cause any
manifest fraud. prejudice to anyone, and, withal, will give peace of mind and
stability of rights to the innocent parties who relied on them in
And knowing thus his responsibilities in the premises, We are good faith, in the light of the peculiar pertinent provisions of the
not convinced that Hodges arrogated everything unto himself will of said decedent.
leaving nothing at all to be inherited by his wife's brothers and
sisters. Now, the inventory submitted by Hodges on May 12, 1958
referred to the estate of his wife as consisting of "One-half of
all the items designated in the balance sheet, copy of which is the spouses are not yet identifiable, it is PCIB alone, as
hereto attached and marked as "Annex A"." Although, administrator of the estate of Hodges, who should administer
regrettably, no copy of said Annex A appears in the records everything, and all that respondent Magno can do for the time
before Us, We take judicial notice, on the basis of the being is to wait until the properties constituting the remaining
undisputed facts in these cases, that the same consists of estate of Mrs. Hodges have been duly segregated and
considerable real and other personal kinds of properties. And delivered to her for her own administration. Seemingly, PCIB
since, according to her will, her husband was to be the sole would liken the Testate Estate of Linnie Jane Hodges to a
owner thereof during his lifetime, with full power and authority party having a claim of ownership to some properties included
to dispose of any of them, provided that should there be any in the inventory of an administrator of the estate of a decedent,
remainder upon his death, such remainder would go to her (here that of Hodges) and who normally has no right to take
brothers and sisters, and furthermore, there is no pretension, part in the proceedings pending the establishment of his right
much less any proof that Hodges had in fact disposed of all of or title; for which as a rule it is required that an ordinary action
them, and, on the contrary, the indications are rather to the should be filed, since the probate court is without jurisdiction to
effect that he had kept them more or less intact, it cannot pass with finality on questions of title between the estate of the
truthfully be said that, upon the death of Hodges, there was no deceased, on the one hand, and a third party or even an heir
more estate of Mrs. Hodges to speak of. It is Our conclusion, claiming adversely against the estate, on the other.
therefore, that properties do exist which constitute such estate,
hence Special Proceedings 1307 should not yet be closed. We do not find such contention sufficiently persuasive. As We
see it, the situation obtaining herein cannot be compared with
Neither is there basis for holding that respondent Magno has the claim of a third party the basis of which is alien to the
ceased to be the Administratrix in said proceeding. There is no pending probate proceedings. In the present cases what gave
showing that she has ever been legally removed as such, the rise to the claim of PCIB of exclusive ownership by the estate
attempt to replace her with Mr. Benito Lopez without authority of Hodges over all the properties of the Hodges spouses,
from the Court having been expressly held ineffective by Our including the share of Mrs. Hodges in the community
resolution of September 8, 1972. Parenthetically, on this last properties, were the orders of the trial court issued in the
point, PCIB itself is very emphatic in stressing that it is not course of the very settlement proceedings themselves, more
questioning said respondent's status as such administratrix. specifically, the orders of May 27 and December 14, 1957 so
Indeed, it is not clear that PCIB has any standing to raise any often mentioned above. In other words, the root of the issue of
objection thereto, considering it is a complete stranger insofar title between the parties is something that the court itself has
as the estate of Mrs. Hodges is concerned. done in the exercise of its probate jurisdiction. And since in the
ultimate analysis, the question of whether or not all the
It is the contention of PCIB, however, that as things actually properties herein involved pertain exclusively to the estate of
stood at the time of Hodges' death, their conjugal partnership Hodges depends on the legal meaning and effect of said
had not yet been liquidated and, inasmuch as the properties orders, the claim that respondent court has no jurisdiction to
composing the same were thus commingled pro indiviso and, take cognizance of and decide the said issue is incorrect. If it
consequently, the properties pertaining to the estate of each of was within the competence of the court to issue the root
orders, why should it not be within its authority to declare their To be sure, an administrator is not supposed to represent the
true significance and intent, to the end that the parties may interests of any particular party and his acts are deemed to be
know whether or not the estate of Mrs. Hodges had already objectively for the protection of the rights of everybody
been adjudicated by the court, upon the initiative of Hodges, in concerned with the estate of the decedent, and from this point
his favor, to the exclusion of the other heirs of his wife of view, it maybe said that even if PCIB were to act alone,
instituted in her will? there should be no fear of undue disadvantage to anyone. On
the other hand, however, it is evidently implicit in section 6 of
At this point, it bears emphasis again that the main cause of all Rule 78 fixing the priority among those to whom letters of
the present problems confronting the courts and the parties in administration should be granted that the criterion in the
these cases was the failure of Hodges to secure, as executor selection of the administrator is not his impartiality alone but,
of his wife's estate, from May, 1957 up to the time of his death more importantly, the extent of his interest in the estate, so
in December, 1962, a period of more than five years, the final much so that the one assumed to have greater interest is
adjudication of her estate and the closure of the proceedings. preferred to another who has less. Taking both of these
The record is bare of any showing that he ever exerted any considerations into account, inasmuch as, according to
effort towards the early settlement of said estate. While, on the Hodges' own inventory submitted by him as Executor of the
one hand, there are enough indications, as already discuss estate of his wife, practically all their properties were conjugal
that he had intentions of leaving intact her share of the which means that the spouses have equal shares therein, it is
conjugal properties so that it may pass wholly to his co-heirs but logical that both estates should be administered jointly by
upon his death, pursuant to her will, on the other hand, by not representatives of both, pending their segregation from each
terminating the proceedings, his interests in his own half of the other. Particularly is such an arrangement warranted because
conjugal properties remained commingled pro-indiviso with the actuations so far of PCIB evince a determined, albeit
those of his co-heirs in the other half. Obviously, such a groundless, intent to exclude the other heirs of Mrs. Hodges
situation could not be conducive to ready ascertainment of the from their inheritance. Besides, to allow PCIB, the
portion of the inheritance that should appertain to his co-heirs administrator of his estate, to perform now what Hodges was
upon his death. Having these considerations in mind, it would duty bound to do as executor is to violate the spirit, if not the
be giving a premium for such procrastination and rather unfair letter, of Section 2 of Rule 78 which expressly provides that
to his co-heirs, if the administrator of his estate were to be "The executor of an executor shall not, as such, administer the
given exclusive administration of all the properties in question, estate of the first testator." It goes without saying that this
which would necessarily include the function of promptly provision refers also to the administrator of an executor like
liquidating the conjugal partnership, thereby identifying and PCIB here.
segregating without unnecessary loss of time which properties
should be considered as constituting the estate of Mrs. We are not unmindful of the fact that under Section 2 of Rule
Hodges, the remainder of which her brothers and sisters are 73, "When the marriage is dissolved by the death of the
supposed to inherit equally among themselves. husband or wife, the community property shall be inventoried,
administered, and liquidated, and the debts thereof paid, in the
testate or intestate proceedings of the deceased spouse. If
both spouses have died, the conjugal partnership shall be At this juncture, it may be stated that we are not overlooking
liquidated in the testate or intestate proceedings of either." the fact that it is PCIB's contention that, viewed as a
Indeed, it is true that the last sentence of this provision allows substitution, the testamentary disposition in favor of Mrs.
or permits the conjugal partnership of spouses who are both Hodges' brothers and sisters may not be given effect. To a
deceased to be settled or liquidated in the testate or intestate certain extent, this contention is correct. Indeed, legally
proceedings of either, but precisely because said sentence speaking, Mrs. Hodges' will provides neither for a simple or
allows or permits that the liquidation be made in either vulgar substitution under Article 859 of the Civil Code nor for a
proceeding, it is a matter of sound judicial discretion in which fideicommissary substitution under Article 863 thereof. There
one it should be made. After all, the former rule referring to the is no vulgar substitution therein because there is no provision
administrator of the husband's estate in respect to such for either (1) predecease of the testator by the designated heir
liquidation was done away with by Act 3176, the pertinent or (2) refusal or (3) incapacity of the latter to accept the
provisions of which are now embodied in the rule just cited. inheritance, as required by Article 859; and neither is there a
fideicommissary substitution therein because no obligation is
Thus, it can be seen that at the time of the death of Hodges, imposed thereby upon Hodges to preserve the estate or any
there was already the pending judicial settlement proceeding part thereof for anyone else. But from these premises, it is not
of the estate of Mrs. Hodges, and, more importantly, that the correct to jump to the conclusion, as PCIB does, that the
former was the executor of the latter's will who had, as such, testamentary dispositions in question are therefore inoperative
failed for more than five years to see to it that the same was and invalid.
terminated earliest, which was not difficult to do, since from
ought that appears in the record, there were no serious The error in PCIB's position lies simply in the fact that it views
obstacles on the way, the estate not being indebted and there the said disposition exclusively in the light of substitutions
being no immediate heirs other than Hodges himself. Such covered by the Civil Code section on that subject, (Section 3,
dilatory or indifferent attitude could only spell possible Chapter 2, Title IV, Book III) when it is obvious that substitution
prejudice of his co-heirs, whose rights to inheritance depend occurs only when another heir is appointed in a will "so that he
entirely on the existence of any remainder of Mrs. Hodges' may enter into inheritance in default of the heir originally
share in the community properties, and who are now faced instituted," (Article 857, id.) and, in the present case, no such
with the pose of PCIB that there is no such remainder. Had possible default is contemplated. The brothers and sisters of
Hodges secured as early as possible the settlement of his Mrs. Hodges are not substitutes for Hodges because, under
wife's estate, this problem would not arisen. All things her will, they are not to inherit what Hodges cannot, would not
considered, We are fully convinced that the interests of justice or may not inherit, but what he would not dispose of from his
will be better served by not permitting or allowing PCIB or any inheritance; rather, therefore, they are also heirs instituted
administrator of the estate of Hodges exclusive administration simultaneously with Hodges, subject, however, to certain
of all the properties in question. We are of the considered conditions, partially resolutory insofar as Hodges was
opinion and so hold that what would be just and proper is for concerned and correspondingly suspensive with reference to
both administrators of the two estates to act conjointly until his brothers and sisters-in-law. It is partially resolutory, since it
after said estates have been segregated from each other. bequeaths unto Hodges the whole of her estate to be owned
and enjoyed by him as universal and sole heir with absolute Philippines, and, therefore, her estate could consist of no more
dominion over them6 only during his lifetime, which means that than one-fourth of the said conjugal properties, the other fourth
while he could completely and absolutely dispose of any being, as already explained, the legitime of her husband (Art.
portion thereof inter vivos to anyone other than himself, he 900, Civil Code) which she could not have disposed of nor
was not free to do so mortis causa, and all his rights to what burdened with any condition (Art. 872, Civil Code). On the
might remain upon his death would cease entirely upon the other hand, respondent Magno denies that Mrs. Hodges died a
occurrence of that contingency, inasmuch as the right of his resident of the Philippines, since allegedly she never changed
brothers and sisters-in-law to the inheritance, although vested nor intended to change her original residence of birth in Texas,
already upon the death of Mrs. Hodges, would automatically United States of America, and contends that, anyway,
become operative upon the occurrence of the death of Hodges regardless of the question of her residence, she being
in the event of actual existence of any remainder of her estate indisputably a citizen of Texas, under said Article 16 of the Civil
then. Code, the distribution of her estate is subject to the laws of
said State which, according to her, do not provide for any
Contrary to the view of respondent Magno, however, it was not legitime, hence, the brothers and sisters of Mrs. Hodges are
the usufruct alone of her estate, as contemplated in Article 869 entitled to the remainder of the whole of her share of the
of the Civil Code, that she bequeathed to Hodges during his conjugal partnership properties consisting of one-half thereof.
lifetime, but the full ownership thereof, although the same was Respondent Magno further maintains that, in any event,
to last also during his lifetime only, even as there was no Hodges had renounced his rights under the will in favor of his
restriction whatsoever against his disposing or conveying the co-heirs, as allegedly proven by the documents touching on
whole or any portion thereof to anybody other than himself. the point already mentioned earlier, the genuineness and legal
The Court sees no legal impediment to this kind of institution, significance of which petitioner seemingly questions. Besides,
in this jurisdiction or under Philippine law, except that it cannot the parties are disagreed as to what the pertinent laws of
apply to the legitime of Hodges as the surviving spouse, Texas provide. In the interest of settling the estates herein
consisting of one-half of the estate, considering that Mrs. involved soonest, it would be best, indeed, if these conflicting
Hodges had no surviving ascendants nor descendants. (Arts. claims of the parties were determined in these proceedings.
872, 900, and 904, New Civil Code.) The Court regrets, however, that it cannot do so, for the simple
reason that neither the evidence submitted by the parties in
But relative precisely to the question of how much of Mrs. the court below nor their discussion, in their respective briefs
Hodges' share of the conjugal partnership properties may be and memoranda before Us, of their respective contentions on
considered as her estate, the parties are in disagreement as to the pertinent legal issues, of grave importance as they are,
how Article 16 of the Civil Code7 should be applied. On the one appear to Us to be adequate enough to enable Us to render
hand, petitioner claims that inasmuch as Mrs. Hodges was a an intelligent comprehensive and just resolution. For one thing,
resident of the Philippines at the time of her death, under said there is no clear and reliable proof of what in fact the possibly
Article 16, construed in relation to the pertinent laws of Texas applicable laws of Texas are. 7* Then also, the genuineness of
and the principle of renvoi, what should be applied here should documents relied upon by respondent Magno is disputed. And
be the rules of succession under the Civil Code of the there are a number of still other conceivable related issues
which the parties may wish to raise but which it is not proper to it would be in estoppel in any further proceedings in these
mention here. In Justice, therefore, to all the parties cases to claim that said estate could be less, irrespective of
concerned, these and all other relevant matters should first be what might be proven later to be actually the provisions of the
threshed out fully in the trial court in the proceedings hereafter applicable laws of Texas; (3) that Special Proceedings 1307
to be held therein for the purpose of ascertaining and for the settlement of the testate estate of Mrs. Hodges cannot
adjudicating and/or distributing the estate of Mrs. Hodges to be closed at this stage and should proceed to its logical
her heirs in accordance with her duly probated will. conclusion, there having been no proper and legal adjudication
or distribution yet of the estate therein involved; and (4) that
To be more explicit, all that We can and do decide in respondent Magno remains and continues to be the
connection with the petition for certiorari and prohibition are: Administratrix therein. Hence, nothing in the foregoing opinion
(1) that regardless of which corresponding laws are applied, is intended to resolve the issues which, as already stated, are
whether of the Philippines or of Texas, and taking for granted not properly before the Court now, namely, (1) whether or not
either of the respective contentions of the parties as to Hodges had in fact and in law waived or renounced his
provisions of the latter,8 and regardless also of whether or not inheritance from Mrs. Hodges, in whole or in part, and (2)
it can be proven by competent evidence that Hodges assuming there had been no such waiver, whether or not, by
renounced his inheritance in any degree, it is easily and the application of Article 16 of the Civil Code, and in the light of
definitely discernible from the inventory submitted by Hodges what might be the applicable laws of Texas on the matter, the
himself, as Executor of his wife's estate, that there are estate of Mrs. Hodges is more than the one-fourth declared
properties which should constitute the estate of Mrs. Hodges above. As a matter of fact, even our finding above about the
and ought to be disposed of or distributed among her heirs existence of properties constituting the estate of Mrs. Hodges
pursuant to her will in said Special Proceedings 1307; (2) that, rests largely on a general appraisal of the size and extent of
more specifically, inasmuch as the question of what are the the conjugal partnership gathered from reference made
pertinent laws of Texas applicable to the situation herein is thereto by both parties in their briefs as well as in their
basically one of fact, and, considering that the sole difference pleadings included in the records on appeal, and it should
in the positions of the parties as to the effect of said laws has accordingly yield, as to which exactly those properties are, to
reference to the supposed legitime of Hodges — it being the the more concrete and specific evidence which the parties are
stand of PCIB that Hodges had such a legitime whereas supposed to present in support of their respective positions in
Magno claims the negative - it is now beyond controversy for regard to the foregoing main legal and factual issues. In the
all future purposes of these proceedings that whatever be the interest of justice, the parties should be allowed to present
provisions actually of the laws of Texas applicable hereto, the such further evidence in relation to all these issues in a joint
estate of Mrs. Hodges is at least, one-fourth of the conjugal hearing of the two probate proceedings herein involved. After
estate of the spouses; the existence and effects of foreign all, the court a quo has not yet passed squarely on these
laws being questions of fact, and it being the position now of issues, and it is best for all concerned that it should do so in
PCIB that the estate of Mrs. Hodges, pursuant to the laws of the first instance.
Texas, should only be one-fourth of the conjugal estate, such
contention constitutes an admission of fact, and consequently,
Relative to Our holding above that the estate of Mrs. Hodges It is the theory of the petitioner that the alleged will was
cannot be less than the remainder of one-fourth of the executed in Elkins West Virginia, on November 3, 1925, by Hix
conjugal partnership properties, it may be mentioned here that who had his residence in that jurisdiction, and that the laws of
during the deliberations, the point was raised as to whether or West Virginia govern. To this end, there was submitted a copy
not said holding might be inconsistent with Our other ruling of section 3868 of Acts 1882, c. 84 as found in West Virginia
here also that, since there is no reliable evidence as to what Code, Annotated, by Hogg Charles E., vol. 2, 1914, p. 1960,
are the applicable laws of Texas, U.S.A. "with respect to the and as certified to by the Director of the National Library. But
order of succession and to the amount of successional rights" this was far from a compliance with the law. The laws of a
that may be willed by a testator which, under Article 16 of the foreign jurisdiction do not prove themselves in our courts. The
Civil Code, are controlling in the instant cases, in view of the courts of the Philippine Islands are not authorized to take
undisputed Texan nationality of the deceased Mrs. Hodges, judicial notice of the laws of the various States of the American
these cases should be returned to the court a quo, so that the Union. Such laws must be proved as facts. (In re Estate of
parties may prove what said law provides, it is premature for Johnson [1918], 39 Phil., 156.) Here the requirements of the
Us to make any specific ruling now on either the validity of the law were not met. There was no showing that the book from
testamentary dispositions herein involved or the amount of which an extract was taken was printed or published under the
inheritance to which the brothers and sisters of Mrs. Hodges authority of the State of West Virginia, as provided in section
are entitled. After nature reflection, We are of the considered 300 of the Code of Civil Procedure. Nor was the extract from
view that, at this stage and in the state of the records before the law attested by the certificate of the officer having charge
Us, the feared inconsistency is more apparent than real. of the original, under the seal of the State of West Virginia, as
Withal, it no longer lies in the lips of petitioner PCIB to make provided in section 301 of the Code of Civil Procedure. No
any claim that under the laws of Texas, the estate of Mrs. evidence was introduced to show that the extract from the
Hodges could in any event be less than that We have fixed laws of West Virginia was in force at the time the alleged will
above. was executed."
It should be borne in mind that as above-indicated, the No evidence of the nature thus suggested by the Court may be
question of what are the laws of Texas governing the matters found in the records of the cases at bar. Quite to the contrary,
herein issue is, in the first instance, one of fact, not of law. the parties herein have presented opposing versions in their
Elementary is the rule that foreign laws may not be taken respective pleadings and memoranda regarding the matter.
judicial notice of and have to be proven like any other fact in And even if We took into account that in Aznar vs. Garcia, the
dispute between the parties in any proceeding, with the rare Court did make reference to certain provisions regarding
exception in instances when the said laws are already within succession in the laws of Texas, the disparity in the material
the actual knowledge of the court, such as when they are well dates of that case and the present ones would not permit Us to
and generally known or they have been actually ruled upon in indulge in the hazardous conjecture that said provisions have
other cases before it and none of the parties concerned do not not been amended or changed in the meantime.
claim otherwise. (5 Moran, Comments on the Rules of Court,
p. 41, 1970 ed.) In Fluemer vs. Hix, 54 Phil. 610, it was held:
On the other hand, in In re Estate of Johnson, 39 Phil. 156, determinative of the issues in any action
We held: litigated in the Philippine courts.
Upon the other point — as to whether the will Nevertheless, even supposing that the trial
was executed in conformity with the statutes of court may have erred in taking judicial notice of
the State of Illinois — we note that it does not the law of Illinois on the point in question, such
affirmatively appear from the transcription of the error is not now available to the petitioner, first,
testimony adduced in the trial court that any because the petition does not state any fact
witness was examined with reference to the law from which it would appear that the law of
of Illinois on the subject of the execution of will. Illinois is different from what the court found,
The trial judge no doubt was satisfied that the and, secondly, because the assignment of error
will was properly executed by examining and argument for the appellant in this court
section 1874 of the Revised Statutes of Illinois, raises no question based on such supposed
as exhibited in volume 3 of Starr & Curtis's error. Though the trial court may have acted
Annotated Illinois Statutes, 2nd ed., p. 426; and upon pure conjecture as to the law prevailing in
he may have assumed that he could take the State of Illinois, its judgment could not be
judicial notice of the laws of Illinois under set aside, even upon application made within
section 275 of the Code of Civil Procedure. If six months under section 113 of the Code of
so, he was in our opinion mistaken. That Civil Procedure, unless it should be made to
section authorizes the courts here to take appear affirmatively that the conjecture was
judicial notice, among other things, of the acts wrong. The petitioner, it is true, states in general
of the legislative department of the United terms that the will in question is invalid and
States. These words clearly have reference to inadequate to pass real and personal property
Acts of the Congress of the United States; and in the State of Illinois, but this is merely a
we would hesitate to hold that our courts can, conclusion of law. The affidavits by which the
under this provision, take judicial notice of the petition is accompanied contain no reference to
multifarious laws of the various American the subject, and we are cited to no authority in
States. Nor do we think that any such authority the appellant's brief which might tend to raise a
can be derived from the broader language, doubt as to the correctness of the conclusion of
used in the same section, where it is said that the trial court. It is very clear, therefore, that this
our courts may take judicial notice of matters of point cannot be urged as of serious moment.
public knowledge "similar" to those therein
enumerated. The proper rule we think is to It is implicit in the above ruling that when, with respect to
require proof of the statutes of the States of the certain aspects of the foreign laws concerned, the parties in a
American Union whenever their provisions are given case do not have any controversy or are more or less in
agreement, the Court may take it for granted for the purposes
of the particular case before it that the said laws are as such dispositions and successional rights over
virtual agreement indicates, without the need of requiring the movables or personal properties, while the law
presentation of what otherwise would be the competent of the situs (in this case also Philippine law with
evidence on the point. Thus, in the instant cases wherein it respect to all Hodges properties located in the
results from the respective contentions of both parties that Philippines), governs with respect to immovable
even if the pertinent laws of Texas were known and to be properties, and applying therefore the 'renvoi
applied, the amount of the inheritance pertaining to the heirs of doctrine' as enunciated and applied by this
Mrs. Hodges is as We have fixed above, the absence of Honorable Court in the case of In re Estate of
evidence to the effect that, actually and in fact, under said Christensen (G.R. No. L-16749, Jan. 31, 1963),
laws, it could be otherwise is of no longer of any consequence, there can be no question that Philippine law
unless the purpose is to show that it could be more. In other governs the testamentary dispositions
words, since PCIB, the petitioner-appellant, concedes that contained in the Last Will and Testament of the
upon application of Article 16 of the Civil Code and the deceased Linnie Jane Hodges, as well as the
pertinent laws of Texas, the amount of the estate in successional rights to her estate, both with
controversy is just as We have determined it to be, and respect to movables, as well as to immovables
respondent-appellee is only claiming, on her part, that it could situated in the Philippines.
be more, PCIB may not now or later pretend differently.
In its main brief dated February 26, 1968, PCIB asserts:
To be more concrete, on pages 20-21 of its petition herein,
dated July 31, 1967, PCIB states categorically: The law governing successional rights.
Inasmuch as Article 16 of the Civil Code As recited above, there is no question that the
provides that "intestate and testamentary deceased, Linnie Jane Hodges, was an
successions both with respect to the order of American citizen. There is also no question that
succession and to the amount of successional she was a national of the State of Texas, U.S.A.
rights and to the intrinsic validity of Again, there is likewise no question that she
testamentary provisions, shall be regulated by had her domicile of choice in the City of Iloilo,
the national law of the person whose Philippines, as this has already been
succession is under consideration, whatever pronounced by the above-cited orders of the
may be the nature of the property and lower court, pronouncements which are by
regardless of the country wherein said property now res adjudicata (par. [a], See. 49, Rule 39,
may be found", while the law of Texas (the Rules of Court; In re Estate of Johnson, 39 Phil.
Hodges spouses being nationals of U.S.A., 156).
State of Texas), in its conflicts of law rules,
provides that the domiciliary law (in this case Article 16 of the Civil Code provides:
Philippine law) governs the testamentary
"Real property as well as personal property is 1963), there can be no question that Philippine
subject to the law of the country where it is law governs the testamentary provisions in the
situated. Last Will and Testament of the deceased Linnie
Jane Hodges, as well as the successional rights
However, intestate and testamentary to her estate, both with respect to movables, as
successions, both with respect to the order of well as immovables situated in the Philippines.
succession and to the amount of successional
rights and to the intrinsic validity of The subject of successional rights.
testamentary provisions, shall be regulated by
the national law of the person whose Under Philippine law, as it is under the law of
succession is under consideration, whatever Texas, the conjugal or community property of
may be the nature of the property and the spouses, Charles Newton Hodges and
regardless of the country wherein said property Linnie Jane Hodges, upon the death of the
may be found." latter, is to be divided into two, one-half
pertaining to each of the spouses, as his or her
Thus the aforecited provision of the Civil Code own property. Thus, upon the death of Linnie
points towards the national law of the Jane Hodges, one-half of the conjugal
deceased, Linnie Jane Hodges, which is the partnership property immediately pertained to
law of Texas, as governing succession "both Charles Newton Hodges as his own share, and
with respect to the order of succession and to not by virtue of any successional rights. There
the amount of successional rights and to the can be no question about this.
intrinsic validity of testamentary provisions ...".
But the law of Texas, in its conflicts of law rules, Again, Philippine law, or more specifically,
provides that the domiciliary law governs the Article 900 of the Civil Code provides:
testamentary dispositions and successional
rights over movables or personal property, while If the only survivor is the widow
the law of the situs governs with respect to or widower, she or he shall be
immovable property. Such that with respect to entitled to one-half of the
both movable property, as well as immovable hereditary estate of the
property situated in the Philippines, the law of deceased spouse, and the
Texas points to the law of the Philippines. testator may freely dispose of
the other half.
Applying, therefore, the so-called "renvoi
doctrine", as enunciated and applied by this If the marriage between the
Honorable Court in the case of "In re surviving spouse and the testator
Christensen" (G.R. No. L-16749, Jan. 31, was solemnized in articulo
mortis, and the testator died This is now a matter of res adjudicata (p. 20,
within three months from the petition).
time of the marriage, the legitime
of the surviving spouse as the b. That under Philippine law, Texas law, and the
sole heir shall be one-third of the renvoi doctrine, Philippine law governs the
hereditary estate, except when successional rights over the properties left by
they have been living as the deceased, Linnie Jane Hodges (pp. 20-21,
husband and wife for more than petition).
five years. In the latter case, the
legitime of the surviving spouse c. That under Philippine as well as Texas law,
shall be that specified in the one-half of the Hodges properties pertains to
preceding paragraph. the deceased, Charles Newton Hodges (p. 21,
petition). This is not questioned by the
This legitime of the surviving spouse cannot be respondents.
burdened by a fideicommisary substitution (Art.
864, Civil code), nor by any charge, condition, d. That under Philippine law, the deceased,
or substitution (Art, 872, Civil code). It is clear, Charles Newton Hodges, automatically
therefore, that in addition to one-half of the inherited one-half of the remaining one-half of
conjugal partnership property as his own the Hodges properties as his legitime (p. 21,
conjugal share, Charles Newton Hodges was petition).
also immediately entitled to one-half of the half
conjugal share of the deceased, Linnie Jane e. That the remaining 25% of the Hodges
Hodges, or one-fourth of the entire conjugal properties was inherited by the deceased,
property, as his legitime. Charles Newton Hodges, under the will of his
deceased spouse (pp. 22-23, petition). Upon
One-fourth of the conjugal property therefore the death of Charles Newton Hodges, the
remains at issue. substitution 'provision of the will of the
deceased, Linnie Jane Hodges, did not operate
In the summary of its arguments in its memorandum dated because the same is void (pp. 23-25, petition).
April 30, 1968, the following appears:
f. That the deceased, Charles Newton Hodges,
Briefly, the position advanced by the petitioner asserted his sole ownership of the Hodges
is: properties and the probate court sanctioned
such assertion (pp. 25-29, petition). He in fact
a. That the Hodges spouses were domiciled assumed such ownership and such was the
legally in the Philippines (pp. 19-20, petition).
status of the properties as of the time of his fact which the other parties and the Court are being made to
death (pp. 29-34, petition). rely and act upon, PCIB is "not permitted to contradict them or
subsequently take a position contradictory to or inconsistent
Of similar tenor are the allegations of PCIB in some of its with them." (5 Moran, id, p. 65, citing Cunanan vs. Amparo, 80
pleadings quoted in the earlier part of this option. Phil. 227; Sta. Ana vs. Maliwat, L-23023, Aug. 31, 1968, 24
SCRA 1018).
On her part, it is respondent-appellee Magno's posture that
under the laws of Texas, there is no system of legitime, hence Accordingly, the only question that remains to be settled in the
the estate of Mrs. Hodges should be one-half of all the further proceedings hereby ordered to be held in the court
conjugal properties. below is how much more than as fixed above is the estate of
Mrs. Hodges, and this would depend on (1) whether or not the
It is thus unquestionable that as far as PCIB is concerned, the applicable laws of Texas do provide in effect for more, such as,
application to these cases of Article 16 of the Civil Code in when there is no legitime provided therein, and (2) whether or
relation to the corresponding laws of Texas would result in that not Hodges has validly waived his whole inheritance from Mrs.
the Philippine laws on succession should control. On that Hodges.
basis, as We have already explained above, the estate of Mrs.
Hodges is the remainder of one-fourth of the conjugal In the course of the deliberations, it was brought out by some
partnership properties, considering that We have found that members of the Court that to avoid or, at least, minimize
there is no legal impediment to the kind of disposition ordered further protracted legal controversies between the respective
by Mrs. Hodges in her will in favor of her brothers and sisters heirs of the Hodges spouses, it is imperative to elucidate on
and, further, that the contention of PCIB that the same the possible consequences of dispositions made by Hodges
constitutes an inoperative testamentary substitution is after the death of his wife from the mass of the unpartitioned
untenable. As will be recalled, PCIB's position that there is no estates without any express indication in the pertinent
such estate of Mrs. Hodges is predicated exclusively on two documents as to whether his intention is to dispose of part of
propositions, namely: (1) that the provision in question in Mrs. his inheritance from his wife or part of his own share of the
Hodges' testament violates the rules on substitution of heirs conjugal estate as well as of those made by PCIB after the
under the Civil Code and (2) that, in any event, by the orders death of Hodges. After a long discussion, the consensus
of the trial court of May 27, and December 14, 1957, the trial arrived at was as follows: (1) any such dispositions
court had already finally and irrevocably adjudicated to her made gratuitously in favor of third parties, whether these be
husband the whole free portion of her estate to the exclusion individuals, corporations or foundations, shall be considered
of her brothers and sisters, both of which poses, We have as intended to be of properties constituting part of Hodges'
overruled. Nowhere in its pleadings, briefs and memoranda inheritance from his wife, it appearing from the tenor of his
does PCIB maintain that the application of the laws of Texas motions of May 27 and December 11, 1957 that in asking for
would result in the other heirs of Mrs. Hodges not inheriting general authority to make sales or other disposals of
anything under her will. And since PCIB's representations in properties under the jurisdiction of the court, which include his
regard to the laws of Texas virtually constitute admissions of own share of the conjugal estate, he was not invoking
particularly his right over his own share, but rather his right to could be administratrix, hence the various assailed orders
dispose of any part of his inheritance pursuant to the will of his sanctioning her actuations as such are not in accordance with
wife; (2) as regards sales, exchanges or law. Such being the case, with the foregoing resolution holding
other remunerative transfers, the proceeds of such sales or such posture to be untenable in fact and in law and that it is in
the properties taken in by virtue of such exchanges, shall be the best interest of justice that for the time being the two
considered as merely the products of "physical changes" of estates should be administered conjointly by the respective
the properties of her estate which the will expressly authorizes administrators of the two estates, it should follow that said
Hodges to make, provided that whatever of said products assignments of error have lost their fundamental reasons for
should remain with the estate at the time of the death of being. There are certain matters, however, relating peculiarly
Hodges should go to her brothers and sisters; (3) the to the respective orders in question, if commonly among some
dispositions made by PCIB after the death of Hodges must of them, which need further clarification. For instance, some of
naturally be deemed as covering only the properties belonging them authorized respondent Magno to act alone or without
to his estate considering that being only the administrator of concurrence of PCIB. And with respect to many of said orders,
the estate of Hodges, PCIB could not have disposed of PCIB further claims that either the matters involved were not
properties belonging to the estate of his wife. Neither could properly within the probate jurisdiction of the trial court or that
such dispositions be considered as involving conjugal the procedure followed was not in accordance with the rules.
properties, for the simple reason that the conjugal partnership Hence, the necessity of dealing separately with the merits of
automatically ceased when Mrs. Hodges died, and by the each of the appeals.
peculiar provision of her will, under discussion, the remainder
of her share descended also automatically upon the death of Indeed, inasmuch as the said two estates have until now
Hodges to her brothers and sisters, thus outside of the scope remained commingled pro-indiviso, due to the failure of
of PCIB's administration. Accordingly, these construction of the Hodges and the lower court to liquidate the conjugal
will of Mrs. Hodges should be adhered to by the trial court in partnership, to recognize appellee Magno as Administratrix of
its final order of adjudication and distribution and/or partition of the Testate Estate of Mrs. Hodges which is still unsegregated
the two estates in question. from that of Hodges is not to say, without any qualification, that
she was therefore authorized to do and perform all her acts
THE APPEALS complained of in these appeals, sanctioned though they might
have been by the trial court. As a matter of fact, it is such
A cursory examination of the seventy-eight assignments of commingling pro-indiviso of the two estates that should
error in appellant PCIB's brief would readily reveal that all of deprive appellee of freedom to act independently from PCIB,
them are predicated mainly on the contention that inasmuch as administrator of the estate of Hodges, just as, for the same
as Hodges had already adjudicated unto himself all the reason, the latter should not have authority to act
properties constituting his wife's share of the conjugal independently from her. And considering that the lower court
partnership, allegedly with the sanction of the trial court per its failed to adhere consistently to this basic point of view, by
order of December 14, 1957, there has been, since said date, allowing the two administrators to act independently of each
no longer any estate of Mrs. Hodges of which appellee Magno other, in the various instances already noted in the narration of
facts above, the Court has to look into the attendant Hodges at an unduly advantageous position which could result
circumstances of each of the appealed orders to be able to in considerable, if not irreparable, damage or injury to the
determine whether any of them has to be set aside or they other parties concerned. It is indeed to be regretted that
may all be legally maintained notwithstanding the failure of the apparently, up to this date, more than a year after said
court a quo to observe the pertinent procedural technicalities, resolution, the same has not been given due regard, as may
to the end only that graver injury to the substantive rights of be gleaned from the fact that recently, respondent Magno has
the parties concerned and unnecessary and undesirable filed in these proceedings a motion to declare PCIB in
proliferation of incidents in the subject proceedings may be contempt for alleged failure to abide therewith, notwithstanding
forestalled. In other words, We have to determine, whether or that its repeated motions for reconsideration thereof have all
not, in the light of the unusual circumstances extant in the been denied soon after they were filed.9
record, there is need to be more pragmatic and to adopt a
rather unorthodox approach, so as to cause the least Going back to the appeals, it is perhaps best to begin first with
disturbance in rights already being exercised by numerous what appears to Our mind to be the simplest, and then
innocent third parties, even if to do so may not appear to be proceed to the more complicated ones in that order, without
strictly in accordance with the letter of the applicable purely regard to the numerical sequence of the assignments of error
adjective rules. in appellant's brief or to the order of the discussion thereof by
counsel.
Incidentally, it may be mentioned, at this point, that it was
principally on account of the confusion that might result later Assignments of error numbers
from PCIB's continuing to administer all the community LXXII, LXXVII and LXXVIII.
properties, notwithstanding the certainty of the existence of the
separate estate of Mrs. Hodges, and to enable both estates to These assignments of error relate to (1) the order of the trial
function in the meantime with a relative degree of regularity, court of August 6, 1965 providing that "the deeds of sale
that the Court ordered in the resolution of September 8, 1972 (therein referred to involving properties in the name of
the modification of the injunction issued pursuant to the Hodges) should be signed jointly by the PCIB, as Administrator
resolutions of August 8, October 4 and December 6, 1967, by of Testate Estate of C.N. Hodges, and Avelina A. Magno, as
virtue of which respondent Magno was completely barred from Administratrix of the Testate Estate of Linnie Jane Hodges,
any participation in the administration of the properties herein and to this effect, the PCIB should take the necessary steps so
involved. In the September 8 resolution, We ordered that, that Administratrix Avelina A. Magno could sign the deeds of
pending this decision, Special Proceedings 1307 and 1672 sale," (p. 248, Green Rec. on Appeal) (2) the order of October
should proceed jointly and that the respective administrators 27, 1965 denying the motion for reconsideration of the
therein "act conjointly — none of them to act singly and foregoing order, (pp. 276-277, id.) (3) the other order also
independently of each other for any purpose." Upon mature dated October 27, 1965 enjoining inter alia, that "(a) all cash
deliberation, We felt that to allow PCIB to continue managing collections should be deposited in the joint account of the
or administering all the said properties to the exclusion of the estate of Linnie Jane Hodges and estate of C. N. Hodges, (b)
administratrix of Mrs. Hodges' estate might place the heirs of that whatever cash collections (that) had been deposited in the
account of either of the estates should be withdrawn and since Assignments of error Numbers LXVIII
then (sic) deposited in the joint account of the estate of Linnie to LXXI and LXXIII to LXXVI.
Jane Hodges and the estate of C. N. Hodges; ... (d) (that)
Administratrix Magno — allow the PCIB to inspect whatever The orders complained of under these assignments of error
records, documents and papers she may have in her commonly deal with expenditures made by appellee Magno,
possession, in the same manner that Administrator PCIB is as Administratrix of the Estate of Mrs. Hodges, in connection
also directed to allow Administratrix Magno to inspect with her administration thereof, albeit additionally, assignments
whatever records, documents and papers it may have in its of error Numbers LXIX to LXXI put into question the payment
possession" and "(e) that the accountant of the estate of Linnie of attorneys fees provided for in the contract for the purpose,
Jane Hodges shall have access to all records of the as constituting, in effect, premature advances to the heirs of
transactions of both estates for the protection of the estate of Mrs. Hodges.
Linnie Jane Hodges; and in like manner, the accountant or any
authorized representative of the estate of C. N. Hodges shall More specifically, assignment Number LXXIII refers to
have access to the records of transactions of the Linnie Jane reimbursement of overtime pay paid to six employees of the
Hodges estate for the protection of the estate of C. N. court and three other persons for services in copying the court
Hodges", (pp. 292-295, id.) and (4) the order of February 15, records to enable the lawyers of the administration to be fully
1966, denying, among others, the motion for reconsideration informed of all the incidents in the proceedings. The
of the order of October 27, 1965 last referred to. (pp. 455- reimbursement was approved as proper legal expenses of
456, id.) administration per the order of December 19, 1964, (pp. 221-
222, id.) and repeated motions for reconsideration thereof
As may be readily seen, the thrust of all these four impugned were denied by the orders of January 9, 1965, (pp. 231-
orders is in line with the Court's above-mentioned resolution of 232, id.) October 27, 1965, (p. 277, id.) and February 15,
September 8, 1972 modifying the injunction previously issued 1966. (pp. 455-456, id.) On the other hand, Assignments
on August 8, 1967, and, more importantly, with what We have Numbers LXVIII to LXXI, LXXIV and LXXV question the trial
said the trial court should have always done pending the court's order of November 3, 1965 approving the agreement of
liquidation of the conjugal partnership of the Hodges spouses. June 6, 1964 between Administratrix Magno and James L.
In fact, as already stated, that is the arrangement We are Sullivan, attorney-in-fact of the heirs of Mrs. Hodges, as
ordering, by this decision, to be followed. Stated differently, Parties of the First Part, and Attorneys Raul Manglapus and
since the questioned orders provide for joint action by the two Rizal R. Quimpo, as Parties of the Second Part, regarding
administrators, and that is precisely what We are holding out attorneys fees for said counsel who had agreed "to prosecute
to have been done and should be done until the two estates and defend their interests (of the Parties of the First Part) in
are separated from each other, the said orders must be certain cases now pending litigation in the Court of First
affirmed. Accordingly the foregoing assignments of error must Instance of Iloilo —, more specifically in Special Proceedings
be, as they are hereby overruled. 1307 and 1672 —" (pp. 126-129, id.) and directing
Administratrix Magno "to issue and sign whatever check or
checks maybe needed to implement the approval of the
agreement annexed to the motion" as well as the exercised by the probate court in determining the same. We
"administrator of the estate of C. N. Hodges — to countersign have gone over the agreement, and considering the obvious
the said check or checks as the case maybe." (pp. 313- size of the estate in question and the nature of the issues
320, id.), reconsideration of which order of approval was between the parties as well as the professional standing of
denied in the order of February 16, 1966, (p. 456, id.) counsel, We cannot say that the fees agreed upon require the
Assignment Number LXXVI imputes error to the lower court's exercise by the Court of its inherent power to reduce it.
order of October 27, 1965, already referred to above, insofar
as it orders that "PCIB should counter sign the check in the PCIB insists, however, that said agreement of June 6, 1964 is
amount of P250 in favor of Administratrix Avelina A. Magno as not for legal services to the estate but to the heirs of Mrs.
her compensation as administratrix of Linnie Jane Hodges Hodges, or, at most, to both of them, and such being the case,
estate chargeable to the Testate Estate of Linnie Jane Hodges any payment under it, insofar as counsels' services would
only." (p. 294, id.) redound to the benefit of the heirs, would be in the nature of
advances to such heirs and a premature distribution of the
Main contention again of appellant PCIB in regard to these estate. Again, We hold that such posture cannot prevail.
eight assigned errors is that there is no such estate as the
estate of Mrs. Hodges for which the questioned expenditures Upon the premise We have found plausible that there is an
were made, hence what were authorized were in effect existing estate of Mrs. Hodges, it results that juridically and
expenditures from the estate of Hodges. As We have already factually the interests involved in her estate are distinct and
demonstrated in Our resolution above of the petition different from those involved in her estate of Hodges and vice
for certiorari and prohibition, this posture is incorrect. Indeed, versa. Insofar as the matters related exclusively to the estate
in whichever way the remaining issues between the parties in of Mrs. Hodges, PCIB, as administrator of the estate of
these cases are ultimately resolved, 10 the final result will Hodges, is a complete stranger and it is without personality to
surely be that there are properties constituting the estate of question the actuations of the administratrix thereof regarding
Mrs. Hodges of which Magno is the current administratrix. It matters not affecting the estate of Hodges. Actually,
follows, therefore, that said appellee had the right, as such considering the obviously considerable size of the estate of
administratrix, to hire the persons whom she paid overtime pay Mrs. Hodges, We see no possible cause for apprehension that
and to be paid for her own services as administratrix. That she when the two estates are segregated from each other, the
has not yet collected and is not collecting amounts as amount of attorney's fees stipulated in the agreement in
substantial as that paid to or due appellant PCIB is to her question will prejudice any portion that would correspond to
credit. Hodges' estate.
Of course, she is also entitled to the services of counsel and to And as regards the other heirs of Mrs. Hodges who ought to
that end had the authority to enter into contracts for attorney's be the ones who should have a say on the attorney's fees and
fees in the manner she had done in the agreement of June 6, other expenses of administration assailed by PCIB, suffice it to
1964. And as regards to the reasonableness of the amount say that they appear to have been duly represented in the
therein stipulated, We see no reason to disturb the discretion agreement itself by their attorney-in-fact, James L. Sullivan
and have not otherwise interposed any objection to any of the inheritance taxes, except those of the brothers and sisters of
expenses incurred by Magno questioned by PCIB in these Mrs. Hodges, have already been paid, 11 no prejudice can
appeals. As a matter of fact, as ordered by the trial court, all caused to anyone by the comparatively small amount of
the expenses in question, including the attorney's fees, may attorney's fees in question. And in this connection, it may be
be paid without awaiting the determination and segregation of added that, although strictly speaking, the attorney's fees of
the estate of Mrs. Hodges. the counsel of an administrator is in the first instance his
personal responsibility, reimbursable later on by the estate, in
Withal, the weightiest consideration in connection with the the final analysis, when, as in the situation on hand, the
point under discussion is that at this stage of the controversy attorney-in-fact of the heirs has given his conformity thereto, it
among the parties herein, the vital issue refers to the existence would be idle effort to inquire whether or not the sanction given
or non-existence of the estate of Mrs. Hodges. In this respect, to said fees by the probate court is proper.
the interest of respondent Magno, as the appointed
administratrix of the said estate, is to maintain that it exists, For the foregoing reasons, Assignments of Error LXVIII to
which is naturally common and identical with and inseparable LXXI and LXXIII to LXXVI should be as they are hereby
from the interest of the brothers and sisters of Mrs. Hodges. overruled.
Thus, it should not be wondered why both Magno and these
heirs have seemingly agreed to retain but one counsel. In fact, Assignments of error I to IV,
such an arrangement should be more convenient and XIII to XV, XXII to XXV, XXXV
economical to both. The possibility of conflict of interest to XXX VI, XLI to XLIII and L.
between Magno and the heirs of Mrs. Hodges would be, at this
stage, quite remote and, in any event, rather insubstantial. These assignments of error deal with the approval by the trial
Besides, should any substantial conflict of interest between court of various deeds of sale of real properties registered in
them arise in the future, the same would be a matter that the the name of Hodges but executed by appellee Magno, as
probate court can very well take care of in the course of the Administratrix of the Estate of Mrs. Hodges, purportedly in
independent proceedings in Case No. 1307 after the implementation of corresponding supposed written "Contracts
corresponding segregation of the two subject estates. We to Sell" previously executed by Hodges during the interim
cannot perceive any cogent reason why, at this stage, the between May 23, 1957, when his wife died, and December 25,
estate and the heirs of Mrs. Hodges cannot be represented by 1962, the day he died. As stated on pp. 118-120 of appellant's
a common counsel. main brief, "These are: the, contract to sell between the
deceased, Charles Newton Hodges, and the appellee, Pepito
Now, as to whether or not the portion of the fees in question G. Iyulores executed on February 5, 1961; the contract to sell
that should correspond to the heirs constitutes premature between the deceased, Charles Newton Hodges, and the
partial distribution of the estate of Mrs. Hodges is also a matter appellant Esperidion Partisala, executed on April 20, 1960; the
in which neither PCIB nor the heirs of Hodges have any contract to sell between the deceased, Charles Newton
interest. In any event, since, as far as the records show, the Hodges, and the appellee, Winifredo C. Espada, executed on
estate has no creditors and the corresponding estate and April 18, 1960; the contract to sell between the deceased,
Charles Newton Hodges, and the appellee, Rosario Alingasa, before the death of his wife, namely, those in favor of appellee
executed on August 25, 1958; the contract to sell between the Santiago Pacaonsis, Alfredo Catedral, Jose Pablico, Western
deceased, Charles Newton Hodges, and the appellee, Institute of Technology and Adelfa Premaylon.
Lorenzo Carles, executed on June 17, 1958; the contract to
sell between the deceased, Charles Newton Hodges, and the Anent those deeds of sale based on promises or contracts to
appellee, Salvador S. Guzman, executed on September 13, sell executed by Hodges after the death of his wife, those
1960; the contract to sell between the deceased, Charles enumerated in the quotation in the immediately preceding
Newton Hodges, and the appellee, Florenia Barrido, executed paragraph, it is quite obvious that PCIB's contention cannot be
on February 21, 1958; the contract to sell between the sustained. As already explained earlier, 11* all proceeds of
deceased, Charles Newton Hodges, and the appellee, remunerative transfers or dispositions made by Hodges after
Purificacion Coronado, executed on August 14, 1961; the the death of his wife should be deemed as continuing to be
contract to sell between the deceased, Charles Newton parts of her estate and, therefore, subject to the terms of her
Hodges, and the appellee, Graciano Lucero, executed on will in favor of her brothers and sisters, in the sense that
November 27, 1961; the contract to sell between the should there be no showing that such proceeds, whether in
deceased, Charles Newton Hodges, and the appellee, Ariteo cash or property have been subsequently conveyed or
Thomas Jamir, executed on May 26, 1961; the contract to sell assigned subsequently by Hodges to any third party by acts
between the deceased, Charles Newton Hodges, and the inter vivos with the result that they could not thereby belong to
appellee, Melquiades Batisanan, executed on June 9, 1959; him anymore at the time of his death, they automatically
the contract to sell between the deceased, Charles Newton became part of the inheritance of said brothers and sisters.
Hodges, and the appellee, Belcezar Causing, executed on The deeds here in question involve transactions which are
February 10, 1959 and the contract to sell between the exactly of this nature. Consequently, the payments made by
deceased, Charles Newton Hodges, and the appellee, Adelfa the appellees should be considered as payments to the estate
Premaylon, executed on October 31, 1959, re Title No. of Mrs. Hodges which is to be distributed and partitioned
13815." among her heirs specified in the will.
Relative to these sales, it is the position of appellant PCIB that, The five deeds of sale predicated on contracts to sell executed
inasmuch as pursuant to the will of Mrs. Hodges, her husband Hodges during the lifetime of his wife, present a different
was to have dominion over all her estate during his lifetime, it situation. At first blush, it would appear that as to them, PCIB's
was as absolute owner of the properties respectively covered position has some degree of plausibility. Considering,
by said sales that he executed the aforementioned contracts to however, that the adoption of PCIB's theory would necessarily
sell, and consequently, upon his death, the implementation of have tremendous repercussions and would bring about
said contracts may be undertaken only by the administrator of considerable disturbance of property rights that have
his estate and not by the administratrix of the estate of Mrs. somehow accrued already in favor of innocent third parties,
Hodges. Basically, the same theory is invoked with particular the five purchasers aforenamed, the Court is inclined to take a
reference to five other sales, in which the respective "contracts pragmatic and practical view of the legal situation involving
to sell" in favor of these appellees were executed by Hodges them by overlooking the possible technicalities in the way, the
non-observance of which would not, after all, detract materially heirs of Hodges, the said properties covered by the questioned
from what should substantially correspond to each and all of deeds of sale executed by appellee Magno may be treated as
the parties concerned. among those corresponding to the estate of Mrs. Hodges,
which would have been actually under her control and
To start with, these contracts can hardly be ignored. Bona administration had Hodges complied with his duty to liquidate
fide third parties are involved; as much as possible, they the conjugal partnership. Viewing the situation in that manner,
should not be made to suffer any prejudice on account of the only ones who could stand to be prejudiced by the
judicial controversies not of their own making. What is more, appealed orders referred to in the assignment of errors under
the transactions they rely on were submitted by them to the discussion and who could, therefore, have the requisite
probate court for approval, and from already known and interest to question them would be only the heirs of Mrs.
recorded actuations of said court then, they had reason to Hodges, definitely not PCIB.
believe that it had authority to act on their motions, since
appellee Magno had, from time to time prior to their It is of no moment in what capacity Hodges made the
transactions with her, been allowed to act in her capacity as "contracts to sell' after the death of his wife. Even if he had
administratrix of one of the subject estates either alone or acted as executor of the will of his wife, he did not have to
conjointly with PCIB. All the sales in question were executed submit those contracts to the court nor follow the provisions of
by Magno in 1966 already, but before that, the court had the rules, (Sections 2, 4, 5, 6, 8 and 9 of Rule 89 quoted by
previously authorized or otherwise sanctioned expressly many appellant on pp. 125 to 127 of its brief) for the simple reason
of her act as administratrix involving expenditures from the that by the very orders, much relied upon by appellant for
estate made by her either conjointly with or independently from other purposes, of May 27, 1957 and December 14, 1957,
PCIB, as Administrator of the Estate of Hodges. Thus, it may Hodges was "allowed or authorized" by the trial court "to
be said that said buyers-appellees merely followed precedents continue the business in which he was engaged and to
in previous orders of the court. Accordingly, unless the perform acts which he had been doing while the deceased
impugned orders approving those sales indubitably suffer from was living", (Order of May 27) which according to the motion
some clearly fatal infirmity the Court would rather affirm them. on which the court acted was "of buying and selling personal
and real properties", and "to execute subsequent sales,
It is quite apparent from the record that the properties covered conveyances, leases and mortgages of the properties left by
by said sales are equivalent only to a fraction of what should the said deceased Linnie Jane Hodges in consonance with the
constitute the estate of Mrs. Hodges, even if it is assumed that wishes conveyed in the last will and testament of the latter."
the same would finally be held to be only one-fourth of the (Order of December 14) In other words, if Hodges acted then
conjugal properties of the spouses as of the time of her death as executor, it can be said that he had authority to do so by
or, to be more exact, one-half of her estate as per the virtue of these blanket orders, and PCIB does not question the
inventory submitted by Hodges as executor, on May 12, 1958. legality of such grant of authority; on the contrary, it is relying
In none of its numerous, varied and voluminous pleadings, on the terms of the order itself for its main contention in these
motions and manifestations has PCIB claimed any possibility cases. On the other hand, if, as PCIB contends, he acted as
otherwise. Such being the case, to avoid any conflict with the
heir-adjudicatee, the authority given to him by the properties covered by the deeds in question could not pertain
aforementioned orders would still suffice. to the estate of Mrs. Hodges. We have already held above
that, it being evident that a considerable portion of the conjugal
As can be seen, therefore, it is of no moment whether the properties, much more than the properties covered by said
"contracts to sell" upon which the deeds in question were deeds, would inevitably constitute the estate of Mrs. Hodges,
based were executed by Hodges before or after the death of to avoid unnecessary legal complications, it can be assumed
his wife. In a word, We hold, for the reasons already stated, that said properties form part of such estate. From this point of
that the properties covered by the deeds being assailed view, it is apparent again that the questions, whether or not it
pertain or should be deemed as pertaining to the estate of was proper for appellee Magno to have disregarded the
Mrs. Hodges; hence, any supposed irregularity attending the cancellations made by PCIB, thereby reviving the rights of the
actuations of the trial court may be invoked only by her heirs, respective buyers-appellees, and, whether or not the rules
not by PCIB, and since the said heirs are not objecting, and governing new dispositions of properties of the estate were
the defects pointed out not being strictly jurisdictional in strictly followed, may not be raised by PCIB but only by the
nature, all things considered, particularly the unnecessary heirs of Mrs. Hodges as the persons designated to inherit the
disturbance of rights already created in favor of innocent third same, or perhaps the government because of the still unpaid
parties, it is best that the impugned orders are not disturbed. inheritance taxes. But, again, since there is no pretense that
any objections were raised by said parties or that they would
In view of these considerations, We do not find sufficient merit necessarily be prejudiced, the contentions of PCIB under the
in the assignments of error under discussion. instant assignments of error hardly merit any consideration.
All these assignments of error commonly deal with alleged PCIB raises under these assignments of error two issues
non-fulfillment by the respective vendees, appellees herein, of which according to it are fundamental, namely: (1) that in
the terms and conditions embodied in the deeds of sale approving the deeds executed by Magno pursuant to contracts
referred to in the assignments of error just discussed. It is to sell already cancelled by it in the performance of its
claimed that some of them never made full payments in functions as administrator of the estate of Hodges, the trial
accordance with the respective contracts to sell, while in the court deprived the said estate of the right to invoke such
cases of the others, like Lorenzo Carles, Jose Pablico, Alfredo cancellations it (PCIB) had made and (2) that in so acting, the
Catedral and Salvador S. Guzman, the contracts with them court "arrogated unto itself, while acting as a probate court, the
had already been unilaterally cancelled by PCIB pursuant to power to determine the contending claims of third parties
automatic rescission clauses contained in them, in view of the against the estate of Hodges over real property," since it has in
failure of said buyers to pay arrearages long overdue. But effect determined whether or not all the terms and conditions
PCIB's posture is again premised on its assumption that the of the respective contracts to sell executed by Hodges in favor
of the buyers-appellees concerned were complied with by the All these assignments of error commonly deal with the appeal
latter. What is worse, in the view of PCIB, is that the court has against orders favoring appellee Western Institute of
taken the word of the appellee Magno, "a total stranger to his Technology. As will be recalled, said institute is one of the
estate as determinative of the issue". buyers of real property covered by a contract to sell executed
by Hodges prior to the death of his wife. As of October, 1965, it
Actually, contrary to the stand of PCIB, it is this last point was in arrears in the total amount of P92,691.00 in the
regarding appellee Magno's having agreed to ignore the payment of its installments on account of its purchase, hence it
cancellations made by PCIB and allowed the buyers-appellees received under date of October 4, 1965 and October 20, 1965,
to consummate the sales in their favor that is decisive. Since letters of collection, separately and respectively, from PCIB
We have already held that the properties covered by the and appellee Magno, in their respective capacities as
contracts in question should be deemed to be portions of the administrators of the distinct estates of the Hodges spouses,
estate of Mrs. Hodges and not that of Hodges, it is PCIB that is albeit, while in the case of PCIB it made known that "no other
a complete stranger in these incidents. Considering, therefore, arrangement can be accepted except by paying all your past
that the estate of Mrs. Hodges and her heirs who are the real due account", on the other hand, Magno merely said she
parties in interest having the right to oppose the would "appreciate very much if you can make some remittance
consummation of the impugned sales are not objecting, and to bring this account up-to-date and to reduce the amount of
that they are the ones who are precisely urging that said sales the obligation." (See pp. 295-311, Green R. on A.) On
be sanctioned, the assignments of error under discussion have November 3, 1965, the Institute filed a motion which, after
no basis and must accordingly be as they are hereby alleging that it was ready and willing to pay P20,000 on
overruled. account of its overdue installments but uncertain whether it
should pay PCIB or Magno, it prayed that it be "allowed to
With particular reference to assignments LIII to LXI, assailing deposit the aforesaid amount with the court pending resolution
the orders of the trial court requiring PCIB to surrender the of the conflicting claims of the administrators." Acting on this
respective owner's duplicate certificates of title over the motion, on November 23, 1965, the trial court issued an order,
properties covered by the sales in question and otherwise already quoted in the narration of facts in this opinion, holding
directing the Register of Deeds of Iloilo to cancel said that payment to both or either of the two administrators is
certificates and to issue new transfer certificates of title in favor "proper and legal", and so "movant — can pay to both estates
of the buyers-appellees, suffice it to say that in the light of the or either of them", considering that "in both cases (Special
above discussion, the trial court was within its rights to so Proceedings 1307 and 1672) there is as yet no judicial
require and direct, PCIB having refused to give way, by declaration of heirs nor distribution of properties to
withholding said owners' duplicate certificates, of the whomsoever are entitled thereto."
corresponding registration of the transfers duly and legally
approved by the court. The arguments under the instant assignments of error revolve
around said order. From the procedural standpoint, it is
Assignments of error LXII to LXVII claimed that PCIB was not served with a copy of the Institute's
motion, that said motion was heard, considered and resolved
on November 23, 1965, whereas the date set for its hearing to give its sanction thereto pursuant to the provisions of the
was November 20, 1965, and that what the order grants is rule just mentioned. And with respect to the supposed
different from what is prayed for in the motion. As to the automatic rescission clauses contained in the contracts to sell
substantive aspect, it is contended that the matter treated in executed by Hodges in favor of herein appellees, the effect of
the motion is beyond the jurisdiction of the probate court and said clauses depend on the true nature of the said contracts,
that the order authorized payment to a person other than the despite the nomenclature appearing therein, which is not
administrator of the estate of Hodges with whom the Institute controlling, for if they amount to actual contracts of sale
had contracted. instead of being mere unilateral accepted "promises to sell",
(Art. 1479, Civil Code of the Philippines, 2nd paragraph)
The procedural points urged by appellant deserve scant thepactum commissorium or the automatic rescission
consideration. We must assume, absent any clear proof to the provision would not operate, as a matter of public policy,
contrary, that the lower court had acted regularly by seeing to unless there has been a previous notarial or judicial demand
it that appellant was duly notified. On the other hand, there is by the seller (10 Manresa 263, 2nd ed.) neither of which have
nothing irregular in the court's having resolved the motion been shown to have been made in connection with the
three days after the date set for hearing the same. Moreover, transactions herein involved.
the record reveals that appellants' motion for reconsideration
wherein it raised the same points was denied by the trial court Consequently, We find no merit in the assignments of error
on March 7, 1966 (p. 462, Green R. on A.) Withal, We are not Number LXII to LXVII.
convinced that the relief granted is not within the general intent
of the Institute's motion. SUMMARY
Insofar as the substantive issues are concerned, all that need Considering the fact that this decision is unusually extensive
be said at this point is that they are mere reiterations of and that the issues herein taken up and resolved are rather
contentions We have already resolved above adversely to numerous and varied, what with appellant making seventy-
appellants' position. Incidentally, We may add, perhaps, to eight assignments of error affecting no less than thirty
erase all doubts as to the propriety of not disturbing the lower separate orders of the court a quo, if only to facilitate proper
court's orders sanctioning the sales questioned in all these understanding of the import and extent of our rulings herein
appeal s by PCIB, that it is only when one of the parties to a contained, it is perhaps desirable that a brief restatement of
contract to convey property executed by a deceased person the whole situation be made together with our conclusions in
raises substantial objections to its being implemented by the regard to its various factual and legal aspects. .
executor or administrator of the decedent's estate that Section
8 of Rule 89 may not apply and, consequently, the matter has, The instant cases refer to the estate left by the late Charles
to be taken up in a separate action outside of the probate Newton Hodges as well as that of his wife, Linnie Jane
court; but where, as in the cases of the sales herein involved, Hodges, who predeceased him by about five years and a half.
the interested parties are in agreement that the conveyance be In their respective wills which were executed on different
made, it is properly within the jurisdiction of the probate court occasions, each one of them provided mutually as follows: "I
give, devise and bequeath all of the rest, residue and point to urge the that "no person interested in the Philippines
remainder (after funeral and administration expenses, taxes of the time and place of examining the herein accounts be
and debts) of my estate, both real and personal, wherever given notice as herein executor is the only devisee or legatee
situated or located, to my beloved (spouse) to have and to of the deceased in accordance with the last will and testament
hold unto (him/her) — during (his/her) natural lifetime", subject already probated by the Honorable Court." All said accounts
to the condition that upon the death of whoever of them approved as prayed for.
survived the other, the remainder of what he or she would
inherit from the other is "give(n), devise(d) and bequeath(ed)" Nothing else appears to have been done either by the court a
to the brothers and sisters of the latter. quo or Hodges until December 25, 1962. Importantly to be the
provision in the will of Mrs. Hodges that her share of the
Mrs. Hodges died first, on May 23, 1957. Four days later, on conjugal partnership was to be inherited by her husband "to
May 27, Hodges was appointed special administrator of her have and to hold unto him, my said husband, during his
estate, and in a separate order of the same date, he was natural lifetime" and that "at the death of my said husband, I
"allowed or authorized to continue the business in which he give, devise and bequeath all the rest, residue and remainder
was engaged, (buying and selling personal and real of my estate, both real and personal, wherever situated or
properties) and to perform acts which he had been doing while located, to be equally divided among my brothers and sisters,
the deceased was living." Subsequently, on December 14, share and share alike", which provision naturally made it
1957, after Mrs. Hodges' will had been probated and Hodges imperative that the conjugal partnership be promptly
had been appointed and had qualified as Executor thereof, liquidated, in order that the "rest, residue and remainder" of his
upon his motion in which he asserted that he was "not only wife's share thereof, as of the time of Hodges' own death, may
part owner of the properties left as conjugal, but also, the be readily known and identified, no such liquidation was ever
successor to all the properties left by the deceased Linnie undertaken. The record gives no indication of the reason for
Jane Hodges", the trial court ordered that "for the reasons such omission, although relatedly, it appears therein:
stated in his motion dated December 11, 1957, which the
Court considers well taken, ... all the sales, conveyances, 1. That in his annual statement submitted to the
leases and mortgages of all properties left by the deceased court of the net worth of C. N. Hodges and the
Linnie Jane Hodges executed by the Executor, Charles Estate of Linnie Jane Hodges, Hodges
Newton Hodges are hereby APPROVED. The said Executor is repeatedly and consistently reported the
further authorized to execute subsequent sales, conveyances, combined income of the conjugal partnership
leases and mortgages of the properties left by the said and then merely divided the same equally
deceased Linnie Jane Hodges in consonance with the wishes between himself and the estate of the deceased
contained in the last will and testament of the latter." wife, and, more importantly, he also, as
consistently, filed corresponding separate
Annually thereafter, Hodges submitted to the court the income tax returns for each calendar year for
corresponding statements of account of his administration, each resulting half of such combined income,
with the particularity that in all his motions, he always made it
thus reporting that the estate of Mrs. Hodges to the estate of Linnie Jane Hodges", his wife,
had its own income distinct from his own. since her death.
2. That when the court a quo happened to On said date, December 25, 1962, Hodges died. The very next
inadvertently omit in its order probating the will day, upon motion of herein respondent and appellee, Avelina
of Mrs. Hodges, the name of one of her A. Magno, she was appointed by the trial court as
brothers, Roy Higdon then already deceased, Administratrix of the Testate Estate of Linnie Jane Hodges, in
Hodges lost no time in asking for the proper Special Proceedings No. 1307 and as Special Administratrix of
correction "in order that the heirs of deceased the estate of Charles Newton Hodges, "in the latter case,
Roy Higdon may not think or believe they were because the last will of said Charles Newton Hodges is still
omitted, and that they were really interested in kept in his vault or iron safe and that the real and personal
the estate of the deceased Linnie Jane properties of both spouses may be lost, damaged or go to
Hodges". waste, unless Special Administratrix is appointed," (Order of
December 26, 1962, p. 27, Yellow R. on A.) although, soon
3. That in his aforementioned motion of enough, on December 29, 1962, a certain Harold K. Davies
December 11, 1957, he expressly stated that was appointed as her Co-Special Administrator, and when
"deceased Linnie Jane Hodges died leaving no Special Proceedings No. 1672, Testate Estate of Charles
descendants or ascendants except brothers Newton Hodges, was opened, Joe Hodges, as next of kin of
and sisters and herein petitioner as the the deceased, was in due time appointed as Co-Administrator
surviving spouse, to inherit the properties of the of said estate together with Atty. Fernando P. Mirasol, to
decedent", thereby indicating that he was not replace Magno and Davies, only to be in turn replaced
excluding his wife's brothers and sisters from eventually by petitioner PCIB alone.
the inheritance.
At the outset, the two probate proceedings appear to have
4. That Hodges allegedly made statements and been proceeding jointly, with each administrator acting
manifestations to the United States inheritance together with the other, under a sort of modus operandi. PCIB
tax authorities indicating that he had renounced used to secure at the beginning the conformity to and
his inheritance from his wife in favor of her signature of Magno in transactions it wanted to enter into and
other heirs, which attitude he is supposed to submitted the same to the court for approval as their joint acts.
have reiterated or ratified in an alleged affidavit So did Magno do likewise. Somehow, however, differences
subscribed and sworn to here in the Philippines seem to have arisen, for which reason, each of them began
and in which he even purportedly stated that his acting later on separately and independently of each other,
reason for so disclaiming and renouncing his with apparent sanction of the trial court. Thus, PCIB had its
rights under his wife's will was to "absolve (him) own lawyers whom it contracted and paid handsomely,
or (his) estate from any liability for the payment conducted the business of the estate independently of Magno
of income taxes on income which has accrued and otherwise acted as if all the properties appearing in the
name of Charles Newton Hodges belonged solely and only to PCIB maintains that the provision in Mrs. Hodges' will
his estate, to the exclusion of the brothers and sisters of Mrs. instituting her brothers and sisters in the manner therein
Hodges, without considering whether or not in fact any of said specified is in the nature of a testamentary substitution, but
properties corresponded to the portion of the conjugal inasmuch as the purported substitution is not, in its view, in
partnership pertaining to the estate of Mrs. Hodges. On the accordance with the pertinent provisions of the Civil Code, it is
other hand, Magno made her own expenditures, hired her own ineffective and may not be enforced. It is further contended
lawyers, on the premise that there is such an estate of Mrs. that, in any event, inasmuch as the Hodges spouses were
Hodges, and dealth with some of the properties, appearing in both residents of the Philippines, following the decision of this
the name of Hodges, on the assumption that they actually Court in Aznar vs. Garcia, or the case of Christensen, 7 SCRA
correspond to the estate of Mrs. Hodges. All of these 95, the estate left by Mrs. Hodges could not be more than one-
independent and separate actuations of the two administrators half of her share of the conjugal partnership, notwithstanding
were invariably approved by the trial court upon submission. the fact that she was citizen of Texas, U.S.A., in accordance
Eventually, the differences reached a point wherein Magno, with Article 16 in relation to Articles 900 and 872 of the Civil
who was more cognizant than anyone else about the ins and Code. Initially, We issued a preliminary injunction against
outs of the businesses and properties of the deceased Magno and allowed PCIB to act alone.
spouses because of her long and intimate association with
them, made it difficult for PCIB to perform normally its At the same time PCIB has appealed several separate orders
functions as administrator separately from her. Thus, legal of the trial court approving individual acts of appellee Magno in
complications arose and the present judicial controversies her capacity as administratrix of the estate of Mrs. Hodges,
came about. such as, hiring of lawyers for specified fees and incurring
expenses of administration for different purposes and
Predicating its position on the tenor of the orders of May 27 executing deeds of sale in favor of her co-appellees covering
and December 14, 1957 as well as the approval by the court a properties which are still registered in the name of Hodges,
quo of the annual statements of account of Hodges, PCIB purportedly pursuant to corresponding "contracts to sell"
holds to the view that the estate of Mrs. Hodges has already executed by Hodges. The said orders are being questioned on
been in effect closed with the virtual adjudication in the jurisdictional and procedural grounds directly or indirectly
mentioned orders of her whole estate to Hodges, and that, predicated on the principal theory of appellant that all the
therefore, Magno had already ceased since then to have any properties of the two estates belong already to the estate of
estate to administer and the brothers and sisters of Mrs. Hodges exclusively.
Hodges have no interests whatsoever in the estate left by
Hodges. Mainly upon such theory, PCIB has come to this On the other hand, respondent-appellee Magno denies that
Court with a petition for certiorari and prohibition praying that the trial court's orders of May 27 and December 14, 1957 were
the lower court's orders allowing respondent Magno to meant to be finally adjudicatory of the hereditary rights of
continue acting as administratrix of the estate of Mrs. Hodges Hodges and contends that they were no more than the court's
in Special Proceedings 1307 in the manner she has been general sanction of past and future acts of Hodges as executor
doing, as detailed earlier above, be set aside. Additionally, of the will of his wife in due course of administration. As to the
point regarding substitution, her position is that what was given Hodges to dispose of portions of his inheritance in advance of
by Mrs. Hodges to her husband under the provision in final adjudication, which is implicitly permitted under Section 2
question was a lifetime usufruct of her share of the conjugal of Rule 109, there being no possible prejudice to third parties,
partnership, with the naked ownership passing directly to her inasmuch as Mrs. Hodges had no creditors and all pertinent
brothers and sisters. Anent the application of Article 16 of the taxes have been paid.
Civil Code, she claims that the applicable law to the will of Mrs.
Hodges is that of Texas under which, she alleges, there is no More specifically, We hold that, on the basis of circumstances
system of legitime, hence, the estate of Mrs. Hodges cannot presently extant in the record, and on the assumption that
be less than her share or one-half of the conjugal partnership Hodges' purported renunciation should not be upheld, the
properties. She further maintains that, in any event, Hodges estate of Mrs. Hodges inherited by her brothers and sisters
had as a matter of fact and of law renounced his inheritance consists of one-fourth of the community estate of the spouses
from his wife and, therefore, her whole estate passed directly at the time of her death, minus whatever Hodges had
to her brothers and sisters effective at the latest upon the gratuitously disposed of therefrom during the period from, May
death of Hodges. 23, 1957, when she died, to December 25, 1962, when he
died provided, that with regard to remunerative dispositions
In this decision, for the reasons discussed above, and upon made by him during the same period, the proceeds thereof,
the issues just summarized, We overrule PCIB's contention whether in cash or property, should be deemed as continuing
that the orders of May 27, 1957 and December 14, 1957 to be part of his wife's estate, unless it can be shown that he
amount to an adjudication to Hodges of the estate of his wife, had subsequently disposed of them gratuitously.
and We recognize the present existence of the estate of Mrs.
Hodges, as consisting of properties, which, while registered in At this juncture, it may be reiterated that the question of what
that name of Hodges, do actually correspond to the remainder are the pertinent laws of Texas and what would be the estate
of the share of Mrs. Hodges in the conjugal partnership, it of Mrs. Hodges under them is basically one of fact, and
appearing that pursuant to the pertinent provisions of her will, considering the respective positions of the parties in regard to
any portion of said share still existing and undisposed of by said factual issue, it can already be deemed as settled for the
her husband at the time of his death should go to her brothers purposes of these cases that, indeed, the free portion of said
and sisters share and share alike. Factually, We find that the estate that could possibly descend to her brothers and sisters
proven circumstances relevant to the said orders do not by virtue of her will may not be less than one-fourth of the
warrant the conclusion that the court intended to make thereby conjugal estate, it appearing that the difference in the stands
such alleged final adjudication. Legally, We hold that the tenor of the parties has reference solely to the legitime of Hodges,
of said orders furnish no basis for such a conclusion, and what PCIB being of the view that under the laws of Texas, there is
is more, at the time said orders were issued, the proceedings such a legitime of one-fourth of said conjugal estate and
had not yet reached the point when a final distribution and Magno contending, on the other hand, that there is none. In
adjudication could be made. Moreover, the interested parties other words, hereafter, whatever might ultimately appear, at
were not duly notified that such disposition of the estate would the subsequent proceedings, to be actually the laws of Texas
be done. At best, therefore, said orders merely allowed on the matter would no longer be of any consequence, since
PCIB would anyway be in estoppel already to claim that the circumstances presently obtaining and in the state of the
estate of Mrs. Hodges should be less than as contended by it record of these cases, as of now, the Court is not in a position
now, for admissions by a party related to the effects of foreign to make a final ruling, whether of fact or of law, on any of these
laws, which have to be proven in our courts like any other two issues, and We, therefore, reserve said issues for further
controverted fact, create estoppel. proceedings and resolution in the first instance by the court a
quo, as hereinabove indicated. We reiterate, however, that
In the process, We overrule PCIB's contention that the pending such further proceedings, as matters stand at this
provision in Mrs. Hodges' will in favor of her brothers and stage, Our considered opinion is that it is beyond cavil that
sisters constitutes ineffective hereditary substitutions. But since, under the terms of the will of Mrs. Hodges, her husband
neither are We sustaining, on the other hand, Magno's pose could not have anyway legally adjudicated or caused to be
that it gave Hodges only a lifetime usufruct. We hold that by adjudicated to himself her whole share of their conjugal
said provision, Mrs. Hodges simultaneously instituted her partnership, albeit he could have disposed any part thereof
brothers and sisters as co-heirs with her husband, with the during his lifetime, the resulting estate of Mrs. Hodges, of
condition, however, that the latter would have complete rights which Magno is the uncontested administratrix, cannot be less
of dominion over the whole estate during his lifetime and what than one-fourth of the conjugal partnership properties, as of
would go to the former would be only the remainder thereof at the time of her death, minus what, as explained earlier, have
the time of Hodges' death. In other words, whereas they are been gratuitously disposed of therefrom, by Hodges in favor of
not to inherit only in case of default of Hodges, on the other third persons since then, for even if it were assumed that, as
hand, Hodges was not obliged to preserve anything for them. contended by PCIB, under Article 16 of the Civil Code and
Clearly then, the essential elements of testamentary applying renvoi the laws of the Philippines are the ones
substitution are absent; the provision in question is a simple ultimately applicable, such one-fourth share would be her free
case of conditional simultaneous institution of heirs, whereby disposable portion, taking into account already the legitime of
the institution of Hodges is subject to a partial resolutory her husband under Article 900 of the Civil Code.
condition the operative contingency of which is coincidental
with that of the suspensive condition of the institution of his The foregoing considerations leave the Court with no
brothers and sisters-in-law, which manner of institution is not alternative than to conclude that in predicating its orders on
prohibited by law. the assumption, albeit unexpressed therein, that there is an
estate of Mrs. Hodges to be distributed among her brothers
We also hold, however, that the estate of Mrs. Hodges and sisters and that respondent Magno is the legal
inherited by her brothers and sisters could be more than just administratrix thereof, the trial court acted correctly and within
stated, but this would depend on (1) whether upon the proper its jurisdiction. Accordingly, the petition for certiorari and
application of the principle of renvoi in relation to Article 16 of prohibition has to be denied. The Court feels however, that
the Civil Code and the pertinent laws of Texas, it will appear pending the liquidation of the conjugal partnership and the
that Hodges had no legitime as contended by Magno, and (2) determination of the specific properties constituting her estate,
whether or not it can be held that Hodges had legally and the two administrators should act conjointly as ordered in the
effectively renounced his inheritance from his wife. Under the
Court's resolution of September 8, 1972 and as further technicalities in favor of a pragmatic and practical approach as
clarified in the dispositive portion of its decision. discussed above, the assailed orders should be affirmed.
Being a stranger to the estate of Mrs. Hodges, PCIB has no
Anent the appeals from the orders of the lower court personality to raise the procedural and jurisdictional issues
sanctioning payment by appellee Magno, as administratrix, of raised by it. And inasmuch as it does not appear that any of
expenses of administration and attorney's fees, it is obvious the other heirs of Mrs. Hodges or the government has objected
that, with Our holding that there is such an estate of Mrs. to any of the orders under appeal, even as to these parties,
Hodges, and for the reasons stated in the body of this opinion, there exists no reason for said orders to be set aside.
the said orders should be affirmed. This We do on the
assumption We find justified by the evidence of record, and DISPOSITIVE PART
seemingly agreed to by appellant PCIB, that the size and
value of the properties that should correspond to the estate of IN VIEW OF ALL THE FOREGOING PREMISES, judgment is
Mrs. Hodges far exceed the total of the attorney's fees and hereby rendered DISMISSING the petition in G. R. Nos. L-
administration expenses in question. 27860 and L-27896, and AFFIRMING, in G. R. Nos. L-27936-
37 and the other thirty-one numbers hereunder ordered to be
With respect to the appeals from the orders approving added after payment of the corresponding docket fees, all the
transactions made by appellee Magno, as administratrix, orders of the trial court under appeal enumerated in detail on
covering properties registered in the name of Hodges, the pages 35 to 37 and 80 to 82 of this decision; the existence of
details of which are related earlier above, a distinction must be the Testate Estate of Linnie Jane Hodges, with respondent-
made between those predicated on contracts to sell executed appellee Avelina A. Magno, as administratrix thereof is
by Hodges before the death of his wife, on the one hand, and recognized, and it is declared that, until final judgment is
those premised on contracts to sell entered into by him after ultimately rendered regarding (1) the manner of applying
her death. As regards the latter, We hold that inasmuch as the Article 16 of the Civil Code of the Philippines to the situation
payments made by appellees constitute proceeds of sales of obtaining in these cases and (2) the factual and legal issue of
properties belonging to the estate of Mrs. Hodges, as may be whether or not Charles Newton Hodges had effectively and
implied from the tenor of the motions of May 27 and December legally renounced his inheritance under the will of Linnie Jane
14, 1957, said payments continue to pertain to said estate, Hodges, the said estate consists of one-fourth of the
pursuant to her intent obviously reflected in the relevant community properties of the said spouses, as of the time of the
provisions of her will, on the assumption that the size and death of the wife on May 23, 1957, minus whatever the
value of the properties to correspond to the estate of Mrs. husband had already gratuitously disposed of in favor of third
Hodges would exceed the total value of all the properties persons from said date until his death, provided, first, that with
covered by the impugned deeds of sale, for which reason, said respect to remunerative dispositions, the proceeds thereof
properties may be deemed as pertaining to the estate of Mrs. shall continue to be part of the wife's estate, unless
Hodges. And there being no showing that thus viewing the subsequently disposed of gratuitously to third parties by the
situation, there would be prejudice to anyone, including the husband, and second, that should the purported renunciation
government, the Court also holds that, disregarding procedural be declared legally effective, no deductions whatsoever are to
be made from said estate; in consequence, the preliminary Generally and in all other respects, the parties and the court a
injunction of August 8, 1967, as amended on October 4 and quo are directed to adhere henceforth, in all their actuations in
December 6, 1967, is lifted, and the resolution of September 8, Special Proceedings 1307 and 1672, to the views passed and
1972, directing that petitioner-appellant PCIB, as Administrator ruled upon by the Court in the foregoing opinion.
of the Testate Estate of Charles Newton Hodges, in Special
Proceedings 1672, and respondent-appellee Avelina A. Appellant PCIB is ordered to pay, within five (5) days from
Magno, as Administratrix of the Testate Estate of Linnie Jane notice hereof, thirty-one additional appeal docket fees, but this
Hodges, in Special Proceedings 1307, should act thenceforth decision shall nevertheless become final as to each of the
always conjointly, never independently from each other, as parties herein after fifteen (15) days from the respective
such administrators, is reiterated, and the same is made part notices to them hereof in accordance with the rules.
of this judgment and shall continue in force, pending the
liquidation of the conjugal partnership of the deceased Costs against petitioner-appellant PCIB.
spouses and the determination and segregation from each
other of their respective estates, provided, that upon the Zaldivar, Castro, Esguerra and Fernandez, JJ., concur.
finality of this judgment, the trial court should immediately
proceed to the partition of the presently combined estates of Makasiar, Antonio, Muñoz Palma and Aquino, JJ., concur in
the spouses, to the end that the one-half share thereof of Mrs. the result.
Hodges may be properly and clearly identified; thereafter, the
trial court should forthwith segregate the remainder of the one-
fourth herein adjudged to be her estate and cause the same to
be turned over or delivered to respondent for her exclusive
administration in Special Proceedings 1307, while the other
one-fourth shall remain under the joint administration of said
respondent and petitioner under a joint proceedings in Special
Proceedings 1307 and 1672, whereas the half unquestionably
pertaining to Hodges shall be administered by petitioner Separate Opinions
exclusively in Special Proceedings 1672, without prejudice to
the resolution by the trial court of the pending motions for its
removal as administrator12; and this arrangement shall be
maintained until the final resolution of the two issues of renvoi FERNANDO, J., concurring:
and renunciation hereby reserved for further hearing and
determination, and the corresponding complete segregation I concur on the basis of the procedural pronouncements in the
and partition of the two estates in the proportions that may opinion.
result from the said resolution.
TEEHANKEE, J., concurring:
I concur in the result of dismissal of the petition Proc. No. 1307) as her estate was thereby merged with his
for certiorari and prohibition in Cases L-27860 and L-27896 own so that nothing remains of it that may be adjudicated to
and with the affirmance of the appealed orders of the probate her brothers and sisters as her designated heirs after him,4 —
court in Cases L-27936-37. is wholly untenable and deserves scant consideration.
I also concur with the portion of the dispositive part of the Aside from having been put forth as an obvious afterthought
judgment penned by Mr. Justice Barredo decreeing much too late in the day, this contention of PCIB that there no
the lifting of the Court's writ of preliminary injunction of August longer exists any separate estate of Linnie Jane Hodges after
8, 1967 as amended on October 4, and December 6, the probate court's order of December 14, 1957 goes against
19671 and ordering in lieu thereof that the Court's resolution of the very acts and judicial admissions of C.N. Hodges as her
September 8, 19722 which directed that petitioner- executor whereby he consistently recognized the separate
appellant PCIB as administrator of C. N. (Charles Newton) existence and identity of his wife's estate apart from his own
Hodges' estate (Sp. Proc. No. 1672 and respondent-appellee separate estate and from his own share of their conjugal
Avelina A. Magno as administratrix of Linnie Jane Hodges' partnership and estate and "never considered the whole estate
estate (Sp. Proc. No. 1307) should act always conjointly never as a single one belonging exclusively to himself" during the
independently from each other, as such administrators, is entire period that he survived her for over five (5) years up to
reiterated and shall continue in force and made part of the the time of his own death on December 25, 19625 and against
judgment. the identical acts and judicial admissions of PCIB as
administrator of C.N. Hodges' estate until PCIB sought in 1966
It is manifest from the record that petitioner-appellant PCIB's to take over both estates as pertaining to its sole
primal contention in the cases at bar belatedly filed by it with administration.
this Court on August 1, 1967 (over ten (10) years after Linnie
Jane Hodges' death on May 23, 1957 and (over five (5) years PCIB is now barred and estopped from contradicting or taking
after her husband C.N. Hodges' death on December 25, a belated position contradictory to or inconsistent with its
1962 — during which time both estates have previous admissions 6 (as well as those of C.N. Hodges
been pending settlement and distribution to the decedents' himself in his lifetime and of whose estate PCIB is merely an
respective rightful heirs all this time up to now) — that the administrator) recognizing the existence and identity of Linnie
probate court per its order of December 14, 1957 Jane Hodges' separate estate and the legal rights and
(supplementing an earlier order of May 25, 1957)3 in granting interests therein of her brothers and sisters as her designated
C. N. Hodges' motion as Executor of his wife Linnie's estate heirs in her will.
to continue their "business of buying and selling personal and
real properties" and approving "all sales, conveyances, leases PCIB's petition for certiorari and prohibition to declare all acts
and mortgages" made and to be made by him as such of the probate court in Linnie Jane Hodges' estate subsequent
executor under his obligation to submit his yearly accounts in to its order of December 14, 1957 as "null and void for having
effect declared him as sole heir of his wife's estate and nothing been issued without jurisdiction" must therefore be dismissed
remains to be done except to formally close her estate (Sp. with the rejection of its belated and untenable contention that
there is no longer any estate of Mrs. Hodges of which A. Magno, as administratrix thereof
respondent Avelina Magno is the duly appointed and acting is recognized, and
administratrix.
It is declared that, until final judgment is
PCIB's appeal7 from the probate court's various orders ultimately rendered regarding (1) the manner of
recognizing respondent Magno as administratrix of Linnie's applying Article 16 of the Civil Code of the
estate (Sp. Proc No. 1307) and sanctioning her acts of Philippines to the situation obtaining in these
administration of said estate and approving the sales contracts cases and (2) the factual and legal issues of
executed by her with the various individual appellees, which whether or not Charles Newton Hodges has
involve basically the same primal issue raised in the petition as effectively and legally renounced his inheritance
to whether there still exists a separate estate of Linnie of which under the will of Linnie Jane Hodges, the said
respondent-appellee Magno may continue to be the estate consists of one-fourthof the community
administratrix, must necessarily fail — a result of the Court's properties of the said spouses, as of the time of
main opinion at bar that there doesexist such an estate and the death of the wife on May 23,
that the two estates (husband's and wife's) must be 1957, minus whatever the husband had
administered cojointly by their respective administrators (PCIB already gratuitously disposed of in favor of third
and Magno). persons from said date until his death,
provided, first, that with respect
The dispositive portion of the main opinion to remunerative dispositions, the proceeds
thereof shall continue to be part of the wife's
The main opinion disposes that: estate, unless subsequently disposed
of gratuitously to third parties by the husband,
IN VIEW OF ALL THE FOREGOING and second, that should the
PREMISES, judgment is hereby rendered purported renunciation be declared legally
DISMISSING the petition in G. R. Nos. L-27860 effective, no deduction whatsoever are to be
and L-27896, and AFFIRMING, in G. R. Nos. L- made from said estate;
27936-37 and the other thirty-one numbers
hereunder ordered to be added after payment In consequence, the preliminary injunction of
of the corresponding docket fees, all the orders August 8, 1967, as amended on October 4 and
of the trial court under appeal enumerated in December 6, 1967, is lifted and the resolution of
detail on pages 35 to 37 and 80 to 82 of this September 8, 1972, directing that petitioner-
decision: appellant PCIB, as Administrator of the Testate
Estate of Charles Newton Hodges in Special
The existence of the Testate Estate of Linnie Proceedings 1672, and respondent-appellee
Jane Hodges, with respondent-appellee Avelina Avelina A. Magno, as Administratrix of the
Testate Estate of Linnie Jane Hodges in Special
Proceedings 1307, should act thenceforth reserved for further hearing and determination,
always conjointly, never independently from and the corresponding completesegregation
each other, as such administrators, and partition of the two estates in the
is reiterated, and the same is made part of this proportions that may result from the said
judgment and shall continue in resolution.
force, pending the liquidation of the conjugal
partnership of the deceased spouses and Generally and in all other respects, the parties
the determination and segregation from each and the court a quo are directed to adhere
other of their respective estates; provided, that henceforth, in all their actuations in Special
upon the finality of this judgment, the trial court Proceedings 1307 and 1672, to the views
should immediately proceed to the partition of passed and ruled upon by the Court in the
the presently combined estates of the spouses, foregoing opinion.8
to the end that the one-half share thereof of
Mrs. Hodges may be properly and clearly Minimum estimate of Mrs. Hodges' estate:
identified; One-fourth of conjugal properties.
Thereafter, the trial court should forthwith The main opinion in declaring the existence of a separate
segregate the remainder of the one- estate of Linnie Jane Hodges which shall pass to her brothers
fourth herein adjudged to be her estate and and sisters with right of representation (by their heirs) as her
cause the same to be turned over or delivered duly designated heirs declares that her estate consists as
to respondent for her exclusive administration in a minimum (i.e. assuming (1) that under Article 16 of the
Special Proceedings 1307, while the other one- Philippine Civil Code C. N. Hodges as surviving husband was
fourth shall remain under the joint entitled to one-half of her estate as legitime and (2) that he
administrative of said respondent and petitioner had not effectively and legally renouncedhis inheritance under
under a joint proceedings in Special her will) of "one-fourth of the community properties of the said
Proceedings 1307 and 1672, whereas spouses, as of the time of the death of the wife on May 23,
the half unquestionably pertaining 1957, minus whatever the husband had
to Hodges shall be administered by petitioner already gratuitously disposed of in favor of third persons from
exclusively in Special Proceedings 1672, said date until his death," with the proviso that proceeds
without prejudice to the resolution by the trial of remunerative dispositions or sales for valuable
court of thepending motions for its removal as consideration made by C. N. Hodges after his wife Linnie's
administrator; death shall continue to be part of her
estate unless subsequently disposed of by him gratuitously to
And this arrangement shall be third parties subject to the condition, however, that if he is held
maintained until the final resolution of the two to have validly and effectively renounced his inheritance under
issues of renvoi and renunciation hereby his wife's will, no deductions of any dispositions made by
Hodges even if gratuitously are to be made from his wife succession commenced ex die upon arrival of the suspensive
Linnie's estate which shall pass intact to her brothers and term of the death of C. N. Hodges on December 25, 1962.
sisters as her designated heirs called in her will to succeed to
her estate upon the death of her husband C. N. Hodges. Hence, while agreeing with the main opinion that the proceeds
of all remunerative dispositions made by C. N. Hodges after
Differences with the main opinion his wife's death remain an integral part of his wife's estate
which she willed to her brothers and sisters, I submit that C. N.
I do not share the main opinion's view that Linnie Jane Hodges Hodges could not validly make gratuitous dispositions of any
instituted her husband as her heir under her will "to have part or all of his wife's estate — "completely and absolutely
dominion over all her estate during his lifetime ... as absolute dispose of any portion thereof inter vivos to anyone other than
owner of the properties ..."9 and that she bequeathed "the himself" in the language of the main opinion, supra — and
whole of her estate to be owned and enjoyed by him as thereby render ineffectual and nugatory her institution of her
universal and sole heir with absolute dominion over them only brothers and sisters as her designated heirs to succeed to
during his lifetime, which means that while he could completely her whole estate "at the death of (her) husband." If according
and absolutely dispose of any portion thereof inter vivos to to the main opinion, Hodges could not make such gratuitous
anyone other than himself, he was not free to do so mortis "complete and absolute dispositions" of his wife Linnie's estate
causa, and all his rights to what might remain upon his death "mortis causa," it would seem that by the same token and
would cease entirely upon the occurrence of that contingency, rationale he was likewise proscribed by the will from making
inasmuch as the right of his brothers and sisters-in-law to the such dispositions of Linnie's estate inter vivos.
inheritance, although vested already upon the death of Mrs.
Hodges, would automatically become operative upon the I believe that the two questions
occurrence of the death of Hodges in the event of actual of renvoi and renunciation should be
existence of any remainder of her estate then." 10 resolved preferentially and expeditiously by the probate
court ahead of the partition and segregation of
As will be amplified hereinafter, I do not subscribe to such a the minimum one-fourth of the conjugal or community
view that Linnie Jane Hodges willed "full and absolute properties constituting Linnie Jane Hodges' separate estate,
ownership" and "absolute dominion" over her estate to her which task considering that it is now seventeen (17) years
husband, but rather that she named her husband C. N. since Linnie Jane Hodges' death and her conjugal estate with
Hodges and her brothers and sisters as instituted heirs with a C. N. Hodges has remained unliquidated up to now might take
term under Article 885 of our Civil Code, to wit, Hodges as a similar number of years to unravel with the numerous items,
instituted heir with a resolutory term whereunder his right to transactions and details of the sizable estates involved.
the succession ceased in diem upon arrival of
the resolutory term of his death on December 25, 1962 and Such partition of the minimum one-fourth would not be final,
her brothers and sisters as instituted heirs with since if the two prejudicial questions
a suspensive term whereunder their right to the of renvoi and renunciation were resolved favorably to Linnie's
estate meaning to say that if it should be held that C. N.
Hodges is not entitled to any legitime of her estate and at any law of the decedents, in this case, of Texas, shall govern their
rate he had totally renounced his inheritance under the will), succession) with the result that her estate would consist of no
then Linnie's estate would consist not only of the minimum more than one-fourth of the conjugal properties since
one-fourth but one-half of the conjugal or community the legitime of her husband (the other one-fourth of said
properties of the Hodges spouses, which would require again conjugal properties or one-half of her estate, under Article 900
the partition and segregation of still another one-fourth of said. of our Civil Code) could not then be disposed of nor burdened
properties to complete Linnie's separate estate. with any condition by her and (2) that C.N. Hodges
had not effectively and legally renounced his inheritance under
My differences with the main opinion involve further the legal his wife's will.
concepts, effects and consequences of the testamentary
dispositions of Linnie Jane Hodges in her will and the question These two assumptions are of course flatly disputed by
of the best to reach a solution of the pressing question of respondent-appellee Magno as Mrs. Hodges' administratrix,
expediting the closing of the estates which after all do not who avers that the law of the State of Texas governs her
appear to involve any outstanding debts nor any dispute succession and does not provide for and legitime, hence, her
between the heirs and should therefore be promptly settled brothers and sisters are entitled to succeed to the whole of her
now after all these years without any further undue share of the conjugal properties which is one-halfthereof and
complications and delays and distributed to the heirs for their that in any event, Hodges had totally renounced all his rights
full enjoyment and benefit. As no consensus appears to have under the will.
been reached thereon by a majority of the Court, I propose to
state views as concisely as possible with the sole end in view The main opinion concedes that "(I)n the interest of settling the
that they may be of some assistance to the probate court and estates herein involved soonest, it would be best, indeed, if
the parties in reaching an expeditious closing and settlement these conflicting claims of the parties were determined in
of the estates of the Hodges spouses. these proceedings." It observes however that this cannot be
done due to the inadequacy of the evidence submitted by the
Two Assumptions parties in the probate court and of the parties' discussion, viz,
"there is no clear and reliable proof of what the possibly
As indicated above, the declaration of the minimum of Mrs. applicable laws of Texas are. Then also, the genuineness of
Hodges' estate as one-fourth of the conjugal properties is the documents relied upon by respondent Magno [re Hodges'
based on two assumptions most favorable to C. N. Hodges' renunciation] is disputed." 12
estate and his heirs, namely (1) that the probate court must
accept the renvoi or "reference back" 11 allegedly provided by Hence, the main opinion expressly reserves resolution and
the laws of the State of Texas (of which state the Hodges determination on these two conflicting claims and issues which
spouses were citizens) whereby the civil laws of the it deems "are not properly before the Court
Philippines as the domicile of the Hodges spouses would now," 13 and specifically holds that "(A)ccordingly,
govern their succession notwithstanding the provisions of the only question that remains to be settled in the further
Article 16 of our Civil Code (which provides that the national proceedings hereby ordered to be held in the court below
is how much more than as fixed above is the estate of Mrs. The writer thus feels that laying down the premises and
Hodges, and this would depend on (1) whether or not the principles governing the nature, effects and consequences of
applicable laws of Texas do provide in effect for more, such as, Linnie Jane Hodges' testamentary dispositions in relation to
when there is no legitime provided therein, and (2) whether or her conjugal partnership and co-ownership of properties with
not Hodges has validly waived his whole inheritance from Mrs. her husband C. N. Hodges and "thinking out" the end results,
Hodges." 14 depending on whether the evidence directed to be formally
received by the probate court would bear out that
Suggested guidelines under renvoi C. N. Hodges was or was not entitled to claim a
legitime of one-half of his wife Linnie's estate and/or that he
Considering that the only unresolved issue has thus been had or had not effectively and validly renounced his
narrowed down and in consonance with the ruling spirit of our inheritance should help clear the decks, as it were, and assist
probate law calling for the prompt settlement of the estates of the probate court in resolving the onlyremaining question
deceased persons for the benefit of creditors and those of how much more than the minimum one-fourth of the
entitled to the residue by way of inheritance — considering community properties of the Hodges spouses herein finally
that the estates have been long pending settlement since determined should be awarded as the separate estate of
1957 and 1962, respectively — it was felt that the Court should Linnie, particularly since the views expressed in the main
lay down specific guidelines for the guidance of the probate opinion have not gained a consensus of the Court. Hence, the
court towards the end that it may expedite the closing of the following suggested guidelines, which needless to state,
protracted estates proceedings below to the mutual represent the personal opinion and views of the writer:
satisfaction of the heirs and without need of a dissatisfied party
elevating its resolution of this only remaining issue once more 1. To begin with, as pointed out in the main opinion, "according
to this Court and dragging out indefinitely the proceedings. to Hodges' own inventory submitted by him as executor of the
estate of his wife, practically all their properties
After all, the only question that remains depends for its were conjugal which means that the spouses have equal
determination on the resolution of the two questions shares therein." 16
of renvoiand renunciation, i.e. as to whether C. N. Hodges can
claim a legitime and whether he had renounced the 2. Upon the death of Mrs. Hodges on May 23, 1957, and the
inheritance. But as already indicated above, the Court without dissolution thereby of the marriage, the law imposed upon
reaching a consensus which would finally resolve the Hodges as surviving husband the duty of inventorying,
conflicting claims here and now in this case opted that "these administering and liquidating the conjugal or community
and other relevant matters should first be threshed out fully in property. 17 Hodges failed to discharge this duty
the trial court in the proceedings hereinafter to be held for the of liquidating the conjugal partnership and estate. On the
purpose of ascertaining and/or distributing the estate of Mrs. contrary, he sought and obtained authorization from the
Hodges to her heirs in accordance with her duly probated probate court
will." 15 to continue the conjugal partnership's business of buying and
selling real and personal properties.
In his annual accounts submitted to the probate court buying and selling real properties for the account of their
as executor of Mrs. Hodges' estate, Hodges unliquidated conjugal estate and co-ownership, share and
thus consistentlyreported the considerable combined income share alike and not to make any free dispositions of Linnie's
(in six figures) of the conjugal partnership or coownership and estate.
then divided the same equally between himself and Mrs.
Hodges' estate and as consistently filed separate income tax 4. All transactions as well after the death on December 25,
returns and paid the income taxes for each resulting half of 1962 of Hodges himself appear perforce and necessarily to
such combined income corresponding to his own and to Mrs. have been conducted, on the same premise, for and on behalf
Hodges' estate. 18 (Parenthetically, he could not in law do this, of their unliquidated conjugal partnership and/or co-
had he adjudicated Linnie's entire estate to himself, thus ownership, share and share alike — since the conjugal
supporting the view advanced even in the main opinion that partnership remained unliquidated — which is another way of
"Hodges waived not only his rights to the fruits but to the saying that such transactions, purchases and sales, mostly the
properties themselves." 19 latter, must be deemed in effect to have been made for the
respective estates of C. N. Hodges and of his wife Linnie Jane
By operation of the law of trust 20 as well as by his own Hodges, as both estates continued to have an equal stake and
acknowledgment and acts, therefore, all transactions made by share in the conjugal partnership which was not only
Hodges after his wife's death were deemed for and on behalf left unliquidated but continued as a co-ownership or joint
of their unliquidated conjugal partnership business with the probate court's approval by Hodges during
and community estate and were so reported and treated by the five-year period that he survived his wife.
him.
This explains the probate court's action of requiring that deeds
3. With this premise established that all transactions of of sale executed by PCIB as Hodges' estate's administrator be
Hodges after his wife's death were for and on behalf of "signed jointly" by respondent Magno as Mrs. Hodges' estate's
their unliquidated conjugal partnership and community estate, administratrix, as well as its order authorizing payment by lot
share and share alike, it should be clear that purchasers from the Hodges to either estate, since "there is as
no gratuitousdispositions, if any, made by C. N. Hodges from yet no judicial declaration of heirs nor distribution of properties
his wife Linnie's estate should be deducted from to whomsoever are entitled thereto." 22
her separateestate as held in the main opinion. On the
contrary, any such gratuitous dispositions should be charged And this equally furnishes the rationale of the main opinion for
to his own share of the conjugal estate since he had no continued conjoint administration by the administrators of the
authority or right to make any gratuitous dispositions of two estates of the deceased spouses, "pending the liquidation
Linnie's properties to the prejudice of her brothers and sisters of the conjugal partnership," 23since "it is but logical that both
whom she called to her succession upon his death, not to estates should be administered jointly by the representatives
mention that the very authority obtained by him from the of both, pending their segregation from each other. Particularly
probate court per its orders of May 25, and December 14, ... because the actuations so far of PCIB evince a determined,
1957 was to continue the conjugal partnership's business of albeit groundless, intent to exclude the other heirs of Mrs.
Hodges from their inheritance." 24 5. Antly by the estate" and further declared that "(T)he purpose of this
representatives of both, pending their segregation from each affidavit is to ratify and confirm, and I do hereby ratify and
other. Particularly ... because the actuations so far of PCIB confirm, the declaration made in schedule M of said return and
evince a determined, albeit groundless, intent to exclude the hereby formally disclaim and renounce any right on my part to
other heirs of Mrs. Hodges from their inheritance." 24 receive any of the said rents, emoluments and income from
the estate of my deceased wife, Linnie Jane Hodges. This
5. As stressed in the main opinion, the determination of affidavit is made to absolve me or my estate from any liability
the only unresolved issue of how much more than the for the payment of income taxes on income which has accrued
minimum of one-fourth of the community or conjugal properties to the estate of Linnie Jane Hodges since the death of the said
of the Hodges spouses pertains to Mrs. Hodges' estate Linnie Jane Hodges on May 23, 1957." 28
depends on the twin questions of renunciation and renvoi. It
directed consequently that "a joint hearing of the two probate (b) On the question of renvoi, all that remains for the probate
proceedings herein involved" be held by the probate court for court to do is to formally receive in evidence duly
the reception of "further evidence" in order to finally resolved authenticated copies of the laws of the State of Texas
these twin questions. 25 governing the succession of Linnie Jane Hodges and her
husband C. N. Hodges as citizens of said State at the time of
(a) On the question of renunciation, it is believed that all that their respective deaths on May 23, 1957 and December 25,
the probate court has to do is to receive formally in evidence 1962. 29
the various documents annexed to respondent Magno's
answer at bar, 26 namely: Copy of the U.S. Estate Tax Return 6. The text and tenor of the declarations by C. N. Hodges
filed on August 8, 1958 by C. N. Hodges for his wife Linnie's of renunciation of his inheritance from his wife in favor of her
estate wherein he purportedly declared that he other named heirs in her will (her brothers and sisters and their
was renouncing his inheritance under his wife's will in favor respective heirs) as ratified and reiterated expressly in his
of her brothers and sisters as co-heirs designated with him affidavit of renunciation executed four years later for the
and that it was his "intention (as) surviving husband of the avowed purpose of not being held liable for payment of income
deceased to distribute the remaining property and interests of taxes on income which has accrued to his wife's estate since
the deceased in their community estate to the devisee and her death indicate a valid and effective renunciation.
legatees named in the will when the debts, liabilities, taxes and
expenses of administration are finally determined and Once the evidence has been formally admitted and its
paid;" 27 and genuineness and legal effectivity established by the probate
court, the renunciation by C. N. Hodges must be given due
The affidavit of ratification of such renunciation (which places effect with the result that C. N. Hodges therefore acquired no
him in estoppel) allegedly executed on August 9, 1962 by C. part of his wife's one-half share of the community properties
N. Hodges in Iloilo City wherein he reaffirmed that "... since he removed himself as an heir by virtue of his
on August 8, 1958, I renounced and disclaimed any and all renunciation. By simple substitution then under Articles 857
right to receive the rents, emoluments and income from said and 859 of our Civil Code 30 and by virtue of the will's
institution of heirs, since "the heir originally instituted C. N. (b) If the laws on succession of the State of Texas
Hodges) does not become an heir" 31 by force of his do not provide for such renvoi and respondent Magno's
renunciation, Mrs. Hodges' brothers and sisters whom she assertion is correct that the Texas law which would then
designated as her heirs upon her husband's death are called prevail, provides for no legitime for C. N. Hodges as the
immediately to her succession. surviving spouse, then respondent Magno's assertion that Mrs.
Hodges' estate would consist of one-half of the community
Consequently, the said community and conjugal properties properties (with the other half pertaining to C. N. Hodges)
would then pertain pro indiviso share and share alike to their would have to be sustained. The community and conjugal
respective estates, with each estate, however, shouldering its properties would then pertain share and share alike to their
own expenses of administration, estate and inheritance taxes, respective estates, with each estate shouldering its own
if any remain unpaid, attorneys' fees and other like expenses expenses of administration in the same manner stated in the
and the net remainder to be adjudicated directly to the last paragraph of paragraph 6 hereof. .
decedents' respective brothers and sisters (and their heirs) as
the heirs duly designated in their respective wills. The question 8. As to the nature of the institution of heirs made by Mrs.
of renvoi becomes immaterial since most laws and our Hodges in her will, the main opinion holds that "(T)he brothers
laws permit such renunciation of inheritance. and sisters of Mrs. Hodges are not substitutes for Hodges;
rather, they are also heirs instituted simultaneously with
7. If there were no renunciation (or the same may somehow be Hodges," but goes further and holds that "it was not the
declared to have not been valid and effective) by C. N. Hodges usufruct alone of her estate ... that she bequeathed to
of his inheritance from his wife, however, what would be the Hodges during his lifetime, but the full
consequence? ownership thereof, although the same was to last also during
his lifetime only, even as there was no restriction against his
(a) If the laws on succession of the State of Texas do provide disposing or conveying the whole or any portion
for renvoi or "reference back" to Philippine law as the thereof anybody other than himself" and describes Hodges
domiciliary law of the Hodges' spouses governing their "as universal and sole heir with absolute dominion over Mrs.
succession, then petitioners' view that Mrs. Hodges' estate Hodges' estate (except over their Lubbock, Texas
would consist only of the minimum of "one-fourth of the property ), 32 adding that "Hodges was not obliged to preserve
community properties of the said spouses, as of the time of anything for them" (referring to Mrs. Hodges' brothers and
(her) death on May 23, 1957" would have to be sustained and sisters as instituted co-heirs). 33
C. N. Hodges' estate would consist of three-fourths of the
community properties, comprising his own one-half (or two- Contrary to this view of the main opinion, the writer submits
fourths) share and the other fourth of Mrs. Hodges' estate as that the provisions of Mrs. Hodges' will did not grant to C.N.
the legitime granted him as surviving spouse by Philippine Hodges "full ownership" nor "absolute dominion" over her
law (Article 900 of the Civil Code) which could not be disposed estate, such that he could as "universal and sole heir" by the
of nor burdened with any condition by Mrs. Hodges as mere expedient of gratuitously disposing to third persons
testatrix. her whole estate during his lifetime nullify her institution of her
brothers and sisters as his co-heirs to succeed to properties of said estate"(i.e. new properties acquired or
her whole estate "at the death of (her) husband," deprive them exchanged) would still pertain to her estate, which at the time
of any inheritance and make his own brothers and sisters in of his death would pass in full dominion to her brothers and
effect sole heirs not only of his own estate but of sisters as the ultimate sole and universal heirs of her estate. 36
his wife's estate as well.
The testatrix Linnie Jane Hodges in her will thus principally
Thus, while Linnie Jane Hodges did not expressly name her provided that "I give, devise and bequeath all of the rest,
brothers and sisters as substitutes for Hodges because she residue and remainder of my estate, both personal and real ...
willed that they would enter into the succession upon his to my beloved husband, Charles Newton Hodges, to have and
death, still it cannot be gainsaid, as the main opinion to hold with him ... during his natural lifetime;" 37 that "(he) shall
concedes, "that they are have the right to manage, control, use and enjoy said
also heirs instituted simultaneously with Hodges, subject estate during his lifetime, ... to make any changes in
however to certain conditions, partially resolutory insofar as the physical properties of said estate, by sale ... and
Hodges was concerned and correspondingly suspensive with the purchase of any other or additional property as he may
reference to his brothers and sisters-in-law." 34 think best ... . All rents, emoluments and income from said
estate shall belong to him and he is further authorized
Hence, if Hodges is found to have validly renounced his to use any part of the principal of said estate as he may need
inheritance, there would be a substitution of heirs in fact and in or desire, ... he shall not sell or otherwise dispose of any of the
law since Linnie's brothers and sisters as the heirs improved property now owned by us, located at ... City of
"simultaneously instituted" with a suspensive term would be Lubbock, Texas ... . He shall have the right
called immediately to her succession instead of waiting for the to subdivide any farm land and sell lots therein, and may
arrival of suspensive term of Hodges' death, since as the heir sell unimproved town lots;" 38 that "(A)t the death of my said
originally instituted he does not become an heir by force of his husband, Charles Newton, I give, devise and bequeath all of
renunciation and therefore they would "enter into the the rest, residue and remainder of my estate, both personal
inheritance in default of the heir originally instituted" (Hodges) and real, ... to be equally divided among my brothers and
under the provisions of Article 857 and 859 of our Civil sisters, share and share alike, namely: Esta Higdon, Emma
Code, supra, 35 thus accelerating their succession to her estate Howell, Leonard Higdon, Roy Higdon, Sadie Rascoe, Era
as a consequence of Hodges' renunciation. Roman and Nimroy Higdon;" 39 and that "(I)n case of the death
of any of my brothers and/or sisters ...prior to the death of my
Consequently, Linnie Jane Hodges willed that her husband husband ... the heirs of such deceased brother or sister shall
C.N. Hodges would "during his natural lifetime ... manage, take jointly the share which would have gone to such brother
control, use and enjoy said estate" and that only "all rents, or sister had she or he survived." 40
emoluments and income" alone shall belong to him. She
further willed that while he could sell and purchase properties Such provisions are wholly consistent with the view already
of her estate, and "use any part of the principal estate," such fully expounded above that all transactions and sales made by
principal notwithstanding "any changes in the physical Hodges after his wife Linnie's death were by operation of the
law of trust as well as by his own acknowledgment and acts commenced ex die, i.e. upon the expiration of the suspensive
deemed for and on behalf of their unliquidated conjugal term (as far as they were concerned) of the death of C. N.
partnership and community estate, share and share alike, with Hodges on December 25, 1962 . 42
the express authorization of the probate court per its orders of
May 25, and December 14, 1957 granting Hodges' motion to As stated in Padilla's treatise on the Civil Code, "A term is a
continue the conjugal partnership business of buying and period whose arrival is certain although the exact date thereof
selling real estate even after her death. By the same token, may be uncertain. A term may have either a suspensive or a
Hodges could not conceivably be deemed to have had any resolutory effect. The designation of the day when the legacy
authority or right to dispose gratuitously of any portion of her "shall commence" is ex die, or a term with a suspensive
estate to whose succession she had called her brothers and effect, from a certain day. The designation of the day when the
sisters upon his death. legacy "shall cease" is in diem or a term with a resolutory
effect, until a certain day." He adds that "A legacy based upon
9. Such institutions of heirs with a term are expressly a certain age or upon the death of a person is not a condition
recognized and permitted under Book III, Chapter 2, section 4 but a term. If the arrival of the term would commence the right
of our Civil Code dealing with "conditional testamentary of the heir, it is suspensive. If the arrival of the term would
dispositions and testamentary dispositions with a term." 41 terminate his right, it is resolutory" and that "upon the arrival of
the period, in case of a suspensive term, the instituted heir is
Thus, Article 885 of our Civil Code expressly provides that: entitled to the succession, and in case of a resolutory term, his
right terminates." 43
ART 885. The designation of the day or time
when the effects of the institution of an heir 10. The sizable estates herein involved have now been
shall commence or cease shall be valid. pending settlement for a considerably protracted period (of
seventeen years counted from Linnie's death in 1957), and all
In both cases, the legal heir shall be considered that is left to be done is to resolve the only remaining issue
as called to the succession until the arrival of (involving the two questions of renunciation and renvoi)
the period or its expiration. But in the first case hereinabove discussed in order to close up the estates and
he shall not enter into possession of the finally effect distribution to the deceased spouses' respective
property until after having given sufficient brothers and sisters and their heirs as the heirs duly instituted
security, with the intervention of the instituted in their wills long admitted to probate. Hence, it is advisable for
heir. said instituted heirs and their heirs in turn 44 to come to terms
for the adjudication and distribution to them pro-indiviso of the
Accordingly, under the terms of Mrs. Hodges' will, her up to now unliquidated community properties of the estates of
husband's right to the succession as the instituted heir the Hodges spouses (derived from their unliquidated conjugal
ceased in diem, i.e. upon the arrival of the resolutory term of partnership) rather than to get bogged down with the
his death on December 25, 1962, while her brothers' and formidable task of physically segregating and partitioning the
sisters' right to the succession also as instituted heirs two estates with the numerous transactions, items and details
and physical changes of properties involved. The estates compensation to executors and administrators who do not
proceedings would thus be closed and they could then name actively labor to that end, and they may even adopt harsher
their respective attorneys-in-fact to work out the details of measures." 46
segregating, dividing or partitioning
the unliquidated community properties or liquidating them — Timeliness of appeals and imposition of
which can be done then on their own without further need of thirty-one (31) additional docket fees
intervention on the part of the probate court as well as allow
them meanwhile to enjoy and make use of the income and Two appeals were docketed with this Court, as per the two
cash and liquid assets of the estates in such manner as may records on appeal submitted (one with a green cover and the
be agreed upon between them. other with a yellow cover). As stated at the outset, these
appeals involve basically the same primal issue raised in the
Such a settlement or modus vivendi between the heirs of the petition for certiorari as to whether there still exists a separate
unliquidated two estates for the mutual benefit of all of them estate of Linnie Jane Hodges which has to continue to be
should not prove difficult, considering that it appears as stated administered by respondent Magno. Considering the main
in the main opinion that 22.968149% of the share or undivided opinion's ruling in the affirmative and that her estate and that
estate of C. N. Hodges have already been acquired by the of her husband (since they jointly
heirs of Linnie Jane Hodges from certain heirs of her husband, comprise unliquidated community properties) must be
while certain other heirs representing 17.34375% of Hodges' administered conjointly by their respective administrators
estate were joining cause with Linnie's heirs in their pending (PCIB and Magno), the said appeals (involving thirty-three
and unresolved motion for the removal of petitioner PCIB as different orders of the probate court approving sales contracts
administrator of Hodges' estate, 45 apparently impatient with and other acts of administration executed and performed by
the situation which has apparently degenerated into a running respondent Magno on behalf of Linnie's estate) have been
battle between the administrators of the two estates to the necessarily overruled by the Court's decision at bar.
common prejudice of all the heirs.
(a) The "priority question" raised by respondent Magno as to
11. As earlier stated, the writer has taken the pain of the patent failure of the two records on appeal to show on their
suggesting these guidelines which may serve to guide the face and state the material data that the appeals were timely
probate court as well as the parties towards expediting the taken within the 30-day reglamentary period as required by
winding up and closing of the estates and the distribution of Rule 41, section 6 of the Rules of Court, has been brushed
the net estates to the instituted heirs and their successors duly aside by the main opinion with the statement that it is "not
entitled thereto. The probate court should exert all effort necessary to pass upon the timeliness of any of said appeals"
towards this desired objective pursuant to the mandate of our since they "revolve around practically the same main issues
probate law, bearing in mind the Court's admonition in and ... it is admitted that some of them have been timely
previous cases that "courts of first instance should exert taken." 47 The main opinion thus proceeded with the
themselves to close up estate within twelve months from the determination of the thirty-three appealed orders despite the
time they are presented, and they may refuse to allow any grave defect of the appellant PCIB's records on appeal and
their failure to state the required material data showing the enhanced by the question of whether it would make the cost of
timeliness of the appeals. appeal unduly expensive or prohibitive by requiring the
payment of a separate appeal docket fee for each incidental
Such disposition of the question of timeliness deemed as order questioned when the resolution of all such incidental
"mandatory and jurisdictional" in a number of cases merits the questioned orders involve basically one and the same main
writer's concurrence in that the question raised has been issue (in this case, the existence of a separate estate of Linnie
subordinated to the paramount considerations of substantial Jane Hodges) and can be more expeditiously resolved or
justice and a "liberal interpretation of the rules" applied so as determined in a single special civil action" (for which
not to derogate and detract from the primary intent and a single docket fee is required) as stated in the main
purpose of the rules, viz "the proper and just determination of opinion. 51 Considering the importance of the basic issues and
a litigation"48 — which calls for "adherence to a liberal the magnitude of the estates involved, however, the writer
construction of the procedural rules in order to attain their has pro hac vice given his concurrence to the assessment of
objective of substantial justice and of avoiding denials of the said thirty-one (31) additional appeal docket fees.
substantial justice due to procedural technicalities." 49
MAKALINTAL, C.J., concurring:
Thus, the main opinion in consonance with the same
paramount considerations of substantial justice has likewise I concur in the separate opinion of Justice Teehankee, which in
overruled respondents' objection to petitioner's taking the turn agrees with the dispositive portion of the main opinion of
recourse of "the present remedy of certiorari and prohibition" Justice Barredo insofar as it dismisses the petition
— "despite the conceded availability of appeal" — on the for certiorari and prohibition in Cases L-27860 and L-27896
ground that "there is a common thread among the basic issues and affirms the appealed orders of the probate court in cases
involved in all these thirty-three appeals — (which) deal with L-27936-37.
practically the same basic issues that can be more
expeditiously resolved or determined in a single special civil However, I wish to make one brief observation for the sake of
action . . . " 50 accuracy. Regardless of whether or not C. N. Hodges was
entitled to a legitime in his deceased wife's estate — which
(b) Since the basic issues have been in effect resolved in the question, still to be decided by the said probate court, may
special civil action at bar (as above stated) with the dismissal depend upon what is the law of Texas and upon its
of the petition by virtue of the Court's judgment as to the applicability in the present case — the said estate consists of
continued existence of a separate estate of Linnie Jane one-half, not one-fourth, of the conjugal properties. There is
Hodges and the affirmance as a necessary consequence of neither a minimum of one-fourth nor a maximum beyond that.
the appealed orders approving and sanctioning respondent It is important to bear this in mind because the estate of Linnie
Magno's sales contracts and acts of administration, some Hodges consists of her share in the conjugal properties, is still
doubt would arise as to the propriety of the main opinion under administration and until now has not been distributed by
requiring the payment by PCIB of thirty-one order of the court.
(31) additional appeal docket fees. This doubt is further
The reference in both the main and separate opinions to a 8, 1967 as amended on October 4, and December 6,
one-fourth portion of the conjugal properties as Linnie Hodges' 19671 and ordering in lieu thereof that the Court's resolution of
minimum share is a misnomer and is evidently meant only to September 8, 19722 which directed that petitioner-
indicate that if her husband should eventually be declared appellant PCIB as administrator of C. N. (Charles Newton)
entitled to a legitime, then the disposition made by Linnie Hodges' estate (Sp. Proc. No. 1672 and respondent-appellee
Hodges in favor of her collateral relatives would be valid only Avelina A. Magno as administratrix of Linnie Jane Hodges'
as to one-half of her share, or one-fourth of the conjugal estate (Sp. Proc. No. 1307) should act always conjointly never
properties, since the remainder, which constitutes such independently from each other, as such administrators, is
legitime, would necessarily go to her husband in absolute reiterated and shall continue in force and made part of the
ownership, unburdened by any substitution, term or condition, judgment.
resolutory or otherwise. And until the estate is finally settled
and adjudicated to the heirs who may be found entitled to it, It is manifest from the record that petitioner-appellant PCIB's
the administration must continue to cover Linnie's entire primal contention in the cases at bar belatedly filed by it with
conjugal share. this Court on August 1, 1967 (over ten (10) years after Linnie
Jane Hodges' death on May 23, 1957 and (over five (5) years
after her husband C.N. Hodges' death on December 25,
1962 — during which time both estates have
been pending settlement and distribution to the decedents'
respective rightful heirs all this time up to now) — that the
Separate Opinions probate court per its order of December 14, 1957
(supplementing an earlier order of May 25, 1957)3 in granting
FERNANDO, J., concurring: C. N. Hodges' motion as Executor of his wife Linnie's estate
to continue their "business of buying and selling personal and
I concur on the basis of the procedural pronouncements in the real properties" and approving "all sales, conveyances, leases
opinion. and mortgages" made and to be made by him as such
executor under his obligation to submit his yearly accounts in
effect declared him as sole heir of his wife's estate and nothing
TEEHANKEE, J., concurring:
remains to be done except to formally close her estate (Sp.
Proc. No. 1307) as her estate was thereby merged with his
I concur in the result of dismissal of the petition own so that nothing remains of it that may be adjudicated to
for certiorari and prohibition in Cases L-27860 and L-27896 her brothers and sisters as her designated heirs after him,4 —
and with the affirmance of the appealed orders of the probate is wholly untenable and deserves scant consideration.
court in Cases L-27936-37.
Aside from having been put forth as an obvious afterthought
I also concur with the portion of the dispositive part of the much too late in the day, this contention of PCIB that there no
judgment penned by Mr. Justice Barredo decreeing longer exists any separate estate of Linnie Jane Hodges after
the lifting of the Court's writ of preliminary injunction of August
the probate court's order of December 14, 1957 goes against executed by her with the various individual appellees, which
the very acts and judicial admissions of C.N. Hodges as her involve basically the same primal issue raised in the petition as
executor whereby he consistently recognized the separate to whether there still exists a separate estate of Linnie of which
existence and identity of his wife's estate apart from his own respondent-appellee Magno may continue to be the
separate estate and from his own share of their conjugal administratrix, must necessarily fail — a result of the Court's
partnership and estate and "never considered the whole estate main opinion at bar that there doesexist such an estate and
as a single one belonging exclusively to himself" during the that the two estates (husband's and wife's) must be
entire period that he survived her for over five (5) years up to administered cojointly by their respective administrators (PCIB
the time of his own death on December 25, 19625 and against and Magno).
the identical acts and judicial admissions of PCIB as
administrator of C.N. Hodges' estate until PCIB sought in 1966 The dispositive portion of the main opinion
to take over both estates as pertaining to its sole
administration. The main opinion disposes that:
PCIB is now barred and estopped from contradicting or taking IN VIEW OF ALL THE FOREGOING
a belated position contradictory to or inconsistent with its PREMISES, judgment is hereby rendered
previous admissions 6 (as well as those of C.N. Hodges DISMISSING the petition in G. R. Nos. L-27860
himself in his lifetime and of whose estate PCIB is merely an and L-27896, and AFFIRMING, in G. R. Nos. L-
administrator) recognizing the existence and identity of Linnie 27936-37 and the other thirty-one numbers
Jane Hodges' separate estate and the legal rights and hereunder ordered to be added after payment
interests therein of her brothers and sisters as her designated of the corresponding docket fees, all the orders
heirs in her will. of the trial court under appeal enumerated in
detail on pages 35 to 37 and 80 to 82 of this
PCIB's petition for certiorari and prohibition to declare all acts decision:
of the probate court in Linnie Jane Hodges' estate subsequent
to its order of December 14, 1957 as "null and void for having The existence of the Testate Estate of Linnie
been issued without jurisdiction" must therefore be dismissed Jane Hodges, with respondent-appellee Avelina
with the rejection of its belated and untenable contention that A. Magno, as administratrix thereof
there is no longer any estate of Mrs. Hodges of which is recognized, and
respondent Avelina Magno is the duly appointed and acting
administratrix. It is declared that, until final judgment is
ultimately rendered regarding (1) the manner of
PCIB's appeal7 from the probate court's various orders applying Article 16 of the Civil Code of the
recognizing respondent Magno as administratrix of Linnie's Philippines to the situation obtaining in these
estate (Sp. Proc No. 1307) and sanctioning her acts of cases and (2) the factual and legal issues of
administration of said estate and approving the sales contracts whether or not Charles Newton Hodges has
effectively and legally renounced his inheritance upon the finality of this judgment, the trial court
under the will of Linnie Jane Hodges, the said should immediately proceed to the partition of
estate consists of one-fourthof the community the presently combined estates of the spouses,
properties of the said spouses, as of the time of to the end that the one-half share thereof of
the death of the wife on May 23, Mrs. Hodges may be properly and clearly
1957, minus whatever the husband had identified;
already gratuitously disposed of in favor of third
persons from said date until his death, Thereafter, the trial court should forthwith
provided, first, that with respect segregate the remainder of the one-
to remunerative dispositions, the proceeds fourth herein adjudged to be her estate and
thereof shall continue to be part of the wife's cause the same to be turned over or delivered
estate, unless subsequently disposed to respondent for her exclusive administration in
of gratuitously to third parties by the husband, Special Proceedings 1307, while the other one-
and second, that should the fourth shall remain under the joint
purported renunciation be declared legally administrative of said respondent and petitioner
effective, no deduction whatsoever are to be under a joint proceedings in Special
made from said estate; Proceedings 1307 and 1672, whereas
the half unquestionably pertaining
In consequence, the preliminary injunction of to Hodges shall be administered by petitioner
August 8, 1967, as amended on October 4 and exclusively in Special Proceedings 1672,
December 6, 1967, is lifted and the resolution of without prejudice to the resolution by the trial
September 8, 1972, directing that petitioner- court of thepending motions for its removal as
appellant PCIB, as Administrator of the Testate administrator;
Estate of Charles Newton Hodges in Special
Proceedings 1672, and respondent-appellee And this arrangement shall be
Avelina A. Magno, as Administratrix of the maintained until the final resolution of the two
Testate Estate of Linnie Jane Hodges in Special issues of renvoi and renunciation hereby
Proceedings 1307, should act thenceforth reserved for further hearing and determination,
always conjointly, never independently from and the corresponding completesegregation
each other, as such administrators, and partition of the two estates in the
is reiterated, and the same is made part of this proportions that may result from the said
judgment and shall continue in resolution.
force, pending the liquidation of the conjugal
partnership of the deceased spouses and Generally and in all other respects, the parties
the determination and segregation from each and the court a quo are directed to adhere
other of their respective estates; provided, that henceforth, in all their actuations in Special
Proceedings 1307 and 1672, to the views dominion over all her estate during his lifetime ... as absolute
passed and ruled upon by the Court in the owner of the properties ..."9 and that she bequeathed "the
foregoing opinion.8 whole of her estate to be owned and enjoyed by him as
universal and sole heir with absolute dominion over them only
Minimum estimate of Mrs. Hodges' estate: during his lifetime, which means that while he could completely
One-fourth of conjugal properties. and absolutely dispose of any portion thereof inter vivos to
anyone other than himself, he was not free to do so mortis
The main opinion in declaring the existence of a separate causa, and all his rights to what might remain upon his death
estate of Linnie Jane Hodges which shall pass to her brothers would cease entirely upon the occurrence of that contingency,
and sisters with right of representation (by their heirs) as her inasmuch as the right of his brothers and sisters-in-law to the
duly designated heirs declares that her estate consists as inheritance, although vested already upon the death of Mrs.
a minimum (i.e. assuming (1) that under Article 16 of the Hodges, would automatically become operative upon the
Philippine Civil Code C. N. Hodges as surviving husband was occurrence of the death of Hodges in the event of actual
entitled to one-half of her estate as legitime and (2) that he existence of any remainder of her estate then." 10
had not effectively and legally renouncedhis inheritance under
her will) of "one-fourth of the community properties of the said As will be amplified hereinafter, I do not subscribe to such a
spouses, as of the time of the death of the wife on May 23, view that Linnie Jane Hodges willed "full and absolute
1957, minus whatever the husband had ownership" and "absolute dominion" over her estate to her
already gratuitously disposed of in favor of third persons from husband, but rather that she named her husband C. N.
said date until his death," with the proviso that proceeds Hodges and her brothers and sisters as instituted heirs with a
of remunerative dispositions or sales for valuable term under Article 885 of our Civil Code, to wit, Hodges as
consideration made by C. N. Hodges after his wife Linnie's instituted heir with a resolutory term whereunder his right to
death shall continue to be part of her the succession ceased in diem upon arrival of
estate unless subsequently disposed of by him gratuitously to the resolutory term of his death on December 25, 1962 and
third parties subject to the condition, however, that if he is held her brothers and sisters as instituted heirs with
to have validly and effectively renounced his inheritance under a suspensive term whereunder their right to the
his wife's will, no deductions of any dispositions made by succession commenced ex die upon arrival of the suspensive
Hodges even if gratuitously are to be made from his wife term of the death of C. N. Hodges on December 25, 1962.
Linnie's estate which shall pass intact to her brothers and
sisters as her designated heirs called in her will to succeed to Hence, while agreeing with the main opinion that the proceeds
her estate upon the death of her husband C. N. Hodges. of all remunerative dispositions made by C. N. Hodges after
his wife's death remain an integral part of his wife's estate
Differences with the main opinion which she willed to her brothers and sisters, I submit that C. N.
Hodges could not validly make gratuitous dispositions of any
I do not share the main opinion's view that Linnie Jane Hodges part or all of his wife's estate — "completely and absolutely
instituted her husband as her heir under her will "to have dispose of any portion thereof inter vivos to anyone other than
himself" in the language of the main opinion, supra — and dispositions of Linnie Jane Hodges in her will and the question
thereby render ineffectual and nugatory her institution of her of the best to reach a solution of the pressing question of
brothers and sisters as her designated heirs to succeed to expediting the closing of the estates which after all do not
her whole estate "at the death of (her) husband." If according appear to involve any outstanding debts nor any dispute
to the main opinion, Hodges could not make such gratuitous between the heirs and should therefore be promptly settled
"complete and absolute dispositions" of his wife Linnie's estate now after all these years without any further undue
"mortis causa," it would seem that by the same token and complications and delays and distributed to the heirs for their
rationale he was likewise proscribed by the will from making full enjoyment and benefit. As no consensus appears to have
such dispositions of Linnie's estate inter vivos. been reached thereon by a majority of the Court, I propose to
state views as concisely as possible with the sole end in view
I believe that the two questions that they may be of some assistance to the probate court and
of renvoi and renunciation should be the parties in reaching an expeditious closing and settlement
resolved preferentially and expeditiously by the probate of the estates of the Hodges spouses.
court ahead of the partition and segregation of
the minimum one-fourth of the conjugal or community Two Assumptions
properties constituting Linnie Jane Hodges' separate estate,
which task considering that it is now seventeen (17) years As indicated above, the declaration of the minimum of Mrs.
since Linnie Jane Hodges' death and her conjugal estate with Hodges' estate as one-fourth of the conjugal properties is
C. N. Hodges has remained unliquidated up to now might take based on two assumptions most favorable to C. N. Hodges'
a similar number of years to unravel with the numerous items, estate and his heirs, namely (1) that the probate court must
transactions and details of the sizable estates involved. accept the renvoi or "reference back" 11 allegedly provided by
the laws of the State of Texas (of which state the Hodges
Such partition of the minimum one-fourth would not be final, spouses were citizens) whereby the civil laws of the
since if the two prejudicial questions Philippines as the domicile of the Hodges spouses would
of renvoi and renunciation were resolved favorably to Linnie's govern their succession notwithstanding the provisions of
estate meaning to say that if it should be held that C. N. Article 16 of our Civil Code (which provides that the national
Hodges is not entitled to any legitime of her estate and at any law of the decedents, in this case, of Texas, shall govern their
rate he had totally renounced his inheritance under the will), succession) with the result that her estate would consist of no
then Linnie's estate would consist not only of the minimum more than one-fourth of the conjugal properties since
one-fourth but one-half of the conjugal or community the legitime of her husband (the other one-fourth of said
properties of the Hodges spouses, which would require again conjugal properties or one-half of her estate, under Article 900
the partition and segregation of still another one-fourth of said. of our Civil Code) could not then be disposed of nor burdened
properties to complete Linnie's separate estate. with any condition by her and (2) that C.N. Hodges
had not effectively and legally renounced his inheritance under
My differences with the main opinion involve further the legal his wife's will.
concepts, effects and consequences of the testamentary
These two assumptions are of course flatly disputed by Considering that the only unresolved issue has thus been
respondent-appellee Magno as Mrs. Hodges' administratrix, narrowed down and in consonance with the ruling spirit of our
who avers that the law of the State of Texas governs her probate law calling for the prompt settlement of the estates of
succession and does not provide for and legitime, hence, her deceased persons for the benefit of creditors and those
brothers and sisters are entitled to succeed to the whole of her entitled to the residue by way of inheritance — considering
share of the conjugal properties which is one-halfthereof and that the estates have been long pending settlement since
that in any event, Hodges had totally renounced all his rights 1957 and 1962, respectively — it was felt that the Court should
under the will. lay down specific guidelines for the guidance of the probate
court towards the end that it may expedite the closing of the
The main opinion concedes that "(I)n the interest of settling the protracted estates proceedings below to the mutual
estates herein involved soonest, it would be best, indeed, if satisfaction of the heirs and without need of a dissatisfied party
these conflicting claims of the parties were determined in elevating its resolution of this only remaining issue once more
these proceedings." It observes however that this cannot be to this Court and dragging out indefinitely the proceedings.
done due to the inadequacy of the evidence submitted by the
parties in the probate court and of the parties' discussion, viz, After all, the only question that remains depends for its
"there is no clear and reliable proof of what the possibly determination on the resolution of the two questions
applicable laws of Texas are. Then also, the genuineness of of renvoiand renunciation, i.e. as to whether C. N. Hodges can
the documents relied upon by respondent Magno [re Hodges' claim a legitime and whether he had renounced the
renunciation] is disputed." 12 inheritance. But as already indicated above, the Court without
reaching a consensus which would finally resolve the
Hence, the main opinion expressly reserves resolution and conflicting claims here and now in this case opted that "these
determination on these two conflicting claims and issues which and other relevant matters should first be threshed out fully in
it deems "are not properly before the Court the trial court in the proceedings hereinafter to be held for the
now," 13 and specifically holds that "(A)ccordingly, purpose of ascertaining and/or distributing the estate of Mrs.
the only question that remains to be settled in the further Hodges to her heirs in accordance with her duly probated
proceedings hereby ordered to be held in the court below will." 15
is how much more than as fixed above is the estate of Mrs.
Hodges, and this would depend on (1) whether or not the The writer thus feels that laying down the premises and
applicable laws of Texas do provide in effect for more, such as, principles governing the nature, effects and consequences of
when there is no legitime provided therein, and (2) whether or Linnie Jane Hodges' testamentary dispositions in relation to
not Hodges has validly waived his whole inheritance from Mrs. her conjugal partnership and co-ownership of properties with
Hodges." 14 her husband C. N. Hodges and "thinking out" the end results,
depending on whether the evidence directed to be formally
Suggested guidelines received by the probate court would bear out that
under renvoi C. N. Hodges was or was not entitled to claim a
legitime of one-half of his wife Linnie's estate and/or that he
had or had not effectively and validly renounced his Hodges' estate. 18 (Parenthetically, he could not in law do this,
inheritance should help clear the decks, as it were, and assist had he adjudicated Linnie's entire estate to himself, thus
the probate court in resolving the onlyremaining question supporting the view advanced even in the main opinion that
of how much more than the minimum one-fourth of the "Hodges waived not only his rights to the fruits but to the
community properties of the Hodges spouses herein finally properties themselves." 19
determined should be awarded as the separate estate of
Linnie, particularly since the views expressed in the main By operation of the law of trust 20 as well as by his own
opinion have not gained a consensus of the Court. Hence, the acknowledgment and acts, therefore, all transactions made by
following suggested guidelines, which needless to state, Hodges after his wife's death were deemed for and on behalf
represent the personal opinion and views of the writer: of their unliquidated conjugal partnership
and community estate and were so reported and treated by
1. To begin with, as pointed out in the main opinion, "according him.
to Hodges' own inventory submitted by him as executor of the
estate of his wife, practically all their properties 3. With this premise established that all transactions of
were conjugal which means that the spouses have equal Hodges after his wife's death were for and on behalf of
shares therein." 16 their unliquidated conjugal partnership and community estate,
share and share alike, it should be clear that
2. Upon the death of Mrs. Hodges on May 23, 1957, and the no gratuitousdispositions, if any, made by C. N. Hodges from
dissolution thereby of the marriage, the law imposed upon his wife Linnie's estate should be deducted from
Hodges as surviving husband the duty of inventorying, her separateestate as held in the main opinion. On the
administering and liquidating the conjugal or community contrary, any such gratuitous dispositions should be charged
property. 17 Hodges failed to discharge this duty to his own share of the conjugal estate since he had no
of liquidating the conjugal partnership and estate. On the authority or right to make any gratuitous dispositions of
contrary, he sought and obtained authorization from the Linnie's properties to the prejudice of her brothers and sisters
probate court whom she called to her succession upon his death, not to
to continue the conjugal partnership's business of buying and mention that the very authority obtained by him from the
selling real and personal properties. probate court per its orders of May 25, and December 14,
1957 was to continue the conjugal partnership's business of
In his annual accounts submitted to the probate court buying and selling real properties for the account of their
as executor of Mrs. Hodges' estate, Hodges unliquidated conjugal estate and co-ownership, share and
thus consistentlyreported the considerable combined income share alike and not to make any free dispositions of Linnie's
(in six figures) of the conjugal partnership or coownership and estate.
then divided the same equally between himself and Mrs.
Hodges' estate and as consistently filed separate income tax 4. All transactions as well after the death on December 25,
returns and paid the income taxes for each resulting half of 1962 of Hodges himself appear perforce and necessarily to
such combined income corresponding to his own and to Mrs. have been conducted, on the same premise, for and on behalf
of their unliquidated conjugal partnership and/or co- minimum of one-fourth of the community or conjugal properties
ownership, share and share alike — since the conjugal of the Hodges spouses pertains to Mrs. Hodges' estate
partnership remained unliquidated — which is another way of depends on the twin questions of renunciation and renvoi. It
saying that such transactions, purchases and sales, mostly the directed consequently that "a joint hearing of the two probate
latter, must be deemed in effect to have been made for the proceedings herein involved" be held by the probate court for
respective estates of C. N. Hodges and of his wife Linnie Jane the reception of "further evidence" in order to finally resolved
Hodges, as both estates continued to have an equal stake and these twin questions. 25
share in the conjugal partnership which was not only
left unliquidated but continued as a co-ownership or joint (a) On the question of renunciation, it is believed that all that
business with the probate court's approval by Hodges during the probate court has to do is to receive formally in evidence
the five-year period that he survived his wife. the various documents annexed to respondent Magno's
answer at bar, 26 namely: Copy of the U.S. Estate Tax Return
This explains the probate court's action of requiring that deeds filed on August 8, 1958 by C. N. Hodges for his wife Linnie's
of sale executed by PCIB as Hodges' estate's administrator be estate wherein he purportedly declared that he
"signed jointly" by respondent Magno as Mrs. Hodges' estate's was renouncing his inheritance under his wife's will in favor
administratrix, as well as its order authorizing payment by lot of her brothers and sisters as co-heirs designated with him
purchasers from the Hodges to either estate, since "there is as and that it was his "intention (as) surviving husband of the
yet no judicial declaration of heirs nor distribution of properties deceased to distribute the remaining property and interests of
to whomsoever are entitled thereto." 22 the deceased in their community estate to the devisee and
legatees named in the will when the debts, liabilities, taxes and
And this equally furnishes the rationale of the main opinion for expenses of administration are finally determined and
continued conjoint administration by the administrators of the paid;" 27 and
two estates of the deceased spouses, "pending the liquidation
of the conjugal partnership," 23since "it is but logical that both The affidavit of ratification of such renunciation (which places
estates should be administered jointly by the representatives him in estoppel) allegedly executed on August 9, 1962 by C.
of both, pending their segregation from each other. Particularly N. Hodges in Iloilo City wherein he reaffirmed that "...
... because the actuations so far of PCIB evince a determined, on August 8, 1958, I renounced and disclaimed any and all
albeit groundless, intent to exclude the other heirs of Mrs. right to receive the rents, emoluments and income from said
Hodges from their inheritance." 24 5. Antly by the estate" and further declared that "(T)he purpose of this
representatives of both, pending their segregation from each affidavit is to ratify and confirm, and I do hereby ratify and
other. Particularly ... because the actuations so far of PCIB confirm, the declaration made in schedule M of said return and
evince a determined, albeit groundless, intent to exclude the hereby formally disclaim and renounce any right on my part to
other heirs of Mrs. Hodges from their inheritance." 24 receive any of the said rents, emoluments and income from
the estate of my deceased wife, Linnie Jane Hodges. This
5. As stressed in the main opinion, the determination of affidavit is made to absolve me or my estate from any liability
the only unresolved issue of how much more than the for the payment of income taxes on income which has accrued
to the estate of Linnie Jane Hodges since the death of the said respective estates, with each estate, however, shouldering its
Linnie Jane Hodges on May 23, 1957." 28 own expenses of administration, estate and inheritance taxes,
if any remain unpaid, attorneys' fees and other like expenses
(b) On the question of renvoi, all that remains for the probate and the net remainder to be adjudicated directly to the
court to do is to formally receive in evidence duly decedents' respective brothers and sisters (and their heirs) as
authenticated copies of the laws of the State of Texas the heirs duly designated in their respective wills. The question
governing the succession of Linnie Jane Hodges and her of renvoi becomes immaterial since most laws and our
husband C. N. Hodges as citizens of said State at the time of laws permit such renunciation of inheritance.
their respective deaths on May 23, 1957 and December 25,
1962. 29 7. If there were no renunciation (or the same may somehow be
declared to have not been valid and effective) by C. N. Hodges
6. The text and tenor of the declarations by C. N. Hodges of his inheritance from his wife, however, what would be the
of renunciation of his inheritance from his wife in favor of her consequence?
other named heirs in her will (her brothers and sisters and their
respective heirs) as ratified and reiterated expressly in his (a) If the laws on succession of the State of Texas do provide
affidavit of renunciation executed four years later for the for renvoi or "reference back" to Philippine law as the
avowed purpose of not being held liable for payment of income domiciliary law of the Hodges' spouses governing their
taxes on income which has accrued to his wife's estate since succession, then petitioners' view that Mrs. Hodges' estate
her death indicate a valid and effective renunciation. would consist only of the minimum of "one-fourth of the
community properties of the said spouses, as of the time of
Once the evidence has been formally admitted and its (her) death on May 23, 1957" would have to be sustained and
genuineness and legal effectivity established by the probate C. N. Hodges' estate would consist of three-fourths of the
court, the renunciation by C. N. Hodges must be given due community properties, comprising his own one-half (or two-
effect with the result that C. N. Hodges therefore acquired no fourths) share and the other fourth of Mrs. Hodges' estate as
part of his wife's one-half share of the community properties the legitime granted him as surviving spouse by Philippine
since he removed himself as an heir by virtue of his law (Article 900 of the Civil Code) which could not be disposed
renunciation. By simple substitution then under Articles 857 of nor burdened with any condition by Mrs. Hodges as
and 859 of our Civil Code 30 and by virtue of the will's testatrix.
institution of heirs, since "the heir originally instituted C. N.
Hodges) does not become an heir" 31 by force of his (b) If the laws on succession of the State of Texas
renunciation, Mrs. Hodges' brothers and sisters whom she do not provide for such renvoi and respondent Magno's
designated as her heirs upon her husband's death are called assertion is correct that the Texas law which would then
immediately to her succession. prevail, provides for no legitime for C. N. Hodges as the
surviving spouse, then respondent Magno's assertion that Mrs.
Consequently, the said community and conjugal properties Hodges' estate would consist of one-half of the community
would then pertain pro indiviso share and share alike to their properties (with the other half pertaining to C. N. Hodges)
would have to be sustained. The community and conjugal Thus, while Linnie Jane Hodges did not expressly name her
properties would then pertain share and share alike to their brothers and sisters as substitutes for Hodges because she
respective estates, with each estate shouldering its own willed that they would enter into the succession upon his
expenses of administration in the same manner stated in the death, still it cannot be gainsaid, as the main opinion
last paragraph of paragraph 6 hereof. . concedes, "that they are
also heirs instituted simultaneously with Hodges, subject
8. As to the nature of the institution of heirs made by Mrs. however to certain conditions, partially resolutory insofar as
Hodges in her will, the main opinion holds that "(T)he brothers Hodges was concerned and correspondingly suspensive with
and sisters of Mrs. Hodges are not substitutes for Hodges; reference to his brothers and sisters-in-law." 34
rather, they are also heirs instituted simultaneously with
Hodges," but goes further and holds that "it was not the Hence, if Hodges is found to have validly renounced his
usufruct alone of her estate ... that she bequeathed to inheritance, there would be a substitution of heirs in fact and in
Hodges during his lifetime, but the full law since Linnie's brothers and sisters as the heirs
ownership thereof, although the same was to last also during "simultaneously instituted" with a suspensive term would be
his lifetime only, even as there was no restriction against his called immediately to her succession instead of waiting for the
disposing or conveying the whole or any portion arrival of suspensive term of Hodges' death, since as the heir
thereof anybody other than himself" and describes Hodges originally instituted he does not become an heir by force of his
"as universal and sole heir with absolute dominion over Mrs. renunciation and therefore they would "enter into the
Hodges' estate (except over their Lubbock, Texas inheritance in default of the heir originally instituted" (Hodges)
property ), 32 adding that "Hodges was not obliged to preserve under the provisions of Article 857 and 859 of our Civil
anything for them" (referring to Mrs. Hodges' brothers and Code, supra, 35 thus accelerating their succession to her estate
sisters as instituted co-heirs). 33 as a consequence of Hodges' renunciation.
Contrary to this view of the main opinion, the writer submits Consequently, Linnie Jane Hodges willed that her husband
that the provisions of Mrs. Hodges' will did not grant to C.N. C.N. Hodges would "during his natural lifetime ... manage,
Hodges "full ownership" nor "absolute dominion" over her control, use and enjoy said estate" and that only "all rents,
estate, such that he could as "universal and sole heir" by the emoluments and income" alone shall belong to him. She
mere expedient of gratuitously disposing to third persons further willed that while he could sell and purchase properties
her whole estate during his lifetime nullify her institution of her of her estate, and "use any part of the principal estate," such
brothers and sisters as his co-heirs to succeed to principal notwithstanding "any changes in the physical
her whole estate "at the death of (her) husband," deprive them properties of said estate"(i.e. new properties acquired or
of any inheritance and make his own brothers and sisters in exchanged) would still pertain to her estate, which at the time
effect sole heirs not only of his own estate but of of his death would pass in full dominion to her brothers and
his wife's estate as well. sisters as the ultimate sole and universal heirs of her estate. 36
The testatrix Linnie Jane Hodges in her will thus principally continue the conjugal partnership business of buying and
provided that "I give, devise and bequeath all of the rest, selling real estate even after her death. By the same token,
residue and remainder of my estate, both personal and real ... Hodges could not conceivably be deemed to have had any
to my beloved husband, Charles Newton Hodges, to have and authority or right to dispose gratuitously of any portion of her
to hold with him ... during his natural lifetime;" 37 that "(he) shall estate to whose succession she had called her brothers and
have the right to manage, control, use and enjoy said sisters upon his death.
estate during his lifetime, ... to make any changes in
the physical properties of said estate, by sale ... and 9. Such institutions of heirs with a term are expressly
the purchase of any other or additional property as he may recognized and permitted under Book III, Chapter 2, section 4
think best ... . All rents, emoluments and income from said of our Civil Code dealing with "conditional testamentary
estate shall belong to him and he is further authorized dispositions and testamentary dispositions with a term." 41
to use any part of the principal of said estate as he may need
or desire, ... he shall not sell or otherwise dispose of any of the Thus, Article 885 of our Civil Code expressly provides that:
improved property now owned by us, located at ... City of
Lubbock, Texas ... . He shall have the right ART 885. The designation of the day or time
to subdivide any farm land and sell lots therein, and may when the effects of the institution of an heir
sell unimproved town lots;" 38 that "(A)t the death of my said shall commence or cease shall be valid.
husband, Charles Newton, I give, devise and bequeath all of
the rest, residue and remainder of my estate, both personal In both cases, the legal heir shall be considered
and real, ... to be equally divided among my brothers and as called to the succession until the arrival of
sisters, share and share alike, namely: Esta Higdon, Emma the period or its expiration. But in the first case
Howell, Leonard Higdon, Roy Higdon, Sadie Rascoe, Era he shall not enter into possession of the
Roman and Nimroy Higdon;" 39 and that "(I)n case of the death property until after having given sufficient
of any of my brothers and/or sisters ...prior to the death of my security, with the intervention of the instituted
husband ... the heirs of such deceased brother or sister shall heir.
take jointly the share which would have gone to such brother
or sister had she or he survived." 40
Accordingly, under the terms of Mrs. Hodges' will, her
husband's right to the succession as the instituted heir
Such provisions are wholly consistent with the view already ceased in diem, i.e. upon the arrival of the resolutory term of
fully expounded above that all transactions and sales made by his death on December 25, 1962, while her brothers' and
Hodges after his wife Linnie's death were by operation of the sisters' right to the succession also as instituted heirs
law of trust as well as by his own acknowledgment and acts commenced ex die, i.e. upon the expiration of the suspensive
deemed for and on behalf of their unliquidated conjugal term (as far as they were concerned) of the death of C. N.
partnership and community estate, share and share alike, with Hodges on December 25, 1962 . 42
the express authorization of the probate court per its orders of
May 25, and December 14, 1957 granting Hodges' motion to
As stated in Padilla's treatise on the Civil Code, "A term is a the unliquidated community properties or liquidating them —
period whose arrival is certain although the exact date thereof which can be done then on their own without further need of
may be uncertain. A term may have either a suspensive or a intervention on the part of the probate court as well as allow
resolutory effect. The designation of the day when the legacy them meanwhile to enjoy and make use of the income and
"shall commence" is ex die, or a term with a suspensive cash and liquid assets of the estates in such manner as may
effect, from a certain day. The designation of the day when the be agreed upon between them.
legacy "shall cease" is in diem or a term with a resolutory
effect, until a certain day." He adds that "A legacy based upon Such a settlement or modus vivendi between the heirs of the
a certain age or upon the death of a person is not a condition unliquidated two estates for the mutual benefit of all of them
but a term. If the arrival of the term would commence the right should not prove difficult, considering that it appears as stated
of the heir, it is suspensive. If the arrival of the term would in the main opinion that 22.968149% of the share or undivided
terminate his right, it is resolutory" and that "upon the arrival of estate of C. N. Hodges have already been acquired by the
the period, in case of a suspensive term, the instituted heir is heirs of Linnie Jane Hodges from certain heirs of her husband,
entitled to the succession, and in case of a resolutory term, his while certain other heirs representing 17.34375% of Hodges'
right terminates." 43 estate were joining cause with Linnie's heirs in their pending
and unresolved motion for the removal of petitioner PCIB as
10. The sizable estates herein involved have now been administrator of Hodges' estate, 45 apparently impatient with
pending settlement for a considerably protracted period (of the situation which has apparently degenerated into a running
seventeen years counted from Linnie's death in 1957), and all battle between the administrators of the two estates to the
that is left to be done is to resolve the only remaining issue common prejudice of all the heirs.
(involving the two questions of renunciation and renvoi)
hereinabove discussed in order to close up the estates and 11. As earlier stated, the writer has taken the pain of
finally effect distribution to the deceased spouses' respective suggesting these guidelines which may serve to guide the
brothers and sisters and their heirs as the heirs duly instituted probate court as well as the parties towards expediting the
in their wills long admitted to probate. Hence, it is advisable for winding up and closing of the estates and the distribution of
said instituted heirs and their heirs in turn 44 to come to terms the net estates to the instituted heirs and their successors duly
for the adjudication and distribution to them pro-indiviso of the entitled thereto. The probate court should exert all effort
up to now unliquidated community properties of the estates of towards this desired objective pursuant to the mandate of our
the Hodges spouses (derived from their unliquidated conjugal probate law, bearing in mind the Court's admonition in
partnership) rather than to get bogged down with the previous cases that "courts of first instance should exert
formidable task of physically segregating and partitioning the themselves to close up estate within twelve months from the
two estates with the numerous transactions, items and details time they are presented, and they may refuse to allow any
and physical changes of properties involved. The estates compensation to executors and administrators who do not
proceedings would thus be closed and they could then name actively labor to that end, and they may even adopt harsher
their respective attorneys-in-fact to work out the details of measures." 46
segregating, dividing or partitioning
Timeliness of appeals and imposition of Such disposition of the question of timeliness deemed as
thirty-one (31) additional docket fees "mandatory and jurisdictional" in a number of cases merits the
writer's concurrence in that the question raised has been
Two appeals were docketed with this Court, as per the two subordinated to the paramount considerations of substantial
records on appeal submitted (one with a green cover and the justice and a "liberal interpretation of the rules" applied so as
other with a yellow cover). As stated at the outset, these not to derogate and detract from the primary intent and
appeals involve basically the same primal issue raised in the purpose of the rules, viz "the proper and just determination of
petition for certiorari as to whether there still exists a separate a litigation"48 — which calls for "adherence to a liberal
estate of Linnie Jane Hodges which has to continue to be construction of the procedural rules in order to attain their
administered by respondent Magno. Considering the main objective of substantial justice and of avoiding denials of
opinion's ruling in the affirmative and that her estate and that substantial justice due to procedural technicalities." 49
of her husband (since they jointly
comprise unliquidated community properties) must be Thus, the main opinion in consonance with the same
administered conjointly by their respective administrators paramount considerations of substantial justice has likewise
(PCIB and Magno), the said appeals (involving thirty-three overruled respondents' objection to petitioner's taking the
different orders of the probate court approving sales contracts recourse of "the present remedy of certiorari and prohibition"
and other acts of administration executed and performed by — "despite the conceded availability of appeal" — on the
respondent Magno on behalf of Linnie's estate) have been ground that "there is a common thread among the basic issues
necessarily overruled by the Court's decision at bar. involved in all these thirty-three appeals — (which) deal with
practically the same basic issues that can be more
(a) The "priority question" raised by respondent Magno as to expeditiously resolved or determined in a single special civil
the patent failure of the two records on appeal to show on their action . . . " 50
face and state the material data that the appeals were timely
taken within the 30-day reglamentary period as required by (b) Since the basic issues have been in effect resolved in the
Rule 41, section 6 of the Rules of Court, has been brushed special civil action at bar (as above stated) with the dismissal
aside by the main opinion with the statement that it is "not of the petition by virtue of the Court's judgment as to the
necessary to pass upon the timeliness of any of said appeals" continued existence of a separate estate of Linnie Jane
since they "revolve around practically the same main issues Hodges and the affirmance as a necessary consequence of
and ... it is admitted that some of them have been timely the appealed orders approving and sanctioning respondent
taken." 47 The main opinion thus proceeded with the Magno's sales contracts and acts of administration, some
determination of the thirty-three appealed orders despite the doubt would arise as to the propriety of the main opinion
grave defect of the appellant PCIB's records on appeal and requiring the payment by PCIB of thirty-one
their failure to state the required material data showing the (31) additional appeal docket fees. This doubt is further
timeliness of the appeals. enhanced by the question of whether it would make the cost of
appeal unduly expensive or prohibitive by requiring the
payment of a separate appeal docket fee for each incidental
order questioned when the resolution of all such incidental indicate that if her husband should eventually be declared
questioned orders involve basically one and the same main entitled to a legitime, then the disposition made by Linnie
issue (in this case, the existence of a separate estate of Linnie Hodges in favor of her collateral relatives would be valid only
Jane Hodges) and can be more expeditiously resolved or as to one-half of her share, or one-fourth of the conjugal
determined in a single special civil action" (for which properties, since the remainder, which constitutes such
a single docket fee is required) as stated in the main legitime, would necessarily go to her husband in absolute
opinion. 51 Considering the importance of the basic issues and ownership, unburdened by any substitution, term or condition,
the magnitude of the estates involved, however, the writer resolutory or otherwise. And until the estate is finally settled
has pro hac vice given his concurrence to the assessment of and adjudicated to the heirs who may be found entitled to it,
the said thirty-one (31) additional appeal docket fees. the administration must continue to cover Linnie's entire
conjugal share.
MAKALINTAL, C.J., concurring:
Ross, Lawrence and Selph for appellant. Nevertheless, legal and testamentary successions, in
Camus and Delgado for appellee. respect to the order of succession as well as to the
amount of the successional rights and the intrinsic
validity of their provisions, shall be regulated by the
national law of the person whose succession is in
question, whatever may be the nature of the property
ROMUALDEZ, J.: or the country in which it may be situated.
The partition of the estate left by the deceased Joseph G. But the fact is that the oppositor did not prove that said
Brimo is in question in this case. testimentary dispositions are not in accordance with the
Turkish laws, inasmuch as he did not present any evidence
showing what the Turkish laws are on the matter, and in the
The judicial administrator of this estate filed a scheme of
absence of evidence on such laws, they are presumed to be
partition. Andre Brimo, one of the brothers of the deceased,
the same as those of the Philippines. (Lim and Lim vs.
opposed it. The court, however, approved it.
Collector of Customs, 36 Phil., 472.)
The errors which the oppositor-appellant assigns are:
It has not been proved in these proceedings what the Turkish
laws are. He, himself, acknowledges it when he desires to be
(1) The approval of said scheme of partition; (2) denial of his given an opportunity to present evidence on this point; so
participation in the inheritance; (3) the denial of the motion for much so that he assigns as an error of the court in not having
reconsideration of the order approving the partition; (4) the deferred the approval of the scheme of partition until the
approval of the purchase made by the Pietro Lana of the receipt of certain testimony requested regarding the Turkish
deceased's business and the deed of transfer of said laws on the matter.
business; and (5) the declaration that the Turkish laws are
impertinent to this cause, and the failure not to postpone the
The refusal to give the oppositor another opportunity to prove
approval of the scheme of partition and the delivery of the
such laws does not constitute an error. It is discretionary with
deceased's business to Pietro Lanza until the receipt of the
the trial court, and, taking into consideration that the oppositor
depositions requested in reference to the Turkish laws.
was granted ample opportunity to introduce competent
evidence, we find no abuse of discretion on the part of the If this condition as it is expressed were legal and valid, any
court in this particular. There is, therefore, no evidence in the legatee who fails to comply with it, as the herein oppositor
record that the national law of the testator Joseph G. Brimo who, by his attitude in these proceedings has not respected
was violated in the testamentary dispositions in question the will of the testator, as expressed, is prevented from
which, not being contrary to our laws in force, must be receiving his legacy.
complied with and executed. lawphil.net
The fact is, however, that the said condition is void, being
Therefore, the approval of the scheme of partition in this contrary to law, for article 792 of the civil Code provides the
respect was not erroneous. following:
In regard to the first assignment of error which deals with the Impossible conditions and those contrary to law or
exclusion of the herein appellant as a legatee, inasmuch as he good morals shall be considered as not imposed and
is one of the persons designated as such in will, it must be shall not prejudice the heir or legatee in any manner
taken into consideration that such exclusion is based on the whatsoever, even should the testator otherwise
last part of the second clause of the will, which says: provide.
Second. I like desire to state that although by law, I am And said condition is contrary to law because it expressly
a Turkish citizen, this citizenship having been conferred ignores the testator's national law when, according to article 10
upon me by conquest and not by free choice, nor by of the civil Code above quoted, such national law of the
nationality and, on the other hand, having resided for a testator is the one to govern his testamentary dispositions.
considerable length of time in the Philippine Islands
where I succeeded in acquiring all of the property that I Said condition then, in the light of the legal provisions above
now possess, it is my wish that the distribution of my cited, is considered unwritten, and the institution of legatees in
property and everything in connection with this, my will, said will is unconditional and consequently valid and effective
be made and disposed of in accordance with the laws even as to the herein oppositor.
in force in the Philippine islands, requesting all of my
relatives to respect this wish, otherwise, I annul and It results from all this that the second clause of the will
cancel beforehand whatever disposition found in this regarding the law which shall govern it, and to the condition
will favorable to the person or persons who fail to imposed upon the legatees, is null and void, being contrary to
comply with this request. law.
The institution of legatees in this will is conditional, and the All of the remaining clauses of said will with all their
condition is that the instituted legatees must respect the dispositions and requests are perfectly valid and effective it not
testator's will to distribute his property, not in accordance with appearing that said clauses are contrary to the testator's
the laws of his nationality, but in accordance with the laws of national law.
the Philippines.
Therefore, the orders appealed from are modified and it is
directed that the distribution of this estate be made in such a
manner as to include the herein appellant Andre Brimo as one
of the legatees, and the scheme of partition submitted by the
judicial administrator is approved in all other respects, without
any pronouncement as to costs.
So ordered.
The antecedent facts are as follows: (a)....It is also my command, in this my addition
(Codicil), that should I die and Jorge Rabadilla
In a Codicil appended to the Last Will and Testament of shall have already received the ownership of
testatrix Aleja Belleza, Dr. Jorge Rabadilla, the said Lot No. 1392 of the Bacolod Cadastre,
predecessor-in-interest of the herein petitioner, Johnny covered by Transfer Certificate of Title No. RT-
S. Rabadilla, was instituted as a devisee of 511, 855 4002 (10942), and also at the time that the
square meters of that parcel of land surveyed as Lot lease of Balbinito G. Guanzon of the said lot
No. 1392 of the Bacolod Cadastre. The said Codicil, shall expire, Jorge Rabadilla shall have the
which was duly probated and admitted in Special obligation until he dies, every year to give to
Proceedings No. 4046 before the then Court of First Maria Marlina Coscolluela y Belleza, Seventy
Instance of Negros Occidental, contained the following (75) (sic) piculs of Export sugar and Twenty
provisions: Five (25) piculs of Domestic sugar, until the said
Maria Marlina Coscolluela y Belleza dies.
"FIRST
FIFTH
(a) Should Jorge Rabadilla die, his heir to mortgage, they cannot negotiate with others
whom he shall give Lot No. 1392 of the Bacolod than my near descendants and my sister."[4]
Cadastre, covered by Transfer Certificate of
Title No. RT-4002 (10492), shall have the Pursuant to the same Codicil, Lot No. 1392 was
obligation to still give yearly, the sugar as transferred to the deceased, Dr. Jorge Rabadilla, and
specified in the Fourth paragraph of his Transfer Certificate of Title No. 44498 thereto issued in
testament, to Maria Marlina Coscolluela y his name.
Belleza on the month of December of each
year. Dr. Jorge Rabadilla died in 1983 and was survived by
his wife Rufina and children Johnny (petitioner),
SIXTH Aurora, Ofelia and Zenaida, all surnamed Rabadilla.
I command, in this my addition (Codicil) that the On August 21, 1989, Maria Marlena Coscolluela y
Lot No. 1392, in the event that the one to whom Belleza Villacarlos brought a complaint, docketed as
I have left and bequeathed, and his heir shall Civil Case No. 5588, before Branch 52 of the Regional
later sell, lease, mortgage this said Lot, the Trial Court in Bacolod City, against the above-
buyer, lessee, mortgagee, shall have also the mentioned heirs of Dr. Jorge Rabadilla, to enforce the
obligation to respect and deliver yearly ONE provisions of subject Codicil. The Complaint alleged
HUNDRED (100) piculs of sugar to Maria that the defendant-heirs violated the conditions of the
Marlina Coscolluela y Belleza, on each month Codicil, in that:
of December, SEVENTY FIVE (75) piculs of
Export and TWENTY FIVE (25) piculs of 1. Lot No. 1392 was mortgaged to the
Domestic, until Maria Marlina shall die, lastly Philippine National Bank and the Republic
should the buyer, lessee or the mortgagee of Planters Bank in disregard of the testatrix's
this lot, not have respected my command in this specific instruction to sell, lease, or mortgage
my addition (Codicil), Maria Marlina Coscolluela only to the near descendants and sister of the
y Belleza, shall immediately seize this Lot No. testatrix.
1392 from my heir and the latter's heirs, and
shall turn it over to my near desendants, (sic) 2. Defendant-heirs failed to comply with their
and the latter shall then have the obligation to obligation to deliver one hundred (100) piculs of
give the ONE HUNDRED (100) piculs of sugar sugar (75 piculs export sugar and 25 piculs
until Maria Marlina shall die. I further command domestic sugar) to plaintiff Maria Marlena
in this my addition (Codicil) that my heir and his Coscolluela y Belleza from sugar crop years
heirs of this Lot No. 1392, that they will obey 1985 up to the filing of the complaint as
and follow that should they decide to sell, lease, mandated by the Codicil, despite repeated
demands for compliance.
3. The banks failed to comply with the 6th 75 piculs of 'A' sugar, and 25
paragraph of the Codicil which provided that in piculs of 'B' sugar, or then
case of the sale, lease, or mortgage of the existing in any of our names,
property, the buyer, lessee, or mortgagee shall Mary Rose Rabadilla y Azurin or
likewise have the obligation to deliver 100 Alan Azurin, during December of
piculs of sugar per crop year to herein private each sugar crop year, in Azucar
respondent. Sugar Central; and, this is
considered compliance of the
The plaintiff then prayed that judgment be rendered annuity as mentioned, and in the
ordering defendant-heirs to reconvey/return-Lot No. same manner will compliance of
1392 to the surviving heirs of the late Aleja Belleza, the the annuity be in the next
cancellation of TCT No. 44498 in the name of the succeeding crop years.
deceased, Dr. Jorge Rabadilla, and the issuance of a
new certificate of title in the names of the surviving That the annuity above stated for crop year
heirs of the late Aleja Belleza. 1985-86, 1986-87, and 1987-88, will be
complied in cash equivalent of the number of
On February 26, 1990, the defendant-heirs were piculs as mentioned therein and which is as
declared in default but on March 28, 1990 the Order of herein agreed upon, taking into consideration
Default was lifted, with respect to defendant Johnny S. the composite price of sugar during each sugar
Rabadilla, who filed his Answer, accordingly. crop year, which is in the total amount of ONE
HUNDRED FIVE THOUSAND PESOS
During the pre-trial, the parties admitted that: (P105,000.00).
On November 15, 1998, the plaintiff (private That the above-mentioned amount will be paid or
respondent) and a certain Alan Azurin, son-in-law of delivered on a staggered cash installment, payable on
the herein petitioner who was lessee of the property or before the end of December of every sugar crop
and acting as attorney-in-fact of defendant-heirs, year, to wit:
arrived at an amicable settlement and entered into a
Memorandum of Agreement on the obligation to deliver For 1985-86, TWENTY SIX THOUSAND TWO
one hundred piculs of sugar, to the following effect: HUNDRED FIFTY (P26,250.00) Pesos, payable on or
before December of crop year 1988-89;
"That for crop year 1988-89, the annuity
mentioned in Entry No. 49074 of TCT No. For 1986-87, TWENTY SIX THOUSAND TWO
44489 will be delivered not later than January of HUNDRED FIFTY (P26,250.00) Pesos, payable on or
1989, more specifically, to wit: before December of crop year 1989-90;
For 1987-88, TWENTY SIX THOUSAND TWO In the light of the aforegoing findings, the
HUNDRED FIFTY (P26,250.00) Pesos, payable on or Complaint being prematurely filed is
before December of crop year 1990-91; and DISMISSED without prejudice.
Dissatisfied with the aforesaid disposition by the Court The contentions of petitioner are untenable. Contrary to
of Appeals, petitioner found his way to this his supposition that the Court of Appeals deviated from
Court via the present petition, contending that the the issue posed before it, which was the propriety of
Court of Appeals erred in ordering the reversion of Lot the dismissal of the complaint on the ground of
1392 to the estate of the testatrix Aleja Belleza on the prematurity of cause of action, there was no such
basis of paragraph 6 of the Codicil, and in ruling that deviation. The Court of Appeals found that the private
the testamentary institution of Dr. Jorge Rabadilla is a respondent had a cause of action against the
modal institution within the purview of Article 882 of the petitioner. The disquisition made on modal institution
New Civil Code. was, precisely, to stress that the private respondent
had a legally demandable right against the petitioner
The petition is not impressed with merit. pursuant to subject Codicil; on which issue the Court of
Appeals ruled in accordance with law.
Petitioner contends that the Court of Appeals erred in
resolving the appeal in accordance with Article 882 of It is a general rule under the law on succession that
the New Civil Code on modal institutions and in successional rights are transmitted from the moment of
deviating from the sole issue raised which is the death of the decedent[10] and compulsory heirs are
absence or prematurity of the cause of action. called to succeed by operation of law. The legitimate
Petitioner maintains that Article 882 does not find children and descendants, in relation to their legitimate
application as there was no modal institution and the parents, and the widow or widower, are compulsory
testatrix intended a mere simple substitution - i.e. the heirs.[11] Thus, the petitioner, his mother and sisters, as
instituted heir, Dr. Jorge Rabadilla, was to be compulsory heirs of the instituted heir, Dr. Jorge
substituted by the testatrix's "near descendants" should Rabadilla, succeeded the latter by operation of law,
the obligation to deliver the fruits to herein private without need of further proceedings, and the
respondent be not complied with. And since the successional rights were transmitted to them from the
testatrix died single and without issue, there can be no moment of death of the decedent, Dr. Jorge Rabadilla.
valid substitution and such testamentary provision
cannot be given any effect.
Under Article 776 of the New Civil Code, inheritance Again, the contention is without merit.
includes all the property, rights and obligations of a
person, not extinguished by his death. Conformably, Substitution is the designation by the testator of a
whatever rights Dr. Jorge Rabadilla had by virtue of person or persons to take the place of the heir or heirs
subject Codicil were transmitted to his forced heirs, at first instituted. Under substitutions in general, the
the time of his death. And since obligations not testator may either (1) provide for the designation of
extinguished by death also form part of the estate of another heir to whom the property shall pass in case
the decedent; corollarily, the obligations imposed by the original heir should die before him/her, renounce
the Codicil on the deceased Dr. Jorge Rabadilla, were the inheritance or be incapacitated to inherit, as in a
likewise transmitted to his compulsory heirs upon his simple substitution,[12] or (2) leave his/her property to
death. one person with the express charge that it be
transmitted subsequently to another or others, as in a
In the said Codicil, testatrix Aleja Belleza devised Lot fideicommissary substitution.[13] The Codicil sued upon
No. 1392 to Dr. Jorge Rabadilla, subject to the contemplates neither of the two.
condition that the usufruct thereof would be delivered
to the herein private respondent every year. Upon the In simple substitutions, the second heir takes the
death of Dr. Jorge Rabadilla, his compulsory heirs inheritance in default of the first heir by reason of
succeeded to his rights and title over the said property, incapacity, predecease or renunciation.[14] In the case
and they also assumed his (decedent's) obligation to under consideration, the provisions of subject Codicil
deliver the fruits of the lot involved to herein private do not provide that should Dr. Jorge Rabadilla default
respondent. Such obligation of the instituted heir due to predecease, incapacity or renunciation, the
reciprocally corresponds to the right of private testatrix's near descendants would substitute him.
respondent over the usufruct, the fulfillment or What the Codicil provides is that, should Dr. Jorge
performance of which is now being demanded by the Rabadilla or his heirs not fulfill the conditions imposed
latter through the institution of the case at bar. in the Codicil, the property referred to shall be seized
Therefore, private respondent has a cause of action and turned over to the testatrix's near descendants.
against petitioner and the trial court erred in dismissing
the complaint below. Neither is there a fideicommissary substitution here
and on this point, petitioner is correct. In a
Petitioner also theorizes that Article 882 of the New fideicommissary substitution, the first heir is strictly
Civil Code on modal institutions is not applicable mandated to preserve the property and to
because what the testatrix intended was a substitution transmit the same later to the second heir.[15] In the
- Dr. Jorge Rabadilla was to be substituted by the case under consideration, the instituted heir is in fact
testatrix's near descendants should there be allowed under the Codicil to alienate the property
noncompliance with the obligation to deliver the piculs provided the negotiation is with the near descendants
of sugar to private respondent. or the sister of the testatrix. Thus, a very important
element of a fideicommissary substitution is lacking; or his heirs give security for compliance with the
the obligation clearly imposing upon the first heir the wishes of the testator and for the return of
preservation of the property and its transmission to the anything he or they may receive, together with
second heir. "Without this obligation to preserve clearly its fruits and interests, if he or they should
imposed by the testator in his will, there is no disregard this obligation.
fideicommissary substitution."[16] Also, the near
descendants' right to inherit from the testatrix is not Art. 883. When without the fault of the heir, an
definite. The property will only pass to them should Dr. institution referred to in the preceding article
Jorge Rabadilla or his heirs not fulfill the obligation to cannot take effect in the exact manner stated
deliver part of the usufruct to private respondent. by the testator, it shall be complied with in a
manner most analogous to and in conformity
Another important element of a fideicommissary with his wishes.
substitution is also missing here. Under Article 863, the
second heir or the fideicommissary to whom the The institution of an heir in the manner prescribed in
property is transmitted must not be beyond one degree Article 882 is what is known in the law of succession as
from the first heir or the fiduciary. A fideicommissary an institucion sub modo or a modal institution. In a
substitution is therefore, void if the first heir is not modal institution, the testator states (1) the object of
related by first degree to the second heir.[17] In the case the institution, (2) the purpose or application of the
under scrutiny, the near descendants are not at all property left by the testator, or (3) the charge imposed
related to the instituted heir, Dr. Jorge Rabadilla. by the testator upon the heir.[18] A "mode" imposes an
obligation upon the heir or legatee but it does not affect
The Court of Appeals erred not in ruling that the the efficacy of his rights to the succession.[19] On the
institution of Dr. Jorge Rabadilla under subject Codicil other hand, in a conditional testamentary disposition,
is in the nature of a modal institution and therefore, the condition must happen or be fulfilled in order for the
Article 882 of the New Civil Code is the provision of law heir to be entitled to succeed the testator. The
in point. Articles 882 and 883 of the New Civil Code condition suspends but does not obligate; and the
provide: mode obligates but does not suspend.[20] To some
extent, it is similar to a resolutory condition.[21]
Art. 882. The statement of the object of the
institution or the application of the property left From the provisions of the Codicil litigated upon, it can
by the testator, or the charge imposed on him, be gleaned unerringly that the testatrix intended that
shall not be considered as a condition unless it subject property be inherited by Dr. Jorge Rabadilla. It
appears that such was his intention. is likewise clearly worded that the testatrix imposed an
obligation on the said instituted heir and his
That which has been left in this manner may be successors-in-interest to deliver one hundred piculs of
claimed at once provided that the instituted heir sugar to the herein private respondent, Marlena
Coscolluela Belleza, during the lifetime of the latter. yearly to Marlena Belleza Coscuella. Such obligation is
However, the testatrix did not make Dr. Jorge imposed on the instituted heir, Dr. Jorge Rabadilla, his
Rabadilla's inheritance and the effectivity of his heirs, and their buyer, lessee, or mortgagee should
institution as a devisee, dependent on the performance they sell, lease, mortgage or otherwise negotiate the
of the said obligation. It is clear, though, that should the property involved. The Codicil further provides that in
obligation be not complied with, the property shall be the event that the obligation to deliver the sugar is not
turned over to the testatrix's near descendants. The respected, Marlena Belleza Coscuella shall seize the
manner of institution of Dr. Jorge Rabadilla under property and turn it over to the testatrix's near
subject Codicil is evidently modal in nature because it descendants. The non-performance of the said
imposes a charge upon the instituted heir without, obligation is thus with the sanction of seizure of the
however, affecting the efficacy of such institution. property and reversion thereof to the testatrix's near
descendants. Since the said obligation is clearly
Then too, since testamentary dispositions are generally imposed by the testatrix, not only on the instituted heir
acts of liberality, an obligation imposed upon the heir but also on his successors-in-interest, the sanction
should not be considered a condition unless it clearly imposed by the testatrix in case of non-fulfillment of
appears from the Will itself that such was the intention said obligation should equally apply to the instituted
of the testator. In case of doubt, the institution should heir and his successors-in-interest.
be considered as modal and not conditional.[22]
Similarly unsustainable is petitioner's submission that
Neither is there tenability in the other contention of by virtue of the amicable settlement, the said obligation
petitioner that the private respondent has only a right of imposed by the Codicil has been assumed by the
usufruct but not the right to seize the property itself lessee, and whatever obligation petitioner had become
from the instituted heir because the right to seize was the obligation of the lessee; that petitioner is deemed to
expressly limited to violations by the buyer, lessee or have made a substantial and constructive compliance
mortgagee. of his obligation through the consummated settlement
between the lessee and the private respondent, and
In the interpretation of Wills, when an uncertainty having consummated a settlement with the petitioner,
arises on the face of the Will, as to the application of the recourse of the private respondent is the fulfillment
any of its provisions, the testator's intention is to be of the obligation under the amicable settlement and not
ascertained from the words of the Will, taking into the seizure of subject property.
consideration the circumstances under which it was
made.[23] Such construction as will sustain and uphold Suffice it to state that a Will is a personal, solemn,
the Will in all its parts must be adopted.[24] revocable and free act by which a person disposes of
his property, to take effect after his death.[25] Since the
Subject Codicil provides that the instituted heir is under Will expresses the manner in which a person intends
obligation to deliver One Hundred (100) piculs of sugar how his properties be disposed, the wishes and desires
of the testator must be strictly followed. Thus, a Will
cannot be the subject of a compromise agreement
which would thereby defeat the very purpose of making
a Will.
SO ORDERED.