G.R. No.
L-41715 June 18, 1976 The Court reverses the respondent Court and sets aside its
ROSALIO BONILLA (a minor) SALVACION BONILLA (a minor)
and PONCIANO BONILLA (their father) who represents the
minors, petitioners,
vs.
LEON BARCENA, MAXIMA ARIAS BALLENA, ESPERANZA
BARCENA, MANUEL BARCENA, AGUSTINA NERI, widow of
JULIAN TAMAYO and HON. LEOPOLDO GIRONELLA of the
Court of First Instance of Abra,respondents.
Federico Paredes for petitioners.
Demetrio V. Pre for private respondents.
MARTIN, J:
This is a petition for review 1 of the Order of the Court of First
Instance of Abra in Civil Case No. 856, entitled Fortunata
Barcena vs. Leon Barcena, et al., denying the motions for
reconsideration of its order dismissing the complaint in the
aforementioned case.
On March 31, 1975 Fortunata Barcena, mother of minors
Rosalio Bonilla and Salvacion Bonilla and wife of Ponciano
Bonilla, instituted a civil action in the Court of First Instance
of Abra, to quiet title over certain parcels of land located in
Abra.
On May 9, 1975, defendants filed a written motion to dismiss
the complaint, but before the hearing of the motion to
dismiss, the counsel for the plaintiff moved to amend the
complaint in order to include certain allegations therein. The
motion to amend the complaint was granted and on July 17,
1975, plaintiffs filed their amended complaint.
On August 4, 1975, the defendants filed another motion to
dismiss the complaint on the ground that Fortunata Barcena
is dead and, therefore, has no legal capacity to sue. Said
motion to dismiss was heard on August 14, 1975. In said
hearing, counsel for the plaintiff confirmed the death of
Fortunata Barcena, and asked for substitution by her minor
children and her husband, the petitioners herein; but the
court after the hearing immediately dismissed the case on
the ground that a dead person cannot be a real party in
interest and has no legal personality to sue.
On August 19, 1975, counsel for the plaintiff received a copy
of the order dismissing the complaint and on August 23,
1975, he moved to set aside the order of the dismissal
pursuant to Sections 16 and 17 of Rule 3 of the Rules of
Court. 2
On August 28, 1975, the court denied the motion for
reconsideration filed by counsel for the plaintiff for lack of
merit. On September 1, 1975, counsel for deceased plaintiff
filed a written manifestation praying that the minors Rosalio
Bonilla and Salvacion Bonilla be allowed to substitute their
deceased mother, but the court denied the counsel's prayer
for lack of merit. From the order, counsel for the deceased
plaintiff filed a second motion for reconsideration of the
order dismissing the complaint claiming that the same is in
violation of Sections 16 and 17 of Rule 3 of the Rules of Court
but the same was denied.
Hence, this petition for review.
order dismissing the complaint in Civil Case No. 856 and its
orders denying the motion for reconsideration of said order
of dismissal. While it is true that a person who is dead cannot
sue in court, yet he can be substituted by his heirs in pursuing
the case up to its completion. The records of this case show
that the death of Fortunata Barcena took place on July 9,
1975 while the complaint was filed on March 31, 1975. This
means that when the complaint was filed on March 31, 1975,
Fortunata Barcena was still alive, and therefore, the court had
acquired jurisdiction over her person. If thereafter she died,
the Rules of Court prescribes the procedure whereby a party
who died during the pendency of the proceeding can be
substituted. Under Section 16, Rule 3 of the Rules of Court
"whenever a party to a pending case dies ... it shall be the
duty of his attorney to inform the court promptly of such
death ... and to give the name and residence of his executor,
administrator, guardian or other legal representatives." This
duty was complied with by the counsel for the deceased
plaintiff when he manifested before the respondent Court
that Fortunata Barcena died on July 9, 1975 and asked for the
proper substitution of parties in the case. The respondent
Court, however, instead of allowing the substitution,
dismissed the complaint on the ground that a dead person
has no legal personality to sue. This is a grave error. Article
777 of the Civil Code provides "that the rights to the
succession are transmitted from the moment of the death of
the decedent." From the moment of the death of the
decedent, the heirs become the absolute owners of his
property, subject to the rights and obligations of the
decedent, and they cannot be deprived of their rights thereto
3
except by the methods provided for by law. The moment of
death is the determining factor when the heirs acquire a
definite right to the inheritance whether such right be pure or
contingent. 4 The right of the heirs to the property of the
deceased vests in them even before judicial declaration of
their being heirs in the testate or intestate
proceedings. 5 When Fortunata Barcena, therefore, died her
claim or right to the parcels of land in litigation in Civil Case
No. 856, was not extinguished by her death but was
transmitted to her heirs upon her death. Her heirs have thus
acquired interest in the properties in litigation and became
parties in interest in the case. There is, therefore, no reason
for the respondent Court not to allow their substitution as
parties in interest for the deceased plaintiff.
Under Section 17, Rule 3 of the Rules of Court "after a party
dies and the claim is not thereby extinguished, the court shall
order, upon proper notice, the legal representative of the
deceased to appear and be substituted for the deceased,
within such time as may be granted ... ." The question as to
whether an action survives or not depends on the nature of
6
the action and the damage sued for. In the causes of action
which survive the wrong complained affects primarily and
principally property and property rights, the injuries to the
person being merely incidental, while in the causes of action
which do not survive the injury complained of is to the
person, the property and rights of property affected being
incidental. 7 Following the foregoing criterion the claim of the
deceased plaintiff which is an action to quiet title over the
parcels of land in litigation affects primarily and principally
property and property rights and therefore is one that
survives even after her death. It is, therefore, the duty of the
respondent Court to order the legal representative of the
deceased plaintiff to appear and to be substituted for her.
But what the respondent Court did, upon being informed by
the counsel for the deceased plaintiff that the latter was
dead, was to dismiss the complaint. This should not have
been done for under the same Section 17, Rule 3 of the Rules
of Court, it is even the duty of the court, if the legal
representative fails to appear, to order the opposing party to
procure the appointment of a legal representative of the
deceased. In the instant case the respondent Court did not
have to bother ordering the opposing party to procure the
appointment of a legal representative of the deceased
because her counsel has not only asked that the minor
children be substituted for her but also suggested that their
uncle be appointed as guardian ad litem for them because
their father is busy in Manila earning a living for the family.
But the respondent Court refused the request for substitution
on the ground that the children were still minors and cannot
sue in court. This is another grave error because the
respondent Court ought to have known that under the same
Section 17, Rule 3 of the Rules of Court, the court is directed
to appoint a guardian ad litem for the minor heirs. Precisely
in the instant case, the counsel for the deceased plaintiff has
suggested to the respondent Court that the uncle of the
minors be appointed to act as guardian ad litem for them.
Unquestionably, the respondent Court has gravely abused its
discretion in not complying with the clear provision of the
Rules of Court in dismissing the complaint of the plaintiff in
Civil Case No. 856 and refusing the substitution of parties in
the case.
IN VIEW OF THE FOREGOING, the order of the respondent
Court dismissing the complaint in Civil Case No. 856 of the
Court of First Instance of Abra and the motions for
reconsideration of the order of dismissal of said complaint
are set aside and the respondent Court is hereby directed to
allow the substitution of the minor children, who are the
petitioners therein for the deceased plaintiff and to appoint a
qualified person as guardian ad litem for them. Without
pronouncement as to costs.
SO ORDERED.
EN BANC
[G.R. No. L-8437. November 28, 1956.]
ESTATE OF K. H. HEMADY, deceased, vs. LUZON SURETY CO.,
INC., claimant-Appellant.
DECISION
REYES, J. B. L., J.:
Appeal by Luzon Surety Co., Inc., from an order of the Court
of First Instance of Rizal, presided by Judge Hermogenes
Caluag, dismissing its claim against the Estate of K. H. Hemady
(Special Proceeding No. Q-293) for failure to state a cause of
action.
The Luzon Surety Co. had filed a claim against the Estate
based on twenty different indemnity agreements, or counter
bonds, each subscribed by a distinct principal and by the
deceased K. H. Hemady, a surety solidary guarantor) in all of
them, in consideration of the Luzon Surety Co.’s of having
guaranteed, the various principals in favor of different
creditors. The twenty counterbonds, or indemnity
agreements, all contained the following
stipulations:chanroblesvirtuallawlibrary
“Premiums. — As consideration for this suretyship, the
undersigned jointly and severally, agree to pay the COMPANY
the sum of ________________ (P______) pesos, Philippines
Currency, in advance as premium there of for every
__________ months or fractions thereof, this ________ or
any renewal or substitution thereof is in effect.
Indemnity. — The undersigned, jointly and severally, agree at
all times to indemnify the COMPANY and keep it indemnified
and hold and save it harmless from and against any and all
damages, losses, costs, stamps, taxes, penalties, charges, and
expenses of whatsoever kind and nature which the COMPANY
shall or may, at any time sustain or incur in consequence of
having become surety upon this bond or any extension,
renewal, substitution or alteration thereof made at the
instance of the undersigned or any of them or any order
executed on behalf of the undersigned or any of them; chan
roblesvirtualawlibraryand to pay, reimburse and make good
to the COMPANY, its successors and assigns, all sums and
amount of money which it or its representatives shall pay or
cause to be paid, or become liable to pay, on account of the
undersigned or any of them, of whatsoever kind and nature,
including 15% of the amount involved in the litigation or
other matters growing out of or connected therewith for
counsel or attorney’s fees, but in no case less than P25. It is
hereby further agreed that in case of extension or renewal of
this ________ we equally bind ourselves for the payment
thereof under the same terms and conditions as above
mentioned without the necessity of executing another
indemnity agreement for the purpose and that we hereby
equally waive our right to be notified of any renewal or
extension of this ________ which may be granted under this
indemnity agreement.
Interest on amount paid by the Company. — Any and all sums
of money so paid by the company shall bear interest at the
rate of 12% per annum which interest, if not paid, will be
accummulated and added to the capital quarterly order to
earn the same interests as the capital and the total sum
thereof, the capital and interest, shall be paid to the
COMPANY as soon as the COMPANY shall have become liable
therefore, whether it shall have paid out such sums of money
or any part thereof or not.
xxx xxx xxx
Waiver. — It is hereby agreed upon by and between the
undersigned that any question which may arise between
them by reason of this document and which has to be
submitted for decision to Courts of Justice shall be brought
before the Court of competent jurisdiction in the City of
Manila, waiving for this purpose any other venue. Our right to
be notified of the acceptance and approval of this indemnity
agreement is hereby likewise waived.
xxx xxx xxx
Our Liability Hereunder. — It shall not be necessary for the
COMPANY to bring suit against the principal upon his default,
or to exhaust the property of the principal, but the liability
hereunder of the undersigned indemnitor shall be jointly and
severally, a primary one, the same as that of the principal,
and shall be exigible immediately upon the occurrence of
such default.” (Rec. App. pp. 98- 102.)
The Luzon Surety Co., prayed for allowance, as a contingent
claim, of the value of the twenty bonds it had executed in
consideration of the counterbonds, and further asked for
judgment for the unpaid premiums and documentary stamps
affixed to the bonds, with 12 per cent interest thereon.
Before answer was filed, and upon motion of the
administratrix of Hemady’s estate, the lower court, by order
of September 23, 1953, dismissed the claims of Luzon Surety
Co., on two grounds:chanroblesvirtuallawlibrary (1) that the
premiums due and cost of documentary stamps were not
contemplated under the indemnity agreements to be a part
of the undertaking of the guarantor (Hemady), since they
were not liabilities incurred after the execution of the
counterbonds; chan roblesvirtualawlibraryand (2) that
“whatever losses may occur after Hemady’s death, are not
chargeable to his estate, because upon his death he ceased to
be guarantor.”
Taking up the latter point first, since it is the one more far accordance with that principle, the heirs of a deceased
reaching in effects, the reasoning of the court below ran as person cannot be held to be “third persons” in relation to any
follows:chanroblesvirtuallawlibrary contracts touching the real estate of their decedent which
comes in to their hands by right of inheritance; chan
“The administratrix further contends that upon the death of
roblesvirtualawlibrarythey take such property subject to all
Hemady, his liability as a guarantor terminated, and
the obligations resting thereon in the hands of him from
therefore, in the absence of a showing that a loss or damage
whom they derive their rights.”
was suffered, the claim cannot be considered contingent. This
Court believes that there is merit in this contention and finds (See also Galasinao vs. Austria, 51 Off. Gaz. (No. 6) p. 2874
support in Article 2046 of the new Civil Code. It should be and de Guzman vs. Salak, 91 Phil., 265).
noted that a new requirement has been added for a person
The binding effect of contracts upon the heirs of the
to qualify as a guarantor, that
deceased party is not altered by the provision in our Rules of
is:chanroblesvirtuallawlibrary integrity. As correctly pointed
Court that money debts of a deceased must be liquidated and
out by the Administratrix, integrity is something purely
paid from his estate before the residue is distributed among
personal and is not transmissible. Upon the death of Hemady,
said heirs (Rule 89). The reason is that whatever payment is
his integrity was not transmitted to his estate or successors.
thus made from the estate is ultimately a payment by the
Whatever loss therefore, may occur after Hemady’s death,
heirs and distributees, since the amount of the paid claim in
are not chargeable to his estate because upon his death he
fact diminishes or reduces the shares that the heirs would
ceased to be a guarantor.
have been entitled to receive.
Another clear and strong indication that the surety company
Under our law, therefore, the general rule is that a party’s
has exclusively relied on the personality, character, honesty
contractual rights and obligations are transmissible to the
and integrity of the now deceased K. H. Hemady, was the fact
successors. The rule is a consequence of the progressive
that in the printed form of the indemnity agreement there is
“depersonalization” of patrimonial rights and duties that, as
a paragraph entitled ‘Security by way of first mortgage, which
observed by Victorio Polacco, has characterized the history of
was expressly waived and renounced by the security
these institutions. From the Roman concept of a relation from
company. The security company has not demanded from K.
person to person, the obligation has evolved into a relation
H. Hemady to comply with this requirement of giving security
from patrimony to patrimony, with the persons occupying
by way of first mortgage. In the supporting papers of the
only a representative position, barring those rare cases where
claim presented by Luzon Surety Company, no real property
the obligation is strictly personal, i.e., is contracted intuitu
was mentioned in the list of properties mortgaged which
personae, in consideration of its performance by a specific
appears at the back of the indemnity agreement.” (Rec. App.,
person and by no other. The transition is marked by the
pp. 407-408).
disappearance of the imprisonment for debt.
We find this reasoning untenable. Under the present Civil
Of the three exceptions fixed by Article 1311, the nature of
Code (Article 1311), as well as under the Civil Code of 1889
the obligation of the surety or guarantor does not warrant
(Article 1257), the rule is that —
the conclusion that his peculiar individual qualities are
“Contracts take effect only as between the parties, their contemplated as a principal inducement for the contract.
assigns and heirs, except in the case where the rights and What did the creditor Luzon Surety Co. expect of K. H.
obligations arising from the contract are not transmissible by Hemady when it accepted the latter as surety in the
their nature, or by stipulation or by provision of law.” counterbonds? Nothing but the reimbursement of the
moneys that the Luzon Surety Co. might have to disburse on
While in our successional system the responsibility of the
account of the obligations of the principal debtors. This
heirs for the debts of their decedent cannot exceed the value
reimbursement is a payment of a sum of money, resulting
of the inheritance they receive from him, the principle
from an obligation to give; chan roblesvirtualawlibraryand to
remains intact that these heirs succeed not only to the rights
the Luzon Surety Co., it was indifferent that the
of the deceased but also to his obligations. Articles 774 and
reimbursement should be made by Hemady himself or by
776 of the New Civil Code (and Articles 659 and 661 of the
some one else in his behalf, so long as the money was paid to
preceding one) expressly so provide, thereby confirming
it.
Article 1311 already quoted.
The second exception of Article 1311, p. 1, is
“ART. 774. — Succession is a mode of acquisition by virtue of
intransmissibility by stipulation of the parties. Being
which the property, rights and obligations to the extent of the
exceptional and contrary to the general rule, this
value of the inheritance, of a person are transmitted through
intransmissibility should not be easily implied, but must be
his death to another or others either by his will or by
expressly established, or at the very least, clearly inferable
operation of law.”
from the provisions of the contract itself, and the text of the
“ART. 776. — The inheritance includes all the property, rights agreements sued upon nowhere indicate that they are non-
and obligations of a person which are not extinguished by his transferable.
death.”
“(b) Intransmisibilidad por pacto. — Lo general es la
In Mojica vs. Fernandez, 9 Phil. 403, this Supreme Court transmisibilidad de darechos y obligaciones; chan
ruled:chanroblesvirtuallawlibrary roblesvirtualawlibraryle excepcion, la intransmisibilidad.
Mientras nada se diga en contrario impera el principio de la
“Under the Civil Code the heirs, by virtue of the rights of
transmision, como elemento natural a toda relacion juridica,
succession are subrogated to all the rights and obligations of
salvo las personalisimas. Asi, para la no transmision, es
the deceased (Article 661) and cannot be regarded as third
menester el pacto expreso, porque si no, lo convenido entre
parties with respect to a contract to which the deceased was
partes trasciende a sus herederos.
a party, touching the estate of the deceased (Barrios vs.
Dolor, 2 Phil. 44). Siendo estos los continuadores de la personalidad del
causante, sobre ellos recaen los efectos de los vinculos
xxx xxx xxx
juridicos creados por sus antecesores, y para evitarlo, si asi se
“The principle on which these decisions rest is not affected by quiere, es indespensable convension terminante en tal
the provisions of the new Code of Civil Procedure, and, in sentido.
Por su esencia, el derecho y la obligacion tienden a ir más allá
de las personas que les dieron vida, y a ejercer presion sobre
los sucesores de esa persona; chan
roblesvirtualawlibrarycuando no se quiera esto, se impone
una estipulacion limitativa expresamente de la
transmisibilidad o de cuyos tirminos claramente se deduzca la
concresion del concreto a las mismas personas que lo
otorgon.” (Scaevola, Codigo Civil, Tomo XX, p. 541-542)
(Emphasis supplied.)
Because under the law (Article 1311), a person who enters
into a contract is deemed to have contracted for himself and
his heirs and assigns, it is unnecessary for him to expressly
stipulate to that effect; chan roblesvirtualawlibraryhence, his
failure to do so is no sign that he intended his bargain to
terminate upon his death. Similarly, that the Luzon Surety
Co., did not require bondsman Hemady to execute a
mortgage indicates nothing more than the company’s faith
and confidence in the financial stability of the surety, but not
that his obligation was strictly personal.
The third exception to the transmissibility of obligations
under Article 1311 exists when they are “not transmissible by
operation of law”. The provision makes reference to those
cases where the law expresses that the rights or obligations
are extinguished by death, as is the case in legal support
(Article 300), parental authority (Article 327), usufruct (Article
603), contracts for a piece of work (Article 1726), partnership
(Article 1830 and agency (Article 1919). By contract, the
articles of the Civil Code that regulate guaranty or suretyship
(Articles 2047 to 2084) contain no provision that the guaranty
is extinguished upon the death of the guarantor or the surety.
The lower court sought to infer such a limitation from Art.
2056, to the effect that “one who is obliged to furnish a
guarantor must present a person who possesses integrity,
capacity to bind himself, and sufficient property to answer for
the obligation which he guarantees”. It will be noted,
however, that the law requires these qualities to be present
only at the time of the perfection of the contract of guaranty.
It is self-evident that once the contract has become perfected
and binding, the supervening incapacity of the guarantor
would not operate to exonerate him of the eventual liability
he has contracted; chan roblesvirtualawlibraryand if that be
true of his capacity to bind himself, it should also be true of
his integrity, which is a quality mentioned in the article
alongside the capacity.
The foregoing concept is confirmed by the next Article 2057,
that runs as follows:chanroblesvirtuallawlibrary
“ART. 2057. — If the guarantor should be convicted in first
instance of a crime involving dishonesty or should become
insolvent, the creditor may demand another who has all the
qualifications required in the preceding article. The case is
excepted where the creditor has required and stipulated that
a specified person should be guarantor.”
From this article it should be immediately apparent that the
supervening dishonesty of the guarantor (that is to say, the
disappearance of his integrity after he has become bound)
does not terminate the contract but merely entitles the
creditor to demand a replacement of the guarantor. But the
step remains optional in the
creditor:chanroblesvirtuallawlibrary it is his right, not his
duty; chan roblesvirtualawlibraryhe may waive it if he
chooses, and hold the guarantor to his bargain. Hence Article
2057 of the present Civil Code is incompatible with the trial
court’s stand that the requirement of integrity in the
guarantor or surety makes the latter’s undertaking strictly
personal, so linked to his individuality that the guaranty
automatically terminates upon his death.
The contracts of suretyship entered into by K. H. Hemady in
favor of Luzon Surety Co. not being rendered intransmissible
due to the nature of the undertaking, nor by the stipulations
of the contracts themselves, nor by provision of law, his
eventual liability thereunder necessarily passed upon his
death to his heirs. The contracts, therefore, give rise to
contingent claims provable against his estate under section 5,
Rule 87 (2 Moran, 1952 ed., p. 437; chan
roblesvirtualawlibraryGaskell & Co. vs. Tan Sit, 43 Phil. 810,
814).
“The most common example of the contigent claim is that
which arises when a person is bound as surety or guarantor
for a principal who is insolvent or dead. Under the ordinary
contract of suretyship the surety has no claim whatever
against his principal until he himself pays something by way
of satisfaction upon the obligation which is secured. When he
does this, there instantly arises in favor of the surety the right
to compel the principal to exonerate the surety. But until the
surety has contributed something to the payment of the
debt, or has performed the secured obligation in whole or in
part, he has no right of action against anybody — no claim
that could be reduced to judgment. (May vs. Vann, 15 Pla.,
553; chan roblesvirtualawlibraryGibson vs. Mithell, 16 Pla.,
519; chan roblesvirtualawlibraryMaxey vs. Carter, 10 Yarg.
[Tenn.], 521 Reeves vs. Pulliam, 7 Baxt. [Tenn.], 119; chan
roblesvirtualawlibraryErnst vs. Nou, 63 Wis., 134.)”
For Defendant administratrix it is averred that the above
doctrine refers to a case where the surety files claims against
the estate of the principal debtor; chan
roblesvirtualawlibraryand it is urged that the rule does not
apply to the case before us, where the late Hemady was a
surety, not a principal debtor. The argument evinces a
superficial view of the relations between parties. If under the
Gaskell ruling, the Luzon Surety Co., as guarantor, could file a
contingent claim against the estate of the principal debtors if
the latter should die, there is absolutely no reason why it
could not file such a claim against the estate of Hemady, since
Hemady is a solidary co-debtor of his principals. What the
Luzon Surety Co. may claim from the estate of a principal
debtor it may equally claim from the estate of Hemady, since,
in view of the existing solidarity, the latter does not even
enjoy the benefit of exhaustion of the assets of the principal
debtor.
The foregoing ruling is of course without prejudice to the
remedies of the administratrix against the principal debtors
under Articles 2071 and 2067 of the New Civil Code.
Our conclusion is that the solidary guarantor’s liability is not
extinguished by his death, and that in such event, the Luzon
Surety Co., had the right to file against the estate a
contingent claim for reimbursement. It becomes unnecessary
now to discuss the estate’s liability for premiums and stamp
taxes, because irrespective of the solution to this question,
the Luzon Surety’s claim did state a cause of action, and its
dismissal was erroneous.
Wherefore, the order appealed from is reversed, and the
records are ordered remanded to the court of origin, with
instructions to proceed in accordance with law. Costs against
the Administratrix- Appellee. SO ORDERED.
G.R. No. L-28040 August 18, 1972
TESTATE ESTATE OF JOSEFA TANGCO, JOSE DE BORJA,
administrator-appellee; JOSE DE BORJA, as administrator,
CAYETANO DE BORJA, MATILDE DE BORJA and CRISANTO DE
BORJA (deceased) as Children of Josefa Tangco, appellees,
vs.
TASIANA VDA. DE DE BORJA, Special Administratrix of the
Testate Estate of Francisco de Borja,appellant. .
G.R. No L-28568 August 18, 1972
TESTATE ESTATE OF THE LATE FRANCISCO DE BORJA,
TASIANA O. VDA. DE DE BORJA, special Administratrix
appellee,
vs.
JOSE DE BORJA, oppositor-appellant.
G.R. No. L-28611 August 18, 1972
TASIANA 0. VDA. DE BORJA, as Administratrix of the Testate
Estate of the late Francisco de Borja,plaintiff-appellee,
vs.
JOSE DE BORJA, as Administrator of the Testate Estate of the
late Josefa Tangco, defendant-appellant.
L-28040
Pelaez, Jalandoni & Jamir for administrator-appellee.
Quiogue & Quiogue for appellee Matilde de Borja.
Andres Matias for appellee Cayetano de Borja.
Sevilla & Aquino for appellant.
L-28568
Sevilla & Aquino for special administratrix-appellee.
Pelaez, Jalandoni & Jamir for oppositor-appellant.
L-28611
Sevilla & Aquino for plaintiff-appellee.
Pelaez, Jalandoni & Jamir and David Gueverra for defendant-
appellant.
REYES, J.B.L., J.:p
Of these cases, the first, numbered L-28040 is an appeal by
Tasiana Ongsingco Vda. de de Borja, special administratrix of
1
the testate estate of Francisco de Borja, from the approval
of a compromise agreement by the Court of First Instance of
Rizal, Branch I, in its Special Proceeding No. R-7866, entitled,
"Testate Estate of Josefa Tangco, Jose de Borja,
Administrator".
Case No. L-28568 is an appeal by administrator Jose Borja
from the disapproval of the same compromise agreement by
the Court of First Instance of Nueva Ecija, Branch II, in its
Special Proceeding No. 832, entitled, "Testate Estate of
Francisco de Borja, Tasiana O. Vda. de de Borja, Special
Administratrix".
And Case No. L-28611 is an appeal by administrator Jose de
Borja from the decision of the Court of First Instance of Rizal,
Branch X, in its Civil Case No. 7452, declaring the Hacienda
Jalajala Poblacion, which is the main object of the aforesaid
compromise agreement, as the separate and exclusive
property of the late Francisco de Borja and not a conjugal
asset of the community with his first wife, Josefa Tangco, and
that said hacienda pertains exclusively to his testate estate,
which is under administrator in Special Proceeding No. 832 of
the Court of First Instance of Nueva Ecija, Branch II.
It is uncontested that Francisco de Borja, upon the death of
his wife Josefa Tangco on 6 October 1940, filed a petition for
the probate of her will which was docketed as Special
Proceeding No. R-7866 of the Court of First Instance of Rizal,
Branch I. The will was probated on 2 April 1941. In 1946,
Francisco de Borja was appointed executor and
administrator: in 1952, their son, Jose de Borja, was
appointed co-administrator. When Francisco died, on 14 April
1954, Jose became the sole administrator of the testate
estate of his mother, Josefa Tangco. While a widower
Francisco de Borja allegedly took unto himself a second wife,
Tasiana Ongsingco. Upon Francisco's death, Tasiana instituted
testate proceedings in the Court of First Instance of Nueva
Ecija, where, in 1955, she was appointed special
administratrix. The validity of Tasiana's marriage to Francisco
was questioned in said proceeding.
The relationship between the children of the first marriage
and Tasiana Ongsingco has been plagued with several court
suits and counter-suits; including the three cases at bar, some
eighteen (18) cases remain pending determination in the
courts. The testate estate of Josefa Tangco alone has been
unsettled for more than a quarter of a century. In order to
put an end to all these litigations, a compromise agreement
2
was entered into on 12 October 1963, by and between
"[T]he heir and son of Francisco de Borja by his first marriage,
namely, Jose de Borja personally and as administrator of the
Testate Estate of Josefa Tangco," and "[T]he heir and
surviving spouse of Francisco de Borja by his second
marriage, Tasiana Ongsingco Vda. de Borja, assisted by her
lawyer, Atty. Luis Panaguiton Jr." The terms and conditions of
the compromise agreement are as follows:
AGREEMENT
THIS AGREEMENT made and entered into
by and between
The heir and son of Francisco de Borja by
his first marriage, namely, Jose de Borja
personally and as administrator of the
Testate Estate of Josefa Tangco,
AND
The heir and surviving spouse of Francisco
de Borja by his second marriage, Tasiana
Ongsingco Vda. de Borja, assisted by her
lawyer, Atty. Luis Panaguiton Jr.
WITNESSETH
THAT it is the mutual desire of all the
parties herein terminate and settle, with
finality, the various court litigations,
controversies, claims, counterclaims, etc.,
between them in connection with the
administration, settlement, partition,
adjudication and distribution of the assets
as well as liabilities of the estates of
Francisco de Borja and Josefa Tangco, first
spouse of Francisco de Borja.
THAT with this end in view, the parties
herein have agreed voluntarily and without
any reservations to enter into and execute
this agreement under the following terms
and conditions:
1. That the parties agree to sell the
Poblacion portion of the Jalajala properties
situated in Jalajala, Rizal, presently under
administration in the Testate Estate of
Josefa Tangco (Sp. Proc. No. 7866, Rizal),
more specifically described as follows:
Linda al Norte con el Rio
Puwang que la separa de
la jurisdiccion del
Municipio de Pililla de la
Provincia de Rizal, y con el
pico del Monte Zambrano;
al Oeste con Laguna de
Bay; por el Sur con los
herederos de Marcelo de
Borja; y por el Este con los
terrenos de la Familia
Maronilla
with a segregated area of approximately
1,313 hectares at the amount of P0.30 per
square meter.
2. That Jose de Borja agrees and obligates
himself to pay Tasiana Ongsingco Vda. de
de Borja the total amount of Eight Hundred
Thousand Pesos (P800,000) Philippine
Currency, in cash, which represent
P200,000 as his share in the payment and
P600,000 as pro-rata shares of the heirs
Crisanto, Cayetano and Matilde, all
surnamed de Borja and this shall be
considered as full and complete payment
and settlement of her hereditary share in
the estate of the late Francisco de Borja as
well as the estate of Josefa Tangco, Sp.
Proc. No. 832-Nueva Ecija and Sp. Proc. No.
7866-Rizal, respectively, and to any
properties bequeathed or devised in her
favor by the late Francisco de Borja by Last
Will and Testament or by Donation Inter
Vivos or Mortis Causa or purportedly
conveyed to her for consideration or
otherwise. The funds for this payment shall
be taken from and shall depend upon the
receipt of full payment of the proceeds of
the sale of Jalajala, "Poblacion."
3. That Tasiana Ongsingco Vda. de de Borja
hereby assumes payment of that particular
obligation incurred by the late Francisco de
Borja in favor of the Rehabilitation Finance
Corporation, now Development Bank of the
Philippines, amounting to approximately
P30,000.00 and also assumes payment of
her 1/5 share of the Estate and Inheritance
taxes on the Estate of the late Francisco de
Borja or the sum of P3,500.00, more or less,
which shall be deducted by the buyer of
Jalajala, "Poblacion" from the payment to
be made to Tasiana Ongsingco Vda. de
Borja under paragraph 2 of this Agreement
and paid directly to the Development Bank
of the Philippines and the heirs-children of
Francisco de Borja.
4. Thereafter, the buyer of Jalajala
"Poblacion" is hereby authorized to pay
directly to Tasiana Ongsingco Vda. de de
Borja the balance of the payment due her
under paragraph 2 of this Agreement
(approximately P766,500.00) and issue in
the name of Tasiana Ongsingco Vda. de de
Borja, corresponding certified
checks/treasury warrants, who, in turn, will
issue the corresponding receipt to Jose de
Borja.
5. In consideration of above payment to
Tasiana Ongsingco Vda. de de Borja, Jose de
Borja personally and as administrator of the
Testate Estate of Josefa Tangco, and
Tasiana Ongsingco Vda. de de Borja, for
themselves and for their heirs, successors,
executors, administrators, and assigns,
hereby forever mutually renounce,
withdraw, waive, remise, release and
discharge any and all manner of action or
actions, cause or causes of action, suits,
debts, sum or sums of money, accounts,
damages, claims and demands whatsoever,
in law or in equity, which they ever had, or
now have or may have against each other,
more specifically Sp. Proceedings Nos. 7866
and 1955, CFI-Rizal, and Sp. Proc. No. 832-
Nueva Ecija, Civil Case No. 3033, CFI Nueva
Ecija and Civil Case No. 7452-CFI, Rizal, as
well as the case filed against Manuel Quijal
for perjury with the Provincial Fiscal of Rizal,
the intention being to completely,
absolutely and finally release each other,
their heirs, successors, and assigns, from
any and all liability, arising wholly or
partially, directly or indirectly, from the
administration, settlement, and distribution
of the assets as well as liabilities of the
estates of Francisco de Borja and Josefa
Tangco, first spouse of Francisco de Borja,
and lastly, Tasiana Ongsingco Vda. de de
Borja expressly and specifically renounce
absolutely her rights as heir over any
hereditary share in the estate of Francisco
de Borja.
6. That Tasiana Ongsingco Vda. de de Borja,
upon receipt of the payment under
paragraph 4 hereof, shall deliver to the heir
Jose de Borja all the papers, titles and
documents belonging to Francisco de Borja
which are in her possession and said heir
Jose de Borja shall issue in turn the
corresponding receive thereof.
7. That this agreement shall take effect only
upon the fulfillment of the sale of the
properties mentioned under paragraph 1 of
this agreement and upon receipt of the
total and full payment of the proceeds of
the sale of the Jalajala property
"Poblacion", otherwise, the non-fulfillment
of the said sale will render this instrument
NULL AND VOID AND WITHOUT EFFECT
THEREAFTER.
 IN WITNESS WHEREOF, the parties hereto
have her unto set their hands in the City of
Manila, Philippines, the 12th of October,
1963.
On 16 May 1966, Jose de Borja submitted for Court approval
the agreement of 12 October 1963 to the Court of First
Instance of Rizal, in Special Proceeding No. R-7866; and again,
on 8 August 1966, to the Court of First Instance of Nueva
Ecija, in Special Proceeding No. 832. Tasiana Ongsingco Vda.
de de Borja opposed in both instances. The Rizal court
approved the compromise agreement, but the Nueva Ecija
court declared it void and unenforceable. Special
administratrix Tasiana Ongsingco Vda. de de Borja appealed
the Rizal Court's order of approval (now Supreme Court G.R.
case No. L-28040), while administrator Jose de Borja
appealed the order of disapproval (G.R. case No. L-28568) by
the Court of First Instance of Nueva Ecija.
The genuineness and due execution of the compromised
agreement of 12 October 1963 is not disputed, but its validity
is, nevertheless, attacked by Tasiana Ongsingco on the
ground that: (1) the heirs cannot enter into such kind of
agreement without first probating the will of Francisco de
Borja; (2) that the same involves a compromise on the validity
of the marriage between Francisco de Borja and Tasiana
Ongsingco; and (3) that even if it were valid, it has ceased to
have force and effect.
In assailing the validity of the agreement of 12 October 1963,
Tasiana Ongsingco and the Probate Court of Nueva Ecija rely
on this Court's decision in Guevara vs. Guevara. 74 Phil. 479,
wherein the Court's majority held the view that the
presentation of a will for probate is mandatory and that the
settlement and distribution of an estate on the basis of
intestacy when the decedent left a will, is against the law and
public policy. It is likewise pointed out by appellant Tasiana
Ongsingco that Section 1 of Rule 74 of the Revised Rules
explicitly conditions the validity of an extrajudicial settlement
of a decedent's estate by agreement between heirs, upon the
facts that "(if) the decedentleft no will and no debts, and the
heirs are all of age, or the minors are represented by their
judicial and legal representatives ..." The will of Francisco de
Borja having been submitted to the Nueva Ecija Court and still
pending probate when the 1963 agreement was made, those
circumstances, it is argued, bar the validity of the agreement.
Upon the other hand, in claiming the validity of the
compromise agreement, Jose de Borja stresses that at the
time it was entered into, on 12 October 1963, the governing
provision was Section 1, Rule 74 of the original Rules of Court
of 1940, which allowed the extrajudicial settlement of the
estate of a deceased person regardless of whether he left a
will or not. He also relies on the dissenting opinion of Justice
Moran, in Guevara vs. Guevara, 74 Phil. 479, wherein was
expressed the view that if the parties have already divided
the estate in accordance with a decedent's will, the probate
of the will is a useless ceremony; and if they have divided the
estate in a different manner, the probate of the will is worse
than useless.
The doctrine of Guevara vs. Guevara, ante, is not applicable
to the case at bar. This is apparent from an examination of
the terms of the agreement between Jose de Borja and
Tasiana Ongsingco. Paragraph 2 of said agreement specifically
stipulates that the sum of P800,000 payable to Tasiana
Ongsingco —
shall be considered as full — complete
payment — settlement of her hereditary
share in the estate of the late Francisco de
Borja as well as the estate of Josefa Tangco,
... and to any properties bequeathed or
devised in her favor by the late Francisco de
Borja by Last Will and Testament or by
Donation Inter Vivos or Mortis Causa or
purportedly conveyed to her for
consideration or otherwise.
This provision evidences beyond doubt that the ruling in the
Guevara case is not applicable to the cases at bar. There was
here no attempt to settle or distribute the estate of Francisco
de Borja among the heirs thereto before the probate of his
will. The clear object of the contract was merely the
conveyance by Tasiana Ongsingco of any and all her individual
share and interest, actual or eventual in the estate of
Francisco de Borja and Josefa Tangco. There is no stipulation
as to any other claimant, creditor or legatee. And as a
hereditary share in a decedent's estate is transmitted or
vested immediately from the moment of the death of
such causante or predecessor in interest (Civil Code of the
3
Philippines, Art. 777) there is no legal bar to a successor
(with requisite contracting capacity) disposing of her or his
hereditary share immediately after such death, even if the
actual extent of such share is not determined until the
subsequent liquidation of the estate. 4 Of course, the effect of
such alienation is to be deemed limited to what is ultimately
adjudicated to the vendor heir. However, the aleatory
character of the contract does not affect the validity of the
transaction; neither does the coetaneous agreement that the
numerous litigations between the parties (the approving
order of the Rizal Court enumerates fourteen of them, Rec.
App. pp. 79-82) are to be considered settled and should be
dismissed, although such stipulation, as noted by the Rizal
Court, gives the contract the character of a compromise that
the law favors, for obvious reasons, if only because it serves
to avoid a multiplicity of suits.
It is likewise worthy of note in this connection that as the
surviving spouse of Francisco de Borja, Tasiana Ongsingco
was his compulsory heir under article 995 et seq. of the
present Civil Code. Wherefore, barring unworthiness or valid
disinheritance, her successional interest existed independent
of Francisco de Borja's last will and testament and would exist
even if such will were not probated at all. Thus, the
prerequisite of a previous probate of the will, as established
in the Guevara and analogous cases, can not apply to the case
of Tasiana Ongsingco Vda. de de Borja.
Since the compromise contract Annex A was entered into by
and between "Jose de Borja personally and as administrator
of the Testate Estate of Josefa Tangco" on the one hand, and
on the other, "the heir and surviving spouse of Francisco de
Borja by his second marriage, Tasiana Ongsingco Vda. de de
Borja", it is clear that the transaction was binding on both in
their individual capacities, upon the perfection of the
contract, even without previous authority of the Court to
enter into the same. The only difference between an
extrajudicial compromise and one that is submitted and
approved by the Court, is that the latter can be enforced by
execution proceedings. Art. 2037 of the Civil Code is explicit
on the point:
8. Art. 2037. A compromise has upon the
parties the effect and authority of res
judicata; but there shall be no execution
except in compliance with a judicial
compromise.
 It is argued by Tasiana Ongsingco that while
the agreement Annex A expressed no
definite period for its performance, the
same was intended to have a resolutory
period of 60 days for its effectiveness. In
support of such contention, it is averred
that such a limit was expressly stipulated in
an agreement in similar terms entered into
by said Ongsingco with the brothers and
sister of Jose de Borja, to wit, Crisanto,
Matilde and Cayetano, all surnamed de
Borja, except that the consideration was
fixed at P600,000 (Opposition, Annex/Rec.
of Appeal, L-28040, pp. 39- 46) and which
contained the following clause:
III. That this agreement shall take effect
only upon the consummation of the sale of
the property mentioned herein and upon
receipt of the total and full payment of the
proceeds of the sale by the herein owner
heirs-children of Francisco de Borja,
namely, Crisanto, Cayetano and Matilde, all
surnamed de Borja; Provided that if no sale
of the said property mentioned herein is
consummated, or the non-receipt of the
purchase price thereof by the said owners
within the period of sixty (60) days from the
date hereof, this agreement will become
null and void and of no further effect.
Ongsingco's argument loses validity when it is considered
that Jose de Borja was not a party to this particular contract
(Annex 1), and that the same appears not to have been
finalized, since it bears no date, the day being left blank "this
— day of October 1963"; and while signed by the parties, it
was not notarized, although plainly intended to be so done,
since it carries a proposed notarial ratification clause.
Furthermore, the compromise contract with Jose de Borja
(Annex A), provides in its par. 2 heretofore transcribed that of
the total consideration of P800, 000 to be paid to Ongsingco,
P600,000 represent the "prorata share of the heirs Crisanto,
Cayetano and Matilde all surnamed de Borja" which
corresponds to the consideration of P600,000 recited in
Annex 1, and that circumstance is proof that the duly
notarized contract entered into wit Jose de Borja under date
12 October 1963 (Annex A), was designed to absorb and
supersede the separate unformalize agreement with the
other three Borja heirs. Hence, the 60 days resolutory term in
the contract with the latter (Annex 1) not being repeated in
Annex A, can not apply to the formal compromise with Jose
de Borja. It is moreover manifest that the stipulation that the
sale of the Hacienda de Jalajala was to be made within sixty
days from the date of the agreement with Jose de Borja's co-
heirs (Annex 1) was plainly omitted in Annex A as improper
and ineffective, since the Hacienda de Jalajala (Poblacion)
that was to be sold to raise the P800,000 to be paid to
Ongsingco for her share formed part of the estate of
Francisco de Borja and could not be sold until authorized by
the Probate Court. The Court of First Instance of Rizal so
understood it, and in approving the compromise it fixed a
term of 120 days counted from the finality of the order now
under appeal, for the carrying out by the parties for the terms
of the contract.
This brings us to the plea that the Court of First Instance of
Rizal had no jurisdiction to approve the compromise with
Jose de Borja (Annex A) because Tasiana Ongsingco was not
an heir in the estate of Josefa Tangco pending settlement in
the Rizal Court, but she was an heir of Francisco de Borja,
whose estate was the object of Special Proceeding No. 832 of
the Court of First Instance of Nueva Ecija. This circumstance is
irrelevant, since what was sold by Tasiana Ongsingco was only
her eventual share in the estate of her late husband, not the
estate itself; and as already shown, that eventual share she
owned from the time of Francisco's death and the Court of
Nueva Ecija could not bar her selling it. As owner of her
undivided hereditary share, Tasiana could dispose of it in
favor of whomsoever she chose. Such alienation is expressly
recognized and provided for by article 1088 of the present
Civil Code:
Art. 1088. Should any of the heirs sell his
hereditary rights to a stranger before the
partition, any or all of the co-heirs may be
subrogated to the rights of the purchaser by
reimbursing him for the price of the sale,
provided they do so within the period of
one month from the time they were
notified in writing of the sale of the vendor.
If a sale of a hereditary right can be made to a stranger,
then a fortiori sale thereof to a coheir could not be forbidden.
Tasiana Ongsingco further argues that her contract with Jose
de Borja (Annex "A") is void because it amounts to a
compromise as to her status and marriage with the late
Francisco de Borja. The point is without merit, for the very
opening paragraph of the agreement with Jose de Borja
(Annex "A") describes her as "the heir and surviving spouse of
Francisco de Borja by his second marriage, Tasiana Ongsingco
Vda. de de Borja", which is in itself definite admission of her
civil status. There is nothing in the text of the agreement that
would show that this recognition of Ongsingco's status as the
surviving spouse of Francisco de Borja was only made in
consideration of the cession of her hereditary rights.
It is finally charged by appellant Ongsingco, as well as by the
Court of First Instance of Nueva Ecija in its order of 21
September 1964, in Special Proceedings No. 832 (Amended
Record on Appeal in L-28568, page 157), that the compromise
agreement of 13 October 1963 (Annex "A") had been
abandoned, as shown by the fact that, after its execution, the
Court of First Instance of Nueva Ecija, in its order of 21
September 1964, had declared that "no amicable settlement
had been arrived at by the parties", and that Jose de Borja
himself, in a motion of 17 June 1964, had stated that the
proposed amicable settlement "had failed to materialize".
It is difficult to believe, however, that the amicable
settlement referred to in the order and motion above-
mentioned was the compromise agreement of 13 October
1963, which already had been formally signed and executed
by the parties and duly notarized. What the record discloses
is that some time after its formalization, Ongsingco had
unilaterally attempted to back out from the compromise
agreement, pleading various reasons restated in the
opposition to the Court's approval of Annex "A" (Record on
Appeal, L-20840, page 23): that the same was invalid because
of the lapse of the allegedly intended resolutory period of 60
days and because the contract was not preceded by the
probate of Francisco de Borja's will, as required by this
Court's Guevarra vs. Guevara ruling; that Annex "A" involved
a compromise affecting Ongsingco's status as wife and widow
of Francisco de Borja, etc., all of which objections have been
already discussed. It was natural that in view of the widow's
attitude, Jose de Borja should attempt to reach a new
settlement or novatory agreement before seeking judicial
sanction and enforcement of Annex "A", since the latter step
might ultimately entail a longer delay in attaining final
remedy. That the attempt to reach another settlement failed
is apparent from the letter of Ongsingco's counsel to Jose de
Borja quoted in pages 35-36 of the brief for appellant
Ongsingco in G.R. No. 28040; and it is more than probable
that the order of 21 September 1964 and the motion of 17
June 1964 referred to the failure of the parties' quest for a
more satisfactory compromise. But the inability to reach a
novatory accord can not invalidate the original compromise
(Annex "A") and justifies the act of Jose de Borja in finally
seeking a court order for its approval and enforcement from
the Court of First Instance of Rizal, which, as heretofore
described, decreed that the agreement be ultimately
performed within 120 days from the finality of the order, now
under appeal.
We conclude that in so doing, the Rizal court acted in
accordance with law, and, therefore, its order should be
upheld, while the contrary resolution of the Court of First
Instance of Nueva Ecija should be, and is, reversed.
In her brief, Tasiana Ongsingco also pleads that the time
elapsed in the appeal has affected her unfavorably, in that
while the purchasing power of the agreed price of P800,000
has diminished, the value of the Jalajala property has
increased. But the fact is that her delay in receiving the
payment of the agreed price for her hereditary interest was
primarily due to her attempts to nullify the agreement (Annex
"A") she had formally entered into with the advice of her
counsel, Attorney Panaguiton. And as to the devaluation de
facto of our currency, what We said in Dizon Rivera vs. Dizon,
L-24561, 30 June 1970, 33 SCRA 554, that "estates would
never be settled if there were to be a revaluation with every
subsequent fluctuation in the values of currency and
properties of the estate", is particularly opposite in the
present case.
Coming now to Case G.R. No. L-28611, the issue is whether
the Hacienda de Jalajala (Poblacion), concededly acquired by
Francisco de Borja during his marriage to his first wife, Josefa
Tangco, is the husband's private property (as contended by
his second spouse, Tasiana Ongsingco), or whether it forms
part of the conjugal (ganancial) partnership with Josefa
Tangco. The Court of First Instance of Rizal (Judge Herminio
Mariano, presiding) declared that there was adequate
evidence to overcome the presumption in favor of its
conjugal character established by Article 160 of the Civil
Code.
We are of the opinion that this question as between Tasiana
Ongsingco and Jose de Borja has become moot and academic,
in view of the conclusion reached by this Court in the two
preceding cases (G.R. No. L-28568), upholding as valid the
cession of Tasiana Ongsingco's eventual share in the estate of
her late husband, Francisco de Borja, for the sum of P800,000
with the accompanying reciprocal quit-claims between the
parties. But as the question may affect the rights of possible
creditors and legatees, its resolution is still imperative.
It is undisputed that the Hacienda Jalajala, of around 4,363
hectares, had been originally acquired jointly by Francisco de
Borja, Bernardo de Borja and Marcelo de Borja and their title
thereto was duly registered in their names as co-owners in
Land Registration Case No. 528 of the province of Rizal,
G.L.R.O. Rec. No. 26403 (De Barjo vs. Jugo, 54 Phil. 465).
Subsequently, in 1931, the Hacienda was partitioned among
the co-owners: the Punta section went to Marcelo de Borja;
the Bagombong section to Bernardo de Borja, and the part in
Jalajala proper (Poblacion) corresponded to Francisco de
Borja (V. De Borja vs. De Borja 101 Phil. 911, 932).
The lot allotted to Francisco was described as —
Una Parcela de terreno en Poblacion,
Jalajala: N. Puang River; E. Hermogena
Romero; S. Heirs of Marcelo de Borja O.
Laguna de Bay; containing an area of
13,488,870 sq. m. more or less, assessed at
P297,410. (Record on Appeal, pages 7 and
105)
On 20 November 1962, Tasiana O. Vda. de Borja, as
Administratrix of the Testate Estate of Francisco de Borja,
instituted a complaint in the Court of First Instance of Rizal
(Civil Case No. 7452) against Jose de Borja, in his capacity as
Administrator of Josefa Tangco (Francisco de Borja's first
wife), seeking to have the Hacienda above described declared
exclusive private property of Francisco, while in his answer
defendant (now appellant) Jose de Borja claimed that it was
conjugal property of his parents (Francisco de Borja and
Josefa Tangco), conformably to the presumption established
by Article 160 of the Philippine Civil Code (reproducing Article
1407 of the Civil Code of 1889), to the effect that:
Art. 160. All property of the marriage is
presumed to belong to the conjugal
partnership, unless it be proved that it
pertains exclusively to the husband or to
the wife.
Defendant Jose de Borja further counterclaimed for damages,
compensatory, moral and exemplary, as well as for attorney's
fees.
After trial, the Court of First Instance of Rizal, per Judge
Herminio Mariano, held that the plaintiff had adduced
sufficient evidence to rebut the presumption, and declared
the Hacienda de Jalajala (Poblacion) to be the exclusive
private property of the late Francisco de Borja, and his
Administratrix, Tasiana Ongsingco Vda. de Borja, to be
entitled to its possession. Defendant Jose de Borja then
appealed to this Court.
The evidence reveals, and the appealed order admits, that
the character of the Hacienda in question as owned by the
conjugal partnership De Borja-Tangco was solemnly admitted
by the late Francisco de Borja no less than two times: first, in
the Reamended Inventory that, as executor of the estate of
his deceased wife Josefa Tangco, he filed in the Special
Proceedings No. 7866 of the Court of First Instance of Rizal on
23 July 1953 (Exhibit "2"); and again, in the Reamended
Accounting of the same date, also filed in the proceedings
aforesaid (Exhibit "7"). Similarly, the plaintiff Tasiana O. Vda.
de Borja, herself, as oppositor in the Estate of Josefa Tangco,
submitted therein an inventory dated 7 September 1954
(Exhibit "3") listing the Jalajala property among the "Conjugal
Properties of the Spouses Francisco de Borja and Josefa
Tangco". And once more, Tasiana Ongsingco, as
administratrix of the Estate of Francisco de Borja, in Special
Proceedings No. 832 of the Court of First Instance of Nueva
Ecija, submitted therein in December, 1955, an inventory
wherein she listed the Jalajala Hacienda under the heading
"Conjugal Property of the Deceased Spouses Francisco de
Borja and Josefa Tangco, which are in the possession of the
Administrator of the Testate Estate of the Deceased Josefa
Tangco in Special Proceedings No. 7866 of the Court of First
Instance of Rizal" (Exhibit "4").
Notwithstanding the four statements aforesaid, and the fact
that they are plain admissions against interest made by both
Francisco de Borja and the Administratrix of his estate, in the
course of judicial proceedings in the Rizal and Nueva Ecija
Courts, supporting the legal presumption in favor of the
conjugal community, the Court below declared that the
Hacienda de Jalajala (Poblacion) was not conjugal property,
but the private exclusive property of the late Francisco de
Borja. It did so on the strength of the following evidences: (a)
the sworn statement by Francis de Borja on 6 August 1951
(Exhibit "F") that —
He tomado possession del pedazo de
terreno ya delimitado (equivalente a 1/4
parte, 337 hectareas) adjunto a mi terreno
personal y exclusivo (Poblacion de Jalajala,
Rizal).
and (b) the testimony of Gregorio de Borja, son of Bernardo
de Borja, that the entire Hacienda had been bought at a
foreclosure sale for P40,100.00, of which amount P25,100
was contributed by Bernardo de Borja and P15,000. by
Marcelo de Borja; that upon receipt of a subsequent demand
from the provincial treasurer for realty taxes the sum of
P17,000, Marcelo told his brother Bernardo that Francisco
(son of Marcelo) wanted also to be a co-owner, and upon
Bernardo's assent to the proposal, Marcelo issue a check for
P17,000.00 to pay the back taxes and said that the amount
would represent Francisco's contribution in the purchase of
the Hacienda. The witness further testified that —
Marcelo de Borja said that that money was
entrusted to him by Francisco de
Borja when he was still a bachelor and
which he derived from his business
transactions. (Hearing, 2 February 1965,
t.s.n., pages 13-15) (Emphasis supplied)
The Court below, reasoning that not only Francisco's sworn
statement overweighed the admissions in the inventories
relied upon by defendant-appellant Jose de Borja since
probate courts can not finally determine questions of
ownership of inventoried property, but that the testimony of
Gregorio de Borja showed that Francisco de Borja acquired
his share of the original Hacienda with his private funds, for
which reason that share can not be regarded as conjugal
partnership property, but as exclusive property of the buyer,
pursuant to Article 1396(4) of Civil Code of 1889 and Article
148(4) of the Civil Code of the Philippines.
The following shall be the exclusive property of each spouse:
xxx xxx xxx
(4) That which is purchased with exclusive
money of the wife or of the husband.
We find the conclusions of the lower court to be untenable.
In the first place, witness Gregorio de Borja's testimony as to
the source of the money paid by Francisco for his share was
plain hearsay, hence inadmissible and of no probative value,
since he was merely repeating what Marcelo de Borja had
told him (Gregorio). There is no way of ascertaining the truth
of the statement, since both Marcelo and Francisco de Borja
were already dead when Gregorio testified. In addition, the
statement itself is improbable, since there was no need or
occasion for Marcelo de Borja to explain to Gregorio how and
when Francisco de Borja had earned the P17,000.00
entrusted to Marcelo. A ring of artificiality is clearly
discernible in this portion of Gregorio's testimony.
As to Francisco de Borja's affidavit, Exhibit "F", the quoted
portion thereof (ante, page 14) does not clearly demonstrate
that the "mi terreno personal y exclusivo (Poblacion de
Jalajala, Rizal) " refers precisely to the Hacienda in question.
The inventories (Exhibits 3 and 4) disclose that there were
two real properties in Jalajala owned by Francisco de Borja,
one of 72.038 sq. m., assessed at P44,600, and a much bigger
one of 1,357.260.70 sq. m., which is evidently the Hacienda
de Jalajala (Poblacion). To which of these lands did the
affidavit of Francisco de Borja (Exhibit "F") refer to? In
addition, Francisco's characterization of the land as "mi
terreno personal y exclusivo" is plainly self-serving, and not
admissible in the absence of cross examination.
It may be true that the inventories relied upon by defendant-
appellant (Exhibits "2", "3", "4" and "7") are not conclusive on
the conjugal character of the property in question; but as
already noted, they are clear admissions against the
pecuniary interest of the declarants, Francisco de Borja and
his executor-widow, Tasiana Ongsingco, and as such of much
greater probative weight than the self-serving statement of
Francisco (Exhibit "F"). Plainly, the legal presumption in favor
of the conjugal character of the Hacienda de Jalajala
(Poblacion) now in dispute has not been rebutted but actually
confirmed by proof. Hence, the appealed order should be
reversed and the Hacienda de Jalajala (Poblacion) declared
property of the conjugal partnership of Francisco de Borja
and Josefa Tangco.
No error having been assigned against the ruling of the lower
court that claims for damages should be ventilated in the
corresponding special proceedings for the settlement of the
estates of the deceased, the same requires no pro
announcement from this Court.
IN VIEW OF THE FOREGOING, the appealed order of the Court
of First Instance of Rizal in Case No. L-28040 is hereby
affirmed; while those involved in Cases Nos. L-28568 and L-
28611 are reversed and set aside. Costs against the appellant
Tasiana Ongsingco Vda. de Borja in all three (3) cases.
Concepcion, C.J., Makalintal, Zaldivar, Castro, Teehankee,
Barredo, Makasiar, Antonio and Esguerra, JJ., concur.
Fernando, J., took no part.
G.R. No. L-15499 February 28, 1962
ANGELA M. BUTTE, plaintiff-appellant,
vs.
MANUEL UY and SONS, INC., defendant-appellee.
Delgado, Flores and Macapagal for plaintiff-appellant.
Pelaez and Jalandoni for defendant-appellee.
REYES, J.B.L., J.:
Appeal from a decision of the Court of First instance of
Manila dismissing the action for legal redemption filed by
plaintiff-appellant.
It appears that Jose V. Ramirez, during his lifetime, was a co-
owner of a house and lot located at Sta. Cruz, Manila, as
shown by Transfer Certificate of Title No. 52789, issued in the
name of the following co-owners: Marie Garnier Vda. de
Ramirez, 1/6; Jose V. Ramirez, 1/6; Jose E. Ramirez, 1/6; Rita
de Ramirez, 1/6; and Jose Ma. Ramirez, 1/6.
On October 20, 1951, Jose V. Ramirez died. Subsequently,
Special Proceeding No. 15026 was instituted to settle his
estate, that included the one-sixth (1/6) undivided share in
the aforementioned property. And although his last will and
testament, wherein he bequeathed his estate to his children
and grandchildren and one-third (1/3) of the free portion to
Mrs. Angela M. Butte, hereinafter referred to as plaintiff-
appellant, has been admitted to probate, the estate
proceedings are still pending up to the present on account of
the claims of creditors which exceed the assets of the
deceased. The Bank of the Philippine Islands was appointed
judicial administrator.
Meanwhile, on December 9, 1958, Mrs. Marie Garnier Vda.
de Ramirez, one of the co-owners of the late Jose V. Ramirez
in the Sta. Cruz property, sold her undivided 1/6 share to
Manuel Uy & Sons, Inc. defendant-appellant herein, for the
sum of P500,000.00. After the execution by her attorney-in-
fact, Mrs. Elsa R. Chambers, of an affidavit to the effect that
formal notices of the sale had been sent to all possible
redemptioners, the deed of sale was duly registered and
Transfer Certificate of Title No. 52789 was cancelled in lieu of
which a new one was issued in the name of the vendee and
the other-co-owners.
On the same day (December 9, 1958), Manuel Uy & Sons, Inc.
sent a letter to the Bank of the Philippine Islands as judicial
administrator of the estate of the late Jose V. Ramirez
informing it of the above-mentioned sale. This letter,
together with that of the bank, was forwarded by the latter
to Mrs. Butte c/o her counsel Delgado, Flores & Macapagal,
Escolta, Manila, and having received the same on December
10, 1958, said law office delivered them to plaintiff-
appellant's son, Mr. Miguel Papa, who in turn personally
handed the letters to his mother, Mrs. Butte, on December
11 and 12, 1958. Aside from this letter of defendant-
appellant, the vendor, thru her attorney-in-fact Mrs.
Chambers, wrote said bank on December 11, 1958 confirming
vendee's letter regarding the sale of her 1/6 share in the Sta.
Cruz property for the sum of P500,000.00. Said letter was
received by the bank on December 15, 1958 and having
endorsed it to Mrs. Butte's counsel, the latter received the
same on December 16, 1958. Appellant received the letter on
December 19, 1958.
On January 15, 1959, Mrs. Angela M. Butte, thru Atty.
Resplandor Sobretodo, sent a letter and a Philippine National
Bank cashier's check in the amount of P500,000.00 to Manuel
Uy & Sons, Inc. offering to redeem the 1/6 share sold by Mrs.
Marie Garnier Vda. de Ramirez. This tender having been
refused, plaintiff on the same day consigned the amount in
court and filed the corresponding action for legal redemption.
Without prejudice to the determination by the court of the
reasonable and fair market value of the property sold which
she alleged to be grossly excessive, plaintiff prayed for
conveyance of the property, and for actual, moral and
exemplary damages.
After the filing by defendant of its answer containing a
counterclaim, and plaintiff's reply thereto, trial was held,
after which the court rendered decision on May 13, 1959,
dismissing plaintiff's complaint on the grounds that she has
no right to redeem the property and that, if ever she had any,
she exercised the same beyond the statutory 30-day period
for legal redemptions provided by the Civil Code. The
counterclaim of defendant for damages was likewise
dismissed for not being sufficiently established. Both parties
appealed directly to this Court.
Based on the foregoing facts, the main issues posed in this
appeal are: (1) whether or not plaintiff-appellant, having
been bequeathed 1/3 of the free portion of the estate of Jose
V. Ramirez, can exercise the right of legal redemption over
the 1/6 share sold by Mrs. Marie Garnier Vda. de Ramirez
despite the presence of the judicial administrator and
pending the final distribution of her share in the testate
proceedings; and (2) whether or not she exercised the right of
legal redemption within the period prescribed by law.
The applicable law involved in the present case is contained
in Articles 1620, p. 1, and 1623 of the Civil Code of the
Philippines, which read as follows:
ART. 1620. A co-owner of a thing may exercise the
right of redemption in case the shares of all the
other-co-owners or of any of them, are sold to a
third person. If the price of the alienation is grossly
excessive, the redemptioner shall pay only a
reasonable one.
Should two or more co-owners desire to exercise the
right of redemption, they may only do so in
proportion to the share they may respectively have
in the thing owned in common. (1522a)
ART. 1623. The right of legal predemption or
redemption shall not be exercised except within
thirty days from the notice in writing by the
respective vendor, or by the vendor, as the case may
be. The deed of sale shall not be accorded in the
Registry of Property, unless accompanied by an
affidavit of the vendor that he has given written
notice thereof at all possible redemptioners.
The right of redemption of co-owners excludes that
of adjoining owners. (1524a)
That the appellant Angela M. Butte is entitled to exercise the
right of legal redemption is clear. As testamentary heir of the
estate of J.V. Ramirez, she and her co-heirs acquired an
interest in the undivided one-sixth (1/6) share owned by her
predecessor (causante) in the Santa Cruz property, from the
moment of the death of the aforesaid co-owner, J.V. Ramirez.
By law, the rights to the succession of a deceased persons are
transmitted to his heirs from the moment of his death, and
the right of succession includes all property rights and
obligations that survive the decedent.
ART. 776. The inheritance includes all the property,
rights and obligations of a person which are not
extinguished by his death. (659)
ART. 777. The rights to the succession are
transmitted from the moment of the death of the
decedent. (657a)
ART. 947. The legatee or devisee acquires a right to
the pure and simple legacies or devisees from the
death of the testator, and transmits it to his heirs.
(881a)
The principle of transmission as of the time of the
predecessor's death is basic in our Civil Code, and is
supported by other related articles. Thus, the capacity of the
heir is determined as of the time the decedent died (Art.
1034); the legitime is to be computed as of the same
moment(Art. 908), and so is the in officiousness of the
donation inter vivos (Art. 771). Similarly, the legacies of credit
and remission are valid only in the amount due and
outstanding at the death of the testator (Art. 935),and the
fruits accruing after that instant are deemed to pertain to the
legatee (Art. 948).
As a consequence of this fundamental rule of succession, the
heirs of Jose V. Ramirez acquired his undivided share in the
Sta. Cruz property from the moment of his death, and from
that instant, they became co-owners in the aforesaid
property, together with the original surviving co-owners of
their decedent (causante). A co-owner of an undivided share
is necessarily a co-owner of the whole. Wherefore, any one of
the Ramirez heirs, as such co-owner, became entitled to
exercise the right of legal redemption (retracto de
comuneros) as soon as another co-owner (Maria Garnier Vda.
de Ramirez) had sold her undivided share to a stranger,
Manuel Uy & Sons, Inc. This right of redemption vested
exclusively in consideration of the redemptioner's share
which the law nowhere takes into account.
The situation is in no wise altered by the existence of a
judicial administrator of the estate of Jose V. Ramirez while
under the Rules of Court the administrator has the right to
the possession of the real and personal estate of the
deceased, so far as needed for the payment of the decedent's
debts and the expenses of administration (sec. 3, Rule 85),
and the administrator may bring or defend actions for the
recovery or protection of the property or rights of the
deceased (sec. 2, Rule 88), such rights of possession and
administration do not include the right of legal redemption of
the undivided share sold to Uy & Company by Mrs. Garnier
Ramirez. The reason is obvious: this right of legal redemption
only came into existence when the sale to Uy & Sons, Inc. was
perfected, eight (8) years after the death of Jose V. Ramirez,
and formed no part of his estate. The redemption right
vested in the heirs originally, in their individual capacity, they
did not derivatively acquire it from their decedent, for when
Jose V. Ramirez died, none of the other co-owners of the Sta.
Cruz property had as yet sold his undivided share to a
stranger. Hence, there was nothing to redeem and no right of
redemption; and if the late Ramirez had no such right at his
death, he could not transmit it to his own heirs. Much less
could Ramirez acquire such right of redemption eight years
after his death, when the sale to Uy & Sons, Inc. was made;
because death extinguishes civil personality, and, therefore,
all further juridical capacity to acquire or transmit rights and
obligations of any kind (Civil Code of the Phil., Art. 42).
It is argued that the actual share of appellant Mrs. Butte in
the estate of Jose V. Ramirez has not been specifically
determined as yet, that it is still contingent; and that the
liquidation of estate of Jose V. Ramirez may require the
alienation of the decedent's undivided portion in the Sta.
Cruz property, in which event Mrs. Butte would have no
interest in said undivided portion. Even if it were true, the
fact would remain that so long as that undivided share
remains in the estate, the heirs of Jose V. Ramirez own it, as
the deceased did own it before his demise, so that his heirs
are now as much co-owners of the Sta. Cruz property as Jose
V. Ramirez was himself a co-owner thereof during his
lifetime. As co-owners of the property, the heirs of Jose V.
Ramirez, or any one of them, became personally vested with
right of legal redemption as soon as Mrs. Garnier sold her
own pro-indiviso interest to Uy & Sons. Even if subsequently,
the undivided share of Ramirez (and of his heirs) should
eventually be sold to satisfy the creditors of the estate, it
would not destroy their ownership of it before the sale, but
would only convey or transfer it as in turn sold (of it actually
is sold) to pay his creditors. Hence, the right of any of the
Ramirez heirs to redeem the Garnier share will not be
retroactively affected. All that the law requires is that the
legal redemptioner should be a co-owner at the time the
undivided share of another co-owner is sold to a stranger.
Whether or not the redemptioner will continue being a co-
owner after exercising the legal redemptioner is irrelevant for
the purposes of law.
Nor it can be argued that if the original share of Ramirez is
sold by the administrator, his heirs would stand in law as
never having acquired that share. This would only be true if
the inheritance is repudiated or the heir's quality as such is
voided. But where the heirship is undisputed, the purchaser
of hereditary property is not deemed to have acquired the
title directly from the deceased Ramirez, because a dead man
can not convey title, nor from the administrator who owns no
part of the estate; the purchaser can only derive his title from
the Ramirez heirs, represented by the administrator, as their
trustee or legal representative.
The right of appellant Angela M. Butte to make the
redemption being established, the next point of inquiry is
whether she had made or tendered the redemption price
within the 30 days from notices as prescribed by law. This
period, be it noted, is peremptory, because the policy of the
law is not to leave the purchaser's title in uncertainty beyond
the established 30-day period. In considering whether or not
the offer to redeem was timely, we think that the notice
given by the vendee (buyer) should not be taken into
account. The text of Article 1623 clearly and expressly
prescribes that the thirty days for making the redemption are
to be counted from notice in writing by the vendor. Under
the old law (Civ. Code of 1889, Art. 1524), it was immaterial
who gave the notice; so long as the redeeming co-owner
learned of the alienation in favor of the stranger, the
redemption period began to run. It is thus apparent that the
Philippine legislature in Article 1623 deliberately selected a
particular method of giving notice, and that method must be
deemed exclusive (39 Am. Jur., 237; Payne vs. State, 12 S.W.
[2d] 528). As ruled in Wampler vs. Lecompte, 150 Atl. 458
(affd. in 75 Law Ed. [U.S.] 275) —
Why these provisions were inserted in the statute
we are not informed, but we may assume until the
contrary is shown, that a state of facts in respect
thereto existed, which warranted the legislature in
so legislating.
The reasons for requiring that the notice should be given by
the seller, and not by the buyer, are easily divined. The seller
of an undivided interest is in the best position to know who
are his co-owners that under the law must be notified of the
sale. Also, the notice by the seller removes all doubts as to
the fact of the sale, its perfection; and its validity, the notice
being a reaffirmation thereof, so that the party need not
entertain doubt that the seller may still contest the
alienation. This assurance would not exist if the notice should
be given by the buyer.
The notice which became operative is that given by Mrs.
Chambers, in her capacity as attorney-in-fact of the vendor
Marie Garnier Vda. de Ramirez. Under date of December 11,
1958, she wrote the Administrator Bank of the Philippine
Islands that her principal's one-sixth (1/6) share in the Sta.
Cruz property had been sold to Manuel Uy & Sons, Inc. for
P500,000.00. The Bank received this notice on December 15,
1958, and on the same day endorsed it to Mrs. Butte, care of
Delgado, Flores and Macapagal (her attorneys), who received
the same on December 16, 1958. Mrs. Butte tendered
redemption and upon the vendee's refusal, judicially
consigned the price of P500,000.00 on January 15, 1959. The
latter date was the last one of the thirty days allowed by the
Code for the redemption, counted by excluding December 16,
1958 and including January 15, 1959, pursuant to Article 13 of
the Civil Code. Therefore, the redemption was made in due
time.
The date of receipt of the vendor's notice by the
Administrator Bank (December 15) can not be counted as
determining the start of thirty days; for the Administrator of
the estate was not a proper redemptioner, since, as
previously shown, the right to redeem the share of Marie
Garnier did not form part of the estate of Jose V. Ramirez.
We find no jurisdiction for appellant's claim that the
P500,000,00. paid by Uy & Sons, Inc. for the Garnier share is
grossly excessive. Gross excess cannot be predicated on mere
individual estimates of market price by a single realtor.
The redemption and consignation having been properly
made, the Uy counterclaim for damages and attorney's fees
predicated on the assumption that plaintiff's action was
clearly unfounded, becomes untenable.
PREMISES CONSIDERED, the judgment appealed from is
hereby reversed and set aside, and another one entered:
(a) Declaring the consignation of P500,000,00 made
by appellant Angela M. Butte duly and properly
made;
(b) Declaring that said appellant properly exercised
in due time the legal redemption of the one-sixth
(1/6) undivided portion of the land covered by
Certificate of Title No. 59363 of the Office of the
Register of Deeds of the City of Manila, sold on
December 9, 1958 by Marie Garnier Vda. de Ramirez
to appellant Manuel Uy & Sons, Inc.
(c) Ordering appellant Manuel Uy & Sons, Inc. to
accept the consigned price and to convey to Angela
M. Butte the undivided portion above referred to,
within 30 days from the time our decision becomes
final, and subsequently to account for the rentals
and fruits of the redeemed share from and after
January 15, 1958, until its conveyance; and.
(d) Ordering the return of the records to the court of
origin for further proceedings conformable to this
opinion.
Without finding as to costs.
G.R. No. L-10470 June 26, 1958
SERAFIN SALDAÑA, plaintiff-appellant,
vs.
CITY OF ILOILO, defendant-appellee.
Serafin B. Saldaña for appellant.
City Fiscal Filemon R. Consolacion for appellee.
MONTEMAYOR, J.:
Serafin Saldaña is appealing the decision of the Court of First
Instance of Iloilo in Civil Case No. 2236, dismissing his
complaint against the City of Iloilo, for the refund of taxes
paid by him under protest, and upholding the legality of
Ordinance No. 28, Series of 1946, as amended by Ordinance
No. 30, same series of the defendant City.
On May 25, 1946, the defendant City of Iloilo promulgated
Ordinance No. 28, series of 1946, which for purposes of
reference we reproduce below:
ORDINANCE No. 28
AN ORDINANCE REGULATING THE EXIT OF FOOD
SUPPLY AND LABOR ANIMALS AND IMPOSING
PERMIT FEE THEREFOR.
Be it ordained by the Municipal Board of the City of
Iloilo, that:
ARTICLE 1. — For the purpose of regulating during
this state of emergency, the exit of food supply and
labor animals in order to avert shortage of the same
in the City of Iloilo, it is strictly prohibited to send
outside of the City of Iloilo, without first obtaining
the necessary license permit from the Mayor, the
following:
Large cattle, pigs, goats, sheep or the like;
Domestic fowls, eggs;
Fish, whether fresh, salted or dried;
Milkfish (semilla), bagoon (guinamos, crabs,
prawn or the like);
Fruits, such as bananas, melon, papayas or
the like.
ART. 2. — The City Treasurer shall, for issuance of
license permit required in article one hereof, collect
a fee as follows:
Large cattle, whether alive or slaughtered,
P10 per head.
Pigs, goats, and sheep, whether alive or
slaughtered, P5 each.
Chicken and other domestic fowls, whether
alive or dressed — P0.50 each.
Eggs, P2.00 per hundred or P0.02 each.
Fish, whether fresh, dried or salted, P0.20
per kilo.
Bagoon (guinamos) P0.10 per kilo.
Crabs, prawn or the like, P0.20 per kilo.
Milkfish (semilla), P2 per pot.
Banana, P2, per hundred bunches or P0.02
per bunch.
Other fruits not mentioned herein — P0.02
per kilo.
Art. 3. — It shall be unlawful for any carrier whether
land, water, or air, to load any of the articles
mentioned herein which is not provided with the
corresponding permit as required by this ordinance.
Art. 4. — Violation of this ordinance shall be
punished with a fine of not less than One Hundred
(P100) Pesos, or more than Two Hundred (P200)
Pesos, imprisonment of not less than ten (10) days
but not exceeding six (6) months and to suffer
subsidiary imprisonment in case of insolvency to pay
the fine. . . .
Ordinance No. 30, passed on June 4, 1946, amended
Ordinance No. 28 by reducing the fees for each chicken from
P.50 to P.20, eggs from P2 to P1 per hundred, and for fish
from P.20 to P.10 per kilo, bananas from P2 to P1 per
hundred bunches etc. Under said ordinances, Saldaña had
been paying, though under protest, so-called fees on fish
bought in the City of Iloilo and sent by him to Manila by
plane, during the period from September 16, 1946 to
December 6, 1946, totalling P1,359.80.
On September 17, 1951, plaintiff commenced the present
proceedings by complaint for the reimbursement to him of
the said amount with interest, on the ground that the
ordinances in question were illegal, null and void, having
been enacted beyond the powers of the Municipal Board of
the City. In its answer, the defendant contended that the
imposition and collection of the municipal licenses were
within the power and duties of the Municipal Board in the
exercise of its police power. The parties submitted an agreed
statement of facts to the effect that during the period above-
mentioned, Saldaña had sent fish out of Iloilo City to Manila,
for the sending of which, the City collected P1,359.80 under
the two ordinances in question, and that the payment of said
amount was made under protest. On the basis of the agreed
statement of facts, the lower court rendered the decision
now appealed to us, holding that Ordinance No. 28 as
amended was valid; that the purpose of the said ordinances
was to regulate the exit of food supply and labor animals
from the city of Iloilo and their sale beyond city limits, and
falls squarely within the provisions of paragraph (aa), Section
21 of the Charter of the City, namely, Commonwealth Act No.
158; that the ordinance does not restrict trade but only
regulates the business of purchase of foodstuffs for the
purpose of taking them outside, with the purpose of averting
the scarcity of foodstuffs; that the imposition and collection
of the license fees provided in the said ordinance was
included within the police power and that said fees were
reasonable amounts, necessary to cover the expenses in the
issuance of the licenses and the cost of the necessary
inspection or police surveillance.
One question involved in the appeal is whether the licensed
fees imposed and collected were in reality taxes. The
following authorities are illuminating:
. . . . The differences between the license and the
property tax are well established. The license
represents the permission conceded to do an act, is
not supposed to be imposed for revenue, and is in
the main for police purposes. A property tax, on the
other hand, is a tax in the ordinary sense, assessed
according to the value of property. (City of Manila
vs. Tanquintic, 58 Phil. 297, 300).
. . . . Estos dos terminos "derechos" e "impuesto" no
entranan el mismo concepto, porque Impuestos
oTaxes son, segun todas las autoridades conocidas,
"an enforced contribution of money or other
property assessed in accordance with some
reasonable rule of apportionment by authority of a
sovereign state, on persons or property within its
jurisdiction, for the purpose of defraying the public
expenses" (26 R. C. L. par. 2, page 13); or "a rate or
sum of money assessed on the person or property of
a citizen by government for the use of the nation or
state; burdens or charges imposed by the legislative
power upon persons or property to raise money for
public purposes" (61 C. J., 65); y Derechos o Fees,
son por otra parte, "a reward or compensation
allowed by law to an officer for specific services
performed by him in the discharge of his official
duties; a sum certain given for a particular service;
the sum prescribed by law as for services rendered
by public officers" (25 C. J., 1009). (Manila Electric
Co. vs. Auditor General, et al., 73 Phil. 128, 133).
. . . . So-called license taxes are of two kinds. The one
is a tax for the purpose of revenue. The other, which
is, strictly speaking, not a tax at all but merely an
exercise of the police power, is a fee imposed for the
purpose of regulation. . . . But a charge of a fixed
sum which bears no relation to the cost of inspection
and which is payable into the general revenue of the
state is a tax rather than an exercise of the police
power. (Cooley, Taxation, 4th ed., Vol. I, pp. 97-98).
Judging from the amount of the fees fixed in the ordinances
in question, we do not hesitate to find and to hold that the
so-called fees were in reality taxes for city revenue. For
instance, the P10.00 fee for every head of large cattle,
whether alive or slaughtered, and the P5.00 fee for every pig,
goat, or sheep, whether alive or slaughtered, cannot possibly
be considered as mere expense incurred for, or the cost of
the inspection of each animal and the issuance of the
corresponding permit. If a pig, goat, or sheep costs, say, P15
or even P20, then the P5.00 fee would constitute quite a
considerable slice or portion of said cost; and if the animals
and articles listed in the ordinances were sent out from the
City of Iloilo in large quantities and numbers, there would be
no doubt that the fees collected would amount to a sizable
sum and augment greatly the revenues of the municipal
corporation, way in excess of the cost of inspections and the
issuance of the permits.
Another important question is that Article 1 of the ordinance
also strictly prohibits the sending out of the City of Iloilo, of
the animals and articles enumerated therein, like large cattle,
pigs, fowl, fish, eggs, fruits, etc., without first obtaining the
necessary license permit from the mayor; and Article 3
declares it unlawful for any carrier whether land water or air,
to load any of said animals or articles without the
corresponding permit. The ordinance fails to provide for any
regulations or conditions under which the permit can be
granted or denied. In other words, the mayor has absolute
power to refuse to issue any permit, practically making him
absolute dictator over the subject matter. With merely telling
the applicant and prospective licensee that said animals and
articles are needed in the City of Iloilo, the mayor could
refuse to grant the permit. To realize the danger of the grant
of said absolute power is not difficult.
As to the reasonableness of the prohibition of selling and
taking out of the City of Iloilo of any of the animals and
articles enumerated in the ordinance, appellant asks us to
consider or take judicial notice of the fact that those animals
and articles are not all produced in the City of Iloilo, but come
from other towns of the province, even from other provinces
adjacent, and are taken to the City of Iloilo only for the
purpose of transportation to other places, like Manila. In
other words, they are not brought into the City of Iloilo for
the consumption of the residents thereof, but for export to
other places. But once inside the city limits, under the
ordinance, the mayor takes absolute control and has
jurisdiction to allow or disallow their being taken out of the
city, and in case he issues the permit for their being taken
away, taxes are imposed thereon under the guise of license
fees.
As correctly argued by the appellant, nowhere in the charter
of the defendant City is it authors to regulate and collect fees
or taxes for, the taking out of the city, of animals and articles
listed in the ordinance. On the other hand, a municipal
corporation like the defendant City has no inherent power of
taxation. To enact a valid ordinance, the City must find in its
charter the power to do so, for said power cannot be
assumed.
A municipal corporation, unlike a sovereign state, is
clothed with no inherent power of taxation. Its
charter must plainly show an intent to confer that
power or the corporation cannot assume it. And the
power when granted is to be construed strictissimi
juris. Any doubt or ambiguity arising out of the term
used must be resolved against the corporation.
(Santos Lumber Co. vs. City of Cebu, et al., 102 Phil.,
870; See also Arong vs. Raffiñan, 98 Phil., 422).
Aside from this lack of inherent power of taxation by a
municipal corporation, Section 2287 of the Revised
Administrative Code provides that municipal revenue
obtainable by taxation shall be derived from such sources
only as are expressly authorized by law; and it further
provides, and this is very important, that:
It shall not be in the power of the municipal council
to impose a tax in any form whatever upon goods
and merchandise into the municipality, or out of the
same, and any attempt to impose an import
or export taxupon such goods in the guise of an
unreasonable charge for wharfage, use of bridges or
otherwise, shall be void. (Emphasis supplied).
This last provision is reproduced in Section 2629, of the same
Revised Administrative Code, entitled "General Rules for
Municipal Taxation and Licenses."
In conclusion, we find that the ordinance in question as
amended, is ultra vires, enacted beyond the general powers
of a municipal corporation and not authorized by the
defendant-appellee's charter, and consequently null and
void; that the prohibition against taking animals and articles
out of the City of Iloilo without permit of the mayor is in
restraint of trade and a curtailment of the rights of the
owners of the said animals and articles to freely sell and of
prospective purchasers to buy and dispose of them without
the city limits in the ordinary course of commerce and trade;
that the fees imposed in the said ordinances are in fact taxes
not only unauthorized by the law or the charter of defendant
City, but also in contravention of the provisions of Sections
2287 and 2629 of the Revised Administrative Code, which
prohibit municipal corporations from imposing any tax in any
form upon goods and merchandise carried into or out of the
town or City.
In view of the foregoing, the appealed decision is hereby
reversed and the City of Iloilo is hereby ordered to reimburse
plaintiff the amount of P1,359.80, with legal interest and
costs.
G.R. No. 125888 August 13, 1998
SPOUSES ERNESTO and EVELYN SICAD, petitioners,
vs.
COURT OF APPEALS, CATALINO VALDERRAMA, JUDY
CRISTINA M. VALDERRAMA and JESUS ANTONIO
VALDERRAMA, respondents.
NARVASA, C.J.:
The issue raised in the appeal by certiorari at bar centers on
the character of a deed of donation executed by the late
Aurora Virto DA. de Motinola of the City of Iloilo — as
either inter vivos or mortis causa. That deed, entitled "DEED
OF DONATION INTER VIVOS," 1 was executed by Montinola on
December 11, 1979. It named as donees her grandchildren,
namely: Catalino Valderrama, Judy Cristina Valderrama and
Jesus Antonio Valderrama: and treated of a parcel of land, Lot
3231 of the Cadastral Survey of Panay, located at Brgy. Pawa,
Panay, Capiz, covered by Transfer Certificate of Title No. T-
16105 in the name of Montinola. The deed also contained the
signatures of the donees in acknowledgment of their
acceptance of the donation.
Montinola's Secretary, Gloria Salvilla, afterwards presented
the deed for recording in the Property Registry, and the
Register of Deeds cancelled TCT No. T-16105 (the donor's
title) and, in its place, issued TCT No. T-16622 on February 7,
1980, in the names of the donees. 2 Montinola however
retained the owner's duplicate copy of the new title (No. T-
16622), as well as the property itself, until she transferred the
same ten (10) years later, on July 10, 1990, to the spouses,
Ernesto and Evelyn Sicad.
On March 12, 1987, Aurora Montinola drew up a deed of
revocation of the donation, 3 and caused it to be annotated as
an adverse claim on TCT No. T-16622 (issued, as aforestated,
in her grandchildren's names). Then, on August 24, 1990, she
filed a petition with the Regional Trial Court in Roxas City for
the cancellation of said TCT No. T-16622 and the
reinstatement of TCT No. T- 16105 (in her name), the case
being docketed as Special Proceeding No. 3311. Her petition
was founded on the theory that the donation to her three (3)
grandchildren was one mortis causa which thus had to
comply with the formalities of a will; and since it had not, the
donation was void and could not effectively serve as basis for
the cancellation of TCT No. T-16105 and the issuance in its
place of TCT No. T-16622.
The donees (Montinola's grandchildren) opposed the
petition. In their opposition dated August 29, 1990, they
averred that the donation in their favor was one inter
vivos which, having fully complied with the requirements
therefor set out in Article 729 of the Civil Code, was perfectly
valid and efficacious. They also expressed doubt about the
sincerity of their grandmother's intention to recover the
donated property, since she had not pursued the matter of its
revocation after having it annotated as an adverse claim.
The case, originally treated as a special proceeding, was
subsequently considered by the lower Court as an ordinary
civil action in view of the allegations and issues raised in the
pleadings. Pre-trial was had, followed by trial on the merits
which was concluded with the filing of the parties'
memoranda. The Trial Court then rendered judgment on
March 27, 1991, holding that the donation was indeed
one inter vivos, and dismissing Aurora Montinola's petition
for lack of merit. 4 The matter of its revocation was not
passed upon.
Montinola elevated the case to the Court of Appeals, her
appeal being docketed as CA-G.R. CV No. 33202. She however
5
died on March 10, 1993, while the appeal was pending.
Shortly after Montinola's demise, a "Manifestation and
Motion" dated March 31, 1993 was filed by Ernesto Sicad and
6
Evelyn Bofill-Sicad, herein petitioners, in which they (a)
alleged that they had become the owners of the property
covered by TCT No. T-16622 in virtue of a "deed of definite
sale dated May 25, 1992" accomplished by Montinola in their
favor, which was confirmed by "an affidavit dated November
26, 1997 also executed by the latter, and (b) prayed that they
be substituted as appellants and allowed to prosecute the
case in their own behalf.
Another motion was subsequently presented under date of
April 7, 1993, this time by the legal heirs of Aurora Montinola,
namely: Ofelia M. de Leon, Estela M. Jaen and Teresita M.
Valderama. They declared that they were not interested in
pursuing the case, and asked that the appeal be withdrawn.
Montinola's counsel opposed the motion.
On June 21, 1993, the Court of Appeals issued a Resolution:
(a) ordering the substitution of the persons above mentioned
— Ofelia de Leon, Estela M, Jaen, and Teresita M. Valderama
— as plaintiffs-appellants in place of the late Aurora
Montinola, as well as the joinder of the spouses Ernesto and
7
Evelyn Bofill-Sicad as additional appellants; and (b) denying
the motion for the withdrawal of the appeal.
On June 30, 1995, the Eighth Division of the Court of Appeals
promulgated its Decision on the case affirming the judgment
8
of the Regional Trial Court; and on July 31, 1996, it denied
the separate motions for reconsideration filed by Ofelia M. de
Leon, Estela M. Jaen, and Teresita M. Valderrama, on the one
hand, and by the spouses, Ernest and Evelyn Sicad, on the
9 clearly typed on a different machine, and is crammed into the
other.
The Sicad Spouses have appealed to this Court; and here,
they contend that the following errors were committed by
the Appellate Tribunal, to wit:
1) ** in ruling that the
donation was inter
vivos and in not giving due
weight to the revocation
of the donation; and
2) ** in not ordering that
the case be remanded for
further reception of
evidence. 10
The Comment filed for private respondents (the donees)
under date of December 19, 1996 deals with what they
consider the "principal issue in this case ** (i.e.) whether the
donation is mortis causa or inter vivos," and sets forth the
argument that the "donor clearly intended to effect the
immediate transfer of ownership to the donees." that the
prohibition in the deed of donation "against selling the
property within ten (10) years after the death of the donor
does not indicate that the donation ismortis causa," that the
donor's "alleged act of physically keeping the title does not
suggest any intention to defer the effectivity of the
donation," that the "payment of real property taxes is
consistent with the donor's' reservation of the right of
usufruct," that the donor's intent "is not determined
by ** (her) self-serving post-execution declarations," the
"donation was never effectively revoked," and petitioners
"have waived their right to question the proceedings in the
trial court." 11
The Reply of the Sicad Spouses dated March 14, 1997
reiterates their thesis that the donation was mortis causa,
that "the provisions of the deed of donation indicate that it
was intended to take effect upon the death of the donor,"
that "the circumstances surrounding the execution of the
deed, and the subsequent actions of the donor
incontrovertibly signify the donor's intent to transfer the
property only after her death," that the donor "did not intend
to give effect to the donation," and that the procedure
adopted by the Trial Court in the case was fatally
defective. 12 A "Rejoinder" dated April 3, 1997 was then
submitted by the Valderramas, traversing the assertions of
the Reply. 13
Considering the focus of the opposing parties, and their
conflicting theories, on the intention of Aurora Montinola in
executing the document entitled "Deed of Donation Inter
Vivos," it is needful to review the circumstances of the signing
of that document by Montinola, as ostensible donor, and her
grandchildren, as ostensible donees.
The evidence establishes that on December 11, 1979, when
the deed of donation prepared by Montinola's lawyer (Atty.
Treñas) was read and explained by the latter to the parties,
Montinola expressed her wish that the donation take effect
only after ten (10) years from her death, and that the deed
include a prohibition on the sale of the property for such
period. Accordingly, a new proviso was inserted in the deed
reading: "however, the donees shall not sell or encumber the
properties herein donated within 10 years after the death of
the donor." 14 The actuality of the subsequent insertion of
this new proviso is apparent on the face of the instrument:
the intercalation is easily perceived and identified — it was
space between the penultimate paragraph of the deed and
that immediately preceding it. 15
Not only did Aurora Montinola order the insertion in the deed
of that restrictive proviso, but also, after recordation of the
deed of donation, she never stopped treating the property as
her own. She continued, as explicity authorized in the deed
itself, to possess the property, enjoy its fruits and otherwise
exercise the rights of dominion, paying the property taxes as
they fell due — all these she did until she transferred the
Property to the Sicad Spouses on July 10, 1990. She did not
give the new certificate of title to the ostensible donees but
retained it, too, until she delivered it to the Sicads on the
occasion of the sale of the property to them. In any event, the
delivery of the title to the donees would have served no
useful purpose since, as just stated, they were prohibited to
effect any sale or encumbrance thereof for a period of ten
(10) years after the ostensible donor's decease. And
consistent with these acts denoting retention of ownership of
the property was Montinola's openly expressed view that the
donation was ineffectual and could not be given effect even
after ten (10) years from her death. For this view she sought
to obtain judicial approval. She brought suit on August 24,
1990 to cancel TCT No. T-16622 (issued to her grandchildren)
premised precisely on the invalidity of the donation for
failure to comply with the requisites of testamentary
dispositions. Before that, she attempted to undo the
conveyance to her grandchildren by executing a deed of
revocation of the donation on March 12, 1987, and causing
annotation thereof as an adverse claim on said TCT No. T-
16622. She also exercised indisputable acts of ownership over
said property by executing, as just stated, deeds intended to
16
pass title over it to third parties — petitioners herein.
As already intimated, the real nature of a deed is to be
ascertained by both its language and the intention of the
parties as demonstrated by the circumstances attendant
upon its execution. In this respect, case law has laid down
significant parameters. Thus, in a decision handed down in
1946, 17 this Court construed a deed purporting to be a
donation inter vivosto be in truth one mortis causa because it
stipulated (like the one now being inquired into) "that all
rents, proceeds, fruits, of the donated properties shall remain
for the exclusive benefit and disposal of the donor, Margarita
David, during her lifetime; and that, without the knowledge
and consent of the donor, the donated properties could not
be disposed of in any way, whether by sale, mortgage, barter,
or in any other way possible," On these essential premises,
the Court said, such a donation must be deemed one "mortis
causa, because the combined effect of the circumstances
surrounding the execution of the deed of donation and of the
above-quoted clauses thereof ** (was that) the most
essential elements of ownership — the right to dispose of the
donated properties and the right to enjoy the products,
profits, possession — remained with Margarita David during
her lifetime, and would accrue to the donees only after
Margarita David's death." So, too, in the case at bar, did these
rights remain with Aurora Montinola during her lifetime, and
could not pass to the donees until ten (10) years after her
death.
In another case decided in 1954 involving a similar
18
issue, Bonsato v. Court of Appeals, this Court emphasized
that the decisive characteristics of a donation mortis causa,
which it had taken into account in David v. Sison, were that
"the donor not only reserved for herself all the fruits of the
property allegedly conveyed, but what is even more
important, specially provided that "without the knowledge
and consent of the donor, the donated properties could not
be disposed of in any way,; thereby denying to the
transferees the most essential attribute of ownership, the
power to dispose of the properties."
A donation which purports to be one inter vivos but
withholds from the donee the right to dispose of the donated
property during the donor's lifetime is in truth one mortis
causa. In a donation mortis causa "the right of disposition is
not transferred to the donee while the donor is still alive." 19
In the instant case, nothing of any consequence was
transferred by the deed of donation in question to
Montinola's grandchildren, the ostensible donees. They did
not get possession of the property donated. They did not
acquire the right to the fruits thereof, or any other right of
dominion over the property. More importantly, they did not
acquire the right to dispose of the property — this would
accrue to them only after ten (10) years from Montinola's
death. Indeed, they never even laid hands on the certificate
of title to the same. They were therefore simply "paper
owners" of the donated property. All these circumstances,
including, to repeat, the explicit provisions of the deed of
donation — reserving the exercise of rights of ownership to
the donee and prohibiting the sale or encumbrance of the
property until ten (10) years after her death — ineluctably
lead to the conclusion that the donation in question was a
donation mortis causa, contemplating a transfer of ownership
to the donees only after the donor's demise.
The case of Alejandro v. Geraldez 20 cited by the Court of
Appeals in support of its challenged judgment is not quite
relevant. For in the deed of donation there in issue, there was
a partial relinquishment of the right to dispose of the
property, in the event only that this became necessary "to
defray the expenses and support of the donors." That limited
right to dispose of the donated lots, said this Court, "implies
that ownership had passed to ** (the donees) by means of
the donation and **, therefore, the donation was already
effective during the donors' lifetime. That is a characteristic
of a donation inter vivos." On the other hand, in the case at
bar, the donees were expressly prohibited to make any
disposition of any nature or for any purpose whatever during
the donor's lifetime, and until ten (10) years after her death
— a prohibition which, it may be added, makes inapplicable
the ruling in Castro v. Court of Appeals, 21 where no such
prohibition was imposed, and the donor retained only the
usufruct over the property.
The Valderramas' argument that the donation is inter vivos in
character and that the prohibition against their disposition of
the donated property is merely a condition which, if violated,
would give cause for its revocation, begs the question. It
assumes that they have the right to make a disposition of the
property, which they do not. The argument also makes no
sense, because if they had the right to dispose of the
property and did in fact dispose of it to a third person, the
revocation of the donation they speak of would be of no
utility or benefit to the donor, since such a revocation would
not necessarily result in the restoration of the donor's
ownership and enjoyment of the property.
It is also error to suppose that the donation under review
should be deemed one inter vivos simply because founded on
considerations of love and affection. In Alejandro v.
Geraldez, supra, 22 this Court also observed that "the fact that
the donation is given in consideration of love and
affection ** is not a characteristic of donations inter
vivos (solely) because transfers mortis causa may also be
made for the same reason." Similarly, in Bonsato v. Court of
Appeals, supra, this Court opined that the fact "that the
conveyance was due to the affection of the donor for the
donees and the services rendered by the latter, is of no
particular significance in determining whether the deeds,
Exhs. "1" and "2," constitute transfers inter vivosor not,
because a legacy may have identical motivation." 23
Finally, it is germane to advert to the legal principle in Article
1378 of the Civil Code to the effect that in case of doubt
relative to a gratuitous contract, the construction must be
that entailing "the least transmission of rights and
interests," 24
The donation in question, though denominated inter vivos, is
in truth one mortis causa; it is void because the essential
requisites for its validity have not been complied with.
WHEREFORE, the Decision of the Court of Appeals in CA-G.R.
CV No. 33202 dated June 30, 1995 as well as the Resolution
denying reconsideration thereof, and the Decision of the
Regional Trial Court in Special Case No. 3311 are SET ASIDE.
The Deed of Donation Inter Vivos (Exh. "A") executed by
Aurora Virto Vda. de Montinola on December 11, 1979 in
favor of Catalino M. Valderrama, Judy Cristina M. Valderrama
and Jesus Antonio M. Valderrama is declared null and void.
The Register of Deeds of Roxas City is directed to cancel
Transfer Certificate of Title No. T-16622, revive and reinstate
Transfer Certificate of Title No. T-16105.
SO ORDERED.
G.R. No. L-23678 June 6, 1967
TESTATE ESTATE OF AMOS G. BELLIS, deceased.
PEOPLE'S BANK and TRUST COMPANY, executor.
MARIA CRISTINA BELLIS and MIRIAM PALMA
BELLIS, oppositors-appellants,
vs.
EDWARD A. BELLIS, ET AL., heirs-appellees.
Vicente R. Macasaet and Jose D. Villena for oppositors
appellants.
Paredes, Poblador, Cruz and Nazareno for heirs-appellees E.
A. Bellis, et al.
Quijano and Arroyo for heirs-appellees W. S. Bellis, et al.
J. R. Balonkita for appellee People's Bank & Trust Company.
Ozaeta, Gibbs and Ozaeta for appellee A. B. Allsman.
BENGZON, J.P., J.:
This is a direct appeal to Us, upon a question purely of law,
from an order of the Court of First Instance of Manila dated
April 30, 1964, approving the project of partition filed by the
executor in Civil Case No. 37089 therein.1äwphï1.ñët
The facts of the case are as follows:
Amos G. Bellis, born in Texas, was "a citizen of the State of
Texas and of the United States." By his first wife, Mary E.
Mallen, whom he divorced, he had five legitimate children:
Edward A. Bellis, George Bellis (who pre-deceased him in
infancy), Henry A. Bellis, Alexander Bellis and Anna Bellis
Allsman; by his second wife, Violet Kennedy, who survived
him, he had three legitimate children: Edwin G. Bellis, Walter
S. Bellis and Dorothy Bellis; and finally, he had three
illegitimate children: Amos Bellis, Jr., Maria Cristina Bellis and
Miriam Palma Bellis.
On August 5, 1952, Amos G. Bellis executed a will in the
Philippines, in which he directed that after all taxes,
obligations, and expenses of administration are paid for, his
distributable estate should be divided, in trust, in the
following order and manner: (a) $240,000.00 to his first wife,
Mary E. Mallen; (b) P120,000.00 to his three illegitimate
children, Amos Bellis, Jr., Maria Cristina Bellis, Miriam Palma
Bellis, or P40,000.00 each and (c) after the foregoing two
items have been satisfied, the remainder shall go to his seven
surviving children by his first and second wives, namely:
Edward A. Bellis, Henry A. Bellis, Alexander Bellis and Anna
Bellis Allsman, Edwin G. Bellis, Walter S. Bellis, and Dorothy E.
Bellis, in equal shares.1äwphï1.ñët
Subsequently, or on July 8, 1958, Amos G. Bellis died a
resident of San Antonio, Texas, U.S.A. His will was admitted to
probate in the Court of First Instance of Manila on September
15, 1958.
The People's Bank and Trust Company, as executor of the will,
paid all the bequests therein including the amount of
$240,000.00 in the form of shares of stock to Mary E. Mallen
and to the three (3) illegitimate children, Amos Bellis, Jr.,
Maria Cristina Bellis and Miriam Palma Bellis, various
amounts totalling P40,000.00 each in satisfaction of their
respective legacies, or a total of P120,000.00, which it
released from time to time according as the lower court
approved and allowed the various motions or petitions filed
by the latter three requesting partial advances on account of
their respective legacies.
On January 8, 1964, preparatory to closing its administration,
the executor submitted and filed its "Executor's Final
Account, Report of Administration and Project of Partition"
wherein it reported, inter alia, the satisfaction of the legacy
of Mary E. Mallen by the delivery to her of shares of stock
amounting to $240,000.00, and the legacies of Amos Bellis,
Jr., Maria Cristina Bellis and Miriam Palma Bellis in the
amount of P40,000.00 each or a total of P120,000.00. In the
project of partition, the executor — pursuant to the "Twelfth"
clause of the testator's Last Will and Testament — divided the
residuary estate into seven equal portions for the benefit of
the testator's seven legitimate children by his first and second
marriages.
On January 17, 1964, Maria Cristina Bellis and Miriam Palma
Bellis filed their respective oppositions to the project of
partition on the ground that they were deprived of their
legitimes as illegitimate children and, therefore, compulsory
heirs of the deceased.
Amos Bellis, Jr. interposed no opposition despite notice to
him, proof of service of which is evidenced by the registry
1
receipt submitted on April 27, 1964 by the executor.
After the parties filed their respective memoranda and other
pertinent pleadings, the lower court, on April 30, 1964, issued
an order overruling the oppositions and approving the
executor's final account, report and administration and
project of partition. Relying upon Art. 16 of the Civil Code, it
applied the national law of the decedent, which in this case is
Texas law, which did not provide for legitimes.
Their respective motions for reconsideration having been
denied by the lower court on June 11, 1964, oppositors-
appellants appealed to this Court to raise the issue of which
law must apply — Texas law or Philippine law.
In this regard, the parties do not submit the case on, nor even
discuss, the doctrine of renvoi, applied by this Court in Aznar
v. Christensen Garcia, L-16749, January 31, 1963. Said
doctrine is usually pertinent where the decedent is a national
of one country, and a domicile of another. In the present
case, it is not disputed that the decedent was both a national
2
of Texas and a domicile thereof at the time of his death. So
that even assuming Texas has a conflict of law rule providing
that the domiciliary system (law of the domicile) should
govern, the same would not result in a reference back
(renvoi) to Philippine law, but would still refer to Texas law.
Nonetheless, if Texas has a conflicts rule adopting the situs
theory (lex rei sitae) calling for the application of the law of
the place where the properties are situated, renvoi would
arise, since the properties here involved are found in the
Philippines. In the absence, however, of proof as to the
conflict of law rule of Texas, it should not be presumed
different from ours.3Appellants' position is therefore not
rested on the doctrine of renvoi. As stated, they never
invoked nor even mentioned it in their arguments. Rather,
they argue that their case falls under the circumstances
mentioned in the third paragraph of Article 17 in relation to
Article 16 of the Civil Code.
Article 16, par. 2, and Art. 1039 of the Civil Code, render
applicable the national law of the decedent, in intestate or
testamentary successions, with regard to four items: (a) the
order of succession; (b) the amount of successional rights; (e)
the intrinsic validity of the provisions of the will; and (d) the
capacity to succeed. They provide that —
ART. 16. Real property as well as personal property is
subject to the law of the country where it is situated.
However, intestate and testamentary successions,
both with respect to the order of succession and to
the amount of successional rights and to the intrinsic
validity of testamentary provisions, shall be
regulated by the national law of the person whose
succession is under consideration, whatever may he
the nature of the property and regardless of the
country wherein said property may be found.
ART. 1039. Capacity to succeed is governed by the
law of the nation of the decedent.
Appellants would however counter that Art. 17, paragraph
three, of the Civil Code, stating that —
Prohibitive laws concerning persons, their acts or
property, and those which have for their object
public order, public policy and good customs shall
not be rendered ineffective by laws or judgments
promulgated, or by determinations or conventions
agreed upon in a foreign country.
prevails as the exception to Art. 16, par. 2 of the Civil Code
afore-quoted. This is not correct. Precisely,
Congressdeleted the phrase, "notwithstanding the provisions
of this and the next preceding article" when they
incorporated Art. 11 of the old Civil Code as Art. 17 of the
new Civil Code, while reproducing without substantial change
the second paragraph of Art. 10 of the old Civil Code as Art.
16 in the new. It must have been their purpose to make the
second paragraph of Art. 16 a specific provision in itself which
must be applied in testate and intestate succession. As
further indication of this legislative intent, Congress added a
new provision, under Art. 1039, which decrees that capacity
to succeed is to be governed by the national law of the
decedent.
It is therefore evident that whatever public policy or good
customs may be involved in our System of legitimes, Congress
has not intended to extend the same to the succession of
foreign nationals. For it has specifically chosen to leave, inter
alia, the amount of successional rights, to the decedent's
national law. Specific provisions must prevail over general
ones.
Appellants would also point out that the decedent executed
two wills — one to govern his Texas estate and the other his
Philippine estate — arguing from this that he intended
Philippine law to govern his Philippine estate. Assuming that
such was the decedent's intention in executing a separate
Philippine will, it would not alter the law, for as this Court
ruled in Miciano v. Brimo, 50 Phil. 867, 870, a provision in a
foreigner's will to the effect that his properties shall be
distributed in accordance with Philippine law and not with his
national law, is illegal and void, for his national law cannot be
ignored in regard to those matters that Article 10 — now
Article 16 — of the Civil Code states said national law should
govern.
The parties admit that the decedent, Amos G. Bellis, was a
citizen of the State of Texas, U.S.A., and that under the laws
of Texas, there are no forced heirs or legitimes. Accordingly,
since the intrinsic validity of the provision of the will and the
amount of successional rights are to be determined under
Texas law, the Philippine law on legitimes cannot be applied
to the testacy of Amos G. Bellis.
Wherefore, the order of the probate court is hereby
affirmed in toto, with costs against appellants. So ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal,
Zaldivar, Sanchez and Castro, JJ., concur.
G.R. No. L-24569 February 26, 1926
MANUEL TORRES, petitioner-appellant and
LUZ LOPEZ DE BUENO, appellant,
vs.
MARGARITA LOPEZ, opponent-appellee.
Araneta & Zaragoza for appellant.
Marcaida, Capili & Ocampo and Thomas Cary Welch for
appellee.
MALCOLM, J.:
This case concerns the probate of the alleged will of the late
Tomas Rodriguez y Lopez.
Tomas Rodriguez died in the City of Manila Philippine Islands.
On February 25, 1924, leaving a considerable estate. Shortly
thereafter Manuel Torres, one of the executors named in the
will asked that the will of Rodriguez be allowed. Opposition
was entered by Margarita Lopez, the first cousin of the
deceased on the grounds: (1) That the testator lacked mental
capacity because at the time of senile dementia and was
under guardianship; (2) that undue influence had been
exercised by the persons benefited in the document in
conjunction with others who acted in their behalf; and (3)
that the signature of Tomas Rodriguez to the document was
obtained through fraud and deceit. After a prolonged trial
judgment was rendered denying the legalization of the will. In
the decision of the trial judge appeared, among others, these
findings:
All this evidence taken together with the
circumstances that before and at the time Tomas
Rodriguez was caused to sign the supposed will
Exhibit A, and the copies thereof there already
existed a final judgment as to his mental condition
wherein he was declared physically and mentally
incapacitated to take care of himself and manage his
estate shows in a clear and conclusive manner that
at the time of signing the supposed will of Tomas
Rodriguez did not possess such mental capacity as
was necessary to be able him to dispose of his
property by the supposed will.
But even supposing as contended by petitioner's
counsel that Tomas Rodriguez was at the time of
execution of the will, competent to make a will, the
court is of the opinion that the will cannot be
probated for it appears from the declaration of the
attesting witness Elias Bonoan that when the legatee
Luz Lopez presented the supposed will, Exhibit A, to
Tomas Rodriguez, she told him to sign said Exhibit A
because it was a document relative to the complaint
against one Castito, which Exhibit 4, then pending in
the justice of the peace court, and for the further
reason that said Tomas Rodriguez was then under
guardianship, due to his being mentally and
physically incapacitated and therefore unable to
manage his property and take care of himself. It
must also be taken into account that Tomas
Rodriguez was an old man 76 years of age, and was
sick in the hospital when his signature to the
supposed will was obtained. All of this shows that
the signature of Tomas Rodriguez appearing in the
will was obtained through fraudulent and deceitful
representations of those who were interested in it.
(Record on Appeal, p. 23)
From the decision and judgment above-mentioned the
proponents have appealed. Two errors are specified, viz: (1)
The court below erred in holding that at the time of signing
his will, Tomas Rodriguez did not possess the mental capacity
necessary to make the same, and (2) the court below erred in
holding that the signatures of Tomas Rodriguez to the will
were obtained through fraudulent and deceitful
representations, made by persons interested in the
executions of said will.
The record is voluminous — close to two thousand
typewritten pages, with a varied assortment of exhibits. One
brief contains two hundred seventy-four pages, the other
four hundred fifteen pages. The usual oral argument has been
had. The court must scale this mountains of evidence more or
less relevant and of argument intense and prolific to discover
the fertile valleys of fact and principle.
The topics suggested by the assignments of error —
Testamentary Capacity and Undue Influence — will be taken
up separately and in order. An attempt will be made under
each subject first to make findings of fact quite separate and
apart from those of the judge and second to make findings of
law and the law by rendering judgment.
I. TESTAMENTARY CAPACITY
A. Facts. — For a long time prior to October, 1923, Tomas
Rodriguez was in feeble health. His breakdown was
undoubtedly due to organic weakness, to advancing years
and to an accident which occurred in 1921 (Exhibit 6).
Ultimately, on August 10 1923, on his initiative, Tomas
Rodriguez designated Vicente F. Lopez as the administrator of
his property (Exhibit 7).
On October 22, 1923, Margarita Lopez petitioned the Court of
First Instance of Manila to name a guardian for Tomas
Rodriguez because of his age and pathological state. This
petition was opposed by Attorney Gregorio Araneta acting on
behalf of Tomas Rodriguez for the reason that while
Rodriguez was far from strong on account of his years, he was
yet capable of looking after his property with the assistance
of his administrator, Vicente F. Lopez. The deposition of
Tomas Rodriguez was taken and a perusal of the same shows
that he was able to answer nearly all of the questions
propounded intelligently (Exhibit 5-g). A trial had at which
considerable oral testimony for the petitioner was received.
At the conclusion of the hearing, an order was issued by the
presiding judge, declaring Tomas Rodriguez incapacitated to
take care of himself and to manage his property and naming
Vicente F. Lopez as his guardian. (Exhibit 37).
Inasmuch as counsel for the appellee make such of one
incident which occurred in connection with the guardianship
proceedings, it may as well be mentioned here as later. This
episode concerns the effort of deputy sheriff Joaquin Garcia
to make service on Tomas Rodriguez on October 31, 1923.
We will let the witness tell in his own words what happened
on the occasions in question:
I found him lying down on his bed. . . . And when it
(the cleaning of his head) was finished, I again
entered his room, and told him that I had an order of
the court which I wanted to read as I did read to
him, but after reading the order he asked me what
the order meant; 'I read it to you so that you may
appear before the court, understand,' then I read it
again, but he asked what the order said; in view of
that fact I left the order and departed from the
house. (S. R., p. 642.)
To return to our narrative — possibly inspired by the latter
portion of the order of Judge Diaz, Tomas Rodriguez was
taken to the Philippine General Hospital on November 27,
1923. There he was to remain sick in bed until his death. The
physician in charge during this period was Dr. Elias Domingo.
In the clinical case record of the hospital under the topic
"Diagnosis (in full)," we find the following "Senility; Hernia
inguinal; Decubitus" (Exhibit 8).
On the door of the patient's room was placed a placard
reading — "No visitors, except father, mother, sisters, and
brothers." (Testimony of head nurse physician, there were
permitted to visit the patient only the following named
persons: Santiago Lopez, Manuel Ramirez, Romana Lopez, Luz
Lopez de Bueno, Remedio Lopez, Benita Lopez, Trinidad
Vizcarra, Apolonia Lopez, Antonio Haman, and Gregorio
Araneta ((Exhibit 9). The list did not include the names of
Margarita Lopez and her husband Antonio Ventura. Indeed
the last named persons experienced considerable difficulty in
penetrating in to the room of Rodriguez.
Santiago Lopez states that on one occasion when he was
visiting Tomas Rodriguez in the hospital , Rodriguez expressed
to him a desire to make a will and suggested that the matter
be taken up with Vicente F. Lopez (S. R., p. 550). This
information Santiago Lopez communicated to Vicente F.
Lopez, who then interviewed Maximino Mina, a practicing
attorney in the City of Manila, for the purpose of securing
him to prepare the will. In accordance with this request,
Judge Mina conferred with Tomas Rodriguez in the hospital in
December 16th and December 29th. He ascertained the
wishes of Rodriguez and wrote up a testament in rough draft.
The attorney expected to return to the hospital on December
31st to have the will executed but was unable to do so on
account of having to make a trip to the provinces.
Accordingly, the papers were left with Santiago Lopez.
In corroboration of the above statements, we transcribe a
portion of Judge Mina's testimony which has not been
challenged in any way:
ARANETA: Q. Will you please tell your motive for
holding an interview with Vicente Lopez?
MAXIMINO MINA: A. Then I arrived in the house of
Vicente Lopez, after the usual greeting and other
unimportant things, he consulted me or presented
the question as to whether or not D. Tomas could
make his will, having announced his desire to do so. I
told him that it seemed that we were not called
upon to decide or give an opinion as to whether or
not he can make a will; it is a question to be
submitted to the court, but as he had announced his
desire, it is our duty to comply with it. Then he
requested me to do what was necessary to comply
with his wishes: I told him I was to see him; then we
agreed that on the morning next to the following
evening that is on the 16th, I should go to the
General Hospital and so I did.
Q. Did you go to the hospital in the evening of the
16th? — A. Yes, sir.
Q. Did you meet D. Tomas? — A. Yes, sir.
Q. Did D. Tomas tell you his desire to make a will?
OCAMPO: Leading.
ARANETA: I withdraw. What, if anything, did D.
Tomas tell you on that occasion when you saw him
there? — A. He told me that.
Q. Please tell us what conversation you had with D.
Tomas Rodriguez? — A. The conversation I had with
him that evening — according to my best
recollection — I cannot tell the exact words and
perhaps the order. After the usual greetings, Good
evening, D. Tomas, ' Good evening,' How are you,' '
How do you do? Very well, just came here in the
name of D. Vicente Lopez why does he not come. He
cannot come because he has many things to do, and
besides it is hard for him and makes him tired, so he
told me to come.' Mina, your tenant, attorney.' Are
you an attorney? Yes.' Where do you live? I live in
Quiapo.' Oh, in Quiapo, a good district, it is gay a
commercial place you must have some business
there because that is a commercial place.
Unfortunately, I have none, D. Tomas.' Well, you
must be have because the profession alone does not
give enough. Where is your office? I work in the
office of Mr. Chicote. That Mr. Chicote must be rich,
it seems to me that he is. The profession gives
almost nothing it is better to have properties. I am
an attorney but do not depend upon my profession. I
interrupted D. Tomas saying, since you want to make
a will, when and to whom do you want to leave your
fortune? Then he said, To whom else? To my cousin
Vicente Lopez and his daughter Luz Lopez. Which
properties do you want to give to your cousin and
niece? All my properties, Won't you specify the
property to be given to each of them? What for? All
my property. Don't you have any other relatives?
Yes, sir I have. Won't you give any to those relatives?
What for? was his answer. Well, do you want to
specify said properties, to say what they are? and he
again said, What for? they know them, he is my
attorney-in-fact as to all property. I also said, Well
and as legacy won't you give property to other
persons? answers, I think, something, they will know
it. After being asked, Whom do you think, would you
want to be your executor? After hesitating a little,
This Torres, Manuel or Santiago Lopez also. Then I
asked him, What is your religion? He answered,
Roman Apostolic Catholic, and then he also asked
me, and your? Also Roman Apostolic Catholic,
Where have you studied?' 'In the University of Santo
Tomas.' 'It is convenient to preserve the Catholic
religion that our descendants have left us. And you,
what did you have anything more to say as to your
testamentary dispositions? No, he answered. Then I
remind him, 'You know that Vicente Lopez has sent
me to get these dispositions of yours, and he said,
Yes, do it.' I asked him, When do you want it done?
Later on, I will send for you. After this believing to
have done my duty, I bade him good-bye.
Q. Did you have any other occasion to see him? — A.
Yes.
Q. When? — A. On December 29, 1923, also in the
evening.
Q. Why did you go to see him? — A. Because as I had
not received any message either from Vicente Lopez
or Tomas Rodriguez, as I had received notices in
connection with the few cases I had in the provinces
particularly in Tayabas, which compelled me to be
absent from Manila until January 1st at least, for I
might be there for several days, so I went to the
General Hospital of my own accord — since I had not
received any messages from them — with a rough
draft which I had prepared in accordance with what
he had told me in our conversation. After the
greetings, I told him, Here I am D. Tomas; this is the
rough draft of your will in accordance with your
former statements to me in order to submit it to
you. Do you want to read it?' 'Please do me the favor
of reading it. I read it slowly to him in order that he
could understand it . After reading, Is it all right, that
is the way,— few words — you see it takes only a
few minutes; now I can execute the will. We can do
it takes only a few minutes.' In view of that
statement of his, I called his attention, ' But we don't
have witnesses, D. Tomas.' I looked out through the
door to see if I could call some witnesses but it was
late then and it was thought better to do it on the
31st of December. Then we talked about other
things, and he again asked. Where were you born? I
told him in Quiapo. Ah, good district, and especially
now that the fiesta of Quiapo is coming near,' and
then I interrupted him, Yes, the fiesta of the Holy
Child and of Our Lady of Mount Carmel' because we
also talked about the fiesta of San Sebastian. I again
reminded him that we could not do it because the
witnesses were not there and he explained, Good
Christmas present, isn't it?' I did not tell him
anything and in view of that I did not deem it
necessary to stay there any longer.
Q. With whom did you make the arrangement to
make the will on the evening of the 31st of
December — you said that it was agreed that the will
be executed on the evening of December 31st? — A.
With Santiago Lopez and Don Tomas.
Q. Was the will executed on the 31st of December?
— A. What happened is this: In view of that
agreement, I fixed up the draft which I had, dating it
the 31st of December, putting everything in order;
we agreed that Santiago would meet me on 31st day
between five and six in the evening or a little before,
but it happened that before the arrival of that date
Santiago Lopez came and told me that I need not
trouble about going to the General Hospital; because
it could not be carried out for the reason that certain
requisites were lacking. In view of this and bearing
always in mind that on the following day I had to go
to the provinces, I told Santiago Lopez that I would
leave the papers with him because I might go to the
provinces.
Q. What may be the meaning of those words good
Christmas present? — A. They are given a Christmas
present when Christmas comes or on the occasion of
Christmas.
Q. I show you this document which is marked Exhibit
A, tell me if that is the will or copy of the will which
you delivered to Santiago Lopez on December 21,
31, 1923? — A. With the exception of the words '3
de enero de 1924' It seems to be literally identical.
(S. R. pp. 244-249.)
As the witness stated, the will which was prepared by him is
identical with that signed by the testator and the attesting
witnesses with the single exception of the change of the date
from December 31, 1923, to January 3, 1924. Two copies
besides the original of the will were made. The will is brief
and simple in terminology.
For purposes of record, we copy the will as here translated
into English:
ONLY PAGE
In the City of Manila, Philippines Islands, this January
3, 1924, I, Tomas Rodriguez, of age and resident of
the City of Manila, Philippine Islands, do freely and
voluntarily make this my will and testament in the
Spanish language which I know, with the following
clauses:
First I declare that I am a Roman Apostolic Catholic,
and order that my body be buried in accordance
with my religion, standing and circumstances.
Second. I name my cousin Vicente F. Lopez and his
daughter Luz Lopez de Bueno as my only universal
heirs of all my property.
Third. I appoint D. Manuel Torres and D. Santiago
Lopez as my prosecutors.
In witness whereof I sign this typewritten will,
consisting of one single page, in the presence of the
witness who sign below.
(Sgd.) TOMAS RODRIGUEZ
(Left marginal signatures:)
TOMAS RODRIGUEZ
ELIAS BONOAN
V. L. LEGARDA
A. DE ASIS
We hereby certify that on the date and in the place
above indicated, Don Tomas Rodriguez executed this
will, consisting of one single typewritten page,
having signed at the bottom of the will in the
presence of us who saw as witnesses the execution
of this will, we signed at the bottom thereof in the
presence of the testator and of each other.
(Sgd.) V. L. LEGARDA
ELIAS BONOAN
A. DE ASIS
(Exhibit A.)
On the afternoon of January 3, 1924 there gathered in the
quarters of Tomas Rodriguez in the Philippine General
Hospital, Santiago Lopez and Dr. A. De Asis, attesting witness;
and Dr. Elias Fernando Calderon, Dr. Elias Domingo and Dr.
Florentino Herrera, physicians, there for purposes of
observation. (Testimony of Elias Bonoan, S. R., p. 8 of Vl.
Legarda, S. R. p. 34. ) Possibly also Mrs. Luz Lopez de Bueno
and Mrs. Nena Lopez were present; at least they were
hovering in the background.
As to what actually happened, we have in the record two
absolutely contradictory accounts. One emanates from the
attesting witness, Doctor Bonoan. The other is the united
testimony of all remaining persons who were there.
Doctor Elias Bonoan was the first witness called at the trial.
He testified on direct examination as to formal matters, such
as the identification of the signatures to the will .On cross-
examination, he rather started the proponents of the will by
stating that Luz Lopez de Bueno told Tomas Rodriguez to sign
the document it concerned a complaint against Castito and
that nobody read the will to the testator. Doctor Bonoan's
testimony along this line is as follows:
QUESTIONS.
MARCAIDA : Q. Why were you a witness to the will
of Tomas Rodriguez?
Araneta: I object to the question as being
immaterial.
Court: Objection overruled.
Dr. Bonoan: A. Because I was called up by Mrs. Luz
by telephone telling me to be in the hospital at 3
o'clock sharp in the afternoon of the 3d of January.
Q. Who is that Luz whom you have mentioned? — A.
Luz Lopez, daughter of Vicente Lopez.
Q. What day, January 3, 1924? A. Yes, sir.
Q. When did Luz Lopez talk to you in connection with
your going to the hospital? — A. On the morning of
the 3d she called me up by telephone.
Q. On the morning? — A. On the morning.
Q. Before January 3, 1924, when the will of Tomas
Rodriguez was signed, did Luz Lopez talk to you? A.
Yes, sir.
Q. How many days approximately before was it? —
A. I cannot tell the day, it was approximately one
week before, — on that occasion when I was called
up by her about the deceased Vicente Lopez.
Q. What did she tell you when you went to the
house of Vicente Lopez one week approximately
before signing the will? - A. That Tomas Rodriguez
would make a will.
Q. Don't you know where the will of Tomas
Rodriguez was made? - A. In the General Hospital.
Q. Was that document written in the hospital? — A. I
have not seen it.
Q. When you went to the General Hospital on
January 3, 1924, who were the persons you met in
the room where the patients was ? — A. I met one of
the nieces of the deceased Tomas Rodriguez, Mrs.
Nena Lopez and Dna. Luz Lopez.
Q. Were those the only persons? — A. Yes, sir.
Q. What time approximately did you go to the
General Hospital on January 3d? — A. A quarter to 3.
Q. After you, who came? — A. Antonio de Asis,
Doctor Herrera, later on Doctor Calderon arrived
with Doctor Elias Domingo and lastly Santiago Lopez
came and then Mr. Legarda.
 Q. When you entered the room of the patient, D.
Tomas Rodriguez, in the General Hospital in what
position did you find him?— A. He was lying down.
Q. Did you greet D. Tomas Rodriguez? A. I did.
Q. Did D. Tomas Rodriguez answer you? — A. Dna.
Nena immediately answered in advance and
introduced me to him saying that I was the brother
of his godson.
Q. Did other persons whom you have mentioned,
viz, Messrs. Calderon, Herrera, Domingo, De Asis and
Legarda greet Tomas Rodriguez?
ARANETA: I object to the question as being improper
cross-examination. It has not been the subject of the
direct examination.
COURT: Objection overruled.
ARANETA: Exception.
A. No, sir, they joined us.
Q. What was D. Tomas told when he signed the will.?
— A. To sign it.
Q. Who told D. Tomas to sign the will? — A. Luz
Lopez.
Q. What did Luz Lopez tell Tomas Rodriguez in order
that he should sign the will? — A. She told him to
sign the document; the deceased Tomas Rodriguez
before signing the document asked what that was
which he was to sign.
Q. What did anybody answer to that question of D.
Tomas? — A. Luz Lopez told him to sign it because it
concerned a complaint against Castito. D. Tomas
said, 'What is this?" And Luz Lopez answered, 'You
sign this document, uncle Tomas, because this is
about the complaint against Castito.
Q. Then Tomas Rodriguez signed the will? — A. Yes,
sir.
Q. Who had the will? Who was holding it? — A. Mr.
Vicente Legarda had it his own hands.
Q. Was the will signed by Tomas Rodriguez lying
down, on his feet or seated? — A. Lying down.
Q. Was the will read by Tomas Rodriguez or any
person present at the time of signing the will, did
they read it to him? — A. Nobody read the will to
him.
Q. Did not D. Tomas read the will? — A. I have not
seen it.
Q. Were you present? — A. Yes, sir. ( S. R. p. 8)
As it would be quite impracticable to transcribe the testimony
of all the others who attended the making of the will, we will
let Vicente L. Legarda, who appears to have assumed the
leading role, tell what transpired. He testified in part:
ARANETA : Q. Who exhibited to you those
documents, Exhibits A, A-1, and A-2?
LEGARDA: A. Santiago Lopez.
Q. Did he show you the same document? — A. First
that is to say the first document he presented to me
was a rough draft, a tentative will, and it was dated
December 31st, and I called his attention to the fact
that the date was not December 31, 1923, and that
it was necessary to change the date to January 3,
1924, and it was done.
Q. And it was then, was it not when Exhibits A, A-1,
and A-2 were written? — A. Yes, sir.
Q. Do you any know where it was written? — A. In
the General Hospital.
Q. Did any time elapse from your making the
suggestion that the document which you delivered
to Santiago Lopez be written until those three
Exhibits A, A-1, and A-2 were presented to you? — A.
About nine or ten minutes approximately.
Q. The time to make it clean? — A. Yes, sir.
Q. Where were you during that time? — A. In the
room of D. Tomas Rodriguez.
Q. Were you talking with him during that time. — A.
Yes, sir.
Q. About what things were you talking with him? —
A. He was asking me about my health, that of my
family how my family was my girl, whether we were
living in Pasay, he asked me about the steamer
Ildefonso, he said that it was a pity that it had been
lost because he knew that my father-in-law was the
owner of the steamer Ildefonso.
xxx xxx xxx
Q. When those documents, Exhibit A, A-1, and A-2,
that is the original and two copies of the will signed
by D. Tomas Rodriguez were written clean, will you
please tell what happened? — A. When Santiago
Lopez gave them to me clean, I approached D.
Tomas Rodriguez and told him: Don Tomas, here is
this will which is ready for your signature.
Q. What did D. Tomas do when you said that his will
you were showing to him was ready? — A. The first
thing he asked was: the witnesses? Then I called the
witnesses — Gentlemen, please come forward, and
they came forward, and I handed the documents to
D. Tomas. D. Tomas got up and then took his
eyeglasses, put them on and as he saw that the
electric lamp at the center was not sufficiently clear,
he said: 'There is no more light;' then somebody
came forward bringing an electric lamp.
Q. What did D. Tomas do when that electric lamp
was put in place? — A. The eyeglasses were adjusted
again and then he began to read, and as he could
not read much for a long time, for he unexpectedly
felt tired and took off the eyeglasses, and as I saw
that the poor man was tired, I suggested that it be
 read to him and he stopped reading and I read the
will to him.
Q. What happened after you had read it to him? —
A. He said to me, 'Well, it is all right. It is my wish
and my will. Don't you have any pen?' I asked a pen
of those who were there and handed it to D. Tomas.
Q. Is it true that Tomas Rodriguez asked at that time
'What is that which I am going to sign?' and Luz
Lopez told him: 'It is in connection with the
complaint against Castito?' — A. It is not true, no, sir.
Q. During the signing of the will, did you hear Luz
Lopez say anything to Tomas Rodriguez? — A. No,
Sir, she said nothing.
Q. According to you, Tomas Rodriguez signed of his
own accord? — A. Yes, sir.
Q. Did nobody tell him to sign? — A. Nobody.
Q. What happened after the signing of the will by
Tomas Rodriguez? — A. I called the witnesses and
we signed in the presence of each other and of
Tomas Rodriguez.
Q. After the signing of the will, did you have any
conversation with Tomas Rodriguez? — A. Doctor
Calderon asked D. Tomas Rodriguez some questions.
Q. Do you remember the questions and the
conversation held between Doctor Calderon and D.
Tomas after the signing of the will? — A. I remember
that afterwards Doctor Calderon talked to him about
business. He asked him how the business of making
loans at 18 per cent. It seems that Tomas Rodriguez
answered: That loan at 18 per cent is illegal, it is
usury. (S. R., p. 38.)
In addition to the statements under oath made by Mr.
Legarda, an architect and engineer in the Bureau of Public
Works and professor of engineering and architecture in the
University of Santo Tomas, suffice it to say that Luz Lopez de
Bueno denied categorically the statements attributed to her
by Doctor Bonoan (S. R., p. 568). In this stand, she is
corroborated by Doctor Calderon, Domingo, and Herrera, the
attending physicians. On this point, Doctor Calderon the
Director of the Philippine General Hospital and Dean of the
College of Medicine in the University of the Philippines,
testified:
Mr. ARANETA: Q. What have you seen or heard with
regard to the execution of the will?
Dr. CALDERON: A. Mr. Legarda handled the will to D.
Tomas Rodriguez. D. Tomas asked for his eyeglass,
wanted to read and it was extremely hard for him to
do so. Mr. Legarda offered to read the will, it was
read to him and he heard that in that will Vicente
Lopez and Luz Lopez were appointed heirs; we also
saw him sign that will, and he signed not only the
original but also the other copies of the will and we
also saw how the witnesses signed the will; we
heard that D. Tomas asked for light at that moment;
he heard that D. Tomas asked for light at that
moment; he was at that time in a perfect mental
state. And we remained there after the will was
executed. I asked him, 'How do you feel, how are
you? Well I am well, ' he answered. ' How is the
business? There is a crisis at there is one good
business, namely, that of making loans at the rate of
18 per cent, 'and he answered, 'That is usury.; When
a man answers in that way, ' That is usury it shows
that he is all right.
Q. Were you present when Mr. Legarda handed the
will to him? — A. Yes, sir.
Q. Did any person there tell Don Tomas that was a
complaint to be filed against one Castito? — A. No,
sir, I have not heard anything of the kind.
Q. It was said here that when the will was handed to
him, D. Tomas Rodriguez asked what that was which
he was to sign and that Luz Lopez answered, 'That is
but a complaint in connection with Castito.' Is that
true? — A. I have not heard anything of the kind.
Q. Had anybody told that to the deceased, would
you have heard it? A. Yes, sir.
Q. Was Luz Lopez there? — A. I don't remember
having seen her; I am not sure; D. Santiago Lopez
and the three witnesses were there; I don't
remember that Luz Lopez was there.
Q. Had anybody told that to the deceased, would
you have heard it? — A. Yes, sir.
Q. Do you remember whether he was given a pen or
he himself asked for it? — A. I don't know; it is a
detail which I don't remember well; so that whether
or not he was given a pen or he himself asked for it, I
do not remember.
Q. But did he sign without hesitation ? — A. With no
hesitation.
Q. Did he sign without anybody having indicated to
him where he was to sign? — A. Yes, without
anybody having indicated it to him.
Q. Do you know whether D. Tomas Rodriguez asked
for more light before signing? — A. He asked for
more lights, as I have said before.
Q. Do you remember that detail? — A. Yes, sir. They
first lighted the lamps, but as the light was not
sufficient, he asked for more light.
Q. Do you remember very well that he asked for
light? — A. Yes, sir. (S. R. p.993).
A clear preponderance of the evidence exists in favor of the
testimony of Vicente Legarda, corroborated as it is by other
witnesses of the highest standing in the community. The only
explanation we can offer relative to the testimony of Doctor
Bonoan is that possibly he may have arrived earlier than the
others with the exception of Luz Lopez de Bueno, and that
Luz Lopez de Bueno may have made some sort of an effort to
influence Tomas Rodriguez. There is however no possible
explanation of the statement of Doctor Bonoan to the effect
that no one read the will to Rodriguez when at least five
other persons recollect that Vicente Legarda read it to him
and recall the details connected with the reading.
There is one curious occurrence which transpired shortly
after the making of the will which should here be mentioned.
It is that on January 7, 1923 (1924), Luz Lopez de Bueno
signed a document in favor of Doctor Bonoan in the amount
of one thousand pesos (P1,000). This paper reads as follow:
Be it know by these present:
That I, Luz Lopez de Bueno in consideration of the
services which at my instance were and will when
necessary be rendered by Dr. Elias Bonoan in
connection with the execution of the will of my
uncle, Don Tomas Rodriguez and the due probate
thereof, do hereby agree to pay said doctor, by way
of remuneratory donation, the sum of one thousand
pesos (P1,000), Philippine currency, as soon as said
services shall have been fully rendered and I shall be
in possession of the inheritance which in said will is
given to me.
In witness whereof, I sign this document which was
freely and spontaneously executed by me in Manila,
this January 7, 1923.
(Sgd.) LUZ LOPEZ DE BUENO
(Exhibit 1)
There is a sharp conflict of testimony, as is natural between
Doctor Bonoan and Luz Lopez de Bueno relative to the
execution of the above document. We shall not attempt to
settle these differences as in the final analysis it will not affect
the decision one way or the other. The most reasonable
supposition is that Luz Lopez de Bueno imprudently
endeavored to bring over Doctor Bonoan to her side of the
race by signing and giving to him Exhibit 1. But the event
cannot easily be explained away.
Tomas Rodriguez passed away in the Philippine General
Hospital, as we said on February 25, 1924. Not even prior to
his demise the two actions in the Lopez family had prepared
themselves for a fight over the estate. The Luz Lopez faction
had secured the services of Doctor Domingo, the physician in
charge of the Department of Insane of San Lazaro Hospital an
Assistant Professor of Nervous and Mental Diseases in the
University of the Philippines, as attending physician; as
associated with him for purposes of investigation Dr.
Fernando Calderon the Director of the Philippine General
Hospital and Dr. Florentino Herrera, a physician in active
practice in the City of Manila; and had arranged to have two
members of the medical fraternity, Doctors De Asis and
Bonoan as attesting witnesses. The Margarita Lopez faction
had taken equal precautions by calling a witnesses in the
guardship proceedings Dr. Sixto de los Angeles Professor and
Chief of the Department of Legal Medicine in the University
of the Philippines, and Dr. Samuel Tietze, with long
experience in mental diseases; thereafter by continuing
Doctors de Los Angeles and Tietze to examine Tomas
Rodriguez and by associating with them Dr. William Burke, a
well-known physician of the City of Manila. Skilled lawyers
were available to aid and abet the medical experts. Out of
such situations, do will contests arise.
An examination of the certificates made by the two sets of
physicians and of their testimony shows that on most facts
they concur. Their deductions from these facts disclose a
substantial divergence of opinion. It is a hopeless task to try
to reconcile the views of these distinguished gentlemen who
honestly arrived at definite but contradictory conclusions.
The best that we can do under the circumstances is to set
forth the findings of the Calderon committed on the hand and
of the De Los Angeles committee on the other.
Doctors Calderon, Domingo and Herrera examined Tomas
Rodriguez individually and jointly before the date when the
will was executed. All of them, as we have noticed were,
present at the signing of the will to note the reactions of the
testator. On the same day that the will was accomplished, the
three doctors signed the following certificate:
The undersigned, Drs. of Medicine, with offices in
the City of Manila, and engaged in the practice of
their profession do hereby certify:
That they have jointly examined Mr. Tomas
Rodriguez, confined in the General Hospital, floor
No. 3, room No. 361 on three different occasion and
on different days and have found that said patient is
suffering from anemia, hernia inguinal, chronic
dyspepsia and senility.
As to his mental state the result of the different tests
to which this patient was submitted is that his
intellectual faculties are sound, except that his
memory is weak, which is almost a loss for recent
facts, or events which have recently occurred, due to
his physical condition and old age.
They also certify that they were present at the time
he signed his will on January 3, 1924, at 1:25 p.m.
and have found his mental state in the same
condition as was found by the undersigned in their
former examination and that in executing said will
the testator and full knowledge of the contents
thereof.
In testimony whereof, we sign in Manila this January
3, 1924.
(Sgd.) FLORENTINO HERRERA
Tuberias 1264
Quiapo
(Sgd.) Dr. FERNANDO CALDERON
General Hospital
Manila
(Sgd.) Dr. ELIAS DOMINGO
613 Remedios
Malate
(Exhibit E in relation with Exhibits C and D.)
Doctor Calderon while on the witness-stand
expressed a definite opinion as to the mentality of
Tomas Rodriguez What follows is possibly the most
significant of the doctor's statements:
Dr. CALDERON testifying after interruption:
A. I was naturally interested in finding out the true
mental state of Tomas Rodriguez and that was the
chief reason why I accepted and gave my
cooperation to Messrs. Elias Domingo and Florentino
Herrera because had I found that Tomas Rodriguez
and Florentino Herrera because had I found that
Tomas Rodriguez was really insane, I should have
ordered his transfer to the San Lazaro Hospital or to
other places, and would not have left him in the
General Hospital. Pursuant to my desire, I saw
Tomas Rodriguez in his room alone twice to have
interviews with his, he begging a person whom I
knew since several years ago; at the end of the
interviews I became convinced that there was
nothing wrong with him; I had not seen anything
indicating that he was insane and for this reason I
accepted the request of my companions and joined
them; we have been on five different occasions
examining Tomas Rodriguez jointly from the physical
standpoint but chiefly from the standpoint of his
mental state; I have been there with Messrs. Herrera
and Elias Domingo, examining Tomas Rodriguez and
submitting to a mental test on the 28, 29, 10 and 31
of December and the 22nd of January, 1924 — five
consecutive days in which he have been together
besides my particular visits.
Q. Will you place state the result of the observation
you made alone before those made by the three of
you jointly? — A. I asked Tomas Rodriguez some
questions when I went alone there, I asked him were
he was living formerly and he well remembered that
in Intramuros, Calle Real; I asked him whether he
remembered one Calderon who was living in the
upper floor of the house and then he told me yes;
than I asked him about his tenant by the name of
Antonio Jimenez and he told me yes, — now I
remember that he had two daughters, Matilde and
Paz. Then I told him that I had been living in the
house of the gentlemen, Antonio Jimenez already
dead — in the upper story of the house belonged to
Tomas Rodriguez; I told him that Antonio Jimenez
was his tenant of the upper story, that is that he was
living on the ground floor and Antonio Jimenez
upstairs and he remembered all of this I also began
to talk of my brother, Felipe Calderon, who he said
of course that he knew; he remembered him
because he was his companion and was a successful
attorney. This was when I had an interview with him.
Then in order to observe better and to be sure of my
judgment or opinion about the mental state of
Tomas Rodriguez, I saw him again and we began to
speak of something which I don't remember now. In
fine, we talked of things of interest and as I had
finally accepted the request of Drs. Elias Domino and
Florentino Herrera to join then the first and second
time that Herrera, Domingo and myself went there,
no stenographic notes were taken of what happened
there.
Q. So that before joining Doctors Herrera and
Domingo you had already paid two visits to the
patient? — A. Yes, sir.
Q. From the result f the conversation you had with
Tomas Rodriguez on those two visits what is your
opinion as to his mental capacity? — A. That he was
sick; that he was weak, but I have found absolutely
no incoherence in his ideas; he answered my
questions well and as I was observing him there
were times when he did not remember things of the
present — because this must be admitted — but on
the other hand he had a wonderful memory of past
events; in talking with him, you would not notice in
the conversation any alteration in his mind nor that
man had lost the reasoning power or logic.
Q. Did you notice any loss of memory, or that his
memory was weakening about things of the past? —
A. About things of the past, I mean that you talk to
him now about specific matters, and after about five
or ten minutes he no longer remembers what had
been talked of.
xxx xxx xxx
Q. Do you remember the conversation you had with
him for the first time when the three of you paid a
visit to the patient? — A. I don't remember the
details, but I do remember the questions I put to
him. I asked D. Tomas Rodriguez: You are an old man
aged, sick: Yes, I am thinking to make a will. But why
don't you decide? There is no hurry there is time to
make a will, 'he said. Then in case you decide to
make a will, to whom are you going to leave your
property? Don't you have any relatives? I have a
relative, Vicente Lopez, my first cousin, and
Margarita Lopez my first cousin they are brothers.' In
that case, to whom, do you want to leave your
property? Why, I don't have much, very little, but I
am decided to leave it to my cousin, Vicente Lopez
and his daughter Luz Lopez. Why would you not give
anything to Margarita Lopez? No because her
husband is very bad, 'to use his exact language is
very bad.'
Q. Did you talk with him on that occasion about his
estate? — A. Yes, sir, he told me that he had three
estates, — one on Calle Magallanes, another on
Calle Cabildo and the third on Calle Juan Luna and
besides he had money in the Monte de Piedad and
Hogar Filipino.
xxx xxx xxx
Q. From the question made by you and the answers
given by Mr. Tomas Rodriguez on that occasion,
what is your opinion as to his mental capacity? — A.
The following: That the memory of Tomas Rodriguez
somewhat failed as to things of the present, but is all
right with regard to matters or facts of the past; that
his ideas were incoherent; that the thought with
logic, argued even with power and generally in some
of the interviews I have arrived at the conclusion
that Tomas Rodriguez had an initiative of his own,
did not need that anybody should make him any
suggestion because he answered in such a way that
if you permit me now to show you my stenographic
notes, they will prove to you conclusively that he
had an initiative of his own and had no need of
anybody making him any question. (S. R. p. 72.)
Doctor Elias Domingo, who was the attending physician for
Tomas Rodriguez throughout all the time that Rodriguez in
the hospital had examined him, was likewise certain that
Rodriguez possessed sufficient mentality to make a will.
Among other things, Doctor Domingo testified:
ARANETA: Q. Have you known D. Tomas Rodriguez?
Dr. DOMINGO: A. Yes, sir.
Q. Did you attend D. Tomas Rodriguez as physician?
— A. Yes, sir.
 Q. When did you begin to attend him as physician?
— A. On November 28, until his death.
Q. On November 28 or October 28, 1923, do you
remember? — A. I had been attending him as
physician from November 28th although it true that I
had opportunities to see and examine him during
the months of October and November.
Q. What was the object of your visits or attendance
during the months of October and November? — A.
It was for the purpose of observing his mental state.
Q. Did you really examine his mental condition or
capacity during the months of October and
November? — A. Yes, sir.
Q. How many times did you visit him? — A. I don't
remember exactly but I visited him about five or six
times.
xxx xxx xxx
Q. Please tell us the result of your examination
during those months of October and November? —
A. I examined him physically and mentally; I am not
going to tell here the physically result but the result
of the mental examination, and that is: General
Conduct: In most of the times that I have seen him I
found him lying on his bed, smoking a cigarette and
asked for a bottle of lemonade from time to time; I
also observed that he was very careful when
throwing the ash of the cigarette, seeing to it that it
did not fall on the blankets; he also was careful not
to throw the stub of the cigarette in any place to
avoid fire; I made more observations as to his
general conduct and I found that sometimes Don
Tomas could move within the place although with
certain difficulty. On two occasions I found him
seated, once seated at the table, seated in the chair,
and other on a rocking chair. I also examined his
manner of talking and to all questions that I put to
him he answered with a coherence and in a relevant
manner, although sometimes he showed eagerness
and certain delay. I based these points of my
declaration on the questions which are usually asked
when making a mental examination for instance I
asked him, What is your name, 'and he correctly
answered Tomas Rodriguez; I asked him if he was
married and he answered 'No;' I asked him his
profession and he answered that formerly he was an
attorney but that at the time I was making the
examination he was not practising the profession; I
asked him with what he supported himself and he
said that he lived upon his income, he said verbatim,
'I live on my income.' I also asked him what the
amount of him income was and he answered that it
was about P900; I asked him what the source of this
income was and he said that it came from his
property.
Q. Did you ask him about his property? — A. No, at
that time.
Q. Proceed. — A. I also observed his emotional
status and effectivity. I found it rather superficial,
and he oftentimes got angry due to his physical
disease; I asked him if he had any relatives and he
answered correctly saying that he had. He
mentioned Vicente Lopez, Margarita Lopez, and Luz
Lopez. As to his memory. His memory of the past. He
very easily remembered past events and when he
described them he did it with such pleasure the he
used to smile afterwards — if it was a fact upon
which one must smile, His memory of recent facts
was very much lessened. I say this because on
various occasions and not having known me when
he had a better memory, after I had seen him thrice
he remembered my name and he recognized me.
Insight and judgment. I arrived at the conclusion that
he had fair knowledge of himself because he knew
that he was sick and could not be moving with ease,
but he believed that he could perform with sufficient
ease mental acts; his judgment was also all right
because I asked him this question: 'Supposing that
you could find a bill of P5 in the vestibule of a hotel,
what would you do with it ?' He told me that he
would take the bill and give it to the manager in
order that the latter may look for the owner if
possible. His reasoning. I found that he showed a
moderated retardation in the flow of his thought,
especially with regard to recent events, but was
quite all right as to past events, His capacity, He
believed that he was capable of thinking properly
although what did not permit him to do so was his
physical decrepit condition. The conclusion is that his
memory is lost for recent events tho not totally and
diminution of his intellectual vigor. This is in few
words the result of my examination.
Tomas Rodriguez was likewise examined thoroughly by
Doctors De los Angeles, Tietze, and Burke. Doctor De los
Angeles had been a witness in the gurardianship proceedings
and had seen the patient of November 6 and 7, 1923. Doctor
Tietze had also been a witness in the guardianship case and
had visited the patient on November 9 and 12, 1923, and on
January 15, 1924. Doctors Tietze and Burke together
examined Rodriguez on January 17, 20, and 24, 1924. The
three physicians conducted a joint examination result, on
March 15, 1924, they prepared and signed the following:
MEDICAL CERTIFICATE
In the Matter of Tomas Rodriguez y Lopez, male, 76
years of age, single and residing or being confined in
the Philippine General Hospital.
We, the undersigned Doctors, Sixto de los Angeles,
W. B. Burke, and Samuel Tietze, do hereby certify as
follows:
1. That we are physicians, duly registered under the
Medical Act, and are in the actual practice of the
medical profession in the Philippines.
2. That on January 27th and 28th, and February
10th, 1924, at the Philippine General Hospital, we
three have with care the diligence jointly and
personally examined the person of said Tomas
Rodriguez y Lopez; and previous to these dated, we
have separately and partly jointly observed and
examined said patient on various occasions; Dr. Sixto
de los Angeles, at the patient's home, 246
Magallanes St., Manila, on November 6th and 7th ,
1923; Dr. Samuel Tietze, at the patient's home on
November 9th and 12th, 1923, and at the Philippine
General Hospital no January 17th, 20th, and 24,
1924; and as a result of the medical examinations
and the history of the case we found and hereby
certify to the following conclusions:
(a) That he was of unsound mind suffering
from senile dementia, or of mental impairment
exceeding to a pathological extent the unusual
conditions and changes found to occur in the
involutional period of life.
(b) That he was under the influence of the above
condition continuously, at least from November,
1923, till the date of our joint reexamination,
January 27th and 28th, and February 10th, 1924; and
that he would naturally have continued without
improvement, as these cases of insanity are due to
organic pathological changes of the brain. This form
of mental disease is progressive in its pathological
tendency, going on to progressive atropy and
degeneration of the brain, the mental symptoms, of
course, running parallel with such pathological basis.
(c) That on account of such disease and conditions
his mind and memory were so greatly impaired as to
make him unable to know or to appreciate
sufficiently the nature, effect, and consequences of
the business he was engaged in; to understand and
comprehend the extent and condition of his
properties; to collect and to hold in his mind the
particulars and details of his business transactions
and his relations to the persons who were or might
have been the objects of his bounty; and to free
himself from the influences of importunities, threats
and ingenuities, so that with a relatively less
resistance, he might had been induced to do what
others would not have done.
3. We have diagnosed this case as senile demential
of the simple type, approaching the deteriorated
stage upon the following detailed mental
examination:
(a) Disorder of memory. — There was almost an
absolute loss of memory of recent events, to the
extent that things and occurrences seen or observed
only a few minutes previously were completely
forgotten. Faces and names of person introduced to
him were not remembered after a short moment
even without leaving his bedside . He showed no
comprehension of the elemental routine required in
the management of his properties, i.e.: who were
the lessees of his houses, what rents they were
paying, who was the administrator of his properties,
in what banks he deposited his money or the
amount of money deposited in such banks.
Regarding his personal relation, he forgot that Mr.
Antonio Ventura is the husband of his nearest
woman cousin; the Mrs. Margarita Lopez was
married, saying that the latter was single or spinster,
in spite of the fact that formerly, during the past
twenty-five years, he was aware of their marriage
life, He did not know the names of the sons and
daughters of Mr. Vicente Lopez, one of his nearest
relatives, even failing to name Mrs. Luz Lopez de
Bueno, a daughter of said Vicente Lopez, and who
now appears to be the only living beneficiary of his
will. He also stated that Mr. Vicente Lopez frequently
visited him in the hospital, though the latter died on
January 7th, 1924. He did not recognized and
remember the name and face of Doctor Domingo,
his own physician. However, the memory for remote
events was generally good, which is a characteristic
symptom of senile dementia.
(b) Disorientation of time, place and persons. — He
could not name the date when asked (day or
month); could not name the hospital wherein he was
confined; and failed to recognize the fact that Doctor
Domingo was his physician.
(c) Disorders of perception. — He was almost
completely indifferent to what was going on about
him. He also failed to recognize the true value of
objects shown him, that is he failed to recognized
the 'Saturday Evening Post' nor would he deny that it
was a will when presented as such. He also failed to
show normal intellectual perception. Making no
effort to correlate facts or to understand matters
discussed in their proper light.
(d) Emotional deterioration. — The patient was not
known during his time of physical incapacity to
express in any way or lament the fact that he was
unable to enjoy the happiness that was due him with
his wealth. As a matter of fact, he showed complete
indifference. He showed loss of emotional control by
furious outbreaks over trifling matter and actually
behaved like a child; for example, if his food did not
arrive immediately of when his cigar was not lit
soon, he would becomes abusive in his language and
show marked emotional outburst. If the servants did
not immediately answer his call, he would break
down and cry as a child.
(e) Symptoms of decreased intellectual capacity. —
There was a laxity of the internal connection of
ideas. The patient has shown no insight regarding his
own condition. He did not appreciate the attitude of
the parties concerned in his case; he would on
several occasion become suspicious and fail to
comprehend the purpose of our examination. He
was inconsistent in his ideas and failed to grasp the
meaning of his own statements. When questioned
whether he would make a will, he stated to Doctor
Tietze that he intended to bequeath his money to
San Juan de Dios Hospital and Hospicio de San Jose.
When He was informed, however, that he had made
a will on January 31, 1924, he denied the latter
statement, and failed to explain the former.
Although for a long time confined to bed and
seriously ill for a long period, he expressed himself
as sound physically and mentally, and in the false
belief that he was fully able to administer his
business personally.
His impairment of the intellectual field was further
shown by his inability, despite his knowledge of
world affairs, to appreciate the relative value of the
statement made by Doctor Tietze as follows: 'We
have here a cheque of P2,000 from the King of Africa
payable to you so that you may deposit it in the
bank. Do you want to accept the cheque?' His
answer was as follows: 'Now I cannot give my
answer. It may be a surprise.' Such answer given by a
man after long experience in business life, who had
handled real estate property, well versed in the
transaction of cheques, certainly shows a breaking
down of the above field. No proper question were
asked why the cheque was given by the King, who
the King was, why he was selected by the King of
Africa, or if there is a King of Africa at present. He
further shows doubt in his mental capability by the
following questions and answers:
"MARCAIDA: P. ¿Tiene usted actualmente
algún asunto en los tribunales de justicia de
Manila? -- R. No recuerdo en este
momento.
"P. De tener usted algún asunto propio en
los tribunales de justicia de Manila, ¿a qué
abogado confiaría usted la defensa del
mismo?--R. Al Sr. Marcaida, como conocido
antiguo.
"P. ¿Ha hablado usted y conferenciado
alguna vez o varias veces en estos días, o
sea desde el 25 de octubre de 1923 hasta
hoy, con algún abogado para que le
defendiera algún asunto ante el Juzgado de
Primera Instancia de Manila?--R. Con
ninguno, porque en caso de nombrar,
nombraría al Sr. Marcaida. (P. 5, deposition,
Nov. 19, 1923.)
"ARANETA: P. ¿No recuerda usted que
usted me ha encomendado como abogado
para que me oponga a que le declaren a
usted loco o incapacitado?--R. Sí, señor,
quien ha solicitado? (P. 9, deposition, Nov.
19, 1923.)
"Dr. DOMINGO: P. ¿Don Tomás, me conoce
usted? ¿Se acuerda usted que soy el Doctor
Domingo?--R. Sí. (P. 7, sten. N., Jan. 28,
1924.)
"P. ¿Quién soy, Don Tomás, usted me
conoce?--R. No sé. (P. 6, sten. N., Feb. 10,
1924.)
"Dr. ÁNGELES: P. ¿Me conoce usted, D.
Tomás?--R. Le conozco de vista. (P. 6, sten.
N., Jan. 28, 1924.)
"P. Nos vamos a despedir ya, Don Tomás,
de usted. Yo soy el Doctor Ángeles, ¿me
conoce usted?--R. De nombre.
"P. Este es el Doctor Burke, ¿le conoce
usted?--R. De nombre.
"P. Este es el Doctor Domingo, ¿le conoce
usted?--R. De vista.
"P. Este es el Doctor Burke, ¿recuerda usted
su nombre?--R. No. (P. 10, sten. N., Jan. 28,
1924.)
"P.¿Usted conoce a este Doctor?
(Señalando al Doctor Burke).--R. De vista; su
nombre ya lo he olvidado, ya no me
acuerdo.
"P.¿Usted nos ve a los tres? (Doctores
Ángeles, Burke y Tietze).--R. Ya lo creo.
"Dr. BURKE: P. ¿Qué profesión tenemos?
(Señalando a los Sres. Ángeles, Burke y
Tietze).--R. YO creo que son doctores.
"P. ¿Y lso dos? (Señalando a los Doctores
Ángeles y Tietze).--R. No. sé.
"P. ¿Y este señor? (Señalando al Doctor
Ángeles).--R. No me acuerdo en este
momento. (P. 4. And 5, sten. N., Feb. 10,
1924.)
(f) Other facts bearing upon the history of the case
obtained by investigation of Doctor Angeles:
I. Family History. — His parents were noted to be of
nervous temper and irritable.
II. Personal history. — He was a lawyer, but did not
pursue his practice, devoting the greater part of his
life to collecting antiquities, He was generally
regarded by his neighbors as miserly and erratic in
the ordinary habits of life. He lead a very unhygienic
life, making no attempt to clean the filth of dirt that
was around him. He was neglectful in personal
habits. On April, 1921, he suffered an injury to his
forehead, from which he became temporarily
unconscious, and was confined in the Philippine
General Hospital for treatment. He frequently
complained of attacks of dizziness and headache,
following this injury; suffered form a large hernia;
and about two years ago, he was fined for failure in
filing his income tax, from which incident, we have
reason to believe, the onset of his mental condition
took place. This incident itself can most probably be
considered as a failure of memory. His condition
became progressively worse up to his death.
4. The undersigned have stated all the above facts
contained in this certificate to the best of our
knowledge and belief.
Manila, P.I., March 15, 1924.
(Sgd.) SIXTO DE LOS ANGELES
W.B. BURKE, M.D.
SAMUEL TIETZE
(Exhibit 33 in relation with Exhibits 28 and 29.)
Another angle to the condition of the patient on or about
January 3, 1924, is disclosed by the treatment record kept
daily by the nurses, in which appear the nurse's remarks.
(Exhibits 8-A, 8-B, and 8-C.) In this connection, the testimony
of the nurses is that Rodriguez was in the habit for no reason
at all of calling "Maria, where are my 50 centavos, where is
my key." In explanation of the observation made by the
nurses, the nurse Apolonio Floreza testified.
Direct questions of Attorney OCAMPO:
Q. Among your observations on the 1st of January,
1924, you say 'with pains all over the body, and
uttered some incoherent words of the same topics
whenever is awakened.' How could you observe that
he had pains all over the body?
 APOLONIO FLOREZA, nurse: A. I observed that by the
fact that whenever I touched the body of the patient
he complained of some pain.
Q. On what part of the body did you touch him? —
A. On all the parts of his body.
xxx xxx xxx
Q. How did you touch him, strongly or not? — A.
Slightly.
Q. When you touched him slightly, what did he do?
— A. He said that it was aching.
Q. What words did he say when, according to your
note, he uttered incoherent words whenever he
awakes? — A. As for instance, 'Maria,' repeating it
'Where are my 50 centavos, where is my key?'
Q. Did you hear him talk of Maria? — A. Only the
word Maria.
Q. How long approximately was he talking uttering
the name of 'Maria, Where are my 50 centavos,' and
where is my key? — A. For two or three minutes.
Q. Can you tell the court whether on those occasions
when he said the name of Maria he said other words
and was talking with somebody? — A. He was talking
to himself.
Q. This remark on Exhibit 8-B when was it written by
you? A. January 2, 1924.
Q. In the observation correspondingly to January 2,
1924 you say, 'With pains over the body,' and later
on talked too much whenever patient is awakened.'
How did you happen to know the pain which you
have noted here? A. The pains all over the body, I
have observed them when giving him baths.
Q. Besides saying that it ached when you touched
the body, do you know whether he did any
extraordinary thing? A. You mean to say acts?
Q. Acts or words? A. Yes, sir, like those words which I
have already said which he used to say — Maria, the
key, 50 centavos.
Q. You say that he called Maria. What did he say
about Maria on that date January 2, 1924? — A. He
used to say Maria where is Maria?
Q. On that date January 2, 1924, did you answer him
when he said Maria? — A. No sir.
Q. In this observation of yours appearing on page 8-C
you say among other things with pain all over the
body and shouted whenever he is given injection.'
Did you really observe this in the patient? — A. Yes,
sir.
Q. How did he shout?
ARANETA: Objection as being immaterial.
COURT: Overruled.
ARANETA: Exception.
A. In a loud voice.
Q. Besides shouting do you remember whether he
said anything? — A . He repeated the same words I
have said before — Maria the 50 centavos the key.
Q. When did this observation occur which appear on
page 8-C? — A. On January 3, 1924. (S. R. p. 5595.)
On certain facts pertaining to the condition of Tomas
Rodriguez there is no dispute. On January 3, 1924, Rodriguez
had reached the advanced age of 76 years. He was suffering
from anemia, hernia inguinal, chronic dypsia, and senility.
Physically he was a wreck.
As to the mental state of Tomas Rodriguez on January 3,
1924, Doctors Calderon, Domingo and Herrera admit that he
was senile. They, together with Doctors De los Angeles,
Tietze, and Burke, further declare that his memory however
for remote events was generally good. He was given to
irrational exclamations symptomatic of a deceased mind.
While, however, Doctors Calderon Domingo, and Herrera
certify that the intellectual faculties of the patient are "sound,
except that his memory is weak," and that in executing the
will the testator had full understanding of the act he was
performing and full knowledge of the contents thereof,
Doctors De Los Angeles, Tietze and Burke certify that Tomas
Rodriguez was of unsound mind and that they diagnosed his
case as senile dementia of the simple type approaching the
deteriorated stage. Without attempting at this stage to pass
in judgment on the antagonistic conclusions of the medical
witnesses, or on other disputed point, insofar as the facts are
concerned, a resolution of the case comes down to this: Did
Tomas Rodriguez on January 3, 1924, possess sufficient
mentality to make a will, or had he passed so far along
in senile dementia as to require the court to find him of
unsound? We leave the facts in this situation to pass on to a
discussion of the legal phases of the case.
B. Law. — The Code of Civil Procedure prescribes as a
requisite to the allowance of a will that the testator be of
"sound mind" (Code of Civil Procedure, sec. 614). A "sound
mind" is a "disposing mind." One of the grounds for
disallowing a will is "If the testator was insane or otherwise
mentally incapable of the execution." (Code of Civil
Procedure, sec. 634 [2].) Predicated on these statutory
provisions, this court has adopted the following definition of
testamentary capacity: "'Testamentary capacity is the
capacity to comprehend the nature of the transaction in
which the testator is engaged at the time, to recollect the
property to be disposed of and the persons who would
naturally be supposed to have claims upon the testator, and
to comprehend the manner in which the instrument will
distribute his property among the objects of his bounty.'"
(Bugnao vs. Ubag [1909], 14 Phil., 163, followed in Bagtas vs.
Paguio [1912], 46 Phil., 701.) The mental capacity of the
testator is determined as of the date of the execution of his
will (Civil Code, art. 666).
Various tests of testamentary capacity have been announced
by the courts only later to be rejected as incomplete. Of the
specific tests of capacity, neither old age, physical infirmities,
feebleness of mind, weakness of the memory, the
appointment of a guardian, nor eccentricities are sufficient
singly or jointly to show testamentary incapacity. Each case
rests on its own facts and must be decided by its own facts.
There is one particular test relative to the capacity to make a
will which is of some practical utility. This rule concerns the
nature and rationality of the will. Is the will simple or
complicated? Is it natural or unnatural? The mere exclusion of
heirs will not, however, in itself indicate that the will was the
offspring of an unsound mind.
On the issue of testamentary capacity, the evidence should
be permitted to take a wide range in order that all facts may
be brought out which will assist in determining the question.
The testimony of subscribing witnesses to a will concerning
the testator's mental condition is entitled to great weight
where they are truthful and intelligent. The evidence of those
present at the execution of the will and of the attending
physician is also to be relied upon. (Alexander on Willis, vol. I,
pp. 433, 484; Wharton & Stille's Medical Jurisprudence, vol. I
pp. 100 et seq.)
The presumption is that every adult is sane. It is only when
those seeking to overthrow the will have clearly established
the charge of mental incapacity that the courts will intervene
to set aside a testamentary document. (Hernaez vs. Hernaez
[1903], 1 Phil., 689; Bagtas vs. Paguio, supra.)
Counsel for the appellee make capital of the testator being
under guardianship at the time he made his will. Citing
section 306 of the Code of Civil Procedure and certain
authorities, they insist that the effect of the judgment is
conclusive with respect to the condition of the person. To this
statement we cannot write down our conformity. The
provisions of the cited section were taken from California,
and there the Supreme court has never held what is now
urged upon us by the appellee. The rule announced that in
some states, by force of statute, the finding of insanity is
conclusive as to the existence of insanity during the
continuance of adjudication, is found to rest on local statutes,
of which no counterpart is found in the Philippines. (32 C.J.,
647; Gridley vs. Boggs [1882], 62 Cal., 190; In the matter of
the Estate of Johnson [1881], 57 Cal., 529.) Even where the
question of insanity is out in issue in the guardianship
proceedings, the most that can be said for the finding is that
it raises a presumption of incapacity to make a will but does
not invaluable the testament if competency can be shown.
The burden of providing sanity in such case is cast upon the
proponents.
It is here claimed that the unsoundness of mind of the
testator was the result of senile dementia. This is the form of
mental decay of the aged upon which will are most often
contested. A Newton, Paschal, a Cooley suffering under the
variable weather of the mind, the flying vapors of incipient
lunacy," would have proved historic subjects for expert
dispute. Had Shakespeare's King Lear made a will, without
any question it would have invited litigation and doubt.
Senile dementia usually called childishness has various forms
and stages. To constitute complete senile dementiathere
must be such failure of the mind as to deprive the testator of
intelligent action,. In the first stages of the diseases, a person
may possess reason and have will power. (27 L. R. A., N. S.
[1910], p. 89; Wharton & Stille's Medical Jurisprudence, vol. I.
pp. 791 et seq.; Schouler on Wills, vol. I, pp. 145 et seq.)
It is a rather remarkable coincidence that of all the leading
cases which have gone forth from this court, relating to the
testator having a sound and disposing mind, and which have
been brought to our notice by counsel, every one of them has
allowed the will, even when it was necessary to reverse the
judgment of the trial court. A study of these cases discloses a
consistent tendency to protect the wishes of the deceased
whenever it be legally possible. These decisions also show
great tenderness on the part of the court towards the last will
and testament of the aged. (See Hernaez vs. Hernaez [1903],
1 Phil., 689, per Arellano, C. J., In the matter of the will o f
Butalid [1908] 10 Phil., 27 per Arellano, C. J.; Bugnao vs. Ubag
[1909] 14. Phil., 163, per Carson, J.; Macapinlac vs. Alimurong
[1910], 16 Phil., 41, per Arellano, C.J.; Bagtas vs. Paguio
[1912], 22 Phil., 227, per Trent, J.; Galvez vs. Galvez [1913], 26
Phil., 243, per Torres, J.; Samson vs. Corrales Tan Quintin
[1923], 44 Phil., 573, per Ostrand, J.; and Jocson vs. Jocson
[1922], 46 Phil., 701, per Villamor, J.) Because of their
peculiar applicability, we propose to make particular mention
of four of the earlier cases of this court.
In the case of Hernaez vs. Hernaez supra the subject of the
action was the will executed by Dona Juana Espinosa. The
annulment of the will was sought first upon the ground of the
incapacity of the testatrix. She was over 80 years of age, so ill
that three days extreme unction, and two days afterwards
she died. Prior thereto she walked in a stooping attitude and
gave contradictory orders," as a result of her senile debility."
The chief Justice reached the conclusion that neither from the
facts elicited by the interrogatories nor the documents
presented "can the conclusion be reached that the testatrix
was deprived of her mental faculties." The will was held valid
and efficacious.
In the case of In the matter of the will of Butalid, supra, the
will was contested for the reason that Dominga Butalid at the
date of the execution of the document was not in the date of
the execution of the document was not in the free use of her
intellectual powers, she being over 90 years of age, lying in
bed seriously ill, senseless and unable to utter a single word
so that she did not know what she was doing when she
executed the will while the document was claimed to have
been executed under the influence and by the direction of
one of the heirs designated in the will. Yet after an
examination of the evidence in the will. Yet after an
examination of the evidence in the will. The Chief Justice
rendered judgment reversing the judgment appealed from
and declaring the will presented for legalization to be valid
and sufficient.
In the case of Bugnao vs. Ubag, supra the court gave
credence to the testimony of the subscribing witnesses who
swore positively that at the time of the execution of the will
the testator was of sound mind and memory. Based on these
and other facts, Mr. Justice Carson, speaking for court, laid
down the following legal principles:
Between the highest degree of soundness of mind
and memory which unquestionably carries with it
full testamentary known as insanity or idiocy there
are numberless degrees of mental capacity or
incapacity and while on one hand it had been held
that mere weakness of mind or partial imbecility
from disease of body, or from age, will to render a
person incapable of making a will a weak or feeble
minded person may make a valid will provided he
has understanding and memory sufficient to enable
him to know what he is about and how or to whom
he is disposing of his property' (Lodge vs. Lodge, 2
Houst. [Del.] 418); that, "To constitute a sound be
unbroken or unimpaired, unshattered by disease or
otherwise (Sloan vs. Maxwell, # N. J. Eq., 563); that it
has not been understood that a testator must
possess these qualities (of sound and disposing mind
and memory) in the highest degree. . . .Few indeed
would be the wills confirmed it this is correct. Pain,
 sickness, debility of body from age or infirmity,
would according to its violence or duration in a
greater or less degree, break in upon, weaken, or
derange the mind, but the derangement must be
such as deprives him of the rational faculties
common to man' (Den. vs. Vancleve, 5 N. J. L., 680);
and that Sound mind does not mean a perfectly
balanced mind. The question of soundness is one of
degree' (Boughton vs. Knight. L. R., 3 P. & D., 64; 42
L. P. P., 25); on the other hand, it has been held that
testamentary incapacity does not necessarily require
that a person shall actually be insane or of an
unsound mind. Weakness of intellect, whether it
arises from extreme old age, from disease, or great
bodily infirmities of suffering, or from all these
combined, may render the testator in capable of
making a valid will, providing such weakness really
disqualifies for from knowing or appreciating the
nature, effects, or consequences of the act she is
engaged in (Manatt vs. Scott, 106 Iowa, 203; 68 Am.
St. Rep., 293, 302).
In the case of Nagtas vs. Paquio, supra, the record shows that
the testator for some fourteen or fifteen years prior to the
time of his death suffered from a paralysis of the left side of
his body, that a few years prior to his death his hearing
became impaired and that he had lost the power of speech.
However, he retained the use of his hand and could write
fairly well. Through the medium of signs, he was able to
indicate his wishes to his family. The will was attacked n the
ground that the testator lacked mental capacity at the time of
its execution. The will was nevertheless admitted to probate,
Mr. Justice Trent, speaking for the court, announcement the
following pertinent legal doctrines:
* * * There are many cases and authorities which we
might cite to show that the courts have repeatedly
held that mere weakness of mind and body, induced
by age and disease do not render a person incapable
of making a will. The law does not require that a
person shall continue in the full enjoyment and use
of his pristine physical and mental powers in order
to execute a valid will. If such were the legal
standard few indeed would be the number of wills
that could meet such exacting requirements. The
authorities, both medical and legal are universal in
the statement that the question of mental capacity
is one of degree and that there are many
graduations from the highest degree of mental
soundness to the lowest conditions of diseased
mentality which are denominated as insanity and
idiocy.
The right to dispose of property by testamentary
disposition is as sacred as any other right which a
person may exercise and this right should be
nullified unless mental incapacity is established in a
positive and conclusive manner. In discussing the
question of testamentary capacity, it is stated in
volume 28, page 70, of the American and English
Encyclopedia of Law that —
'Contrary to the very prevalent lay impression
perfect soundness of mind is not essential to
testamentary capacity. A testator may be afflicted
with a variety of mental weakness, disorders or
peculiarities and still be capable in law of executing a
valid will.' (See the numerous cases there cited in
support of this statement.)
The rule relating to testamentary capacity is stated
in Buswel on Insanity, section 365 and quoted with
approval in Campbell vs. Campbell (130 Ill. 466) as
follows:
To constitute a sound and disposing mind, it is not
necessary that the mind shall be wholly unbroken
unimpaired or unshattered by disease or otherwise
or that the testator should be in the full possession
of his reasoning faculties.
In note, 1 Jarnan on Wills, 38, the rule is thus stated:
The question is not so much, what was the degree of
memory possessed by the testator as had, he a
disposing memory? Was he able to remember the
property he was about to bequeth the manner of
distributing it and the object of his bounty? In a
word, were his mind and memory sufficiently sound
to enable him to know and understand the business
in which he was engaged at the time when he
executed his will.' (See authorities there cited)
In Wilson vs. Mitchell (101 Penn., 495), the following
facts appeared upon the trial of the case: The
testator died at the age of nearly 102 years. In his
early years he was an intelligent and well informed
man. About seven years prior to his death he
suffered a paralytic stroke and from that time his
mind and memory were much enfeebled. He
became very dull of hearing and in consequence of
the shrinking of his brain he was affected with senile
cataract causing total blindness. He became filthy
and obscene in his habits, although formerly he was
observant of the proprieties of life. The court, in
commenting upon the case, said:
Neither age, nor sickness, nor extreme distress, nor
debility of body will affect the capacity to make a
will, if sufficient intelligence remains. The failure of
memory is not sufficient to create the incapacity,
unless it be total or extend to his immediate family
to property. . . .
xxx xxx xxx
Dougal (the testator) had lived over one hundred
years before he made the will and his physical and
mental weakness and defective memory were in
striking contrast with their strength in the meridian
of his life. He was blind; not deaf, but hearing
impaired; his mind acted slowly, he was forgetful of
recent events, especially of names and repeated
questions in conversation; and sometimes, when
aroused from sleep or slumber, would seem
bewildered. It is not singular that some of those who
had known him when he was remarkable for vigor
and intelligence are of the opinion that his reason
was so far gone that he was incapable of making a
will, although they never heard him utter an
irrational expression.
In the above case the will was sustained. In the case
at bar we might draw the same contract as was
pictured by the court in the case just quoted. . . .
The particular difference between all of the Philippine case
which are cited and the case at bar are that in none of the
Philippine cases was there any declaration of incomplicated
and in none of them were the facts quite as complicated as
they are here. A case in point where the will was contested,
because the testator was not of sound and disposing mind
and memory and because at the time of the making of the
will he was acting under the undue influence of his brothers
and where he had a guardian when he executed his will, is
Ames' Will ([1902] 40 Ore., 495). Mr. Justice Moore,
delivering the opinion of the court, in part said:
It is contended by contestant's counsel that on the
day said pretended will purports to have been
executed, Lowell was declared incompetent by a
court which had jurisdiction of the person and
subject-matter and that the decree therein
appointing a guardian of his person and estate raises
the distable presumption that he did not possess
sufficient testamentary capacity at the time to
overcome which required evidence so strong as to
leave no reasonable doubt as to his capacity to make
a valid will, and the testimony introduced by the
proponent being insufficient for that purpose the
court erred in admitting it to probate.
The appointment of a guardian of a person alleged
to be non compos mentis, by a court having
jurisdiction must necessarily create a presumption of
the mental infirmity of the ward; but such decree
does not conclusively show that the testamentary
capacity of the person under guardianship is entirely
destroyed and the presumption thus created may be
overcome by evidence proving that such person at
the time he executed a will was in fact of sound and
disposing mind and memory: Stone vs. Damon, 12
Mass., 487; Breed vs. Pratt, 18 Pick, 115: In re
Slinger's Will, 72 Wis., 22 (37 N. W. 236).
The testimony shows that the testator retained a
vivid recollection of the contents of the books he
had read and studied when he was young but that
he could not readily recall to his mind the ordinary
incidents of his later life. The depth and intensity of
mental impression always depend upon and are
measured by the degree of attention given to the
perception of truth, which demands reflection; and
hence the inability of a person to recollect events
and hence the inability is evidence of mental decay,
because it manifest a want of power on
concentration of the mind. The aged live in the past
and the impression retained in their minds are those
that were made in their younger days, because at
that period of their lives they were able to exercise
will power by giving attention. While the inability of
a person of advanced years to remember recent
events distinctly undoubtedly indicates a decay of
the human faculties, it does not conclusively
establish senile dementia, which is something more
than a mere loss of mental power, resulting from old
age and is not only a feeble condition of the mind
but a derangement thereof. . . . The rule is settled in
this state that if a testator at the time he executes
his will understand the business in which he is
engaged and has a knowledge of his property and
how he wishes to dispose of it among those entitled
to his bounty, he possess sufficient testamentary
capacity, notwithstanding his old age, sickness
debility of body, or extreme distress.
xxx xxx xxx
It is contented by contestant's counsel that if Lowell
at the time he executed the pretended will, was not
wholly lacking in testamentary capacity, he was, in
consequence of age ill health, debility of body and
infirmity of will power, Andrew and Joseph having
knowledge thereof took advantage of his physical
and mental condition and unduly influenced him to
device and bequeth his property in the manner
indicated, attempting thereby to deprive the
contestant of all interest therein except such as was
given her by statute. . . . Assuming that he was easily
persuaded and that his brothers and the persons
employed by them to care for him took advantage of
his enfeebled condition and prejudiced his mind
against the contestant did such undue influence
render the will therefore executed void? . . . When a
will has been properly executed, it is the duty of the
courts to uphold it, if the testator possessed a sound
and disposing mind and memory and was free from
restraint and not acting under undue influence
notwithstanding sympathy for persons legally
entitled to the testator's bounty and a sense of
innate justice might suggest a different testamentary
disposition.
Believing, as we do, that the findings of the circuit
court are supported by the weight of the testimony
its decree is affirmed.
Insofar as the law on testamentary capacity to make a will is
concerned and carrying alone one step further the question
suggested at the end of the presentation of the facts on the
same subject a resolution of the case comes down to this: Did
Tomas Rodriguez on January 3, 1924, possess sufficient
mentality to make a will which would meet the legal test
regarding testamentary capacity and have the proponents of
the will carried successfully the burden of proof and shown
him to be of sound mind on that date?
II. UNDUE INFLUENCE
A. Facts. — The will was attacked on the further ground of
undue influence exercised by the persons benefited in the
will in collaboration with others. The trial judge found this
allegation to have been established and made it one of the
bases of his decision. it is now for us to say if the facts justify
this finding.
Tomas Rodriguez voluntary named Vicente F. Lopez as his
administrator. The latter subsequently became his guardian.
There is every indication that of all his relatives Tomas
Rodriguez reposed the most confidence in Vicente F. Lopez
and his daughter Luz Lopez de Bueno. Again, it was Vicente F.
Lopez, who, on the suggestion of Rodriguez secured
Maximino Mina to prepare the will, and it was Luz Lopez de
Bueno who appears to have gathered the witnesses and
physicians for the execution of the will. This faction of the
Lopez family was also a favor through the orders of Doctor
Domingo as to who could be admitted to see the patient.
The trial judge entertained the opinion that there existed "a
preconceived plan on the part of the persons who
surrounded Tomas Rodriguez" to secure his signature to the
testament. The trial judge may be correct in this supposition.
It is hard to believe, however, that men of the standing of
Judge Mina, Doctors Calderon, Domingo, Herrera, and De Asis
and Mr. Legarda would so demean themselves and so fully
their characters and reputation as to participate in a scheme
having for its purpose to delude and to betray an old man in
his age, rather named was acting according to the best of his
ability to assist in a legitimate act in a legitimate manner.
Moreover, considering the attitude of Tomas Rodriguez
toward Margarita Lopez and her husband and his apparent
enmity toward them, it seems fairly evident that even if the
will had been made in previous years when Rodriguez was
more nearly in his prime, he would have prepared somewhat
a similar document.
B. LAW. — One of the grounds for disallowing a will is that it
was procured by undue and improper pressure and influence
on the art of the beneficiary or some other person for his
benefit (Code of Civil Procedure, sec., 634[4]). Undue
influence, as here mentioned in connection with the law of
wills and as further mentioned in the Civil Code (art. 1265),
may be defined as that which compelled the testator to do
that which is against the will from fear the desire of peace or
from other feeling which is unable to resist.
The theory of undue influence is totally rejected as not
proved.
III. JUDGMENT
bounty. His conversations with Judge Mina disclosed as
insistence on giving all of his property to the two persons
whom he specified.
On January 3, 1924, Tomas Rodriguez may have been of
advanced years, may have been physically decrepit, may have
been weak in intellect, may have suffered a loss of memory,
may have had a guardian and may have a been extremely
eccentric, but he still possessed the spark of reason and of
life, that strength of mind to form a fixed intention and to
summon his enfeebled thoughts to enforce that intention,
which the law terms "testamentary capacity." That in effect is
the definite opinion which we reach after an exhaustive and
exhausting study of a tedious record, after weighing the
evidence for the oppositors, and after giving to the case the
serious consideration which it deserves.
The judgment of the trial court will be set aside and the will
of Tomas Rodriguez will be admitted to probate without
special pronouncement as to costs in this instance.
Avanceña, C. J., Johnson, Villamor, Johns, Romualdez, and
Villa-Real, JJ., concur.

To restate the combined issued of fact and law in this case

pertaining to testamentary capacity: Did Tomas Rodriguez on
January 3, 1924, possess sufficient mentality to make a will
which would meet the legal test regarding testamentary
capacity and have the proponents of the will carried
successfully the burden of proof and shown him to be of
sound mind on that date?

Two of the subscribing witnesses to the will, one a physician

clearly to the regular manner in which the will was executed
and to the testator's mental condition. The other subscribing
witness, also, a physician on the contrary testified to a fact
which, if substantiated, would require the court to disallow
the will. The attending physician and three other eminent
members of the medical fraternity, who were present at the
execution of the will, expressed opinions entirely favorable to
the capacity of the testator. As against this we have the
professional speculations of three other equally eminent
members of the medical profession when the will was
executed. The advantage on those facts is all with those who
offer the will for probate.

The will was short. It could easily be understood by a person

in physical distress. It was reasonable, that is, it was
reasonable if we take into account the evident prejustice of
the testator against the husband of Margarita Lopez.

With special reference of the definition of testamentary

capacity, we may say this: On January 3, 1924, Tomas
Rodriguez, in our opinion comprehended the nature of the
transaction in which he was engaged. He had two
conferences with his lawyer, Judge Mina, and knew what the
will was to contain. The will was read to him by Mr. Legarda.
He signed the will and its two copies in the proper places at
the bottom and on the left margin. At that time the testator
recollected the property to be disposed of and the persons
who would naturally be supposed to have claims upon him
While for some months prior to the making of the will he had
not manage his property he seem to have retained a distinct
recollection of what it consisted and of his income.
Occasionally his memory failed him with reference to the
names of his relatives. Ordinarily, he knew who they were, he
seemed to entertain a prediliction towards Vicente F. Lopez
as would be natural since Lopez was nearest in which the
instrument distributed the property naming the objects of his