G.R. No.

L-29663 August 20, 1990

GREGORIO LLANTINO and BELINDA LLANTINO assisted by husband Napoleon Barba,
plaintiffs-appellants,
vs.
CO LIONG CHONG alias JUAN MOLINA, defendant-appellee.
Delfin de Vera for plaintiffs-appellants.
Antonio G. Sosito for defendant-appellee.

PARAS, J.:
This is an appeal perfected before the effectivity of Republic Act 5440, from the decision

* of the Court of
First Instance of Catanduanes in Civil Case No. 611, to quiet title with damages, entitled Gregorio Llantino, et al. vs. Cong Liong Chong alias
Juan Molina, dismissing the complaint and declaring that the contract of lease entered into between the plaintiffs and the defendant valid and
in accordance with law.

The facts of the case as summarized by the trial court are as follows:
Plaintiffs (petitioners herein) aver that they are the owners of a commercial-residential land situated
in the municipality of Virac, Catanduanes, described in paragraph 2 of the complaint, which
sometime in 1954 they leased to the defendant (private respondent) who was then a Chinese
national and went by the name of Co Liong Chong for a period of thirteen (13) years for the sum of
P6,150.00 for the whole period. The defendant was placed in possession of the property but
knowing that the period of the least would end with the year 1967, petitioners requested private
respondent for a conference but the latter did not honor the request and instead he informed the
petitioners that he had already constructed a commercial building on the land worth P50,000.00; that
the lease contract was for a period of sixty (60) years, counted from 1954; and that he is already a
Filipino citizen. The claim of Chong came as a surprise to the Llantinos because they did not
remember having agreed to a sixty-year lease agreement as that would virtually make Chong the
owner of the realty which, as a Chinese national, he had no right to own and neither could he have
acquired such ownership after naturalization subsequent to 1954. On December 16, 1967, in order
to avoid a court litigation the Llantinos once more invited Chong to a conference about the matter but
again Chong ignored the invitation. (Rollo, p. 48; Appellant's Brief, p. 12)
Hence, on January 10, 1968, the Llantinos filed their complaint to quiet title with damages before the
Court of First Instance of Catanduanes (Rollo, p. 12; Record on Appeal, pp. 1-4).
After Chong has filed an answer to the complaint and the Llantinos their reply, (Rollo, p. 12; Record
on Appeal, pp. 9-10) the trial court set the case for pre-trial and trial for April 2, 1968 (Rollo, p. 12;
Record on Appeal, pp. 10-11).
At the pre-trial, both parties agreed upon the identity of the land as described in the complaint. It was
mutually admitted that the defendants original name was Co Liong Chong who was then a Chinese
national in 1954, when he approached the plaintiffs and offered to lease the land in question. It was
also admitted by the counsel for the defendant that prior to the filing of the case, the plaintiffs have in
fact invited the defendant to a conference about the matter (Rollo, p. 12; Record on Appeal; p. 14).

Chong's counsel produced the carbon original of the contract of lease entered into between Chong
and the Llantinos and the existence of the contract of lease as a public instrument was admitted
(Rollo, p. 12; Record on Appeal, pp. 14-15).
It was also admitted that Chong had in fact constructed a building of strong materials on the land
worth P40,000.00 (Rollo, p. 12; Record on Appeal, p. 15); that Chong has become a naturalized
Filipino citizen in 1961 and that his name is no longer Co Liong Chong but Juan Molina (Rollo, p. 12;
Record on Appeal, p. 15).
On May 17, 1968, the trial court rendered a Decision the dispositive portion of which reads:
WHEREFORE, in view of the foregoing considerations, the Court finds the contract
of lease entered into between the plaintiffs and the defendant on October 5, 1954,
valid and in accordance with law and the complaint is dismissed with costs against
the plaintiffs.
The Court, however, feels that there is no sufficient ground to award moral damages
or attorney's fees as claimed by the defendant because the Court is fairly convinced
that the institution of the suit sprung from an honest conviction on the part of the
plaintiffs that on account of the period fixed in the contract of lease and the fact that
the defendant was a Chinese national at the time of its celebration constituted valid
grounds for annulment.
SO ORDERED. (Rollo, p. 12; Record on Appeal, p. 24).
From this judgment, plaintiffs appealed directly to this Court on a pure question of law (Rollo, p. 12;
Record on Appeal, pp. 24-25).
The plaintiffs-appellants filed their brief on May 26, 1969 (Rollo, p. 48). The defendant-appellee filed
his corresponding brief on July 22, 1969 (Rollo, p. 59).
The appellants raised the following assignment of errors:
I
THE LOWER COURT ERRED IN DECLARING THE CONTRACT ENTERED INTO BY AND
BETWEEN THE APPELLANTS AND THE DEFENDANTS ON OCTOBER 5, 1954 VALID.
II
THE LOWER COURT ERRED IN REFUSING TO DECLARE THAT CONTRACT NOT A LEASE.
Stripping the case of irrelevant allegations, the pivotal issue in this case is whether or not the
contract of lease entered into by and between the petitioners including Virgilio Llantino now
deceased and private respondent on October 5, 1954 for a period of sixty (60) years is valid.
Petitioners contend that when the contract which is sought to be declared void was entered into by
and between the parties, private respondent was still a Chinese national (Rollo, p. 48; Appellants'
Brief, p. 2). However, petitioners also stated that they do not dispute the right of private respondent
to hold the landholding in dispute under a contract of lease but they cannot fathom how Congress
could have thought of a lease contract which shall be for an indefinite period and yet say that the

period to be valid should not exceed 99 years (Rollo, p. 48; Appellant's Brief, p. 4; Article 1643 of the
New Civil Code of the Philippines).
On the other hand, private respondent argued that even though he was still an alien when he
entered into the contract of lease (on October 5, 1954), he was not prohibited by law to do so. In
fact, prior to his becoming a naturalized Filipino citizen in 1961, the appellants did not question his
right to enter into that contract so that the parties are in pari delicto. He constructed a building on the
property worth P40,000.00 and prays that he be awarded P30,000.00 for moral damages and
P2,000.00 for Attorney's fees. (Rollo, p. 48; Appellant's Brief, p. 2).
The position of private respondent is well taken.
The lower court correctly ruled that the defendant-appellee Chong had at the time of the execution of
the contract, the right to hold by lease the property involved in the case although at the time of the
execution of the contract, he was still a Chinese national (Rollo, p. 59; Appellee's Brief, pp. 10-11).
In the present case, it has been established that there is only one contract and there is no option to
buy the leased property in favor of Chong. There is nothing in the record, either in the lease contract
or in the complaint itself, to indicate any scheme to circumvent the constitutional prohibition. On the
contrary, the Llantinos themselves admit openly that right from the start and before entering into the
contract, Chong had merely asked them for a lease of the premises to which they agreed. Admittedly
under the terms of the contract there is nothing to prevent the Llantinos from disposing of their title to
the land to any qualified party but subject to the rights of the lessee Chong. Neither is there under
the terms of the said contract to indicate that the ownership of the Llantinos of the leased premises
has been virtually transferred to the lessee (Rollo, p. 59; Appellee's Brief, p. 14).
Under the circumstances, a lease to an alien for a reasonable period is valid. So is an option giving
an alien the right to buy real property on condition that he is granted Philippine citizenship. Aliens are
not completely excluded by the Constitution from use of lands for residential purposes. Since their
residence in the Philippines is temporary, they may be granted temporary rights such as a lease
contract which is not forbidden by the Constitution. Should they desire to remain here forever and
share our fortune and misfortune, Filipino citizenship is not impossible to acquire (Philippine Banking
Corporation vs. Lui She, 21 SCRA 52 [1967], citing Krivenko vs. Register of Deeds, 79 Phil. 461
[1947]).
The only instance where a contract of lease may be considered invalid is, if there are circumstances
attendant to its execution, which are used as a scheme to circumvent the constitutional prohibition.
If an alien is given not only a lease of, but also an option to buy, a piece of land, by virtue of which
the Filipino owner cannot sell or otherwise dispose of his property, this to last for 50 years, then it
becomes clear that the arrangement is a virtual transfer of ownership whereby the owner divests
himself in stages not only of the right to enjoy the land (jus possidendi, jus utendi, jus fruendi, and
jus abutendi) rights, the sum of which make up ownership. It is just as if today the possession is
transferred, tomorrow the use, the next day the disposition, and so on, until ultimately all the rights of
which ownership is made up are consolidated in an alien (Philippine Banking Corporation vs. Lui
She, 21 SCRA 52 [1967]).
Coming back to the case at bar, even assuming, arguendo, that the subject contract is prohibited,
the same can no longer be questioned presently upon the acquisition by the private respondent of
Filipino citizenship. It was held that sale of a residential land to an alien which is now in the hands of
a naturalized Filipino citizen is valid (De Castro vs. Tan, 129 SCRA 85 [1984]).

A contract is the law between the contracting parties, and when there is nothing in it which is
contrary to law, morals, good customs, public policy or public order, the validity of the contract must
be sustained (Marimperio Compania Naviera, S.A. vs. Court of Appeals, 156 SCRA 358 [1987]).
The issue of the nature of the contract in the case at bar was never raised in the basic pleadings or
in the pre-trial (Rollo, p. 59-1; Appellee's Brief, p. 22).
It is too late to raise an issue on appeal in the Supreme Court when it has not been raised in the
lower court (Espadera vs. Court of Appeals, 165 SCRA 364 [1988]).
Moreover, contracts which are not ambiguous are to be interpreted according to their literal meaning
and should not be interpreted beyond their obvious intendment (Plastic Town Center Corporation vs.
NLRC, 172 SCRA 580 [1989]; Herrera vs. Petrophil Corp., 146 SCRA 385 [1986]).
PREMISES CONSIDERED, the decision appealed from is hereby AFFIRMED with costs against the
plaintiffs-appellants.
SO ORDERED.

G.R. No. 74833

January 21, 1991

THOMAS C. CHEESMAN, petitioner,

vs.
INTERMEDIATE APPELLATE COURT and ESTELITA PADILLA, respondents.
Estanislao L. Cesa, Jr. for petitioner.
Benjamin I. Fernandez for private respondent.

NARVASA, J.:
This appeal concerns the attempt by an American citizen (petitioner Thomas Cheesman) to annul
for lack of consent on his part the sale by his Filipino wife (Criselda) of a residential lot and
building to Estelita Padilla, also a Filipino.
Thomas Cheesman and Criselda P. Cheesman were married on December 4, 1970 but have been
separated since February 15,1981.
1

On June 4, 1974, a "Deed of Sale and Transfer of Possessory Rights" was executed by Armando
Altares conveying a parcel of unregistered land and the house thereon (at No. 7 Neptune Street,
Gordon Heights, Olongapo City) in favor of "Criselda P. Cheesman, of legal age, Filipino citizen,
married to Thomas Cheesman, and residing at Lot No. 1, Blk. 8, Filtration Road, Sta. Rita, Olongapo
City . . ." Thomas Cheesman, although aware of the deed, did not object to the transfer being made
only to his wife.
2

Thereafterand again with the knowledge of Thomas Cheesman and also without any protest by
himtax declarations for the property purchased were issued in the name only of Criselda
Cheesman and Criselda assumed exclusive management and administration of said property,
leasing it to tenants.
4

On July 1, 1981, Criselda Cheesman sold the property to Estelita M. Padilla, without the knowledge
or consent of Thomas Cheesman. The deed described Criselda as being" . . . of legal age, married
to an American citizen,. . ."
5

Thirty days later, or on July 31, 1981, Thomas Cheesman brought suit in the Court of First Instance
at Olongapo City against his wife, Criselda, and Estelita Padilla, praying for the annulment of the
sale on the ground that the transaction had been executed without his knowledge and consent. An
answer was filed in the names of both defendants, alleging that (1) the property sold was
paraphernal, having been purchased by Criselda with funds exclusively belonging to her ("her own
separate money"); (2) Thomas Cheesman, being an American, was disqualified to have any interest
or right of ownership in the land; and (3) Estelita Padilla was a buyer in good faith.
7

During the pre-trial conference, the parties agreed upon certain facts which were subsequently set
out in a pre-trial Order dated October 22, 1981, as follows:
9

1. Both parties recognize the existence of the Deed of Sale over the residential house
located at No. 7 Granada St., Gordon Heights, Olongapo City, which was acquired from

Armando Altares on June 4, 1974 and sold by defendant Criselda Cheesman to Estelita
Padilla on July 12, 1981; and
2. That the transaction regarding the transfer of their property took place during the existence
of their marriage as the couple were married on December 4, 1970 and the questioned
property was acquired sometime on June 4,1974.
The action resulted in a judgment dated June 24, 1982, declaring void ab initio the sale executed
by Criselda Cheesman in favor of Estelita M. Padilla, and ordering the delivery of the property to
Thomas Cheesman as administrator of the conjugal partnership property, and the payment to him of
P5,000.00 as attorney's fees and expenses of litigation.
10

11

The judgment was however set aside as regards Estelita Padilla on a petition for relief filed by the
latter, grounded on "fraud, mistake and/or excusable negligence" which had seriously impaired her
right to present her case adequately. "After the petition for relief from judgment was given due
course," according to petitioner, "a new judge presided over the case."
12

13

Estelita Padilla filed a supplemental pleading on December 20, 1982 as her own answer to the
complaint, and a motion for summary judgment on May 17, 1983. Although there was initial
opposition by Thomas Cheesman to the motion, the parties ultimately agreed on the rendition by the
court of a summary judgment after entering into a stipulation of facts, at the hearing of the motion on
June 21, 1983, the stipulation being of the following tenor:
14

(1) that the property in question was bought during the existence of the marriage between
the plaintiff and the defendant Criselda P. Cheesman;
(2) that the property bought during the marriage was registered in the name of Criselda
Cheesman and that the Deed of Sale and Transfer of Possessory Rights executed by the
former owner-vendor Armando Altares in favor of Criselda Cheesman made no mention of
the plaintiff;
(3) that the property, subject of the proceedings, was sold by defendant Criselda Cheesman
in favor of the other defendant Estelita M. Padilla, without the written consent of the plaintiff.
Obviously upon the theory that no genuine issue existed any longer and there was hence no need of
a trial, the parties having in fact submitted, as also stipulated, their respective memoranda each
praying for a favorable verdict, the Trial Court rendered a "Summary Judgment" dated August 3,
1982 declaring "the sale executed by . . . Criselda Cheesman in favor of . . . Estelita Padilla to be
valid," dismissing Thomas Cheesman's complaint and ordering him "to immediately turn over the
possession of the house and lot subject of . . . (the) case to . . . Estelita Padilla . . ."
15

16

The Trial Court found that

1) the evidence on record satisfactorily overcame the disputable presumption in Article 160
of the Civil Codethat all property of the marriage belongs to the conjugal partnership
"unless it be proved that it pertains exclusively to the husband or to the wife"and that the
immovable in question was in truth Criselda's paraphernal property;
2) that moreover, said legal presumption in Article 160 could not apply "inasmuch as the
husband-plaintiff is an American citizen and therefore disqualified under the Constitution to
acquire and own real properties; and

3) that the exercise by Criselda of exclusive acts of dominion with the knowledge of her
husband "had led . . . Estelita Padilla to believe that the properties were the exclusive
properties of Criselda Cheesman and on the faith of such a belief she bought the properties
from her and for value," and therefore, Thomas Cheesman was, under Article 1473 of the
Civil Code, estopped to impugn the transfer to Estelita Padilla.
Thomas Cheesman appealed to the Intermediate Appellate Court. There he assailed the Trial Court
acts (1) of granting Estelita Padilla's petition for relief, and its resolution of matters not subject of said
petition; (2) of declaring valid the sale to Estelita Padilla despite the lack of consent thereto by him,
and the presumption of the conjugal character of the property in question pursuant to Article 160 of
the Civil Code; (3) of disregarding the judgment of June 24, 1982 which, not having been set aside
as against Criselda Cheesman, continued to be binding on her; and (4) of making findings of fact not
supported by evidence. All of these contentions were found to be without merit by the Appellate
Tribunal which, on January 7, 1986, promulgated a decision (erroneously denominated,
"Report") affirming the "Summary Judgment complained of," "having found no reversible error"
therein.
17

Once more, Thomas Cheesman availed of the remedy of appeal, this time to this Court. Here, he
argues that it was reversible error for the Intermediate Appellate Court
1) to find that the presumption that the property in question is conjugal in accordance with Article 160
had been satisfactorily overcome by Estelita Padilla;
18

2) to rule that Estelita Padilla was a purchaser of said property in good faith, it appearing:
a) that the deed by which the property was conveyed to Criselda Cheesman
described her as "married to Thomas C. Cheesman," as well as the deed by which
the property was later conveyed to Estelita Padilla by Criselda Cheesman also
described her as "married to an American citizen," and both said descriptions had
thus "placed Estelita on knowledge of the conjugal nature of the property;" and
b) that furthermore, Estelita had admitted to stating in the deed by which she
acquired the property a price much lower than that actually paid "in order to avoid
payment of more obligation to the government;"
19

3) to decline to declare that the evidence did not warrant the grant of Estelita Padilla's petition for
relief on the ground of "fraud, mistake and/or excusable negligence;"
20

4) to hold that Thomas Cheesman had waived his objection to Estelita's petition for relief by failing to
appeal from the order granting the same;
5) to accord to Estelita Padilla a relief other than that she had specifically prayed for in her petition
for relief, ie., "the restoration of the purchase price which Estelita allegedly paid to Criselda;" and
21

6) to fail to declare that Thomas Cheesman's citizenship is not a bar to his action to recover the lot
and house for the conjugal partnership.
22

Such conclusions as that (1) fraud, mistake or excusable negligence existed in the premises
justifying relief to Estelita Padilla under Rule 38 of the Rules of Court, or (2) that Criselda Cheesman
had used money she had brought into her marriage to Thomas Cheesman to purchase the lot and
house in question, or (3) that Estelita Padilla believed in good faith that Criselda Cheesman was the

exclusive owner of the property that she (Estelita) intended to and did in fact buyderived from the
evidence adduced by the parties, the facts set out in the pleadings or otherwise appearing on record
are conclusions or findings of fact. As distinguished from a question of lawwhich exists "when
the doubt or difference arises as to what the law is on a certain state of facts" "there is a question
of fact when the doubt or difference arises as to the truth or the falsehood of alleged facts;" or when
the "query necessarily invites calibration of the whole evidence considering mainly the credibility of
witnesses, existence and relevancy of specific surrounding circumstances, their relation; to each
other and to the whole and the probabilities of the situation."
23

24

Now, it is axiomatic that only questions of law, distinctly set forth, may be raised in a petition for the
review oncertiorari of a decision of the Court of Appeals presented to this Court. As everyone
knows or ought to know, the appellate jurisdiction of this Court is limited to reviewing errors of law,
accepting as conclusive the factual findings of the lower court upon its own assessment of the
evidence. The creation of the Court of Appeals was precisely intended to take away from the
Supreme Court the work of examining the evidence, and confine its task to the determination of
questions which do not call for the reading and study of transcripts containing the testimony of
witnesses. The rule of conclusiveness of the factual findings or conclusions of the Court of Appeals
is, to be sure, subject to certain exceptions, none of which however obtains in the case at bar.
25

26

27

28

It is noteworthy that both the Trial Court and the Intermediate Appellate Court reached the same
conclusions on the three (3) factual matters above set forth, after assessment of the evidence and
determination of the probative value thereof. Both Courts found that the facts on record adequately
proved fraud, mistake or excusable negligence by which Estelita Padilla's rights had been
substantially impaired; that the funds used by Criselda Cheesman was money she had earned and
saved prior to her marriage to Thomas Cheesman, and that Estelita Padilla did believe in good faith
that Criselda Cheesman was the sole owner of the property in question. Consequently, these
determinations of fact will not be here disturbed, this Court having been cited to no reason for doing
so.
These considerations dispose of the first three (3) points that petitioner Cheesman seeks to make in
his appeal. They also make unnecessary an extended discussion of the other issues raised by him.
As to them, it should suffice to restate certain fundamental propositions.
1wphi1

An order of a Court of First Instance (now Regional Trial Court) granting a petition for relief under
Rule 38 is interlocutory and is not appealable. Hence, the failure of the party who opposed the
petition to appeal from said order, or his participation in the proceedings subsequently had, cannot
be construed as a waiver of his objection to the petition for relief so as to preclude his raising the
same question on appeal from the judgment on the merits of the main case. Such a party need not
repeat his objections to the petition for relief, or perform any act thereafter (e.g., take formal
exception) in order to preserve his right to question the same eventually, on appeal, it being sufficient
for this purpose that he has made of record "the action which he desires the court to take or his
objection to the action of the court and his grounds therefor."
29

Again, the prayer in a petition for relief from judgment under Rule 38 is not necessarily the same
prayer in the petitioner's complaint, answer or other basic pleading. This should be obvious. Equally
obvious is that once a petition for relief is granted and the judgment subject thereof set aside, and
further proceedings are thereafter had, the Court in its judgment on the merits may properly grant
the relief sought in the petitioner's basic pleadings, although different from that stated in his petition
for relief.
Finally, the fundamental law prohibits the sale to aliens of residential land. Section 14, Article XIV of
the 1973 Constitution ordains that, "Save in cases of hereditary succession, no private land shall be

transferred or conveyed except to individuals, corporations, or associations qualified to acquire or

hold lands of the public domain." Petitioner Thomas Cheesman was, of course, charged with
knowledge of this prohibition. Thus, assuming that it was his intention that the lot in question be
purchased by him and his wife, he acquired no right whatever over the property by virtue of that
purchase; and in attempting to acquire a right or interest in land, vicariously and clandestinely, he
knowingly violated the Constitution; the sale as to him was null and void. In any event, he had and
has no capacity or personality to question the subsequent sale of the same property by his wife on
the theory that in so doing he is merely exercising the prerogative of a husband in respect of
conjugal property. To sustain such a theory would permit indirect controversion of the constitutional
prohibition. If the property were to be declared conjugal, this would accord to the alien husband a not
insubstantial interest and right over land, as he would then have a decisive vote as to its transfer or
disposition. This is a right that the Constitution does not permit him to have.
30

31

As already observed, the finding that his wife had used her own money to purchase the property
cannot, and will not, at this stage of the proceedings be reviewed and overturned. But even if it were
a fact that said wife had used conjugal funds to make the acquisition, the considerations just set out
militate, on high constitutional grounds, against his recovering and holding the property so acquired
or any part thereof. And whether in such an event, he may recover from his wife any share of the
money used for the purchase or charge her with unauthorized disposition or expenditure of conjugal
funds is not now inquired into; that would be, in the premises, a purely academic exercise. An
equally decisive consideration is that Estelita Padilla is a purchaser in good faith, both the Trial Court
and the Appellate Court having found that Cheesman's own conduct had led her to believe the
property to be exclusive property of the latter's wife, freely disposable by her without his consent or
intervention. An innocent buyer for value, she is entitled to the protection of the law in her purchase,
particularly as against Cheesman, who would assert rights to the property denied him by both letter
and spirit of the Constitution itself.
WHEREFORE, the appealed decision is AFFIRMED, with costs against petitioner.
SO ORDERED.

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

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

GUTIERREZ, JR., J.:

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

daughter Adoracion." Hence, an ex-partepresentation of evidence for the reprobate of the

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

The hearing of May 29, 1980 was re-set by the court for June 19, 1980. When the case was called
for hearing on this date, the counsel for petitioner tried to argue his motion to vacate instead of
adducing evidence in support of the petition for relief. Thus, the respondent judge issued an order
dismissing the petition for relief for failure to present evidence in support thereof. Petitioner filed a
motion for reconsideration but the same was denied. In the same order, respondent judge also
denied the motion to vacate for lack of merit. Hence, this petition.
Meanwhile, on June 6,1982, petitioner Hermogenes Campos died and left a will, which, incidentally
has been questioned by the respondent, his children and forced heirs as, on its face, patently null
and void, and a fabrication, appointing Polly Cayetano as the executrix of his last will and testament.
Cayetano, therefore, filed a motion to substitute herself as petitioner in the instant case which was
granted by the court on September 13, 1982.
A motion to dismiss the petition on the ground that the rights of the petitioner Hermogenes Campos
merged upon his death with the rights of the respondent and her sisters, only remaining children and
forced heirs was denied on September 12, 1983.
Petitioner Cayetano persists with the allegations that the respondent judge acted without or in
excess of his jurisdiction when:
1) He ruled the petitioner lost his standing in court deprived the Right to Notice (sic)
upon the filing of the Motion to Dismiss opposition with waiver of rights or interests
against the estate of deceased Adoracion C. Campos, thus, paving the way for the
hearing ex-parte of the petition for the probate of decedent will.
2) He ruled that petitioner can waive, renounce or repudiate (not made in a public or
authenticated instrument), or by way of a petition presented to the court but by way
of a motion presented prior to an order for the distribution of the estate-the law
especially providing that repudiation of an inheritance must be presented, within 30
days after it has issued an order for the distribution of the estate in accordance with
the rules of Court.
3) He ruled that the right of a forced heir to his legitime can be divested by a decree
admitting a will to probate in which no provision is made for the forced heir in
complete disregard of Law of Succession
4) He denied petitioner's petition for Relief on the ground that no evidence was
adduced to support the Petition for Relief when no Notice nor hearing was set to
afford petitioner to prove the merit of his petition a denial of the due process and a
grave abuse of discretion amounting to lack of jurisdiction.
5) He acquired no jurisdiction over the testate case, the fact that the Testator at the
time of death was a usual resident of Dasmarias, Cavite, consequently Cavite Court
of First Instance has exclusive jurisdiction over the case (De Borja vs. Tan, G.R. No.
L-7792, July 1955).
The first two issues raised by the petitioner are anchored on the allegation that the respondent judge
acted with grave abuse of discretion when he allowed the withdrawal of the petitioner's opposition to
the reprobate of the will.

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

It is a settled rule that as regards the intrinsic validity of the provisions of the will, as provided for by
Article 16(2) and 1039 of the Civil Code, the national law of the decedent must apply. This was
squarely applied in the case ofBellis v. Bellis (20 SCRA 358) wherein we ruled:
It is therefore evident that whatever public policy or good customs may be involved in
our system of legitimes, Congress has not intended to extend the same to the
succession of foreign nationals. For it has specifically chosen to leave, inter alia, the
amount of successional rights, to the decedent's national law. Specific provisions
must prevail over general ones.
xxx xxx xxx
The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of
Texas, U.S.A., and under the law of Texas, there are no forced heirs or legitimes.
Accordingly, since the intrinsic validity of the provision of the will and the amount of
successional rights are to be determined under Texas law, the Philippine Law on
legitimes cannot be applied to the testacy of Amos G. Bellis.
As regards the alleged absence of notice of hearing for the petition for relief, the records wig bear
the fact that what was repeatedly scheduled for hearing on separate dates until June 19, 1980 was
the petitioner's petition for relief and not his motion to vacate the order of January 10, 1979. There is
no reason why the petitioner should have been led to believe otherwise. The court even admonished
the petitioner's failing to adduce evidence when his petition for relief was repeatedly set for hearing.
There was no denial of due process. The fact that he requested "for the future setting of the case for
hearing . . ." did not mean that at the next hearing, the motion to vacate would be heard and given
preference in lieu of the petition for relief. Furthermore, such request should be embodied in a
motion and not in a mere notice of hearing.
Finally, we find the contention of the petition as to the issue of jurisdiction utterly devoid of merit.
Under Rule 73, Section 1, of the Rules of Court, it is provided that:
SECTION 1. Where estate of deceased persons settled. If the decedent is an
inhabitant of the Philippines at the time of his death, whether a citizen or an alien, his
will shall be proved, or letters of administration granted, and his estate settled, in the
Court of First Instance in the province in which he resided at the time of his death,
and if he is an inhabitant of a foreign country, the Court of First Instance of any
province in which he had estate. The court first taking cognizance of the settlement
of the estate of a decedent, shall exercise jurisdiction to the exclusion of all other
courts. The jurisdiction assumed by a court, so far as it depends on the place of
residence of the decedent, or of the location of his estate, shall not be contested in a
suit or proceeding, except in an appeal from that court, in the original case, or when
the want of jurisdiction appears on the record.
Therefore, the settlement of the estate of Adoracion Campos was correctly filed with the Court of
First Instance of Manila where she had an estate since it was alleged and proven that Adoracion at
the time of her death was a citizen and permanent resident of Pennsylvania, United States of
America and not a "usual resident of Cavite" as alleged by the petitioner. Moreover, petitioner is now
estopped from questioning the jurisdiction of the probate court in the petition for relief. It is a settled
rule that a party cannot invoke the jurisdiction of a court to secure affirmative relief, against his
opponent and after failing to obtain such relief, repudiate or question that same jurisdiction. (See
Saulog Transit, Inc. vs. Hon. Manuel Lazaro, et al., G. R. No. 63 284, April 4, 1984).

WHEREFORE, the petition for certiorari and prohibition is hereby dismissed for lack of merit.
SO ORDERED.

G.R. No. L-28328

October 2, 1928

In the matter of the will of Jennie Rider Babcock.

BEATRICE BABCOCK TEMPLETON, petitioner-appellee,
vs.
WILLIAM RIDER BABCOCK, opponent-appellant.
J. F. Boomer for appellant.
Ohnick and McFie for appellee.

STREET, J.:
Appeal from an order of the Court of First Instance of Manila admitting to probate the holographic will
of Jennie Rider Babcock.
The petition in this case was filed in the Court of First Instance of Manila on September 8, 1926, by
Beatrice Babcock Templeton to secure probate of a paper writing purporting to express the wishes of
Jennie Rider Babcock, deceased, with reference to the post mortem disposition of all her property,
consisting of corporate stock, jewelry, personal effects and money. This paper bears date of May 26,
1926, is written wholly in the handwriting of the deceased and bears her proper signature. It was
found among the effects of the deceased shortly after her death, which occurred on September 3,
1926. When found, it was contained in an envelope indorsed with the name of her daughter, Mrs. G.
D. Templeton, and son, Mr. W. R. Babcock.
The purport of the paper is to the effect that the writer leaves her stock and money to her three
grandchildren, bearing the surname Templeton, namely, G. Douglas Templeton, Jr., Constance
Babcock Templeton, and Billy Babcock Templeton, but the writer further states that all interest and
dividends are to be given to her only daughter, Mrs. Templeton, as well as her jewelry and personal
effects "for their support until the youngest is of age."
The aforesaid instrument is admittedly of a testamentary character, but it is not executed as a will
under the provisions of law generally governing the execution of the wills made in the Philippine
Islands. The instrument therefore is not offered for probate under section 618 and related provisions
of the Code of Civil Procedure but under section 636, which authorizes probate by our courts of a
will made within the Philippine Islands by a citizen or subject of another state or country, when such
will is executed in accordance with the law of the state or country of which the testator is a citizen of
subject, and which might be proved under the law of such state or country.
It is alleged in the petition that the testatrix was at the time of her death a resident of the State of
California, though temporarily residing in Manila at the time of her death; and the parties have
agreed that this paper could be proved in the State of California as the holographic will of the
deceased. The sole question in controversy therefore now is, whether the testatrix, at the time will
was made, had the status of a citizen of the State of California, as required by section 636 of our
Code of Civil Procedure. But, under the first paragraph of the Fourteenth Amendment to the
Constitution of the United States, the citizenship of a person born in the United States, as was the
testatrix in this case, is dependent upon the place of residence, or domicile; and the question before
us ultimately resolves itself into a contention over the point whether the testatrix had ever acquired a
legal domicile in the State of California and whether, supposing such domicile to have been
acquired, she may not have lost it as a result of her removal from that state. The proponent of the
will, Beatrice Babcock Templeton, mother of the three children who are principal beneficiaries of the

will, contends that the testatrix acquired a legal domicile in the State of California by residence
therein over two periods of time between 1917 and 1923, and that such domicile was never lost.
William Rider Babcock, the brother of the proponent, resist the probate of the will on the ground that
the testatrix had never acquired a legal domicile in the State of California, or that, if she had, such
domicile had been lost under the conditions presently to be discussed.
It appears that Jennie Rider Babcock had spent her married life in the State of Massachusetts; but,
her husband having died in 1908, she removed a year later to Manila where she lived with her son,
W. R. Babcock, until in 1917, when she joined the family of her daughter, Mrs. B. B. Templeton in
San Francisco, California. During these years W. R. Babcock and G. D. Templeton, son and son-inlaw, respectively, of the testatrix, were running a business in Manila, which had been incorporated
under the style of Babcock & Templeton, Inc., with Babcock as president of the company and
Templeton as its vice-president. As a branch office had been opened in San Francisco requiring the
presence of an officer of the company, Templeton took up his abode in San Francisco for the
purpose of managing the business of said branch. The testatrix, it may be noted, had acquired stock
in the company and had no other independent source of income than the dividends derived
therefrom.
After remaining with the Templetons in San Francisco for several months, the testatrix returned to
Manila in July, 1918. During this stay in Manila she occupied an apartment in the house of her son,
where she remained until August, 1920. She then returned to San Francisco and lived with the
Templetons until May, 1923. From a legal point of view, the character and incidents of this second
sojourn in San Francisco constitute the most important fact in the case, since the trial court deduced
from her acts and statements the conclusion that she had acquired a domicile in California. Among
the features of importance which characterize the incident we note the following: First, her son-inlaw, Templeton, owned a home in San Francisco in which he lived, without any apparent intention of
removing from the state; secondly, upon arriving in San Francisco, the testatrix established herself
as a practitioner in Christian Science, a cult to which she was attached: thirdly she engaged in
political activities, taking part in a parade advertising a cause in which she was interested, and she
voted in at least one general election that occurred in that state; fourthly, she formed an attachment
for California, and in many conversations thereafter with intimate friends, she referred to California
as her home state expressed her intention of returning there and building a home in which to live.
Indeed, it appears in evidence that only a short time before her death in Manila she was acquiring a
few pieces of Spanish furniture to take back to her to California.
In the year 1923, Babcock & Templeton, Inc., decided to close its office in San Francisco and to
open a branch in New York City. This made it necessary for G.D. Templeton to remove with his
family to New York State. He accordingly sold his home in San Francisco and went to live in New
York. This step on the part of the Templetons determined the course of the testatrix, who gathered
her personal effects together and accompanied them to New York, leaving behind in the care of
friends three pieces of furniture to which she was especially attached and which she perhaps
thought she might use later in California. Upon arriving in New York State, the Templetons
established themselves in White Plains, near New York City. Here the testatrix occupied part of the
apartment which the Templetons had taken, but she appears to have supplied the furniture
necessary for her own use. Not long thereafter, the testatrix announced herself again in the Christian
Science Journal as a practitioner of Christian Science in White Plains.
The sojourn of the testatrix in New York was apparently not congenial, since, after a few months of
experience in that city, she returned to Manila, arriving at this place in January, 1924. The impression
that conditions in New York made upon her may be gauged by a statement subsequently made by
her to one of her friends in Manila, "Deliver me from living in New York." What really brought her
back to the Philippine Islands, apart from her dislike to the environment in New York, is not certain,

but she suggested to friends here, after arriving, that a desire to economize the cost of living may
have had a part in her course.
A circumstance to which importance is attached by the appellant is that, in the Passenger Manifest
of the vessel upon which she came to Manila, she caused New York City to be entered opposite her
name in the column indicating "Last Permanent Residence," it being insisted that this is an
admission on her part tending to show the acquisition by her of a domicile in New York State. We
consider this circumstance of no probative force in connection with the issues of this lawsuit. The
Passenger Manifest gave the passenger no choice about indicating whether New York was the place
of last residence or the place of last permanent residence, and of course when she told the ship's
official that she was from New York City, the name of this place necessarily had to go down in the
column mentioned. As little importance is to be attached to her Baggage Declaration and Entry,
made on the same voyage before disembarking at Manila, in which she stated that she was a
resident of Manila. Papers of this character are not commonly written with legal precision; and the
circumstances that she had lived many years in Manila and was coming back to this city, sufficiently
explains why she claimed to be a resident of Manila in that declaration without making any
conclusive commitment as to the place of her domicile in law.
Of some importance, as throwing light upon the state of her mind towards California and the
intention with which she removed from that state, are the numerous conversations, after her return to
Manila in 1924, in which she revealed an intention of returning to live in California. It is evident from
the proof that the removal of the testatrix from California to New York did not proceed from her
volition but resulted from circumstances over which she had no primary control, her motive being
found in her desire to be with her daughter and grandchildren. It may also be here stated that the
testatrix had kin in New York State whom she had visited more than once during her above in
California; and she appears to have inherited some property from a sister who had been living in
New York and who died before the return of the testatrix to the Philippine Islands.
The finding of the trial court to the effect that the deceased had acquired a domicile in the State of
California is in our opinion based upon facts which sufficiently support said finding. In particular, we
are of the opinion that the trial court committed no error in attaching importance to the circumstance
that the deceased had voted in California elections. Though not of course conclusive of acquisition
of domicile, voting in a place is an important circumstance and, where the evidence is scanty, may
have decisive weight. The exercise of the franchise is one of the highest prerogatives of citizenship,
and in no other act of his life does the citizen identify his interests with the state in which he lives
more than in the act of voting.
1awph!l.net

This record supplies no material with which to refute the conclusion of the trial court that a domicile
was thus acquired by the testatrix in the state of California; and what we consider the more critical
question is whether or not the domicile thus acquired was subsequently lost by removal from said
state. But upon this point also, we are of the opinion that the conclusion of the trial court, to the effect
that acquired domicile had not been lost, is in conformity with the evidence. It is a recognized rule
that the intention with which removal is made from a particular state determines whether or not the
domicile is abandoned; and intention is revealed only in the acts and declaration of the person
concerned.
In the case before us there are no declarations of the testatrix in evidence which would tend to show
that, upon removal to New York, she had any intention of acquiring a legal domicile in that state. On
the contrary her short stay there and her repeated statements made thereafter show that she could
not possibly have had any intention of making that state a place of permanent abode. As was
pointed out by this court in In Re Estate of Johnson (39 Phil., 156), a person transferring his domicile
from one state of the American Union to another loses his domicile in the state of his earlier abode

upon acquiring a domicile, or citizenship, in the state of his new abode. The acquisition of the new
legal domicile extinguishes the old. Certainly in this case it cannot be said with any propriety that the
domicile of the testatrix in California was suppressed by the acquisition on a new domicile in New
York State.
But it is said that, even supposing that the testatrix had not acquired a domicile in New York, yet she
was a resident of the Philippine Islands at the same time of her death, and that, having established
herself in these Islands as a place of permanent abode, her will should not be admitted to probate as
the will of a citizen of another state. But the proof shows that however long the testatrix had resided
in the Philippine Islands, she at no time had any intention of residing here permanently. In the
contrary, her repeated declarations reveal a fixed intention of returning ultimately to the United
States.
Again, it is a rule that a citizen of the United States cannot acquire citizenship in the Philippine
Islands by residence here, however long continued (In Re Estate of Johnson, 39 Phil., 156). The
testatrix therefore remained at the time of her death a citizen of the United States. Her will is
therefore provable under section 636 of the Code of Civil Procedure as the will of a citizen of another
state or country; and the only question to be determined in this case is, which state of the American
Union has the best claim to her citizenship, a question, which, as we have already seen, turns upon
domicile; and there is no other state whose citizenship she can claim, according the evidence in this
record, with as good right as the State of California. Massachusetts, the place of her marital abode,
has not been entered in the competition, and we must decide between California and New York. As
between these two states, California was surely the state of her legal domicile, acquired by choice
and by residing therein. Furthermore, this California domicile has not been supplanted by a later
domicile acquired in New York. It results that the trial court committed no error in considering the
testatrix a citizen of the State of California, for the purpose of admitting this will to probate.
The judgment will therefore be affirmed, and it is so ordered, with costs against the appellant.

G.R. No. 76714 June 2, 1994

SALUD TEODORO VDA. DE PEREZ, petitioner,
vs.
HON. ZOTICO A. TOLETE in his capacity as Presiding Judge, Branch 18, RTC,
Bulacan, respondent.
Natividad T. Perez for petitioner.
Benedicto T. Librojo for private respondents.

QUIASON, J.:
This is a petition for certiorari under Rule 65 of the Revised Rules of Court to set aside the Order
dated November 19, 1986 of the Regional Trial Court, Branch 18, Bulacan presided by respondent
Judge Zotico A. Tolete, in Special Proceedings No. 1793-M.
We grant the petition.
II
Dr. Jose F. Cunanan and his wife, Dr. Evelyn Perez-Cunanan, who became American citizens,
established a successful medical practice in New York, U.S.A. The Cunanans lived at No. 2896
Citation Drive, Pompey, Syracuse, New York, with their children, Jocelyn, 18; Jacqueline, 16; and
Josephine, 14.
On August 23, 1979, Dr. Cunanan executed a last will and testament, bequeathing to his wife "all the
remainder" of his real and personal property at the time of his death "wheresoever situated" (Rollo,
p. 35). In the event he would survive his wife, he bequeathed all his property to his children and
grandchildren with Dr. Rafael G. Cunanan, Jr. as trustee. He appointed his wife as executrix of his
last will and testament and Dr. Rafael G. Cunanan, Jr. as substitute executor. Article VIII of his will
states:
If my wife, EVELYN PEREZ-CUNANAN, and I shall die under such circumstances
that there is not sufficient evidence to determine the order of our deaths, then it shall
be presumed that I predeceased her, and my estate shall be administered and
distributed, in all respects, in accordance with such presumption (Rollo, p. 41).
Four days later, on August 27, Dr. Evelyn P. Cunanan executed her own last will and testament
containing the same provisions as that of the will of her husband. Article VIII of her will states:
If my husband, JOSE F. CUNANAN, and I shall die under such circumstances that
there is not sufficient evidence to determine the order of our deaths, then it shall be
presumed that he predeceased me, and my estate shall be administered and
distributed in all respects, in accordance with such presumption. (Rollo, p. 31).
On January 9, 1982, Dr. Cunanan and his entire family perished when they were trapped by fire that
gutted their home. Thereafter, Dr. Rafael G. Cunanan, Jr. as trustee and substitute executor of the
two wills, filed separate proceedings for the probate thereof with the Surrogate Court of the County

of Onondaga, New York. On April 7, these two wills were admitted to probate and letters
testamentary were issued in his favor.
On February 21, 1983, Salud Teodoro Perez, the mother of Dr. Evelyn P. Cunanan, and petitioner
herein, filed with the Regional P. Cunanan, and petitioner herein, filed with the Regional Trial Court,
Malolos, Bulacan a petition for the reprobate of the two bills ancillary to the probate proceedings in
New York. She also asked that she be appointed the special administratrix of the estate of the
deceased couple consisting primarily of a farm land in San Miguel, Bulacan.
On March 9, the Regional Trial Court, Branch 16, Malolos, Bulacan, presided by Judge Gualberto J.
de la Llana, issued an order, directing the issuance of letters of special administration in favor of
petitioner upon her filing of a P10,000.00 bond. The following day, petitioner posted the bond and
took her oath as special administration.
As her first act of administration, petitioner filed a motion, praying that the Philippine Life Insurance
Company be directed to deliver the proceeds in the amount of P50,000.00 of the life insurance policy
taken by Dr. Jose F. Cunanan with Dr. Evelyn Perez-Cunanan and their daughter Jocelyn as
beneficiaries. The trial court granted the motion.
Counsel for the Philippine American Life Insurance Company then filed a manifestation, stating that
said company then filed a manifestation, stating that said company had delivered to petitioner the
amount of P49,765.85, representing the proceeds of the life insurance policy of Dr. Jose F. Cunanan.
In a motion dated May 19, 1983, petitioner asked that Dr. Rafael Cunanan, Sr. be ordered to deliver
to her a Philippine Trust Company passbook with P25,594.00 in savings deposit, and the Family
Savings Bank time deposit certificates in the total amount of P12,412.52.
On May 31, Atty. Federico Alday filed a notice of appearance as counsel for the heirs of Dr. Jose F.
Cunanan, namely, Dr. Rafael Cunanan, Sr., Priscilla Cunanan Bautista, Lydia Cunanan Ignacio,
Felipe F. Cunanan and Loreto Cunanan Concepcion (Cunanan heirs). He also manifested that
before receiving petitioner's motion of May 19, 1983, his clients were unaware of the filing of the
testate estate case and therefore, "in the interest of simple fair play," they should be notified of the
proceedings (Records, p. 110). He prayed for deferment of the hearing on the motions of May 19,
1983.
Petitioner then filed a counter manifestation dated June 13, 1983, asserting: (1) that the "Cunanan
collaterals are neither heirs nor creditors of the late Dr. Jose F. Cunanan" and therefore, they had
"no legal or proprietary interests to protect" and "no right to intervene"; (2) that the wills of Dr. Jose F.
Cunanan and Dr. Evelyn Perez-Cunanan, being American citizens, were executed in accordance
with the solemnities and formalities of New York laws, and produced "effects in this jurisdiction in
accordance with Art. 16 in relation to Art. 816 of the Civil Code"; (3) that under Article VIII of the two
wills, it was presumed that the husband predeceased the wife; and (4) that "the Cunanan collaterals
are neither distributees, legatees or beneficiaries, much less, heirs as heirship is only by institution"
under a will or by operation of the law of New York (Records, pp. 112-113).
On June 23, the probate court granted petitioner's motion of May 19, 1983. However, on July 21, the
Cunanan heirs filed a motion to nullify the proceedings and to set aside the appointment of, or to
disqualify, petitioner as special administratrix of the estates of Dr. Jose F. Cunanan and Dr. Evelyn
Perez-Cunanan. The motion stated: (1) that being the "brothers and sisters and the legal and
surviving heirs" of Dr. Jose F. Cunanan, they had been "deliberately excluded" in the petition for the
probate of the separate wills of the Cunanan spouses thereby misleading the Bulacan court to
believe that petitioner was the sole heir of the spouses; that such "misrepresentation" deprived them

of their right to "due process in violation of Section 4, Rule 76 of the Revised Rules of Court; (2) that
Dr. Rafael G. Cunanan, Jr., the executor of the estate of the Cunanan spouses, was likewise not
notified of the hearings in the Bulacan court; (3) that the "misrepresentation and concealment
committed by" petitioner rendered her unfit to be a special administratrix; (4) that Dr. Rafael G.
Cunanan, Jr. had, by virtue of a verified power of attorney, authorized his father,
Dr. Rafael Cunanan, Sr., to be his attorney-in-fact; and (5) that Dr. Rafael Cunanan, Sr. is qualified to
be a regular administrator "as practically all of the subject estate in the Philippines belongs to their
brother, Dr. Jose F. Cunanan" (Records, pp. 118-122). Hence, they prayed: (1) that the proceedings
in the case be declared null and void; (2) that the appointment of petitioner as special administratrix
be set aside; and (3) that Dr. Rafael Cunanan, Sr. be appointed the regular administrator of the
estate of the deceased spouses.
Thereafter, the Cunanan heirs filed a motion requiring petitioner to submit an inventory or accounting
of all monies received by her in trust for the estate.
In her opposition, petitioner asserted: (1) that she was the "sole and only heir" of her daughter, Dr.
Evelyn Perez-Cunanan to the exclusion of the "Cunanan collaterals"; hence they were complete
strangers to the proceedings and were not entitled to notice; (2) that she could not have "concealed"
the name and address of Dr. Rafael G. Cunanan, Jr. because his name was prominently mentioned
not only in the two wills but also in the decrees of the American surrogate court; (3) that the rule
applicable to the case is Rule 77, not Rule 76, because it involved the allowance of wills proved
outside of the Philippines and that nowhere in Section 2 of Rule 77 is there a mention of notice being
given to the executor who, by the same provision, should himself file the necessary ancillary
proceedings in this country; (4) that even if the Bulacan estate came from the "capital" of Dr. Jose F.
Cunanan, he had willed all his worldly goods to his wife and nothing to his brothers and sisters; and
(5) that Dr. Rafael G. Cunanan, Jr. had unlawfully disbursed $215,000.00 to the Cunanan heirs,
misappropriated $15,000.00 for himself and irregularly assigned assets of the estates to his
American lawyer (Records, pp. 151-160).
In their reply, the Cunanan heirs stressed that on November 24, 1982, petitioner and the Cunanan
heirs had entered into an agreement in the United States "to settle and divide equally the estates,"
and that under Section 2 of Rule 77 the "court shall fix a time and place for the hearing and cause
notice thereof to be given as in case of an original will presented for allowance" (Records, pp. 184185).
Petitioner asked that Dr. Rafael G. Cunanan, Jr. be cited for contempt of court for failure to comply
with the Order of June 23, 1983 and for appropriating money of the estate for his own benefit. She
also alleged that she had impugned the agreement of November 24, 1982 before the Surrogate
Court of Onondaga, New York which rendered a decision on April 13, 1983, finding that "all assets
are payable to Dr. Evelyn P. Cunanans executor to be then distributed pursuant to EPTL4-1.1 subd
[a] par [4]" (Rollo, p. 52).
On their part, the Cunanan heirs replied that petitioner was estopped from claiming that they were
heirs by the agreement to divide equally the estates. They asserted that by virtue of Section 2 of
Rule 77 of the Rules of Court, the provisions of Sections 3, 4 and 5 of Rule 76 on the requirement of
notice to all heirs, executors, devisees and legatees must be complied with. They reiterated their
prayer: (1) that the proceedings in the case be nullified; (2) that petitioner be disqualified as special
administratrix; (3) that she be ordered to submit an inventory of all goods, chattels and monies which
she had received and to surrender the same to the court; and (4) that Dr. Rafael Cunanan, Sr. be
appointed the regular administrator.

Petitioner filed a rejoinder, stating that in violation of the April 13, 1983 decision of the American
court Dr. Rafael G. Cunanan, Jr. made "unauthorized disbursements from the estates as early as
July 7, 1982" (Records, p. 231). Thereafter, petitioner moved for the suspension of the proceedings
as she had "to attend to the settlement proceedings" of the estate of the Cunanan spouses in New
York (Records, p. 242). The Cunanans heirs opposed this motion and filed a manifestation, stating
that petitioner had received $215,000.00 "from the Surrogates Court as part of legacy" based on the
aforesaid agreement of November 24, 1982 (Records, p. 248).
On February 21, 1984, Judge de la Llana issued an order, disallowing the reprobate of the two wills,
recalling the appointment of petitioner as special administratrix, requiring the submission of petitioner
of an inventory of the property received by her as special administratrix and declaring all pending
incidents moot and academic. Judge de la Llana reasoned out that petitioner failed to prove the law
of New York on procedure and allowance of wills and the court had no way of telling whether the
wills were executed in accordance with the law of New York. In the absence of such evidence, the
presumption is that the law of succession of the foreign country is the same as the law of the
Philippines. However, he noted, that there were only two witnesses to the wills of the Cunanan
spouses and the Philippine law requires three witnesses and that the wills were not signed on each
and every page, a requirement of the Philippine law.
On August 27, 1985, petitioner filed a motion for reconsideration of the Order dated February 21,
1984, where she had sufficiently proven the applicable laws of New York governing the execution of
last wills and testaments.
On the same day, Judge de la Llana issued another order, denying the motion of petitioner for the
suspension of the proceedings but gave her 15 days upon arrival in the country within which to act
on the other order issued that same day. Contending that the second portion of the second order left
its finality to the discretion of counsel for petitioner, the Cunanans filed a motion for the
reconsideration of the objectionable portion of the said order so that it would conform with the
pertinent provisions of the Judiciary Reorganization Act of 1980 and the Interim Rules of Court.
On April 30, 1985, the respondent Judge of Branch 18 of the Regional Trial Court, Malolos, to which
the reprobate case was reassigned, issued an order stating that "(W)hen the last will and testament .
. . was denied probate," the case was terminated and therefore all orders theretofore issued should
be given finality. The same Order amended the February 21, 1984 Order by requiring petitioner to
turn over to the estate the inventoried property. It considered the proceedings for all intents and
purposes, closed (Records,
p. 302).
On August 12, petitioner filed a motion to resume proceedings on account of the final settlement and
termination of the probate cases in New York. Three days later, petitioner filed a motion praying for
the reconsideration of the Order of April 30, 1985 on the strength of the February 21, 1984 Order
granting her a period of 15 days upon arrival in the country within which to act on the denial of
probate of the wills of the Cunanan spouses. On August 19, respondent Judge granted the motion
and reconsidered the Order of April 30, 1985.
On August 29, counsel for petitioner, who happens to be her daughter, Natividad, filed a motion
praying that since petitioner was ailing in Fort Lee, New Jersey, U.S.A. and therefore incapacitated
to act as special administratrix, she (the counsel) should be named substitute special administratrix.
She also filed a motion for the reconsideration of the Order of February 21, 1984, denying probate to
the wills of the Cunanan spouses, alleging that respondent Judge "failed to appreciate the significant
probative value of the exhibits . . . which all refer to the offer and admission to probate of the last

wills of the Cunanan spouses including all procedures undertaken and decrees issued in connection
with the said probate" (Records, pp. 313-323).
Thereafter, the Cunanans heirs filed a motion for reconsideration of the Order of August 19, 1985,
alleging lack of notice to their counsel.
On March 31, 1986, respondent Judge to which the case was reassigned denied the motion for
reconsideration holding that the documents submitted by petitioner proved "that the wills of the
testator domiciled abroad were properly executed, genuine and sufficient to possess real and
personal property; that letters testamentary were issued; and that proceedings were held on a
foreign tribunal and proofs taken by a competent judge who inquired into all the facts and
circumstances and being satisfied with his findings issued a decree admitting to probate the wills in
question." However, respondent Judge said that the documents did not establish the law of New
York on the procedure and allowance of wills (Records, p. 381).
On April 9, 1986, petitioner filed a motion to allow her to present further evidence on the foreign law.
After the hearing of the motion on April 25, 1986, respondent Judge issued an order wherein he
conceded that insufficiency of evidence to prove the foreign law was not a fatal defect and was
curable by adducing additional evidence. He granted petitioner 45 days to submit the evidence to
that effect.
However, without waiting for petitioner to adduce the additional evidence, respondent Judge ruled in
his order dated June 20, 1986 that he found "no compelling reason to disturb its ruling of March 31,
1986" but allowed petitioner to "file anew the appropriate probate proceedings for each of the
testator" (Records, p. 391).
The Order dated June 20, 1986 prompted petitioner to file a second motion for reconsideration
stating that she was "ready to submit further evidence on the law obtaining in the State of New York"
and praying that she be granted "the opportunity to present evidence on what the law of the State of
New York has on the probate and allowance of wills" (Records, p. 393).
On July 18, respondent Judge denied the motion holding that to allow the probate of two wills in a
single proceeding "would be a departure from the typical and established mode of probate where
one petition takes care of one will." He pointed out that even in New York "where the wills in question
were first submitted for probate, they were dealt with in separate proceedings" (Records, p. 395).
On August 13, 1986, petitioner filed a motion for the reconsideration of the Order of July 18, 1986,
citing Section 3, Rule 2 of the Rules of Court, which provides that no party may institute more than
one suit for a single cause of action. She pointed out that separate proceedings for the wills of the
spouses which contain basically the same provisions as they even named each other as a
beneficiary in their respective wills, would go against "the grain of inexpensive, just and speedy
determination of the proceedings" (Records, pp. 405-407).
On September 11, 1986, petitioner filed a supplement to the motion for reconsideration,
citing Benigno v. De La Pea, 57 Phil. 305 (1932) (Records,
p. 411), but respondent Judge found that this pleading had been filed out of time and that the
adverse party had not been furnished with a copy thereof. In her compliance, petitioner stated that
she had furnished a copy of the motion to the counsel of the Cunanan heirs and reiterated her
motion for a "final ruling on her supplemental motion" (Records, p. 421).

On November 19, respondent Judge issued an order, denying the motion for reconsideration filed by
petitioner on the grounds that "the probate of separate wills of two or more different persons even if
they are husband and wife cannot be undertaken in a single petition" (Records, pp. 376-378).
Hence, petitioner instituted the instant petition, arguing that the evidence offered at the hearing of
April 11, 1983 sufficiently proved the laws of the State of New York on the allowance of wills, and that
the separate wills of the Cunanan spouses need not be probated in separate proceedings.
II
Petitioner contends that the following pieces of evidence she had submitted before respondent
Judge are sufficient to warrant the allowance of the wills:
(a) two certificates of authentication of the respective wills of Evelyn and Jose by the
Consulate General of the Philippines (Exhs. "F" and "G");
(b) two certifications from the Secretary of State of New York and Custodian of the
Great Seal on the facts that Judge Bernard L. Reagan is the Surrogate of the
Country of Onondaga which is a court of record, that his signature and seal of office
are genuine, and that the Surrogate is duly authorized to grant copy of the respective
wills of Evelyn and Jose
(Exhs. "F-1" and "G-1");
(c) two certificates of Judge Reagan and Chief Clerk Donald E. Moore stating that
they have in their records and files the said wills which were recorded on April 7,
1982 (Exhs. "F-2" and "G-2");
(d) the respective wills of Evelyn and Jose (Exhs. "F-3", "F-6" and Exh. "G-3" "G6");
(e) certificates of Judge Reagan and the Chief Clerk certifying to the genuineness
and authenticity of the exemplified copies of the two wills (Exhs. "F-7" and "F-7");
(f) two certificates of authentication from the Consulate General of the Philippines in
New York (Exh. "H" and "F").
(g) certifications from the Secretary of State that Judge Reagan is duly authorized to
grant exemplified copies of the decree of probate, letters testamentary and all
proceedings had and proofs duly taken
(Exhs. "H-1" and "I-1");
(h) certificates of Judge Reagan and the Chief Clerk that letters testamentary were
issued to Rafael G. Cunanan (Exhs. "H-2" and "I-2");
(i) certification to the effect that it was during the term of Judge Reagan that a decree
admitting the wills to probate had been issued and appointing Rafael G. Cunanan as
alternate executor (Exhs. "H-3" and
"I-10");
(j) the decrees on probate of the two wills specifying that proceedings were held and
proofs duly taken (Exhs. "H-4" and "I-5");

(k) decrees on probate of the two wills stating that they were properly executed,
genuine and valid and that the said instruments were admitted to probate and
established as wills valid to pass real and personal property (Exhs. "H-5" and "I-5");
and
(l) certificates of Judge Reagan and the Chief Clerk on the genuineness and
authenticity of each others signatures in the exemplified copies of the decrees of
probate, letters testamentary and proceedings held in their court (Exhs. "H-6" and "I6") (Rollo, pp. 13-16).
Petitioner adds that the wills had been admitted to probate in the Surrogate Courts Decision of April
13, 1983 and that the proceedings were terminated on November 29, 1984.
The respective wills of the Cunanan spouses, who were American citizens, will only be effective in
this country upon compliance with the following provision of the Civil Code of the Philippines:
Art. 816. The will of an alien who is abroad produces effect in the Philippines if made
with the formalities prescribed by the law of the place in which he resides, or
according to the formalities observed in his country, or in conformity with those which
this Code prescribes.
Thus, proof that both wills conform with the formalities prescribed by New York laws or by Philippine
laws is imperative.
The evidence necessary for the reprobate or allowance of wills which have been probated outside of
the Philippines are as follows: (1) the due execution of the will in accordance with the foreign laws;
(2) the testator has his domicile in the foreign country and not in the Philippines; (3) the will has been
admitted to probate in such country; (4) the fact that the foreign tribunal is a probate court, and (5)
the laws of a foreign country on procedure and allowance of wills (III Moran Commentaries on the
Rules of Court, 1970 ed., pp. 419-429; Suntay v. Suntay, 95 Phil. 500 [1954]; Fluemer v. Hix, 54 Phil.
610 [1930]). Except for the first and last requirements, the petitioner submitted all the needed
evidence.
The necessity of presenting evidence on the foreign laws upon which the probate in the foreign
country is based is impelled by the fact that our courts cannot take judicial notice of them (Philippine
Commercial and Industrial Bank v. Escolin, 56 SCRA 266 [1974]).
Petitioner must have perceived this omission as in fact she moved for more time to submit the
pertinent procedural and substantive New York laws but which request respondent Judge just
glossed over. While the probate of a will is a special proceeding wherein courts should relax the
rules on evidence, the goal is to receive the best evidence of which the matter is susceptible before
a purported will is probated or denied probate (Vda. de Ramos v. Court of Appeals, 81 SCRA 393
[1978]).
There is merit in petitioners insistence that the separate wills of the Cunanan spouses should be
probated jointly. Respondent Judges view that the Rules on allowance of wills is couched in singular
terms and therefore should be interpreted to mean that there should be separate probate
proceedings for the wills of the Cunanan spouses is too literal and simplistic an approach. Such view
overlooks the provisions of Section 2, Rule 1 of the Revised Rules of Court, which advise that the
rules shall be "liberally construed in order to promote their object and to assist the parties in
obtaining just, speedy, and inexpensive determination of every action and proceeding."

A literal application of the Rules should be avoided if they would only result in the delay in the
administration of justice (Acain v. Intermediate Appellate Court, 155 SCRA 100 [1987]; Roberts v.
Leonidas, 129 SCRA 33 [1984]).
What the law expressly prohibits is the making of joint wills either for the testators reciprocal benefit
or for the benefit of a third person (Civil Code of the Philippines, Article 818). In the case at bench,
the Cunanan spouses executed separate wills. Since the two wills contain essentially the same
provisions and pertain to property which in all probability are conjugal in nature, practical
considerations dictate their joint probate. As this Court has held a number of times, it will always
strive to settle the entire controversy in a single proceeding leaving no root or branch to bear the
seeds of future litigation (Motoomull v. Dela Paz, 187 SCRA 743 [1990]).
This petition cannot be completely resolved without touching on a very glaring fact petitioner has
always considered herself the sole heir of
Dr. Evelyn Perez Cunanan and because she does not consider herself an heir of Dr. Jose F.
Cunanan, she noticeably failed to notify his heirs of the filing of the proceedings. Thus, even in the
instant petition, she only impleaded respondent Judge, forgetting that a judge whose order is being
assailed is merely a nominal or formal party (Calderon v. Solicitor General, 215 SCRA 876 [1992]).
The rule that the court having jurisdiction over the reprobate of a will shall "cause notice thereof to be
given as in case of an original will presented for allowance" (Revised Rules of Court, Rule 27,
Section 2) means that with regard to notices, the will probated abroad should be treated as if it were
an "original will" or a will that is presented for probate for the first time. Accordingly, compliance with
Sections 3 and 4 of Rule 76, which require publication and notice by mail or personally to the "known
heirs, legatees, and devisees of the testator resident in the Philippines" and to the executor, if he is
not the petitioner, are required.
The brothers and sisters of Dr. Jose F. Cunanan, contrary to petitioner's claim, are entitled to notices
of the time and place for proving the wills. Under Section 4 of Rule 76 of the Revised Rules of Court,
the "court shall also cause copies of the notice of the time and place fixed for proving the will to be
addressed to the designated or other known heirs, legatees, and devisees of the testator, . . . "
WHEREFORE, the questioned Order is SET ASIDE. Respondent Judge shall allow petitioner
reasonable time within which to submit evidence needed for the joint probate of the wills of the
Cunanan spouses and see to it that the brothers and sisters of Dr. Jose F. Cunanan are given all
notices and copies of all pleadings pertinent to the probate proceedings.
SO ORDERED.

G.R. No. L-23145

November 29, 1968

TESTATE ESTATE OF IDONAH SLADE PERKINS, deceased. RENATO D. TAYAG, ancillary

administrator-appellee,
vs.
BENGUET CONSOLIDATED, INC., oppositor-appellant.
Cirilo F. Asperillo, Jr., for ancillary administrator-appellee.
Ross, Salcedo, Del Rosario, Bito and Misa for oppositor-appellant.
FERNANDO, J.:
Confronted by an obstinate and adamant refusal of the domiciliary administrator, the County Trust
Company of New York, United States of America, of the estate of the deceased Idonah Slade
Perkins, who died in New York City on March 27, 1960, to surrender to the ancillary administrator in
the Philippines the stock certificates owned by her in a Philippine corporation, Benguet
Consolidated, Inc., to satisfy the legitimate claims of local creditors, the lower court, then presided by
the Honorable Arsenio Santos, now retired, issued on May 18, 1964, an order of this tenor: "After
considering the motion of the ancillary administrator, dated February 11, 1964, as well as the
opposition filed by the Benguet Consolidated, Inc., the Court hereby (1) considers as lost for all
purposes in connection with the administration and liquidation of the Philippine estate of Idonah
Slade Perkins the stock certificates covering the 33,002 shares of stock standing in her name in the
books of the Benguet Consolidated, Inc., (2) orders said certificates cancelled, and (3) directs said
corporation to issue new certificates in lieu thereof, the same to be delivered by said corporation to
either the incumbent ancillary administrator or to the Probate Division of this Court." 1
From such an order, an appeal was taken to this Court not by the domiciliary administrator, the
County Trust Company of New York, but by the Philippine corporation, the Benguet Consolidated,
Inc. The appeal cannot possibly prosper. The challenged order represents a response and
expresses a policy, to paraphrase Frankfurter, arising out of a specific problem, addressed to the
attainment of specific ends by the use of specific remedies, with full and ample support from legal
doctrines of weight and significance.
The facts will explain why. As set forth in the brief of appellant Benguet Consolidated, Inc., Idonah
Slade Perkins, who died on March 27, 1960 in New York City, left among others, two stock
certificates covering 33,002 shares of appellant, the certificates being in the possession of the
County Trust Company of New York, which as noted, is the domiciliary administrator of the estate of
the deceased.2 Then came this portion of the appellant's brief: "On August 12, 1960, Prospero
Sanidad instituted ancillary administration proceedings in the Court of First Instance of Manila;
Lazaro A. Marquez was appointed ancillary administrator, and on January 22, 1963, he was
substituted by the appellee Renato D. Tayag. A dispute arose between the domiciary administrator in
New York and the ancillary administrator in the Philippines as to which of them was entitled to the
possession of the stock certificates in question. On January 27, 1964, the Court of First Instance of
Manila ordered the domiciliary administrator, County Trust Company, to "produce and deposit" them
with the ancillary administrator or with the Clerk of Court. The domiciliary administrator did not
comply with the order, and on February 11, 1964, the ancillary administrator petitioned the court to
"issue an order declaring the certificate or certificates of stocks covering the 33,002 shares issued in
the name of Idonah Slade Perkins by Benguet Consolidated, Inc., be declared [or] considered as
lost."3
It is to be noted further that appellant Benguet Consolidated, Inc. admits that "it is immaterial" as far
as it is concerned as to "who is entitled to the possession of the stock certificates in question;

appellant opposed the petition of the ancillary administrator because the said stock certificates are in
existence, they are today in the possession of the domiciliary administrator, the County Trust
Company, in New York, U.S.A...."4
It is its view, therefore, that under the circumstances, the stock certificates cannot be declared or
considered as lost. Moreover, it would allege that there was a failure to observe certain requirements
of its by-laws before new stock certificates could be issued. Hence, its appeal.
As was made clear at the outset of this opinion, the appeal lacks merit. The challenged order
constitutes an emphatic affirmation of judicial authority sought to be emasculated by the wilful
conduct of the domiciliary administrator in refusing to accord obedience to a court decree. How,
then, can this order be stigmatized as illegal?
As is true of many problems confronting the judiciary, such a response was called for by the realities
of the situation. What cannot be ignored is that conduct bordering on wilful defiance, if it had not
actually reached it, cannot without undue loss of judicial prestige, be condoned or tolerated. For the
law is not so lacking in flexibility and resourcefulness as to preclude such a solution, the more so as
deeper reflection would make clear its being buttressed by indisputable principles and supported by
the strongest policy considerations.
It can truly be said then that the result arrived at upheld and vindicated the honor of the judiciary no
less than that of the country. Through this challenged order, there is thus dispelled the atmosphere of
contingent frustration brought about by the persistence of the domiciliary administrator to hold on to
the stock certificates after it had, as admitted, voluntarily submitted itself to the jurisdiction of the
lower court by entering its appearance through counsel on June 27, 1963, and filing a petition for
relief from a previous order of March 15, 1963.
Thus did the lower court, in the order now on appeal, impart vitality and effectiveness to what was
decreed. For without it, what it had been decided would be set at naught and nullified. Unless such a
blatant disregard by the domiciliary administrator, with residence abroad, of what was previously
ordained by a court order could be thus remedied, it would have entailed, insofar as this matter was
concerned, not a partial but a well-nigh complete paralysis of judicial authority.
1. Appellant Benguet Consolidated, Inc. did not dispute the power of the appellee ancillary
administrator to gain control and possession of all assets of the decedent within the jurisdiction of
the Philippines. Nor could it. Such a power is inherent in his duty to settle her estate and satisfy the
claims of local creditors.5 As Justice Tuason speaking for this Court made clear, it is a "general rule
universally recognized" that administration, whether principal or ancillary, certainly "extends to the
assets of a decedent found within the state or country where it was granted," the corollary being
"that an administrator appointed in one state or country has no power over property in another state
or country."6
It is to be noted that the scope of the power of the ancillary administrator was, in an earlier case, set
forth by Justice Malcolm. Thus: "It is often necessary to have more than one administration of an
estate. When a person dies intestate owning property in the country of his domicile as well as in a
foreign country, administration is had in both countries. That which is granted in the jurisdiction of
decedent's last domicile is termed the principal administration, while any other administration is
termed the ancillary administration. The reason for the latter is because a grant of administration
does not ex proprio vigore have any effect beyond the limits of the country in which it is granted.
Hence, an administrator appointed in a foreign state has no authority in the [Philippines]. The
ancillary administration is proper, whenever a person dies, leaving in a country other than that of his

last domicile, property to be administered in the nature of assets of the deceased liable for his
individual debts or to be distributed among his heirs." 7
It would follow then that the authority of the probate court to require that ancillary administrator's right
to "the stock certificates covering the 33,002 shares ... standing in her name in the books of
[appellant] Benguet Consolidated, Inc...." be respected is equally beyond question. For appellant is a
Philippine corporation owing full allegiance and subject to the unrestricted jurisdiction of local courts.
Its shares of stock cannot therefore be considered in any wise as immune from lawful court orders.
Our holding in Wells Fargo Bank and Union v. Collector of Internal Revenue 8 finds application. "In the
instant case, the actual situs of the shares of stock is in the Philippines, the corporation being
domiciled [here]." To the force of the above undeniable proposition, not even appellant is insensible.
It does not dispute it. Nor could it successfully do so even if it were so minded.
2. In the face of such incontrovertible doctrines that argue in a rather conclusive fashion for the
legality of the challenged order, how does appellant, Benguet Consolidated, Inc. propose to carry the
extremely heavy burden of persuasion of precisely demonstrating the contrary? It would assign as
the basic error allegedly committed by the lower court its "considering as lost the stock certificates
covering 33,002 shares of Benguet belonging to the deceased Idonah Slade Perkins, ..." 9 More
specifically, appellant would stress that the "lower court could not "consider as lost" the stock
certificates in question when, as a matter of fact, his Honor the trial Judge knew, and does know, and
it is admitted by the appellee, that the said stock certificates are in existence and are today in the
possession of the domiciliary administrator in New York."10
There may be an element of fiction in the above view of the lower court. That certainly does not
suffice to call for the reversal of the appealed order. Since there is a refusal, persistently adhered to
by the domiciliary administrator in New York, to deliver the shares of stocks of appellant corporation
owned by the decedent to the ancillary administrator in the Philippines, there was nothing
unreasonable or arbitrary in considering them as lost and requiring the appellant to issue new
certificates in lieu thereof. Thereby, the task incumbent under the law on the ancillary administrator
could be discharged and his responsibility fulfilled.
Any other view would result in the compliance to a valid judicial order being made to depend on the
uncontrolled discretion of the party or entity, in this case domiciled abroad, which thus far has shown
the utmost persistence in refusing to yield obedience. Certainly, appellant would not be heard to
contend in all seriousness that a judicial decree could be treated as a mere scrap of paper, the court
issuing it being powerless to remedy its flagrant disregard.
It may be admitted of course that such alleged loss as found by the lower court did not correspond
exactly with the facts. To be more blunt, the quality of truth may be lacking in such a conclusion
arrived at. It is to be remembered however, again to borrow from Frankfurter, "that fictions which the
law may rely upon in the pursuit of legitimate ends have played an important part in its
development."11
Speaking of the common law in its earlier period, Cardozo could state fictions "were devices to
advance the ends of justice, [even if] clumsy and at times offensive." 12 Some of them have persisted
even to the present, that eminent jurist, noting "the quasi contract, the adopted child, the constructive
trust, all of flourishing vitality, to attest the empire of "as if" today." 13 He likewise noted "a class of
fictions of another order, the fiction which is a working tool of thought, but which at times hides itself
from view till reflection and analysis have brought it to the light." 14

What cannot be disputed, therefore, is the at times indispensable role that fictions as such played in
the law. There should be then on the part of the appellant a further refinement in the catholicity of its
condemnation of such judicial technique. If ever an occasion did call for the employment of a legal
fiction to put an end to the anomalous situation of a valid judicial order being disregarded with
apparent impunity, this is it. What is thus most obvious is that this particular alleged error does not
carry persuasion.
3. Appellant Benguet Consolidated, Inc. would seek to bolster the above contention by its invoking
one of the provisions of its by-laws which would set forth the procedure to be followed in case of a
lost, stolen or destroyed stock certificate; it would stress that in the event of a contest or the
pendency of an action regarding ownership of such certificate or certificates of stock allegedly lost,
stolen or destroyed, the issuance of a new certificate or certificates would await the "final decision by
[a] court regarding the ownership [thereof]."15
Such reliance is misplaced. In the first place, there is no such occasion to apply such by-law. It is
admitted that the foreign domiciliary administrator did not appeal from the order now in question.
Moreover, there is likewise the express admission of appellant that as far as it is concerned, "it is
immaterial ... who is entitled to the possession of the stock certificates ..." Even if such were not the
case, it would be a legal absurdity to impart to such a provision conclusiveness and finality.
Assuming that a contrariety exists between the above by-law and the command of a court decree,
the latter is to be followed.
It is understandable, as Cardozo pointed out, that the Constitution overrides a statute, to which,
however, the judiciary must yield deference, when appropriately invoked and deemed applicable. It
would be most highly unorthodox, however, if a corporate by-law would be accorded such a high
estate in the jural order that a court must not only take note of it but yield to its alleged controlling
force.
The fear of appellant of a contingent liability with which it could be saddled unless the appealed
order be set aside for its inconsistency with one of its by-laws does not impress us. Its obedience to
a lawful court order certainly constitutes a valid defense, assuming that such apprehension of a
possible court action against it could possibly materialize. Thus far, nothing in the circumstances as
they have developed gives substance to such a fear. Gossamer possibilities of a future prejudice to
appellant do not suffice to nullify the lawful exercise of judicial authority.
4. What is more the view adopted by appellant Benguet Consolidated, Inc. is fraught with
implications at war with the basic postulates of corporate theory.
We start with the undeniable premise that, "a corporation is an artificial being created by operation of
law...."16 It owes its life to the state, its birth being purely dependent on its will. As Berle so aptly
stated: "Classically, a corporation was conceived as an artificial person, owing its existence through
creation by a sovereign power."17As a matter of fact, the statutory language employed owes much to
Chief Justice Marshall, who in the Dartmouth College decision defined a corporation precisely as "an
artificial being, invisible, intangible, and existing only in contemplation of law." 18
The well-known authority Fletcher could summarize the matter thus: "A corporation is not in fact and
in reality a person, but the law treats it as though it were a person by process of fiction, or by
regarding it as an artificial person distinct and separate from its individual stockholders.... It owes its
existence to law. It is an artificial person created by law for certain specific purposes, the extent of
whose existence, powers and liberties is fixed by its charter." 19 Dean Pound's terse summary, a
juristic person, resulting from an association of human beings granted legal personality by the state,
puts the matter neatly.20

There is thus a rejection of Gierke's genossenchaft theory, the basic theme of which to quote from
Friedmann, "is the reality of the group as a social and legal entity, independent of state recognition
and concession."21 A corporation as known to Philippine jurisprudence is a creature without any
existence until it has received the imprimatur of the state according to law. It is logically
inconceivable therefore that it will have rights and privileges of a higher priority than that of its
creator. More than that, it cannot legitimately refuse to yield obedience to acts of its state organs,
certainly not excluding the judiciary, whenever called upon to do so.
As a matter of fact, a corporation once it comes into being, following American law still of persuasive
authority in our jurisdiction, comes more often within the ken of the judiciary than the other two
coordinate branches. It institutes the appropriate court action to enforce its right. Correlatively, it is
not immune from judicial control in those instances, where a duty under the law as ascertained in an
appropriate legal proceeding is cast upon it.
To assert that it can choose which court order to follow and which to disregard is to confer upon it not
autonomy which may be conceded but license which cannot be tolerated. It is to argue that it may,
when so minded, overrule the state, the source of its very existence; it is to contend that what any of
its governmental organs may lawfully require could be ignored at will. So extravagant a claim cannot
possibly merit approval.
5. One last point. In Viloria v. Administrator of Veterans Affairs,22 it was shown that in a guardianship
proceedings then pending in a lower court, the United States Veterans Administration filed a motion
for the refund of a certain sum of money paid to the minor under guardianship, alleging that the
lower court had previously granted its petition to consider the deceased father as not entitled to
guerilla benefits according to a determination arrived at by its main office in the United States. The
motion was denied. In seeking a reconsideration of such order, the Administrator relied on an
American federal statute making his decisions "final and conclusive on all questions of law or fact"
precluding any other American official to examine the matter anew, "except a judge or judges of the
United States court."23 Reconsideration was denied, and the Administrator appealed.
In an opinion by Justice J.B.L. Reyes, we sustained the lower court. Thus: "We are of the opinion
that the appeal should be rejected. The provisions of the U.S. Code, invoked by the appellant, make
the decisions of the U.S. Veterans' Administrator final and conclusive when made on claims property
submitted to him for resolution; but they are not applicable to the present case, where the
Administrator is not acting as a judge but as a litigant. There is a great difference between actions
against the Administrator (which must be filed strictly in accordance with the conditions that are
imposed by the Veterans' Act, including the exclusive review by United States courts), and those
actions where the Veterans' Administrator seeks a remedy from our courts and submits to their
jurisdiction by filing actions therein. Our attention has not been called to any law or treaty that would
make the findings of the Veterans' Administrator, in actions where he is a party, conclusive on our
courts. That, in effect, would deprive our tribunals of judicial discretion and render them mere
subordinate instrumentalities of the Veterans' Administrator."
It is bad enough as the Viloria decision made patent for our judiciary to accept as final and
conclusive, determinations made by foreign governmental agencies. It is infinitely worse if through
the absence of any coercive power by our courts over juridical persons within our jurisdiction, the
force and effectivity of their orders could be made to depend on the whim or caprice of alien entities.
It is difficult to imagine of a situation more offensive to the dignity of the bench or the honor of the
country.
Yet that would be the effect, even if unintended, of the proposition to which appellant Benguet
Consolidated seems to be firmly committed as shown by its failure to accept the validity of the order

complained of; it seeks its reversal. Certainly we must at all pains see to it that it does not succeed.
The deplorable consequences attendant on appellant prevailing attest to the necessity of negative
response from us. That is what appellant will get.
That is all then that this case presents. It is obvious why the appeal cannot succeed. It is always
easy to conjure extreme and even oppressive possibilities. That is not decisive. It does not settle the
issue. What carries weight and conviction is the result arrived at, the just solution obtained,
grounded in the soundest of legal doctrines and distinguished by its correspondence with what a
sense of realism requires. For through the appealed order, the imperative requirement of justice
according to law is satisfied and national dignity and honor maintained.
WHEREFORE, the appealed order of the Honorable Arsenio Santos, the Judge of the Court of First
Instance, dated May 18, 1964, is affirmed. With costs against oppositor-appelant Benguet
Consolidated, Inc.

G.R. Nos. L-3087 and L-3088

July 31, 1954

In re: Testate Estate of the deceased JOSE B. SUNTAY. SILVINO SUNTAY, petitioner-appellant,
vs.
In re: Intestate Estate of the deceased JOSE B. SUNTAY,
FEDERICO C. SUNTAY, administrator-appellee.
Claro M. Recto for appellant.
Sison and Aruego for appellee.
PADILLA, J.:
This is an appeal from a decree of the Court of First Instance of Bulacan disallowing the alleged will
and testament executed in Manila on November 1929, and the alleged last will and testament
executed in Kulangsu, Amoy, China, on 4 January 1931, by Jose B. Suntay. The value of the estate
left by the deceased is more than P50,000.
On 14 May 1934 Jose B. Suntay, a Filipino citizen and resident of the Philippines, died in the city of
Amoy, Fookien province, Republic of China, leaving real and personal properties in the Philippines
and a house in Amoy, Fookien province, China, and children by the first marriage had with the late
Manuela T. Cruz namely, Apolonio, Concepcion, Angel, Manuel, Federico, Ana, Aurora, Emiliano,
and Jose, Jr. and a child named Silvino by the second marriage had with Maria Natividad Lim Billian
who survived him. Intestate proceedings were instituted in the Court of First Instance of Bulacan
(special proceedings No. 4892) and after hearing letters of administration were issued to Apolonio
Suntay. After the latter's death Federico C. Suntay was appointed administrator of the estate. On 15
October 1934 the surviving widow filed a petition in the Court of First Instance of Bulacan for the
probate of a last will and testament claimed to have been executed and signed in the Philippines on
November 1929 by the late Jose B. Suntay. This petition was denied because of the loss of said will
after the filing of the petition and before the hearing thereof and of the insufficiency of the evidence
to establish the loss of the said will. An appeal was taken from said order denying the probate of the
will and this Court held the evidence before the probate court sufficient to prove the loss of the will
and remanded the case to the Court of First Instance of Bulacan for the further proceedings (63
Phil., 793). In spite of the fact that a commission from the probate court was issued on 24 April 1937
for the taking of the deposition of Go Toh, an attesting witness to the will, on 7 February 1938 the
probate court denied a motion for continuance of the hearing sent by cablegram from China by the
surviving widow and dismissed the petition. In the meantime the Pacific War supervened. After
liberation, claiming that he had found among the files, records and documents of his late father a will
and testament in Chinese characters executed and signed by the deceased on 4 January 1931 and
that the same was filed, recorded and probated in the Amoy district court, Province of Fookien,
China, Silvino Suntay filed a petition in the intestate proceedings praying for the probate of the will
executed in the Philippines on November 1929 (Exhibit B) or of the will executed in Amoy, Fookien,
China, on 4 January 1931 (Exhibit N).
There is no merit in the contention that the petitioner Silvino Suntay and his mother Maria Natividad
Lim Billian are estopped from asking for the probate of the lost will or of the foreign will because of
the transfer or assignment of their share right, title and interest in the estate of the late Jose B.
Suntay to Jose G. Gutierrez and the spouses Ricardo Gutierrez and Victoria Goo and the
subsequent assignment thereof by the assignees to Francisco Pascual and by the latter to Federico
C. Suntay, for the validity and legality of such assignments cannot be threshed out in this
proceedings which is concerned only with the probate of the will and testament executed in the
Philippines on November 1929 or of the foreign will allegedly executed in Amoy on 4 January 1931

and claimed to have been probated in the municipal district court of Amoy, Fookien province,
Republic of China.
As to prescription, the dismissal of the petition for probate of the will on 7 February 1938 was no bar
to the filing of this petition on 18 June 1947, or before the expiration of ten years.
As to the lost will, section 6, Rule 77, provides:
No will shall be proved as a lost or destroyed will unless the execution and validity of the
same be established, and the will is proved to have been in existence at the time of the
death of the testator, or is shown to have been fraudulently or accidentally destroyed in the
lifetime of the testator without his knowledge, nor unless its provisions are clearly and
distinctly proved by at least two credible witnesses. When a lost will is proved, the provisions
thereof must be distinctly stated and certified by the judge, under the seal of the court, and
the certificate must be filed and recorded as other wills are filed and recorded.
The witnesses who testified to the provisions of the lost will are Go Toh, an attesting witness,
Anastacio Teodoro and Ana Suntay. Manuel Lopez, who was an attesting witness to the lost will, was
dead at the time of the hearing of this alternative petition. In his deposition Go Toh testifies that he
was one of the witnesses to the lost will consisting of twenty-three sheets signed by Jose B. Suntay
at the bottom of the will and each and every page thereof in the presence of Alberto Barretto, Manuel
Lopez and himself and underneath the testator's signature the attesting witnesses signed and each
of them signed the attestation clause and each and every page of the will in the presence of the
testator and of the other witnesses (answers to the 31st, 41st, 42nd, 49th, 50th, 55th and 63rd
interrogatories, Exhibit D-1), but did not take part in the drafting thereof (answer to the 11th
interrogatory,Id.); that he knew the contents of the will written in Spanish although he knew very little
of that language (answers to the 22nd and 23rd interrogatories and to X-2 cross-interrogatory, Id.)
and all he knows about the contends of the lost will was revealed to him by Jose B. Suntay at the
time it was executed (answers to the 25th interrogatory and to X-4 and X-8 crossinterrogatories, Id.); that Jose B. Suntay told him that the contents thereof are the same as those of
the draft (Exhibit B) (answers to the 33rd interrogatory and to X-8 cross-interrogatory, Id.) which he
saw in the office of Alberto Barretto in November 1929 when the will was signed (answers to the
69th, 72nd, and 74th interrogatories, Id); that Alberto Barretto handed the draft and said to Jose B.
Suntay: "You had better see if you want any correction" (answers to the 81st, 82nd and 83rd
interrogatories, Id.); that "after checking Jose B. Suntay put the "Exhibit B" in his pocket and had the
original signed and executed" (answers to the 91st interrogatory, and to X-18 crossinterrogatory, Id.); that Mrs. Suntay had the draft of the will (Exhibit B) translated into Chinese and he
read the translation (answers to the 67th interrogatory, Id.); that he did not read the will and did not
compare it (check it up) with the draft (Exhibit B) (answers to X-6 and X-20 crossinterrogatories, Id.).
Ana Suntay testifies that sometime in September 1934 in the house of her brother Apolonio Suntay
she learned that her father left a will "because of the arrival of my brother Manuel Suntay, who was
bringing along with him certain document and he told us or he was telling us that it was the will of our
father Jose B. Suntay which was taken from Go Toh. ..." (p. 524, t. s. n., hearing of 24 February
1948); that she saw her brother Apolonio Suntay read the document in her presence and of Manuel
and learned of the adjudication made in the will by her father of his estate, to wit: one-third to his
children, one-third to Silvino and his mother and the other third to Silvino, Apolonio, Concepcion and
Jose, Jr. (pp. 526-8, 530-1, 542, t. s. n. Id.); that "after Apolonio read that portion, then he turned
over the document to Manuel, and he went away," (p. 528, t. s. n., Id.). On cross-examination, she
testifies that she read the part of the will on adjudication to know what was the share of each heir

(pp. 530, 544, t. s. n., Id.) and on redirect she testifies that she saw the signature of her father, Go
Toh, Manuel Lopez and Alberto Barretto (p. 546, t. s. n., Id.).
Anastacio Teodoro testifies that one day in November 1934 (p. 273, t. s. n., hearing of 19 January
1948), before the last postponement of the hearing granted by the Court, Go Toh arrived at his law
office in the De los Reyes Building and left an envelope wrapped in red handkerchief [Exhibit C] (p.
32, t. s. n., hearing of 13 October 1947); that he checked up the signatures on the envelope Exhibit A
with those on the will placed in the envelope (p. 33, t. s. n., Id.); that the will was exactly the same as
the draft Exhibit B (pp. 32, 47, 50, t. s. n., Id.).
If the will was snatched after the delivery thereof by Go Toh to Anastacio Teodoro And returned by
the latter to the former because they could not agree on the amount of fees, the former coming to
the latter's office straight from the boat (p. 315, t. s. n., hearing of 19 January 1948) that brought him
to the Philippines from Amoy, and that delivery took place in November 1934 (p. 273, t. s. n., Id.),
then the testimony of Ana Suntay that she saw and heard her brother Apolonio Suntay read the will
sometime in September 1934 (p. 524, t. s. n., hearing of 24 February 1948), must not be true.
Although Ana Suntay would be a good witness because she was testifying against her own interest,
still the fact remains that she did not read the whole will but only the adjudication (pp. 526-8, 530-1,
542, t. s. n., Id.) and saw only the signature, of her father and of the witnesses Go Toh, Manuel
Lopez and Alberto Barretto (p. 546, t. s. n.,Id.). But her testimony on cross-examination that she read
the part of the will on adjudication is inconsistent with her testimony in chief that after Apolonio had
read that part of the will he turned over or handed the document to Manuel who went away (p. 528, t.
s. n., Id.).
If it is true that Go Toh saw the draft Exhibit B in the office of Alberto Barretto in November 1929
when the will was signed, then the part of his testimony that Alberto Barretto handed the draft to
Jose B. Suntay to whom he said: "You had better see if you want any correction" and that "after
checking Jose B. Suntay put the "Exhibit B" in his pocket and had the original signed and executed"
cannot be true, for it was not the time for correcting the draft of the will, because it must have been
corrected before and all corrections and additions written in lead pencil must have been inserted and
copied in the final draft of the will which was signed on that occasion. The bringing in for the draft
(Exhibit B) on that occasion is just to fit it within the framework of the appellant's theory. At any rate,
all of Go Toh's testimony by deposition on the provisions of the alleged lost will is hearsay, because
he came to know or he learned to them from information given him by Jose B. Suntay and from
reading the translation of the draft (Exhibit B) into Chinese.
Much stress is laid upon the testimony of Federico C. Suntay who testifies that he read the
supposed will or the alleged will of his father and that the share of the surviving widow, according to
the will, is two-thirds of the estate (p. 229, t. s. n., hearing of 24 October 1947). But this witness
testified to oppose the appointment of a co-administrator of the estate, for the reason that he had
acquired the interest of the surviving widow not only in the estate of her deceased husband but also
in the conjugal property (pp. 148, 205, 228, 229, 231, t. s. n., Id.) Whether he read the original will or
just the copy thereof (Exhibit B) is not clear. For him the important point was that he had acquired all
the share, participation and interest of the surviving widow and of the only child by the second
marriage in the estate of his deceased father. Be that as it may, his testimony that under the will the
surviving widow would take two-thirds of the estate of the late Jose B. Suntay is at variance with
Exhibit B and the testimony of Anastacio Teodoro. According to the latter, the third for strict legitime
is for the ten children; the third for betterment is for Silvino, Apolonio, Concepcion and Jose Jr.; and
the third for free disposal is for the surviving widow and her child Silvino.

Hence, granting that there was a will duly executed by Jose B. Suntay placed in the envelope
(Exhibit A) and that it was in existence at the time of, and not revoked before, his death, still the
testimony of Anastacio Teodoro alone falls short of the legal requirement that the provisions of the
lost will must be "clearly and distinctly proved by at least two credible witnesses." Credible witnesses
mean competent witnesses and those who testify to facts from or upon hearsay are neither
competent nor credible witnesses.
On the other hand, Alberto Barretto testifies that in the early part of 1929 he prepared or drew up two
mills for Jose B. Suntay at the latter's request, the rough draft of the first will was in his own
handwriting, given to Manuel Lopez for the final draft or typing and returned to him; that after
checking up the final with the rough draft he tore it and returned the final draft to Manuel Lopez; that
this draft was in favor of all the children and the widow (pp. 392-4, 449, t. s. n., hearing of 21
February 1948); that two months later Jose B. Suntay and Manuel Lopez called on him and the
former asked him to draw up another will favoring more his wife and child Silvino; that he had the
rough draft of the second will typed (pp. 395, 449 t. s. n., Id.) and gave it to Manuel Lopez (p. 396, t.
s. n., Id.); that he did not sign as witness the second will of Jose B. Suntay copied from the
typewritten draft [Exhibit B] (p. 420, t. s. n., Id.); that the handwritten insertions or additions in lead
pencil to Exhibit B are not his (pp. 415-7 435-6, 457, t. s. n., Id.); that the final draft of the first will
made up of four or five pages (p. 400, t. s. n., Id.) was signed and executed, two or three months
after Suntay and Lopez had called on him (pp. 397-8, 403, 449, t. s. n., Id.) in his office at the Cebu
Portland Cement in the China Banking Building on Dasmarias street by Jose B. Suntay, Manuel
Lopez and a Chinaman who had all come from Hagonoy (p. 398, t. s. n., Id.); that on that occasion
they brought an envelope (Exhibit A) where the following words were written: "Testamento de Jose
B. Suntay" (pp. 399, 404, t. s. n., Id.); that after the signing of the will it was placed inside the
envelope (Exhibit A) together with an inventory of the properties of Jose B. Suntay and the envelope
was sealed by the signatures of the testator and the attesting witnesses (pp. 398, 401, 441, 443,
461, t. s. n., Id.); that he again saw the envelope (Exhibit A) in his house one Saturday in the later
part of August 1934, brought by Go Toh and it was then in perfect condition (pp. 405-6, 411, 440-2, t.
s. n., Id.); that on the following Monday Go Toh went to his law office bringing along with him the
envelope (Exhibit A) in the same condition; that he told Go Toh that he would charge P25,000 as fee
for probating the will (pp. 406, 440-2, Id.); that Go Toh did not leave the envelope (Exhibit A) either in
his house or in his law office (p. 407, t. s. n., Id.); that Go Toh said he wanted to keep it and on no
occasion did Go Toh leave it to him (pp. 409, 410, t. s. n., Id.).
The testimony of Go Toh taken and heard by Assistant Fiscal F. B. Albert in connection with the
complaint for estafa filed against Manuel Suntay for the alleged snatching of the envelope (Exhibit
A), corroborates the testimony of Alberto Barretto to the effect that only one will was signed by Jose
B. Suntay at his office in which he (Alberto Barretto), Manuel Lopez and Go Toh took part as
attesting witnesses (p. 15, t. s. n., Exhibit 6). Go Toh testified before the same assistant fiscal that he
did not leave the will in the hands of Anastacio Teodoro (p. 26, t. s. n., Exhibit 6). He said, quoting his
own words, "Because I can not give him this envelope even though the contract (on fees) was
signed. I have to bring that document to court or to anywhere else myself." (p. 27, t. s. n., Exhibit 6).
As to the will claimed to have been executed on 4 January 1931 in Amoy, China, the law on the point
in Rule 78. Section 1 of the rule provides:
Wills proved and allowed in a foreign country, according to the laws of such country, may be
allowed, filed, and recorded by the proper Court of First Instance in the Philippines.
Section 2 provides:

When a copy of such will and the allowance thereof, duly authenticated, is filed with a
petition for allowance in the Philippines, by the executor or other person interested, in the
court having jurisdiction, such court shall fix a time and place for the hearing, and cause
notice thereof to be given as in case of an original will presented for allowance.
Section 3 provides:
If it appears at the hearing that the will should be allowed in the Philippines, the court shall
so allow it, and a certificate of its allowance, signed by the Judge, and attested by the seal of
the courts, to which shall be attached a copy of the will, shall be filed and recorded by the
clerk, and the will shall have the same effect as if originally proved and allowed in such court.
The fact that the municipal district court of Amoy, China, is a probate court must be proved. The law
of China on procedure in the probate or allowance of wills must also be proved. The legal
requirements for the execution of a valid will in China in 1931 should also be established by
competent evidence. There is no proof on these points. The unverified answers to the questions
propounded by counsel for the appellant to the Consul General of the Republic of China set forth in
Exhibits R-1 and R-2, objected to by counsel for the appellee, are inadmissible, because apart from
the fact that the office of Consul General does not qualify and make the person who holds it an
expert on the Chinese law on procedure in probate matters, if the same be admitted, the adverse
party would be deprived of his right to confront and cross-examine the witness. Consuls are
appointed to attend to trade matters. Moreover, it appears that all the proceedings had in the
municipal district court of Amoy were for the purpose of taking the testimony of two attesting
witnesses to the will and that the order of the municipal district court of Amoy does not purport to
probate the will. In the absence of proof that the municipal district court of Amoy is a probate court
and on the Chinese law of procedure in probate matters, it may be presumed that the proceedings in
the matter of probating or allowing a will in the Chinese courts are the a deposition or to a
perpetuation of testimony, and even if it were so it does not measure same as those provided for in
our laws on the subject. It is a proceedings in rem and for the validity of such proceedings personal
notice or by publication or both to all interested parties must be made. The interested parties in the
case were known to reside in the Philippines. The evidence shows that no such notice was received
by the interested parties residing in the Philippines (pp. 474, 476, 481, 503-4, t. s. n., hearing of 24
February 1948). The proceedings had in the municipal district court of Amoy, China, may be likened
toe or come up to the standard of such proceedings in the Philippines for lack of notice to all
interested parties and the proceedings were held at the back of such interested parties.
The order of the municipal district court of Amoy, China, which reads as follows:
ORDER:
SEE BELOW
The above minutes were satisfactorily confirmed by the interrogated parties, who declare
that there are no errors, after said minutes were loudly read and announced actually in the
court.
Done and subscribed on the Nineteenth day of the English month of the 35th year of the
Republic of China in the Civil Section of the Municipal District Court of Amoy, China.

HUANG KUANG CHENG

Clerk of Court

CHIANG TENG HWA

Judge

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

does not purport to probate or allow the will which was the subject of the proceedings. In view
thereof, the will and the alleged probate thereof cannot be said to have been done in accordance
with the accepted basic and fundamental concepts and principles followed in the probate and
allowance of wills. Consequently, the authenticated transcript of proceedings held in the municipal
district court of Amoy, China, cannot be deemed and accepted as proceedings leading to the probate
or allowance of a will and, therefore, the will referred to therein cannot be allowed, filed and recorded
by a competent court of this country.
The decree appealed from is affirmed, without pronouncement as to costs.
Pablo, Bengzon, A. Reyes, Labrador and Concepcion, JJ., concur.

Separate Opinions
PARAS, C.J., dissenting:
As a preliminary statement we may well refer to the case of Maria Natividad Lim Billian, petitioner
and appellant,vs. Apolonio Suntay, Angel Suntay, Manuel Suntay, and Jose Suntay, oppositors and
appellees, 63 Phil., 793-797, in which the following decision was rendered by this Court on
November 25, 1936, holding that the will executed by Jose B. Suntay who died in the City of Amoy,
China, on May 14, 1934, was lost under the circumstances pointed out therein, and ordering the
return of the case to the Court of First Instance of Bulacan for further proceedings:
On May 14, 1934, Jose B. Suntay died in the City of Amoy, China. He married twice, the first
time to Manuela T. Cruz with whom he had several children now residing in the Philippines,
and the second time to Maria Natividad Lim Billian with whom he had a son.
On the same date, May 14, 1934, Apolonio Suntay, eldest son of the deceased by his first
marriage, filed the latter's intestate in the Court of First Instance of Manila (civil case No.
4892).
On October 15, 1934, and in the same court, Maria Natividad Lim Billian also instituted the
present proceedings for the probate of a will allegedly left by the deceased.
According to the petitioner, before the deceased died in China he left with her a sealed
envelope (Exhibit A) containing his will and, also another document (Exhibit B of the

petitioner) said to be a true copy of the original contained in the envelope. The will in the
envelope was executed in the Philippines, with Messrs. Go Toh, Alberto Barretto and Manuel
Lopez as attesting witnesses. On August 25, 1934, Go Toh, as attorney-in-fact of the
petitioner, arrived in the Philippines with the will in the envelope and its copy Exhibit B. While
Go Toh was showing this envelope to Apolonio Suntay and Angel Suntay, children by first
marriage of the deceased, they snatched and opened it and, after getting its contents and
throwing away the envelope, they fled.
Upon this allegation, the petitioner asks in this case that the brothers Apolonio, Angel,
Manuel and Jose Suntay, children by the first marriage of the deceased, who allegedly have
the document contained in the envelope which is the will of the deceased, be ordered to
present it in court, that a day be set for the reception of evidence on the will, and that the
petitioner be appointed executrix pursuant to the designation made by the deceased in the
will.
In answer to the court's order to present the alleged will, the brothers Apolonio, Angel,
Manuel and Jose Suntay stated that they did not have the said will and denied having
snatched it from Go Toh.
In view of the allegations of the petition and the answer of the brothers Apolonio, Angel,
Manuel and Jose Suntay, the questions raised herein are: The loss of the alleged will of the
deceased, whether Exhibit B accompanying the petition is an authentic copy thereof, and
whether it has been executed with all the essential and necessary formalities required by law
for its probate.
At the trial of the case on March 26, 1934, the petitioner put two witnesses upon the stand,
Go Toh and Tan Boon Chong, who corroborated the allegation that the brothers Apolonio and
Angel appropriated the envelope in the circumstances above-mentioned. The oppositors
have not adduced any evidence counter to the testimony of these two witnesses. The court,
while making no express finding on this fact, took it for granted in its decision; but it
dismissed the petition believing that the evidence is insufficient to establish that the envelope
seized from Go Toh contained the will of the deceased, and that the said will was executed
with all the essential and necessary formalities required by law for its probate.
In our opinion, the evidence is sufficient to establish the loss of the document contained in
the envelope. Oppositors' answer admits that, according to Barretto, he prepared a will of the
deceased to which he later become a witness together with Go Toh and Manuel Lopez, and
that this will was placed in an envelope which was signed by the deceased and by the
instrumental witnesses. In court there was presented and attached to the case an open and
empty envelope signed by Jose B. Suntay, Alberto Barretto, Go Toh and Manuel Lopez. It is
thus undeniable that this envelope Exhibit A is the same one that contained the will executed
by the deceased-drafted by Barretto and with the latter, Go Toh and Manuel Lopez as
attesting witnesses. These tokens sufficiently point to the loss of the will of the deceased, a
circumstance justifying the presentation of secondary evidence of its contents and of
whether it was executed with all the essential and necessary legal formalities.
The trial of this case was limited to the proof of loss of the will, and from what has taken
place we deduce that it was not petitioner's intention to raise, upon the evidence adduced by
her, the other points involved herein, namely, as we have heretofore indicated, whether
Exhibit B is a true copy of the will and whether the latter was executed with all the formalities
required by law for its probate. The testimony of Alberto Barretto bears importantly in this
connection.

Wherefore, the loss of the will executed by the deceased having been sufficiently
established, it is ordered that this case be remanded to the court of origin for further
proceedings in obedience to this decision, without any pronouncement as to the costs. So
ordered
On June 18, 1947, Silvino Suntay, the herein petitioner, filed a petition in the Court of First Instance
of Bulacan praying "that an order be issued (a) either directing the continuation of the proceedings in
the case remanded by the Supreme Court by virtue of its decision in G. R. No. 44276 and fixing a
date for the reception of evidence of the contents of the will declared lost, or the allowance, filing and
recording of the will of the deceased which had been duly probated in China, upon the presentation
of the certificates and authentications required by Section 41, Rule 123 (Yu
Chengco vs. Tiaoqui supra), or both proceedings concurrently and simultaneously; (b) that letters of
administration be issued to herein petitioner as co-administrator of the estate of the deceased
together with Federico Suntay; and (c) that such other necessary and proper orders be issued which
this Honorable Court deems appropriate in the premises." While this petition was opposed by
Federico C. Suntay, son of the deceased Jose B. Suntay with his first wife, Manuela T. Cruz, the
other children of the first marriage, namely, Ana Suntay, Aurora Suntay, Concepcion Suntay, Lourdes
Guevara Vda. de Suntay, Manuel Suntay and Emiliano Suntay, filed the following answer stating that
they had no opposition thereto; "Come now the heirs Concepcion Suntay, Ana Suntay, Aurora
Suntay, Lourdes Guevara Vda. de Suntay, Manuel Suntay, and Emiliano Suntay, through their
undersigned attorney, and, in answer to the alternative petition filed in these proceedings by Silvino
Suntay, through counsel, dated June 18, 1947, to this Honorable Court respectfully state that, since
said alternative petition seeks only to put into effect the testamentary disposition and wishes of their
late father, they have no opposition thereto."
After hearing, the Court of First Instance of Bulacan rendered on April 19, 1948, the following
decision:
This action is for the legalization of the alleged will of Jose B. Suntay, deceased.
In order to have a comprehensive understanding of this case, it is necessary to state the
background on which the alternative petition of the herein petitioner Silvino Suntay has been
based.
The decision of the Supreme Court (Exhibit O), in re will of the deceased Jose B. Suntay, 63
Phil., 793-797, is hereunder produced:
(As quoted above)
The above quoted decision of the Supreme Court was promulgated on November 25, 1936
(Exhibit O).
The Clerk of the Court of Court of First Instance of Bulacan notified the parties of the
decision on December 15, 1936; and the case was set for hearing on February 12, 1937, but
it was transferred to March 29, 1937 (Exhibit O), on motion of the then petitioner Maria
Natividad Lim Billian (Exhibit F). Again, it was postponed until "further setting" in the order of
court dated March 18, 1937, upon motion of the petitioner (Exhibit H).
In the meantime, the deposition of Go Toh was being sought (Exhibit H).

The hearing of the case was again set for February 7, 1936, by order of the court dated
January 5, 1938, upon motion of Emiliano Suntay and Jose Suntay, Jr. On the same day of
the hearing which had been set, the petitioner, then, Maria Natividad Lim Billian, sent a
telegram from Amoy, China, addressed to the Court of First Instance of Bulacan moving for
the postponement of the hearing on the ground that Atty. Eriberto de Silva who was
representing her died (Exhibit K). The court, instead of granting the telegraphic motion for
postponement, dismissed the case in the order dated February 7, 1938 (Exhibit L).
On July 3, 1947, the petitioner Silvino Suntay filed a motion for the consolidation of the
intestate Estate of the deceased Jose B. Suntay, Special Proceeding No. 4892 and the
Testate Estate of Jose B. Suntay, Special Proceeding No. 4952, which latter case is the
subject of the said alternative petition. The motion for the merger and consolidation of the
two cases was granted on July 3, 1947.
That oppositor, Federico C. Suntay, in the Testate Proceeding filed a motion to dismiss the
alternative petition on November 14, 1947, which was denied by the court in its resolution of
November 22, 1947. The said oppositor not being satisfied with the ruling of this court
denying the motion to dismiss, filed before the Supreme Court a petition for a writ
of certiorari with preliminary injunction, which was dismissed for lack of merit on January 27,
1948.
In obedience to the decision of the Supreme Court (Exhibit O) and upon the alternative
petition of Silvino Suntay, and, further, upon the dismissal of the petition for a writ
of certiorari with preliminary injunction, the court was constrained to proceed with the hearing
of the probate of the lost will, the draft of which is Exhibit B, or the admission and recording
of the will which had been probated in Amoy, China.
The evidence for the petitioner, Silvino Suntay, shows that Jose B. Suntay married twice; first
to Manuela T. Cruz who died on June 15, 1920 and had begotten with her Apolonio, now
deceased, Concepcion, Angel, Manuel, Federico, Ana, Aurora, Emiliano and Jose, Jr., all
surnamed Suntay, and second, to Maria Natividad Lim Billian with whom he had as the only
child Silvino Suntay, the petitioner herein.
Some time in November 1929, Jose B. Suntay executed his last will and testament in the
office of Atty. Alberto Barretto in Manila, which was witnessed by Alberto Barretto, Manuel
Lopez and Go Toh. The will was prepared by said Alberto Barretto upon the instance of Jose
B. Suntay, and it was written in the Spanish language which was understood and spoken by
said testator. After the due execution of the will, that is signing every page and the attestation
clause by the testator and the witnesses in the presence of each other, the will was placed
inside the envelope (Exhibit A), sealed and on the said envelope the testator and the three
subscribing witnesses also signed, after which it was delivered to Jose B. Suntay.
A year or so after the execution of the will, Jose B. Suntay together with his second wife
Maria Natividad Lim Billian and Silvino Suntay who was then of tender age went to reside in
Amoy, Fookien, China, where he died on May 14, 1934. The will was entrusted to the widow,
Maria Natividad Lim Billian.
Upon the death of Jose B. Suntay on May 14, 1934, Apolonio Suntay, the oldest son now
deceased, instituted the Intestate Proceedings No. 4892, upon the presumption that no will
existed. Maria Natividad Lim Billian who remained in Amoy, China, had with her the will and
she engaged the services of the law firm of Barretto and Teodoro for the probate of the will.
Upon the request of the said attorneys the will was brought to the Philippines by Go Toh who

was one of the attesting witnesses, and it was taken to the law office of Barretto and
Teodoro. The law firm of Barretto and Teodoro was composed of Atty. Alberto Barretto and
Judge Anastacio Teodoro. The probate of the will was entrusted to the junior partner Judge
Anastacio Teodoro; and, upon the presentation of the sealed envelope to him, he opened it
and examined the said will preparatory to the filing of the petition for probate. There was a
disagreement as to the fees to be paid by Maria Natividad Lim Billian, and as she (through
Go Toh) could not agree to pay, P20,000 as fees, the will was returned to Go Toh by Judge
Anastacio Teodoro after the latter had kept it in his safe, in his office, for three days.
Subsequently, the will inside the envelope was snatched from Go Toh by Manuel Suntay and
Jose, Jr., which fact has been established in the decision of the Supreme Court at the
beginning of this decision. Go Toh could recover the envelope (Exhibit A) and the piece of
cloth with which the envelope was wrapped (Exhibit C).
The Testate Proceeding was filed nevertheless and in lien of the lost will a draft of the will
(Exhibit B) was presented as secondary evidence for probate. It was disallowed by this court
through Judge Buenaventura Ocampo, but on appeal the Supreme Court remanded the
case to this court for further proceeding (Exhibit C).
In the meantime, a Chinese will which was executed in Amoy Fookien, China, on January 4,
1931, by Jose B. Suntay, written in Chinese characters (Exhibit P) was discovered in Amoy,
China, among the papers left by Jose B. Suntay, and said will had been allowed to probate in
the Amoy District Court, China, which is being also presented by Silvino Suntay for
allowance and recording in this court.
The said petition is opposed by Federico C. Suntay on the main ground that Maria Natividad
Lim Billian and Silvino Suntay have no more interest in the properties left by Jose B. Suntay,
because they have already sold their respective shares, interests and participations. But
such a ground of opposition is not of moment in the instant case, because the proposition
involved herein in the legalization of the lost will or the allowance and recording of the will
which had been probated in Amoy, China.
It is now incumbent upon this court to delve into the evidence whether or not Jose B. Suntay,
deceased, left a will (the draft of which is Exhibit B) and another will which was executed and
another will which was executed and probated in Amoy, China.
There is no longer any doubt that Jose B. Suntay while he was still residing in the
Philippines, had executed a will; such is the conclusion of the Supreme Court in its decision
(Exhibit O). That the will was snatched and it has never been produced in court by those who
snatched it, and consequently considered lost, is also an established fact.
The contention of the oppositor, Federico C. Suntay, is that the will that was executed by
Jose B. Suntay in the Philippines contained provisions which provided for equal distribution
of the properties among the heirs; hence, the draft (Exhibit B) cannot be considered as
secondary evidence, because it does not provide for equal distribution, but if favors Maria
Natividad Lim Billian and Silvino Suntay. He relies on the testimony of Atty. Alberto Barretto
who declared that the first will which he drafted and reduced into a plain copy was the will
that was executed by Jose B. Suntay and placed inside the envelope (Exhibit A).
Granting that the first will which Atty. Alberto Barretto had drafted became the will of Jose B.
Suntay and it was snatched by, and, therefore, it had fallen into the hands of, Manuel Suntay
and the brothers of the first marriage, it stands to reason that said Manuel Suntay and

brothers would have been primarily interested in the production of said will in court, for
obvious reasons, namely, that they would have been favored. But it was suppressed and
"evidence willfully suppressed would be adverse if produced" (Section 69 (e), Rule 123 of the
Rules of Court). The contention, therefore, that the first will which was drafted by Atty.
Barretto was the one placed inside the envelope (Exhibit A) is untenable.
It might be said in this connection that the draft of the will (Exhibit B) has been admitted by
Atty. Alberto Barretto as identical in substance and form to the second draft which he
prepared in typewriting; it differs only, according to him, in style. He denied that the insertions
in long hand in the said draft are in his own handwriting; however, Judge Anastacio Teodoro
averred that the said insertions are the handwriting of Atty. Alberto Barretto. But when Atty.
Alberto Barretto was asked to show any manuscript of his for purposes of comparison, he
declined to do so alleging that he did not have any document in his possession showing his
handwriting notwithstanding the fact that he was testifying in his own house at 188 Sta. Mesa
Boulevard, Manila. He further testified that the first will be drafted contained four or five
pages, but the second draft contained twenty-three pages; that he declared in one breath
that he did not read the will any more when it was signed by the testator and the attesting
witnesses because it would take up much time, and in the same breath he declared that he
checked it before it was signed; and that he destroyed the draft of the first will which was in
his own handwriting, but he delivered the draft of the second will which he prepared to Jose
B. Suntay in the presence of Manuel Lopez, now deceased.
Whether or not the final plain copy of the draft of the will (Exhibit B) was executed by the
testator, Jose B. Suntay, and attested by the subscribing witnesses, Atty. Alberto Barretto,
Manuel Lopez and Go Toh, is the pivotal point in this instant case. Judge Anastacio Teodoro
testified that he opened the sealed envelope when it was given to him by Go Toh preparatory
to the presentation of the petition for the probate of the said will. As the lawyer entrusted with
that task, he had to examine the will and have it copied to be reproduced or appended to the
petition. He could not do otherwise if he is worth salt as a good lawyer; he could not perform
the stunt of "blind flying" in the judicial firmament. Every step must be taken with certainty
and precision under any circumstances. He could not have talked about the attorney's fees
with Go Toh, unless he has not examined the will beforehand. And, declaring that it was the
exact draft of the will that was inside the envelope (Exhibit A), the testimony of Atty. Alberto
Barretto to the contrary notwithstanding.
The testimony of Judge Anastacio Teodoro is corroborated by Go Toh, one of the attesting
witnesses, in his deposition (Exhibit D-1).
Ana Suntay, one of the heirs and who would be affected adversely by the legalization of the
will in question, also testified on rebuttal that she saw the original will in the possession of
Manuel Suntay, immediately after the snatching. She read it and she particularly remembers
the manner in which the properties were to be distributed. Exhibit B was shown to her on the
witness stand and she declared that the provision regarding the distribution of the properties
in said Exhibit B is the same as that contained in the original will. Said testimony of Ana
Suntay, therefore, belies the testimony of Atty. Alberto Barretto.
With respect to the proof of lost or destroyed will, Section 6 of Rule 77 provides as follows:
"No will shall be proved as a lost or destroyed will unless the execution and validity of the
same be established, and the will is proved to have been in existence at the time of the
death of the testator, or it is shown to have been fraudulently or accidentally destroyed in the
lifetime of the testator without his knowledge, nor unless its provisions are clearly and

distinctly proved by at least two credible witnesses. When a lost will is proved, the provisions
thereof must be distinctly stated and certified by the judge, under the seal of the court, and
the certificate must be filed and recorded as other wills are filed and recorded."
Section 8 of the same Rule provides as follows:
"If it appears at the time fixed for the hearing that the subscribing witnesses are dead or
insane, or that none of them resides in the Philippines the court may admit the testimony of
other witnesses to prove the sanity of the testator, and the due execution of the will; and as
evidence of the due execution of the will, it may admit proof of the handwriting of the testator
and of the subscribing witnesses, or any of them."
Manuel Lopez as one of the subscribing witnesses is dead. Atty. Alberto Barretto and Go Toh
are still living. The former testified during the hearing, while Go Toh's deposition was
introduced in evidence which was admitted. In the absence of the testimony of Manuel
Lopez, deceased, the testimony of Judge Anastacio Teodoro and Ana Suntay was received.
It is an established fact that the will, draft of which is Exhibit B, was lost or destroyed; that it
was executed and valid and that it existed at the time of the death of Jose B. Suntay. These
circumstances also apply to the will (Exhibit P) which was executed in Amoy, China.
The contents of the Chinese will is substantially the same as the draft (Exhibit B). Granting
that the will executed in the Philippines is non-existent as contended by the oppositor,
although the findings of this court is otherwise, the will executed and probated in China
should be allowed and recorded in this court. All the formalities of the law in China had been
followed in its execution, on account of which it was duly probated in the Amoy District Court.
There is no cogent reason, therefore, why it should not be admitted and recorded in this
jurisdiction.
The said will (Exhibit P) in Chinese characters is presented as an alternate in case the will
executed in the Philippines would not be allowed to probate, or as a corroborative evidence
that the will, the draft of which is Exhibit B, has been duly executed in the Philippines by Jose
B. Suntay.
Rule 78 of the Rules of Court covers the allowance of will proved outside of the Philippines
and administration of estate thereunder.
Section 1 of said rule provides:
"Wills proved and allowed in the United States, or any state or territory thereof, or in foreign
country, according to the laws of such state, territory, or country, may be allowed, filed, and
recorded by the proper Court of First Instance in the Philippines."
Section 2 of the same rule provides:
"When a copy of such will and the allowance thereof, duly authenticated, is filed with a
petition for allowance in the Philippines, by the executor or other person interested, in the
court having jurisdiction, such court shall fix a time and place for the hearing, and cause
notice thereof to be given as in case of an original will presented for allowance."

This court has delved deep into the evidence adduced during the hearing with that
penetrating scrutiny in order to discovery the real facts; it had used unsparingly the judicial
scapel; and it has winnowed the evidenced to separate the grain from the chaff. All the facts
lead to the inevitable conclusion that Jose B. Suntay, in his sound and disposing mind and
not acting under duress or undue influence, executed the will which is lost, the draft of which
is Exhibit B, with all the necessary formalities prescribed by law. He, likewise, executed the
second will (Exhibit P) in Amoy, China, which has been duly probated in Amoy District Court,a corroborative evidence that the testator really executed the will. Copies of the said wills
duly certified and under the seal of the court are appended hereto, marked Exhibits B and P,
and they form part of this decision.
In view of the foregoing considerations, the court is of the opinion and so declares that the
draft of the will (Exhibit B) is, to all legal intents and purposes, and testament of the
deceased Jose B. Suntay. With costs against the oppositor, Federico C. Suntay.
Oppositor Federico C. Suntay filed on May 20, 1948, a motion for new trial and to set aside the
decision rendered on April 19, 1948, to which the petitioner filed an opposition, followed by a reply
filed by the oppositor and an answer on the part of the petitioner. Without reopening the case and
receiving any new or additional evidence, the Court of First Instance of Bulacan, on September 29,
1948, promulgated the following resolution setting aside his first decision and disallowing the wills
sought to be probated by the petitioner in his alternative petition filed on June 18, 1947:
This is a motion for new trial and to set aside the decision legalizing the will of Jose B.
Suntay and allowing and recording another will executed by him in Amoy, China.
By virtue of this motion, this court is constrained to go over the evidence and the law
applicable thereto with the view of ascertaining whether or not the motion is well founded.
Both parties have presented extensive memoranda in support of their respective
contentions.
This court has gone over the evidence conscientiously, and it reiterates its findings of the
same facts in this resolution, whether or not the facts established by the petitioner, Silvino
Suntay, warrant the legalization of the lost will and the allowance and recording of the will
that was executed in Amoy, China, is therefore, the subject of this instant motion.
A. As to the legalization of the Lost Will. There is no question in the mind of this court that
the original will which Jose B. Suntay, deceased executed in the Philippines in the year 1929
was lost (Exhibit O, Decision of the Supreme Court). The evidence adduced by the petitioner
during the hearing has established through the testimony of Judge Anastacio Teodoro and
that of Go Toh (an attesting witness) that the will was executed by Jose B. Suntay, deceased,
with all the formalities required by law. For the purpose of legalizing an original and existing
will, the evidence on record is sufficient as to the execution and attesting in the manner
required by law.
Section 8 of Rule 77 provides as follows:
"SEC. 8. Proof when witnesses dead or insane or do not reside in the Philippines. If it
appears at the time fixed for the hearing that the subscribing witnesses are dead or insane,
or that none of them resides in the Philippines, the court may admit the testimony of other
witnesses to prove the sanity of the testator, and the due execution of the will; and as
evidence of the execution of the will, may admit proof of the handwriting of the testator and
of the subscribing witnesses, or any of them."

Section 11 of said rule also provides as follows:

"SEC. 11. Subscribing witnesses produced or accounted for where contest. If the will is
contested, all the subscribing witnesses present in the Philippines and not insane, must be
produced and examined, and the death, absence, or insanity of any of them must be
satisfactorily shown to the court. If all or some of the subscribing witnesses are present in the
Philippines, but outside the province where the will has been filed, their deposition must be
taken. If all or some of the subscribing witnesses produced and examined testify against the
due execution of the will, or do not remember having attested to it, or are otherwise of
doubtful credibility, the will may be allowed if the court is satisfied from the testimony of other
witnesses and from all the evidence presented that the will was executed and attested in the
manner required by law."
The three attesting witnesses were Manuel Lopez, deceased Alberto Barretto and Go Toh.
The last two witnesses are still living; the former testified against and the latter in favor. In
other words, the attesting witness, Go Toh, only, testified in his deposition in favor of the due
execution of the will. Hence, the petitioner presented another witness, Judge Anastacio
Teodoro, to establish and prove the due execution of the said will. Ana Suntay was also
presented as a witness in rebuttal evidence. The testimony of Go Toh in his deposition as an
attesting witness, coupled with the testimony of Judge Anastacio Teodoro who was able to
examine the original will that was executed by Jose B. Suntay, deceased, when it was given
to him by Go Toh for the purpose of filing the petition in court for its legalization, and could
recognize the signatures of the testator as well as of the three attesting witnesses on the
said original will is sufficient to convince the court that the original will was executed by the
deceased Jose B. Suntay with all the formalities required by law. The original will, therefore,
if it was presented in court to probate would be allowed to all legal intents and purposes. But
it was not the original will that was presented, because it was lost, but an alleged draft
(Exhibit B) of the said original will which does not bear the signature of the testator and any
of the attesting witness. The original will was duly executed with all the formalities required
by law, but it was unfortunately lost; and the curtain falls for the next setting.
The Court is now confronted with the legalization of the lost will whether or not the draft
(Exhibit B) should be admitted as secondary evidence in lieu of the lost will and allowed to
probate.
Section 6. Rule 77 provides as follows:
"SEC. 6. Proof of lost or destroyed will Certificate thereupon. No will shall be proved as
a lost will or destroyed will unless the execution and validity of the same be established, and
the will is proved to have been in existence at the time of the death of the testator, or is
shown to have been fraudulently or accidentally destroyed in the lifetime of the testator
without his knowledge, nor unless its provisions are clearly and distinctly proved by at least
two credible witnesses. When a lost will is proved, the provisions thereof must be distinctly
stated and certified by the Judge, under the seal of the court and the certificate must be filed
and recorded as other wills are filed and recorded." (Emphasis Court's)
From the above quoted provision of the law, it is clear that the petitioner should not only
establish the execution and validity of the will, its existence at the time of the death of the
testator or its fraudulent and accidental destruction in the lifetime of the testator without his
knowledge, but also must prove its provisions clearly and distinctly by at least two credible
witnesses. The exact language of the clause in the above quoted provision of the law is "nor
unless its provisions are clearly and distinctly proved by at least two credible witnesses." The

legalization of a lost will is not so easy, therefore, as that of an original will. The question,
therefore, is boiled down to, and projected on the screen, in a very sharp focus; namely, the
execution and validity must be established and the provisions must be clearly and distinctly
proved by at least credible witnesses.
Granting that the execution and validity of the lost will have been established through the
testimony of Judge Anastacio Teodoro and Go Toh, and perhaps superficially by the rebuttal
witness, Ana Suntay, does it follow that the provisions of the lost will have been clearly and
distinctly proved by at least two credible witnesses? A careful review of the evidence has
revealed that at most the only credible witness who testified as to the provisions of the will
was Judge Anastacio Teodoro, and yet he testified on the provisions of the lost will with the
draft (Exhibit B) in his hands while testifying. It may be granted, however, that with or without
the draft of the will (Exhibit B) in his hands, he could have testified clearly and distinctly on
the provisions of the said lost will, because he had kept the will in his safe, in his office, for
three days, after opening it, and he is well versed in Spanish language in which the will as
written. But did the attesting witness Go Toh, testify in his deposition and prove clearly and
distinctly the provisions of the lost will? He did not, and he could not have done so even if he
tried because the original will was not read to him nor by him before or at the signing of the
same. It was written in Spanish and he did not and does not understand the Spanish
language. Neither was there any occasion for him to have the contents of the said will, after
its execution and sealing inside the envelope (Exhibit A), read to him because it was opened
only when Judge Teodoro had examined it and then subsequently snatched from Go Toh.
Ana Suntay on rebuttal did not, likewise, prove clearly and distinctly the provisions of the
said lost will because she has not had enough schooling and she does possess adequate
knowledge of the Spanish language as shown by the fact that she had to testify in Tagalog
on the witness standing.
It is evident, therefore, that although the petitioner has established the execution and validity
of the lost will, yet he had not proved clearly and distinctly the provisions of the will by at
least two credible witnesses.
B. As to the Allowance and Recording of the will Executed in Amoy, China. Jose B.
Suntay, while he was residing in China during the remaining years of his life, executed also a
will, written in Chinese characters, the translation of which is marked Exhibit P. It was
allowed to probate in the District Court of Amoy, China. The question is whether or not the
said will should be allowed and recorded in this jurisdiction.
Section 1 of Rule 78 provides as follows:
"SEC. 1. Will proved outside Philippines any be allowed here. Will proved and allowed in
the United States, or any state or territory thereof, or in a foreign country, according to the
laws of such state, territory, or country, may be allowed, filed, and recorded by the proper
court of First Instance in the Philippines."
Section 2 of the same Rule also provides:
"SEC. 2. Notice of hearing for allowance. When a copy of such will and the allowance
thereof, duly authenticated, is filed with a petition for allowance in the Philippines by the
executor or other persons interested, in the Court having jurisdiction, such court shall fix a
time and place for the hearing, and cause notice thereof to be given as in case of an original
will presented for allowance."

Sections 41 and 42 of Rule 123 provides as follows:

"SEC. 41. Proof of Public or official record. An official record or an entry therein, when
admissible for any purpose, may be evidenced by an official publication thereof or by a copy
attested by the officer having the legal custody of the record, or by his deputy, and
accompanied, if the record is not kept in the Philippines, with a certificate that such officer
has the custody. If the office in which the record is kept is within the United States or its
territory, the certificate may be made by a judge of a court of record of the district or political
subdivision in which the record is kept, authenticated by the seal of the court, or may be
made by any public officer having a seal of the office and having official duties in the district
or political subdivision in which the record is kept, authenticated by the seal of his office. If
the office in which the record is kept is in a foreign country, the certificate may be made by a
secretary of embassy or legation, consul general, consul, vice consul, or consular agent or
by any officer in the foreign service of the United States stationed in the foreign country in
which the record is kept, and authenticated by the seal of his office."
F. "SEC. 42. What attestation of copy must state. Whenever a copy of writing is attested
for the purpose of evidence, the attestation must state, in substance, that the copy is a
correct copy of the original, or a specific part thereof, as the case may be. The attestation
must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a
court having a seal, under the seal of such court."
In the case of Yu Changco vs. Tiaoqui, 11 Phil. 598, 599, 600, our Supreme Court said:
"Section 637 of the Code of Civil Procedure says that will proved and allowed in a foreign
country, according to the laws of such country, may be allowed, filed, and recorded in the
Court of First Instance of the province in which the testator has real or personal estate on
which such will may operate; but section 638 requires that the proof of the authenticity of a
will executed in a foreign country must be duly"authenticated". Such authentication,
considered as a foreign judicial record, is prescribed by section 304, which requires the
attestation of the clerk or of the legal keeper of the records with the seal of the court
annexed, if there be a seal, together with a certificate of the chief judge or presiding
magistrate that the signature of either of the functionaries attesting the will is genuine, and,
finally, the certification of the authenticity of the signature of such judge or presiding
magistrate, by the ambassador, minister, consul, vice consul or consular agent of the United
States in such foreign country. And, should the will be considered, from an administrative
point of view, as a mere official document 'of a foreign country', it may be proved, 'by the
original, or by a copy certified by the legal keeper thereof, with a certificate, under the seal of
the country or sovereign, that the document is a valid and subsisting document of such
country, and that the copy is duly certified by the officer having the legal custody of the
original. (Sec. 313, par. 8)."
In the case of Fluemer vs. Hix, 54 Phil. 610, 611, 612, and 613, our Supreme Court said:
"It is the theory of the petitioner that the alleged will was executed in Elkins, West Virginia, on
November 3, 1925, by Hix who had his residence in that jurisdiction, and that the laws of
West Virginia govern. To this end, there was submitted a copy of section 3868 of Acts 1882,
c. 84 as found in West Virginia Code, Annotated, by Hogg, Charles E., Vol. 2, 1914, p. 1690,
and as certified to by the Director of the National Library. But this was far from compliance
with the law. The laws of a foreign jurisdiction do not prove themselves in our courts. The
courts of the Philippine Islands are not authorized to take judicial notice of the laws of the
various States of the American Union. Such laws must be proved as facts. (In re Estate of

Johnson (1918), 39 Phil., 156.) Here the requirements of the law were not met. There was
not showing that the book from which an extract was taken was printed or published under
the authority of the State of West Virginia, as provided in section 300 of the Code of Civil
Procedure. Nor was the extract from the law attested by the certificate of the officer having
charge of the original under the seal of the State of West Virginia, as provided in section 301
of the Code of Civil Procedure. No evidence was introduced to show that the extract from the
laws of West Virginia was in force at the time the alleged will was executed.
"It was also necessary for the petitioner to prove that the testator had his domicile in West
Virginia and not in the Philippine Islands. The only evidence introduced to establish this fact
consisted of the recitals in the alleged will and the testimony of the petitioner.
"While the appeal was pending submission in this court, the attorney for the appellant
presented an unverified petition asking the court to accept as part of the evidence the
documents attached to the petition. One of these documents discloses that a paper writing
purporting to be the last will and testament of Edward Randolph Hix, deceased, was
presented for probate on June 8, 1929, to the clerk of Randolph County, State of West
Virginia, in vacation, and was duly proven by the oaths of Dana Vansley and Joseph L.
Madden, the subscribing witnesses thereto, and ordered to be recorded and filed. It was
shown by another document that in vacation, on June 8, 1929, the clerk of court of Randolph
County, West Virginia, appointed Claude E. Maxwell as administrator, cum testamento
annexo, of the estate of Edward Randolph Hix, deceased ... However this may be no attempt
has been made to comply with the provisions of sections 637, 638, and 639 of the Code of
Civil Procedure, for no hearing on the question of the allowance of a will said to have been
proved and allowed in West Virginia has been requested. ... ."
Granting that the will of Jose B. Suntay which was executed in Amoy, China, was validly
done in accordance with the law of the Republic of China on the matter, is it necessary to
prove in this jurisdiction the existence of such law in China as a prerequisite to the allowance
and recording of said will? The answer is in the affirmative as enunciated in
Fluemer vs. Hix, supra, and in Yanez de Barnuevo vs. Fuster, 29 Phil., 606. In the latter
case, the Supreme Court said:
"A foreign law may be proved by the certificate of the officer having in charge of the original,
under the seal of the state or country. It may also be proved by an official copy of the same
published under the authority of the particular state and purporting to contain such law.
(Secs. 300 and 301, Act No. 190.), (Syllabus.)
The provisions of section 300 and 301 of the Code of Civil Procedure (Act No. 190) are as
follows:
"SEC. 300. Printed laws of the State or Country. Books printed or published under the
authority of the United States, or one of the States of the United States, or a foreign country,
and purporting to contain statutes, codes, or other written law of such State or country or
proved to be commonly admitted in the tribunals of such State or country an evidence of the
written law thereof, are admissible in the Philippine Islands are evidence of such law."
"SEC. 301. Attested copy of foreign laws. A copy of the written law or other public writing
of any state or country, attested by the certificate of the officer having charge of the original,
under the seal of the state or country, is admissible as evidence of such law or writing."

The petitioner has presented in evidence the certification of the Chinese Consul General,
Tsutseng T. Shen, of the existence of the law in China (Exhibit B-3), relative to the execution
and probate of the will executed by Jose B. Suntay in Amoy, China (Exhibit P). Is that
evidence admissible, in view of the provisions of Sections 41 and 42 of the Rules of the
Rules of Court. Is the said certification of the Chinese Consul General in the Philippines a
substantial compliance with the provisions of the above mentioned section 41 and 42 of our
Rules of Court?
This court has its doubts as to the admissibility in evidence of the Chinese Consul General in
the Philippines of the existence of the laws of Republic of China relative to the execution and
probate of a will executed in China. Such law may exist in China, but
"An official record or an entry therein, when admissible for any purpose, may be evidence by
an official publication thereof or by a copy attested by the officer having the legal custody of
the record, or by his deputy, and accompanied, if the record is not kept in the Philippines,
with a certificate that such officer has the custody. ... If the office in which the record is kept is
in a foreign country, the certificate may be made by a secretary of embassy or legation,
consul general, consul, vice consul, or consular agent or by any officer in the foreign service
of the United States stationed in the foreign country in which the record is kept, and
authenticated by the seal of his office." (Sec. 41 of Rule 123.)
The law of the Republic of China is a public or official record and it must be proved in this
jurisdiction through the means prescribed by our Rules of Court. It is, therefore, obvious that
the Chinese Counsel General in the Philippines who certified as to the existence of such law
is not the officer having the legal custody of the record, nor is he a deputy of such officer.
And, if the office in which the record is kept is in a foreign country, the certificate may be
made by a secretary of embassy or legation, consul general, consul, vice consul, or consular
agent or by any officer in the foreign service of the United States stationed in the foreign
country in which the record is kept, and authenticated by the seal of his office.
It is clear, therefore, that the above provisions of the Rules of Court (Rule 123, sec. 41) not
having been complied with, the doubt of this court has been dissipated, and it is of the
opinion and so holds that the certification of the Chinese Consul General alone is not
admissible as evidence in the jurisdiction.
The evidence of record is not clear as to whether Jose B. Suntay, who was born in China,
but resided in the Philippines for a long time, has become a Filipino citizen by naturalization,
or he remained a citizen of the Republic of China. The record does not, likewise, show with
certainty whether or not he had changed his permanent domicile from the Philippines to
Amoy, China. His change of permanent domicile could only be inferred. But the question of
his permanent domicile pales into insignificance in view of the overtowering fact that the law
of China pertinent to the allowance and recording of the said will in this jurisdiction has been
satisfactorily established by the petitioner.
Both the petitioner and the oppositor have extensively urged in their respective
memorandum and in the oral argument in behalf of the oppositor the question of estoppel.
The consideration of the points raised by them would open the door to the appreciation of
the intrinsic validity of the provisions of the will which is not of moment at the present stage of
the proceeding. While the probate of a will is conclusive as to the compliance with all formal
requisites necessary to the lawful execution of the will, such probate does not affect the
intrinsic validity of the provisions of the will. With respect to the latter the will in governed by
the substantive law relative to descent and distribution. (In re Johnson, 39 Phil., 157).

IN VIEW OF THE FOREGOING, and upon reconsideration, the previous decision rendered
in this case allowing the will (Exhibit B) and allowing and recording the foreign will (Exhibit P)
is set aside; and this court is of the opinion and so holds that the said two wills should be, as
they are hereby disallowed. Without special pronouncement as to costs.
It is very significant that in the foregoing resolution, the Court of First Instance of Bulacan "reiterates
its finding of the same facts in this resolution," and merely proceeds to pose the sole question
"whether or not the facts established by the petitioner, Silvino Suntay, warrant the legalization of the
lost will and allowance and recording of the will that was executed in Amoy, China." The somersault
executed by the trial court is premised on the ground that "although the petitioner has established
the execution and validity of the lost will, yet he has not proved clearly and distinctly the provisions of
the will by the least two credible witnesses"; and that, assuming that the will of Jose B. Suntay
executed in Amoy, China, was in accordance with the law of the Republic of China, the certification
of the Chinese Consul General in the Philippines as the existence of such law is not admissible
evidence in this jurisdiction. In effect the resolution on the motion for reconsideration promulgated by
the trial court, and the decision of the majority herein, adopt the position that the testimony of Judge
Anastacio Teodoro as to the provisions of the lost will, while credible and perhaps sufficient in extent,
is not corroborated by the witnesses Go Toh and Ana Suntay and, therefore, falls short of the
requirement in section 6, Rule 77, of the Rules of Court that the provisions of the lost will must be
"clearly and distinctly proved by at least two witnesses." That this requirement was obviously
construed, to mean that the exact provisions are to be established, may be deduced from the
following dialogue between his Honor, Judge Potenciano Pecson, and attorney Teofilo Sison, new
counsel for oppositor Federico C. Suntay, who appeared for the first time at the ex parte hearing of
the oppositor's motion for new trial on September 1, 1949:
COURT: However, Rule 77, Section 6, provides in proving a lost will, the provisions of the
lost will must be distinctly stated and certified by the Judge.
ATTY. TEOFILO SISON: Yes, Your Honor.
COURT: That presupposes that the judge could only certify to the exact provisions of the will
from the evidence presented.
ATTY. TEOFILO SISON: That is our contention, provided that provision is clearly established
by two credible witnesses so that the Court could state that in the decision, we agree, that is
the very point.
(t. s. n. 75, Session of Sept. 1, 1948)
The sound rule, however, as we have found it to be, as to the degree of proof required to establish
the contents of a lost or destroyed will, is that there is sufficient compliance if two witnesses have
substantiated the provisions affecting the disposition of the testator's properties; and this is
especially necessary to prevent the "perpetration of fraud by permitting a presumption to supply the
suppressed proof," to keep a wrong-doer from utilizing the rule as his "most effective weapon," or to
avoid the enjoyment of a "premium from the rascality of one whose interests might suggest the
destruction of a will."
Section 1865 of the Code requires that the provisions of a lost will must be clearly and
distinctly proved by at least two credible witnesses before it can be admitted to probate; but
this section must receive a liberal construction (Hook vs. Pratt, 8 Hun. 102-109) and its spirit
is complied with by holding that it applies only to those provisions which affect the disposition
of the testator's property and which are of the substance of the will.

The allegations of the contents of the will are general, and under ordinary circumstances,
would be in sufficient; but the fact alleged, if proven as alleged, would certainly authorize the
establishment of the will so far as its bequests are concerned. To require that a copy of the
will or the language of the bequests, in detail, should be pleaded, where no copy has been
preserved, and where the memory of the witnesses does not hold the exact words, would not
only deny the substance for mere form, but would offer a premium upon the rascality of one
whose interests might suggest the destruction of a will. As said in Anderson vs. Irwin, 101 Ill.
411: "The instrument in controversy having been destroyed without the fault of the defendant
in error ... and there not appearing to be any copy of it in existence, it would be equivalent to
denying the complainant relief altogether to require her to prove the very terms in which it
was conceived. All that could reasonably be required of her under the circumstances could
be to show in general terms the disposition which the testator made of his property by the
instruments; that it purported to be his will and was duly attested by the requisite number of
witnesses." In Allison vs. Allison, 7 Dana 91, it was said in speaking of the character and
extent of proof required in such a case:" nor is there any just ground to object to the proof
because the witnesses have not given the language of the will or the substance thereof.They
have given the substance of the different devises as to the property or interest devised, and
to whom devised and we would not stop, in the case of a destroyed will, to scan with rigid
scrutiny the form of the proof, provided we are satisfied of the substance of its provisions."
(Jose vs. Casler 139 Ind. 392, 38 N. E. 812).
The evidence in the case falls short of establishing the existence of such a writing, except as
it may be presumed, under the maxim Omnia preasumuntur in odium spoliateris." There was
evidence tending to show that the second will of Anne Lambie was in the possession of
Francis Lambie, and that it came to the hands of the proponents, warranting the inference
that it has been suppressed or destroyed. If from this evidence the jury found such paper
destroyed the law permits the presumption that it was legally drawn and executed,
notwithstanding the terms of the statute, which requires the revoking instrument to be
formally executed. If a will be lost, secondary evidence may be given of its contents; if
suppressed or destroyed, the same is true; and, if necessary the law will prevent the
perpetration of a fraud by permitting a presumption to supply the suppressed proof. We
cannot assent to the proposition that the statute is so right as to be the wrongdoer's most
effective weapons. The misconduct once established to the satisfaction of the jury, it is no
hardship to the wrongdoer to say. "Produce the evidence in your possession, or we will
presume that your opponent's contention is true." When one deliberately destroys, or
purposely induces another to destroy, a written instrument subsequently become a matter of
judicial inquiry between the spoliator and an innocent party, the latter will not be required to
make strict proof of the contents of such instrument in order to establish a right founded
thereon. Brook, Leg. Max. 576, Preston vs. Preston, 132, Atl. 55, 61. (Re Lambie's Estate,
97 Mich, 55,56 N. W. 225)
Judged from the standard set forth in the foregoing authorities, and bearing in mind that the
circumstances of this case lead to the only conclusion that the loss of the will in question is of course
imputable to those whose interests are adverse to the petitioner and the widow Lim Billian, we have
no hesitancy in holding the view that the dispositions of the properties left by the deceased Jose B.
Suntay is provided in his will which was lost or snatched in the manner recited in the decision of this
Court in the case of Lim Billian vs. Suntay, 63 Phil., 798-797, had been more than sufficiently proved
by the testimony of Judge Anastacio Teodoro, Go Toh, and Ana Suntay, supported conclusively by
the draft of the lost will presented in evidence as Exhibit "B", and even by the testimony of oppositor
Federico C. Suntay himself.
It is to be recalled that the trial Judge, in his first decision of April 19, 1948, made the following
express findings with respect to the testimony of Judge Teodoro: "Judge Anastacio Teodoro testified

that he opened the sealed envelope when it was given to him by Go Toh preparatory to the
presentation of the petition for the probate of the said will. As the lawyer entrusted with that task, he
had to examine the will and have it copied to be reproduced or appended to the petition. He could
not do otherwise if he is worth his salt as a good lawyer. He could not perform the stunt of "blind
flying" in the judicial firmament. Every step must be taken with certainty and precision under any
circumstances. He could not have talked about the attorney's fees with Go Toh, unless he has not
examined the will beforehand. And, when he was shown Exhibit B, he did not hesitate in declaring
that it was the exact draft of the will that was inside the envelope (Exhibit A), the testimony of Atty.
Alberto Barretto to the contrary notwithstanding."
We should not forget, in this connection, that in the resolution on the motion for reconsideration the
trial Judge reiterated the findings in his decision, although as regards the testimony of Judge
Teodoro admittedly "the only credible witness who testified as to the provisions of the will," he
observed that Judge Teodoro had the draft Exhibit "B" in his hands while testifying. We cannot see
any justifying for the observation, assuming that Judge Teodoro consulted the draft, since even the
trial Judge granted that he "could have testified clearly and distinctly on the provisions of the said
lost will, because he had kept the will in his safe, in his office, for three days, after opening it, and he
is well versed in Spanish language in which the will was written." As a matter of fact, however, it is
not true that Judge Teodoro had the draft in question before him while testifying as may be seen
from the following passages of the transcript:
Q. And, have you read that will which was inside this envelope, Exhibit A? "A. Yes.
Q. Do you remember more or less the contents of the will?
ATTY. FERRIN: With our objection, the best evidence is original will itself, Your Honor.
ATTY. RECTO: We are precisely proving by means of secondary evidence, the contents of
the will, because according to the Supreme Court, and that is a fact already decided, that the
will of Jose B. Suntay was lost and that is res adjudicata.
COURT: Witness may answer.
WITNESS: I remember the main features of the will because as I said I was the one fighting
for the postponement of the hearing of the intestate case because I was asked by Don
Alberto Barretto to secure the postponement until the will that was executed by the deceased
is sent here by the widow from China, with whom we communicated with several letters, and
when the will arrived. I had to check the facts as appearing in the will, and examined fully in
connection with the facts alleged in the intestate, and there was a striking fact in the intestate
that Apolonio Suntay has..
ATTY. FERRIN: (Interrupting) May we ask that the witness answer categorically the
questions of Atty. Recto, it seems that the answers of the witness are kilometric ...
ATTY. RECTO: Sometimes the question cannot be answered fully unless the witness would
relate and give all the facts.
COURT: The Attorney for the Administrator may move for the striking out of any testimony
that is not responsive to the question.
ATTY. FERRIN: That is why, our objection, the answer is out of the question.

COURT: Atty. Recto may propound another question.

ATTY. RECTO: I heard the witness was saying something and he has not finished the
sentence, and I want to ask the Court just to allow the witness to finish his sentence.
COURT: You may finish.
WITNESS: "A. There was a sentence, the point I was trying to check first was whether the
value of the estate left by the deceased was SIXTY THOUSAND PESOS (P60,000.00) as
Apolonio Suntay made it appear in his petition, and when I looked at the original will, I found
out that it was several hundred thousand pesos, several thousands of pesos, hundreds of
pesos, that was very striking fact to me because the petition for intestate was for SIXTY
THOUSAND PESOS (P60,000.00), and I came to know that it was worth more than SEVEN
HUNDRED THOUSAND (P700,000.00) PESOS.
Q. Do you remember, Judge, the disposition of the will, the main disposition of the will?
"A. Yes, because our client were the widow, Maria Natividad Lim Billian, and his son, Silvino,
the only son in the second marriage, that was very important for me to know.
Q. How were the properties distributed according to that will?- "A. The properties were
distributed into three (3) parts, one part which we call legitima corta, were equally distributed
to the ten (10) children, nine (9) in the first marriage, and one (1) in the second marriage with
Maria Natividad Lim Billian. The other third, the betterment was given to four (4) children,
Concepcion, and Apolonio getting a quiet substantial share in the betterment, around SIXTY
THOUSAND (P60,000.00) for Concepcion, Apolonio the amount of SEVENTY THOUSAND
(70,000,00) PESOS or little over, and then about ONE HUNDRED THOUSAND
(P100,000.00) PESOS of the betterment in favor of Silvino, the minor of the second
marriage, and to Jose equal to Concepcion.
Q. So the betterment, as I understand from you went to four (4) children?-"A. Yes.
Q. Silvino in the second marriage, Concepcion, Apolonio and Jose in the first marriage? "
A. Yes.
Q. What about the free disposal?-" A. The free disposal was disposed in favor of the widow,
Maria Natividad Lim Billian and Silvino, his minor son in equal parts..
Q. What about, if you remember, if there was something in the will in connection with that
particular of the usufruct of the widow? "A. It was somewhat incorporated into the assets
of the estate left by the deceased.
Q. Do you remember the number of pages of which that will consisted? "A. Twenty-three
(23) pages.
Q. Do you remember if the pages were signed by the testator? "A. Yes, sir, it was signed.
Q. And the foot of the testament or the end of the testament, was it signed by the testator?
"A. Yes, sir, and the attestation clause was the last page signed by the three instrumental
witnesses, Alberto Barretto, one Chinaman Go Toh, and Manuel Lopez, my former Justice of
the Peace of Hagonoy.

Q. Do you remember if there witnesses signed on the different pages of the will? "A. Yes,
sir, they signed with their name signatures.
Q. Showing you this document consisting of twenty-three (23) pages in Spanish and which
document appears already attached to this same testamentary proceedings and already
marked as EXHIBIT B, will you please tell the Court if and for instance on page eight (8) of
this document, pagina octavo, it says, there are handwritings in pencil, some of which read
as follows: "Los cinco-octavos (5/8) partes corresponds a mi hijo Emiliano", can you
recognize whose handwriting is that? "A. From my best estimate it is the handwriting of
Don Alberto Barretto.
Q. About the end of the same page eight (8) pagina octavo, of the same document Exhibit B,
there is also the handwriting in pencil which reads: "La otra sexta parte (6.a) corresponde a
Bonifacio Lopez", can you recognize that handwriting? "A. Yes, sir, this is the handwriting
of Don Alberto Barretto, and I wish to call the attention of the Court to compare letter "B"
which is in capital letter with the signature of Don Alberto Barretto in the envelope, "Alberto
Barretto" and stroke identifies one hand as having written those words.
Q. Will you please go over cursorily this document, Exhibit B composed of twenty-three (23)
pages and please tell the Court if this document had anything to do with the will which
according to you was contained in the envelope, Exhibit A? "A. This is exactly the
contents of the original will which I received and kept in my office inside the safe for three (3)
days, and I precisely took special case in the credits left by the deceased, and I remember
among them, were the De Leon family, and Sandiko, well known to me, and then the
disposition of the estate, divided into three (3) equal parts, and I noticed that they are the
contents of the will read.
His Honor, Judge Pecson, was positive in his first decision that "the testimony of Judge Anastacio
Teodoro is corroborated by Go Toh, one of the attesting witnesses, in his deposition (Exhibit D-1)."
Yet in setting aside his first decision, he remarked that Go Toh's testimony did not prove clearly and
distinctly the provision of the lost will, because: "He did not, and he could not have done so even if
he tried because the original will was not read to him nor by him before or at the signing of the same.
It was written in Spanish and he did not and does not understand the Spanish language. Neither was
there any occasion for him to have the contents of the said will, after its execution and sealing inside
the envelope (Exhibit A), read to him, because it was opened only when Judge Teodoro had
examined it and then subsequently snatched from Go Toh."
The later position thus taken by Judge Pecson is palpably inconsistent with the following
unequivocal statements of Go Toh contained in hid disposition taken in Amoy, China, on April 17,
1938, and in oppositor's Exhibit "6":
26. State what you know of the contents of that will.
. . . . Regarding (1) expenditures (2) Philippine citizenship; (3) Distribution of estates among
children (4) Taking care of grave lot; (5) guardianship of Silvino Suntay and (6) after paying
his debts he will have approximately 720,000 pesos left. This amount will be divided into
three equal parts of 240,000 pesos each. The first part is to be divided equally among the ten
children born by the first and second wives and the second part among the three sons
Silvino Suntay, 75,000 approximately; Apolonio Suntay, 50,000 pesos approximately; Jose
Suntay and Concepcion Suntay, 36,000 each approximately. The third part is to be divided
between Maria Lim Billian and Silvino Suntay; each will get approximately 110,000 pesos.
Silvino Suntay will get a total of 210,000 pesos approximately, Maria Natividad Lim Billian a

total of 290,000 approximately, and Apolonio Suntay a total of 80,000 approximately,

Concepcion Suntay and Jose Suntay will get 60,000 pesos each approximately. The rest of
the children will get approximately 29,000 each. The way of distribution of the property of
Jose B. Suntay, movable and immovable, and the outstanding debts to be collected was
arranged by Jose B. Suntay.
xxx

xxx

xxx

78. On the occasion of the execution of the testament of Jose B. Suntay, state whether or not
you say Exhibit B ... Yes.
79. In the affirmative case, state if you know who had the possession of Exhibit B and the
testament the first time you saw them on that occasion. ... Yes, I know who had
possession of them.
80. Can you say whether or not Jose B. Suntay happened to get those documents later on,
on that same occasion? ... He got them after the execution.
81. Please name the person who gave those documents to Mr. Suntay. ... Alberto Barretto
gave the documents to Jose B. Suntay.
82. Did the person who gave those documents to Suntay say anything to him (Suntay) at the
time of giving them? ... Yes.
83. If so what was it that he said, if he said any? ... He said, "You had better see if you
want any correction."
84. What did Mr. Suntay do after those documents were given to him? ... Jose B. Suntay
looked at them and then gave one copy to Manuel Lopez for checking.
85. State whether or not Mr. Suntay gave one of those documents to another man. ... Yes.
86. In the affirmative case, can you say which of the two documents was given and who the
man was? ... Yes he gave Exhibit B to Manuel Lopez.
87. State whether or not Mr. Suntay said something to the man to whom he gave one of
those documents. ... Yes.
88. In the affirmative case can you repeat more or less what Mr. Suntay said to that man?
... He told him to read it for checking.
89. State if you know what did the man do with one of those documents given to him. ...
He took it and read it for checking.
90. What did in turn Mr. Suntay do with the other one left with him? ... Jose B. Suntay
looked at the original and checked them.
91. What was done with those documents later on if there was anything done with them?
... After checking, Jose B. Suntay put Exhibit B in his pocket and had the original signed
and executed.

92. What was done with the testament of Jose B. Suntay after it was signed by the testator
and its witnesses? ... It was taken away by Jose B. Suntay. (Exhibit D, D-1.)
Q. Did you know the contents of this envelope? "A. I knew that it was a will.
Q. But did you know the provisions of the will? "A. It is about the distribution of the
property to the heirs.
Q. Did you know how the property was distributed according to the will? "A. I know that
more than P500,000 was for the widow and her son, more than P100,000 for the heirs that
are in the family. (Exhibit "6", p. 28).
Q. You stated that you were one of the witnesses to the will and that the will was written in
Spanish. Was it written in typewriting or in handwriting of somebody? "A. That will was
written in typewriting.
Q. Did you read the contents of that will, or do you know the contents of that will? A. No,
sir, because I do not know Spanish.
Q. How do you know that it was the will of Jose B. Suntay ? "A. Because I was one of the
signers and I saw it." (Exhibit "6", p. 19.)
22. Do you understand the language in which that will was written? ... I know a little
Spanish.
23. Do you talk or write that language? I can write and talk a little Spanish. (Exhibits D, D-1.)
As to Ana Suntay's corroborating testimony, Judge Pecson aptly made the following findings: "Ana
Suntay, one of the heirs and who would be affected adversely by the legalization of the will in
question, also testified on rebuttal that she saw the original will in the possession of Manuel Suntay
immediately after the snatching. She read it and she particularly remembers the manner in which the
properties were to be distributed. Exhibit B was shown to her on the witness stand and she declared
that the provision regarding the distribution of the properties in said Exhibit B is the same as that
contained in the original will. Said testimony of Ana Suntay, therefore, belies the testimony of Atty.
Alberto Barretto." And yet in the resolution on the motion for new trial, the trial Judge had to state
that "Ana Suntay on rebuttal did not, likewise, prove clearly and distinctly the provisions of the said
lost will, because she has not had enough schooling and she does not possess adequate knowledge
of the Spanish language as shown by the fact that she had to testify in Tagalog on the witness
stand." The potent error committed by Judge Pecson in reversing his views as regards Ana's
testimony, is revealed readily in the following portions of the transcript:
P. Cuantas paginas tenia aquel documento a que usted se refiere? "R. Probablemente
seria mas de veinte (20) paginas.
P. No serian treinta (30) paginas? "Abogado Recto: La testigo ha contestado ya que mas
de veinte (20).
Juzgado: Se estima
Abogado Mejia:

P. Usted personalmente leyo el documento" "R. Yo leyo mi hermano en presencia mia.

P. La pregunta es, si usted personalmente ha leido el documento? " R. Si, lo he visto.
P. No solamente le pregunto a usted si Vd. ha visto el testamento sino si usted ha leido
personalmente el testamento? "R. Si la parte de la adjudicacion lo he leido para
asegurarme a que porcion corresponde a cada uno de nosotros.
P. Puede usted repetir poco mas o menos esa porcion a que se hacia la distribucion del
alegado testamento? "R. Como ya he declarado, que las propiedades de mi difunto padre
se habian dividido en tres partes, una tercera parte se nos adjudica a nosotros diez (1) hijos
en primeros nupcias y segunda nupcia, la segunda tercera parte los adjudica a la viuda y a
Silvino, y la otra tercera parte se lo adjudica a sus hijos como mejora a Silvino, Apolonio,
Concepcion y Jose.
P. Eso, tal como usted personalmente lo leyo en el documento? "R. Si Seor.
P. Quiere usted tener la bondad, seora, de repetir poco mas o menos las palabras en ese
documento que se distribuia las propiedades del defundo padre usted como usted relata
aqui? "Abogado Recto: Objetamos a la pregunta por falta de base, porque elle solamente se
fijo en la parte como se distribuian las propiedades pero no ha dicho la testigo que ella lo ha
puesto de memoria, ni Vd. ha preguntado en que lenguaje estaba escrito el testamento ...
Juzgado: Se estima.
Abogado Mejia:
P. Sabe usted en que lenguaje estaba redactado el documento que usted leyo
personalmente? "R. En Castellano.
P. Puede usted repetirnos ahora en Castellano algunas frases o palabras como se hizo la
distribucion en aquel supuesto testamento?
Abogado Recto: Objecion, por falta de base, uno puede entender el espaol y sin embargo
no podra repetir lo que ha leido, y no se sabe todavia si ha estudiado el espaol bastante
hasta el punto de poder hablarlo.
Juzgado: Se estima.
Abogado Mejia
P. Usted dijo que estaba puesto en castellano el supuesto testamento que Vda. leyo, usted
poso el castellano? "R. Yo entiendo el castellano, pero no puedo hablar bien.
P. Usted estudio el castellano en algun colegio? "Rj. Si, seor, En Sta. Catalina.
P. Cuantos aos? "R. Nuestros estudios no han sido continuous porque mi padre nos
ingresaba en el colegio y despues nos sacaba para estar afuera, y no era continuo nuestro
estudio.

P. Pero en total, como cuantos meses o aos estaba usted en el colegio aprendiendo el
castelano? "R. Unos cuatro o cinco aos.
P. Entonces usted puede leer el castellano con facilidad, seora? "R. Si, castellano
sencillo puedo entender y lo puedo leer.
P. Usted entiende las preguntas que se le dirigian aqui en castellano sin interpretacion o sin
el interprete? "R. Si, Seor.
P. Puede usted contestar en castellano? "R. Bueno, pero como de contestar, por eso
quiero que la pregunta se me traduzca antes. asi puedo contestar debidamente. (t.s.n. pp.
533-534.)
We are really at a loss to understand why, without any change whatsoever in the evidence, the trial
Judge reversed his first decision, particularly when he announced therein that "it is now incumbent
upon this court to delve into the evidence whether or not Jose B. Suntay, deceased, left a will (the
draft of which is Exhibit B) and another will which was executed and probated in Amoy, China." His
action is indeed surprising when we take into account the various circumstancial features presently
to be stated, that clearly confirm the testimony of Judge Anastacio Teodoro, G. Toh and Ana Suntay,
or otherwise constitute visible indicia of oppositor's desire to frustrate the wishes of his father, Jose
B. Suntay.
In our opinion the most important piece of evidence in favor of the petitioner's case is the draft of the
lost will, Exhibit "B." Its authenticity cannot be seriously questioned, because according to the trial
Judge himself, oppositor's own witness, Atty. Alberto Barretto, admitted it to be "identical in
substance and form to the second draft which he prepared in typewriting." Indeed, all the "A's" and
"B's" in the handwritten insertions of the draft are very similar to those in Barretto's admittedly
genuine signature on the envelope, Exhibit "A." The finding of Judge Pecson on the point in his first
decision (reiterated expressly in the resolution on the motion for new trial), should control, not only
because it is in accordance with the evidence but because the oppositor had failed and did not even
attempt to have the trial Judge reconsider or reverse his factual conclusions. The draft, Exhibit "B,"
having been positively identified by the witnesses for the petitioner to be an exact copy of the lost will
of Jose B. Suntay, is therefore conclusive. Oppositor's effort to show that said draft was never signed
in final form, and was thought of merely to deceive petitioner's mother, Lim Billian, and that the will
actually executed and put in the envelope, Exhibit "A", provided that the testator's estate would be
divided equally among his heirs, as in the case of intestacy, was necessarily futile because, if this
allegation is true, the will would not have been "snatched" from Go Toh and the loss certainly
cannot be imputed to the widow Lim Billian or the petitioner; the snatched will would have been
produced to put an end to petitioner's and his mother's claim for greater inheritance or participation
under the lost will; and the envelope containing the first will providing for equal shares, would not
have been entrusted to the care and custody of the widow Lim Billian.
It is very noteworthy that out of the nine children of the first marriage, only Angel, Jose and Federico
Suntay had opposed the probate of the will in question; the rest, namely, Ana, Aurora, Concepcion,
Lourdes, Manuel and Emiliano Suntay, having expressly manifested in their answer that they had no
opposition thereto, since the petitioner's alternative petition "seeks only to put into effect the
testamentary disposition and wishes of their late father." This attitude is significantly an indication of
the justness of petitioner's claim, because it would have been to their greater advantage if they had
sided with oppositor Federico Suntay in his theory of equal inheritance for all the children of Jose B.
Suntay. Under the lost will or its draft Exhibit "B", each of the Suntay children would receive only
some P 25,000.00, whereas in case of intestacy or under the alleged will providing for equal shares,

each of them would receive some P100,000.00. And yet the Suntay children other than Angel, Jose
and Federico had chosen to give their conformity to the alternative petition in this case.
Another unequivocal confirmation of the lost will is the will which Jose B. Suntay executed in Amoy,
Fookien, China, on January 4, 1931, and probated in Amoy District Court, China, containing virtually
the same provisions as those in the draft Exhibit "B". What better evidence is there of an man's
desire or insistence to express his last wishes than the execution of a will reiterating the same
provisions contained in an earlier will. Assuming that the Chinese will cannot be probated in the
jurisdiction, its probative value as corroborating evidence cannot be ignored.
Oppositor himself had admitted having read the will in question under which the widow Lim Billian
was favored; and this again in a way goes to corroborate the evidence for the petitioner as to the
contents of the will sought to be probated.
COURT:
Q. Have you read the supposed will or the alleged will of your father? "A. Yes, sir.
COURT:
Q. Can you tell the court the share or participation in the inheritance of Maria Natividad Lim
Billian according to the will?
A. Yes sir, she will inherit, I think, two-thirds (2/3) of the estate, in other words she is the
most favored in the will, so when they sold that, they sold everything, they are selling
everything even the conjugal property. (t. s. n. 228-229.)
The decision of the majority leans heavily on the testimony of Atty. Alberto Barretto, forgetful perhaps
of the fact that the trial Judge gave no credence to said witness. It should be repeated that Judge
Pecson reiterated in the resolution on the motion for new trial all his findings in the first decision. If as
Atty. Barretto testified, Lim Billian was entitled under the will actually signed by Jose Suntay only to
P10,000.00, in addition to properties in China value at P15,000.00, the fees of P25,000.00
admittedly asked by him would absorb her entire inheritance; and this would normally not be done by
any law practitioner. Upon the other hand, there is evidence to the effect that Atty. Barretto might
have become hostile to the petitioner and his mother Lim Billian in view of the latter's refusal to
agree to the amount of P25,000.00 and her offer to pay only P100.00. There is also evidence
tending to show that as early as 1942, Atty. Barretto was paid by oppositor Federico Suntay the sum
of P16,000.00 which, although allegedly for services in the testate proceedings, was paid out of the
personal funds of said oppositors to supply Atty. Barretto's needs. This circumstances perhaps
further explains why the latter had to support the side of Federico Suntay.
We have quoted in full the decision of this court in the "snatching" case and the first decision of
Judge Pecson in this case, both in the hope and in the belief (1) that the first would reveal the
manner by which those adversely affected had planned to prevent the last wishes of the deceased
Jose B. Suntay from being carried on, and (2) that the second, by the facts correctly recited therein
and by the force and accuracy of its logic would amply show the weakness and utter lack of
foundation of the resolution on the motion for reconsideration. We have set forth at length pertinent
portions of the testimony of various witnesses to demonstrate more plainly the plausibility of the
original decision of Judge Pecson, and the latter's consequent bad judgment in having forced himself
to accomplish a somersault, a feat which the majority, in my opinion, have mistakenly commended.
We have found this to be one of the cases of this court in which we have had occasion to participate,

where there can be absolutely no doubt as to the result outright reversal for which, with due
respect to the majority opinion, we vote without hesitancy.
Montemayor and Jugo, JJ., concur.