NICANOR NACAR, petitioner, vs. CLAUDIO A.

NISTAL as Municipal Judge of Esperanza, Agusan del Sur; PROVINCIAL SHERIFF of Agusan del Sur, ILDEFONSO JAPITANA and
ANTONIO DOLORICON, respondents.
SYNOPSIS
To recover a sum of money, respondent Japitana filed a complaint entitled, "Claim against the Estate of the Late Isabelo Nacar with Preliminary Attachment" against the petitioner before the
Municipal Court of Esperanza, Agusan del Sur. On the basis of the said complaint, the provincial sheriff was ordered to attach seven (7) heads of cattle in possession of the petitioner, although actually only
four (4) carabaos were attached. Claiming ownership of the attached carabaos, Antonio Doloricon filed a complaint in intervention. Petitioner's motion to dismiss, to dissolve writ of attachment and to order the
return of the seized carabaos, was, upon opposition of the private respondent, denied by the respondent court. Hence, the instant recourse. Upon posting a P1,000.00 bond, a preliminary mandatory
injunction was issued by the Supreme Court.
The Supreme Court held that since respondent Japitana has no cause of action against the petitioner because the debts were actually incurred by the late Isabelo Nacar, the respondent Court's
denial of the motion to dismiss the complaint and its issuance of a writ of attachment based thereon, are improper.
Petition granted. Preliminary mandatory injunction made permanent.
SYLLABUS
1. REMEDIAL LAW; ACTIONS; MOTION TO DISMISS; LACK OF CAUSE OF ACTION; CASE AT BAR. It is patent from the portions of the complaint earlier cited that the allegations are not only
vague and ambiguous but downright misleading. The second paragraph of the body of the complaint states that the defendant (herein petitioner Nicanor Nacar) at various dates since the year 1968 incurred
debts to the plaintiff in the total sum of P2,791.00. And yet, in the subsequent paragraphs, one clearly gathers that the debts were actually incurred by the late Isabelo Nacar, who died several months before the
filing of the complaint. The complaint which the respondent judge reads as one for the collection of a sum of money and all the paragraphs of which are incidentally unnumbered, expressly states as a material
averment: . . . That plaintiff herein file (sic) a claim against the estate of the late Isabelo Nacar to recover the aforementioned sum of 12,791.00; . . . Under the circumstances of this case, respondent Japitana
has no cause of action against petitioner Nacar. Although respondent Japitana may have a legal right to recover an indebtedness due him, petitioner Nicanor Nacar has no correlative legal duty to pay the debt
for the simple reason that there is nothing in the complaint to show that he incurred the debt or had anything to do wish the creation of the liability. As far as the debt is concerned, there is no allegation or
showing that the petitioner had acted in violation of Mr. Japitana's rights with consequential injury or damage to the latter as would create a cause of action against the former. The respondent court's reason for
not dismissing the case is contrary to applicable precedents on the matter. We ruled in Mathay v. Consolidated Bank and Trust Company (58 SCRA 559): "Section I, Rule 16 of the Rules of Court, explicitly
requires that the sufficiency of the complaint must be tested exclusively on the basis of the complaint itself and no other should be considered when the ground for motion to dismiss that the complaint states no
cause of action. Pursuant thereto this Court has ruled that: 'As a rule the sufficiency of the complaint, when challenged in a motion to dismiss, must be determined exclusively on the basis of the facts alleged
therein.' "(Cases cited) Hence, it was error for the respondent court not to dismiss the case simply because respondent Doloricon filed the complaint for intervention alleging that he owned the carabaos.
2. ID.; ID.; ID.; ID.; ENFORCEMENT OR DEFENSE OF RIGHTS PROVIDED FOR IN THE PROCEDURAL RULES. Moreover, even assuming that respondent Japitana had a legal right to the
carabaos which were in the possession of petitioner Nacar, the proper procedure would not be to file an action for the recovery of the outstanding debts of the late Isabelo Nacar against his stepfather, the
petitioner Nacar as defendant. As we said in Maspil v. Romero (61 SCRA 197): "Appropriate actions for the enforcement or defense of rights must be taken in accordance with procedural rules and cannot be
left to the whims or caprices of litigants. It cannot even be left to the untrammeled discretion of the courts of justice without sacrificing uniformity and equality in the application and effectivity thereof."
VASQUEZ, J., concurring:
1. REMEDIAL LAW; SPECIAL PROCEEDING; CLAIMS AGAINST ESTATE; ACTION FOR RECOVERY OF MONEY SHOULD BE FILED IN ADMINISTRATION PROCEEDINGS. The filing of an
ordinary action to recover money claim is not allowed in any court. Even if settlement proceedings had been taken to settle the estate of Isabelo Nacar, the suit to recover the claim of the private respondents
may not be filed against the administrator or executor of his estate. This is expressly provided for in Section 1 of Rule 87 of the Rules of Court, as follows: "No action upon claim for the recovery of money or
debt or interest thereon shall be commenced against the executor or administrator; . . . ." The claim of private respondents, being one arising from a contract, may be pursued only by filing the same in the
administration proceedings that may be taken to settle the estate of the deceased Isabelo Nacar. If such a proceeding is instituted and the subject claim is not filed therein within the period prescribed, the same
shall be deemed "barred forever." (Sec. 5, Rule 86, Rules of Court). Even if this action were commenced during the lifetime of Isabelo Nacar, the same shall have to be dismissed, and the claim prosecuted in
the proper administration proceedings (Sec. 21, Rule 3, Ibid.).
2. ID.; ID.; ID.; ID.; MUNICIPAL COURT NOT VESTED WITH PROBATE JURISDICTION. It would seem that the main purpose of the private respondents in filing Civil Case No. 65 was to attach
the seven carabaos owned by Isabelo Nacar. A case had to be filed in order to justify the issuance of a writ of attachment. Unfortunately, said remedy may not be allowed. The carabaos, if really owned by
Isabelo Nacar, pertained to his estate upon his death. The claim of the private respondents may only be satisfied by a voluntary act on the part of the heirs of Isabelo Nacar, or pursued in the appropriate
settlement proceedings. A municipal court may not entertain such a proceeding, it not being vested, under the law then in force, with probate jurisdiction.
DECISION
GUTIERREZ, JR., J p:
Nicanor Nacar filed this petition for certiorari, prohibition, and mandamus with preliminary injunction to annul an order of the respondent judge of the municipal court of Esperanza, Agusan del Sur
directing the attachment of seven (7) carabaos, to effect the return of four (4) carabaos seized under the questioned order, and to stop the respondent judge from further proceeding in Civil Case No. 65.
Respondent Ildefonso Japitana filed the complaint in Civil Case No. 65 and entitled it "Claim Against the Estate of the Late Isabelo Nacar With Preliminary Attachment:" On the basis of this
complaint, including an allegation "that defendant are (sic) about to remove and dispose the above-named property (seven carabaos) with intent to defraud plaintiff herein", and considering that Mr. Japitana
had given security according to the Rules of Court, Judge Nistal issued the order commanding the provincial sheriff to attach the seven (7) heads of cattle in the possession of petitioner Nicanor Nacar.
Actually only four (4) carabaos were attached because three (3) carabaos had earlier been slaughtered during the rites preceding the burial of the late Isabelo Nacar.
Nicanor Nacar filed a motion to dismiss, to dissolve writ of preliminary attachment, and to order the return of the carabaos. Private respondent Japitana filed an opposition to this motion while
intervenor Antonio Doloricon filed a complaint in intervention asserting that he was the owner of the attached carabaos and that the certificates of ownership of large cattle were in his name.
The respondent Judge denied the motion to dismiss prompting Mr. Nacar to come to the Supreme Court.
In a resolution dated January 12, 1971, this Court, upon the posting of a bond in the amount of P1,000.00, directed the issuance of a preliminary mandatory injunction. The respondents were
enjoined from further enforcing the writ of attachment and to return the seized carabaos. The judge was restrained from further proceeding with Civil Case No. 65.
We find the petition meritorious.
The pertinent portions of the complaint filed by Mr. Japitana with the municipal court read as follows:
"ILDEFONSO JAPITAN Civil Case No. 65
Plaintiff, FOR:
Versus CLAIM AGAINST THE ESTATE
NICANOR NACAR OF THE LATE ISABELO NACAR
Defendant. WITH PRELIMINARY ATTACHMENT
x-----------------------x
C O M PLAI N T
COMES NOW the undersigned plaintiff and before this Honorable Court, respectfully avers:
xxx xxx xxx

"That at various dates since the year 1968, the defendant have (sic) incurred indebtedness to the plaintiff in the total sum of TWO THOUSAND SEVEN HUNDRED NINETY ONE
(P2,791.00) PESOS, which said amount had long been overdue for payment, and which the defendant up to this date have (sic) not been able to pay, despite repeated demands from the
plaintiff;.
"That the defendant Isabelo Nacar died last April, 1970 leaving among other things personal property consisting seven (7) heads of carabaos now in the possession of the
defendant Nicanor Nacar;
"That plaintiff herein file a claim against the estate of the late Isabelo Nacar to recover the aforementioned sum of P2,791.99;
"That defendant are (sic) about to remove and dispose the above mentioned property with intent to defraud plaintiff herein;
"That plaintiff is willing to put up a bond for the issuance of a preliminary attachment in an amount to be fixed by the Court, not exceeding the sum of P2,791.00 which is the
plaintiff's claim herein;
"WHEREFORE, it is respectfully prayed that pending the hearing of this case, a writ of preliminary attachment be issued against the properties of the defendant to serve as
security for the payment or satisfaction of any judgment that may be recovered herein; and that after due hearing on the principal against the defendant for the sum of P2,791.00 with legal
interest from September 15, 1970 plus costs of this suit." (Annex "A", p. 7 rollo).
In his motion to dismiss, the petitioner raised the issue of lack of jurisdiction and absence of a cause of action. Mr. Nacar averred that the indebtedness mentioned in the complaint was alleged to
have been incurred by the late Isabelo Nacar and not by Nicanor Nacar. There was, therefore, no cause of action against him. The petitioner also stated that a municipal court has no jurisdiction to entertain
an action involving a claim filed against the estate of a deceased person.
The same grounds have been raised in this petition. Mr. Nacar contends:
xxx xxx xxx
"9. That the respondent judge acted without jurisdiction. The municipal courts or inferior courts have NO jurisdiction to settle the estate of deceased persons. The proper
remedy is for the creditor to file the proper proceedings in the court of first instance and file the corresponding claim. But assuming without admitting that the respondent judge had
jurisdiction, it is very patent that he committed a very grave abuse of discretion and totally disregarded the provisions of the Rules of Court and decisions of this honorable Court
when he issued an ex-parte writ of preliminary attachment, when there is no showing that the plaintiff therein has a sufficient cause of action, that there is no other security for the
claim sought to be enforced by the plaintiff; or that the amount claimed in the action is as much as the sum for which the order is prayed for above all legal counterclaims; There was
no bond to answer for whatever damages that herein petitioner may suffer; (Rollo, pp. 3-4).
xxx xxx xxx
The respondent judge tried to avoid the consequences of the issues raised in the motion to dismiss by stating that although the title of the complaint styled it a claim against the estate of the late
Isabelo Nacar, the allegations showed that the nature of the action was really for the recovery of an indebtedness in the amount of P2,791.99.
The rule cited by the judge is correctly stated but it is hardly relevant to the contents of the complaint filed by Mr. Japitana.
It is patent from the portions of the complaint earlier cited that the allegations are not only vague and ambiguous but downright misleading. The second paragraph of the body of the complaint states
that the defendant (herein petitioner Nicanor Nacar) at various dates since the year 1968 incurred debts to the plaintiff in the sum of P2,791.00. And yet, in the subsequent paragraphs, one clearly gathers that
the debts were actually incurred by the late Isabelo Nacar, who died several months before the filing of the complaint. The complaint which the respondent judge reads as one for the collection of a sum of
money and all the paragraphs of which are incidentally unnumbered, expressly states as a material averment:
xxx xxx xxx
That plaintiff herein file (sic) a claim against the estate of the late Isabelo Nacar to recover the aforementioned sum of P2,791.00;
xxx xxx xxx
Under the circumstances of this case, respondent Japitana has no cause of action against petitioner Nacar. Mathay v. Consolidated Bank and Trust Company (58 SCRA 559) gives the elements of
a valid cause of action:
"A cause of action is an act or omission of one party in violation of the legal right of the other. Its essential elements are, namely: the existence of a legal right in the plaintiff, (2) a
correlative legal duty in the defendant, and (3) an act or omission of the defendant in violation of plaintiff's right with consequential injury or damage to the plaintiff for which he may maintain
an action for the recovery, damages or other appropriate relief. (Ma-ao Sugar Central Co., Inc. vs. Barrios, et al., 79 Phil. 666, 667; Ramitere, et al. vs. Montinola Vda. de Yulo, et al., L19751, February 28, 1966, 16 SCRA 251, 255). On the other hand, Section 3 of Rule 6 of the Rules of Court provides that the complaint must state the ultimate facts constituting the
plaintiff's cause of action. Hence, where the complaint states ultimate facts that constitute the three essential elements of a cause of action, the complaint states a cause of action;
(Community Investment and Finance Corp. vs. Garcia, 88 Phil. 215, 218) otherwise, the complaint must succumb to a motion to dismiss on that ground."
Indeed, although respondent Japitana may have a legal right to recover an indebtedness due him, petitioner Nicanor Nacar has no correlative legal duty to pay the debt for the simple reason that
there is nothing in the complaint to show that he incurred the debt or had anything to do with the creation of the liability. As far as the debt is concerned, there is no allegation or showing that the petitioner had
acted in violation of Mr. Japitana's rights with consequential injury or damage to the latter as would create a cause of action against the former.
It is also patent from the complaint that respondent Japitana filed the case against petitioner Nacar to recover seven (7) heads of carabaos allegedly belonging to Isabelo Nacar which Japitana
wanted to recover from the possession of the petitioner to answer for the outstanding debt of the late Isabelo Nacar. This matter, however, is only ancillary to the main action. The ancillary matter does not
cure a fatal defect in the complaint for the main action is for the recovery of an outstanding debt of the late Isabelo Nacar due respondent Japitana, a cause of action about which petitioner Nacar has nothing
to do.
In fact the fatal defect in the complaint was noticed by the respondent court when it advised respondent Japitana to amend his complaint to conform with his evidence and from the court's
admission that it was inclined to dismiss the case were it not for the complaint in intervention of respondent Doloricon. Respondent Doloricon filed his complaint for intervention on the ground that the four
carabaos, subject of the writ of attachment, were actually his carabaos. Thus, the respondent court in its Order denying the petitioner's motion to dismiss, to dissolve writ of preliminary attachment and to order
the return of the carabaos said:
". . . Antonio Doloricon manifested before this Court that he is filing a third-party complaint alleging that he is the true and lawful owner of the carabaos in questions.
"IN VIEW OF ALL THE FOREGOING, this Court for the interest of both parties will not for the meantime dismiss this case. Antonio Doloricon is hereby given 10 days from receipt
hereof within which to file his third-party complaint. The plaintiff who in his opposition to defendant's motion to dismiss pray (sic) for the custody of the carabaos. This Court further requires
plaintiff to put up the additional bond of P1,000.00 after which the latter may be entitled of (sic) the custody of the carabaos subject of litigation pending final termination of this case." (Rollo,
pp. 18-19).
The respondent court's reason for not dismissing the case is contrary to applicable precedents on the matter. We ruled in Mathay v. Consolidated Bank and Trust Company, supra:
"Section 1, Rule 16 of the Rules of Court, providing in part that:
"Within the time for pleading a motion to dismiss may be made on any of the following grounds; . . .'
"'(g) That the complaint states no cause of action. . . .'
explicitly requires that the sufficiency of the complaint must be tested exclusively on the basis of the complaint itself and no other should be considered when the ground for motion to

dismiss is that the complaint states no cause of action. Pursuant thereto this Court has ruled that:
"'As a rule the sufficiency of the complaint, when challenged in a motion to dismiss, must be determined exclusively on the basis of the facts alleged therein.' (Uy Chao
vs. De La Rama Steamship Co., Inc., L-14495, September 29, 1962, 6 SCRA 69, 72. See also De Jesus, et al. vs. Belarmino, et al., Phil. 365, 371; Dalandan, et al. vs. Julio, et
al., L-19101, February 29, 1964, 10 SCRA 400; Remitere, et al. vs. Montinola Vda. de Yulo, et al., L-19751, February 28, 1966, 16 SCRA 250, 254; Acuna vs. Batac Producers
Cooperative Marketing Association, Inc., et al., L-20338, June 30, 1967, 20 SCRA 526, 531.)
Hence, it was error for the respondent court not to dismiss the case simply because respondent Doloricon filed the complaint for intervention alleging that he owned the carabaos.
Moreover, even assuming that respondent Japitana had a legal right to the carabaos which were in the possession of petitioner Nacar, the proper procedure would not be to file an action for the
recovery of the outstanding debts of the late Isabelo Nacar against his stepfather, the petitioner Nacar as defendant. As we said in Maspil v. Romero (61 SCRA 197):
"Appropriate actions for the enforcement or defense of rights must be taken in accordance with procedural rules and cannot be left to the whims or caprices of litigants. It cannot
even be left to the untrammeled discretion of the courts of justice without sacrificing uniformity and equality in the application and effectivity thereof."
Considering the foregoing, the respondent court's denial of the motion to dismiss the complaint and its issuance of a writ of attachment based on the allegations of the complaint are improper. With
this conclusion, we find no need to discuss the other issue on whether or not the procedural rules on the issuance of a writ of attachment were followed by the respondent court in issuing the subject writ of
attachment.
WHEREFORE, the petition is hereby granted. The preliminary mandatory injunction issued on January 13, 1971 is made permanent and the cash bond filed by the petitioner in connection therewith
is ordered returned to him.
SO ORDERED.
Teehankee (Chairman), Melencio-Herrera, Plana and Relova, JJ., concur.
||| (Nacar v. Nistal, G.R. No. L-33006, [December 8, 1982], 204 PHIL 407-418)
DORA PERKINS ANDERSON, petitioner-appellee, vs. IDONAH SLADE PERKINS, oppositor-appellant.
Ponce Enrile, S. Reyna, Montecillo & Belo for petitioner-appellee.
Lazaro A. Marquez for oppositor-appellant.
SYLLABUS
1. WILLS AND TESTAMENTS; EXECUTORS AND ADMINISTRATORS; SPECIAL ADMINISTRATORS; POWER TO SELL NOT LIMITED TO PERISHABLE PROPERTY. Since Sec. 2, Rule 81, Rules of Court
specifically provides that "the special administrator may sell such perishable and other property as the court orders sold," the power of the special administrator to sell is clearly not limited to "perishable" property.
2. ID.; ID.; ID.; SALE MADE PRIOR TO LIQUIDATION OF CONJUGAL PARTNERSHIP PREMATURE. While the law empowers the special administrator to sell certain personal property belonging to the estate,
yet until the issue of the ownership of the properties sought to be sold is heard and decided, and the conjugal partnership liquidated, or at least, an agreement be reached with appellant as to which properties of the
conjugal partnership she would not mind being sold to preserve their value the sale would be premature.
DECISION
REYES, J.B.L., J p:
Appeal against an order of the Court of First Instance of Manila in Special Proceedings No. 29636 authorizing the special administrator of the testate estate of the late Eugene Arthur Perkins to sell at public auction certain
personal properties left by the deceased.
It appears that said special proceedings were commenced on May 10, 1956, by a petition presented by Dora Perkins Anderson for the probate of the supposed last will and testament of the late Eugene Arthur Perkins, who
died in Manila on April 28, 1956 allegedly possessed of personal and real properties with a probable value of P5,000,000. On the same date of the filing of the aforesaid petition, petitioner Dora Perkins Anderson also filed
an urgent petition for the appointment of Alfonso Ponce Enrile as special administrator of the estate, and on the same day, the court issued an order appointing Alfonso Ponce Enrile as such special administrator upon his
posting of a bond in the amount of P50,600. On July 9, 1956, Idonah Slade Perkins, surviving spouse of the deceased, entered an opposition to the probate of the will presented by petitioner Dora Perkins Anderson. On
September 28, 1956, the special administrator submitted an inventory of all the assets, which have come to his knowledge as belonging to the deceased Eugene Arthur Perkins at the time of his death.
About two years later, or on September 4, 1958, the special administrator submitted to the court a petition seeking authority to sell, or give away to some charitable or educational institution or institutions, certain personal
effects left by the deceased, such as clothes, books, gadgets, electrical appliances, etc., which were allegedly deteriorating both physically and in value, in order to avoid their further deterioration and to save whatever
value might be obtained in their disposition. When the motion was heard on September 25, 1958, the court required the administration to submit a specification of the properties sought to be sold, and in compliance
therewith, the special administrator, on October 21, 1958, submitted to the court, in place of a specification, a copy of the inventory of the personal properties belonging to the estate with the items sought to be sold marked
with a check in red pencil, with the statement that said items were too voluminous to enumerate.
On July 9, 1956, Idonah Slade Perkins filed an opposition to the proposed sale. Reasons for the opposition were that (1) most of the properties sought to be sold were conjugal properties of herself and her deceased
husband; and (2) that unauthorized removals of fine pieces of furniture belonging to the estate had been made.
The opposition notwithstanding, the lower court, on December 2, 1958, approved the proposed sale, authorizing the Sheriff of Manila to conduct the same. Oppositor Idonah Slade Perkins moved to reconsider this order on
the grounds (1) that said order in effect authorized the special administrator to sell the entire personal estate of the deceased, contrary to Rule 81, sec. 2, Rules of Court; (2) that said order was issued without a showing
that the goods and chattels sought to be sold were perishable, pursuant to Rule 81, section 2, Rules of Court; (3) that the personality sought to be sold represented the lifetime savings and collections of oppositor; (4) that
there is evidence on record showing unauthorized withdrawals from the properties of the estate, and the sale of the inventoried lot would prevent identification and recovery of the articles removed; and (5) that there is also
evidence showing oppositor's separate rights to a substantial part of the personal estate.
On February 23, 1959, the lower court denied the above motion for reconsideration. Whereupon oppositor Idonah Slade Perkins appealed to this court.
Appellant first claims that the personal properties sought to be sold not being perishable, the special administrator has no legal authority to sell them. This argument is untenable, because section 2, Rule 81, of the Rules of
Court, specifically provides that the special administrator "may sell such perishable and other property as the court orders sold" which shows that the special administrator's power to sell is not limited to "perishable"
property only.
It is true that the function of a special administrator is only to collect and preserve the property of the deceased until a regular administrator is appointed (sec. 2, Rule 81; De Gala vs. Gonzales, 53 Phil., 104; Collins vs.
Henry, 118 S. E. 729, 155 Ga. 886; Sqydelko vs. Smith's Estate, 244 M. W. 149, 259 Mich. 519). But it is not alone the specific property of the estate which is to be preserved, but its value as well, as shown by the legal
provision for the sale by a special administrator of perishable property (Gao vs. Cascade Silver Mines & Mills, et al., 213 P. 1092, 66 Mont. 488). It is in line with this general power of the special administrator to preserve
not only the property of the estate but also its value, that section 2, Rule 81, also empowers such administrator to sell "other property as the court ordered sold."
There is, however, a serious obstacle to the proposed sale, namely, the vigorous opposition presented thereto by the appellant, the surviving spouse of the deceased, on the ground that she is allegedly entitled to a large
portion of the personal properties in question, either because they were conjugal property of herself and the deceased, or because they are her own exclusive, personal property. Indeed the records show that up to the time
the proposed sale was asked for and judicially approved, no proceedings had as yet been taken, or even started, to segregate the alleged exclusive property of the oppositor-appellant from the mass of the estate
supposedly left by the deceased, or to liquidate the conjugal partnership property of the oppositor-appellant and the deceased. Until, therefore, the issue of the ownership of the properties sought to be sold is heard and
decided, and the conjugal partnership liquidated; or, at least, an agreement be reached with appellant as to which properties of the conjugal partnership she would not mind being sold to preserve their value, the proposed
sale is clearly premature. After all, most of the items sought to be sold pieces of furniture, kitchen and dinner ware, electrical appliances, various gadgets, and Books can easily be protected and preserved with proper

care and storage measures in either or both of the two residential houses (in Manila and in Baguio City) left by the deceased, so that no reasons of extreme urgency justify the proposed sale at this time over the strong
opposition and objection of oppositor-appellant who may later be adjudged owner of a substantial portion of the personal estate in question.
The special administrator claims in his brief that the oppositor- appellant should have indicated the alleged "fine furniture" which she did not want sold and that her refusal to do so is an indication of her unmeritorious claim.
But it does not appear that appellant was given a reasonable opportunity to point out which items in the inventory she did not want sold. In fact, her opposition to the proposed sale and later her motion for reconsideration to
the order approving the same were overruled by the court without so much as stating reasons why the grounds for her opposition were not well- founded; the records do not even show that an inquiry was made as to the
validity of the grounds of her opposition.
WHEREFORE, the lower court's order of December 2, 1958 authorizing the special administrator to sell certain personal properties of the estate is set aside, with costs against the special administrator Alfonso Ponce
Enrile and petitioner-appellee Dora Perkins Anderson.
Paras, C.J., Bengzon, Bautista Angelo, Labrador; Concepcion, Barrera, Paredes and Dizon, JJ., concur.
Gutierrez David, J., took no part.
||| (Anderson v. Perkins, G.R. No. L-15388, [January 31, 1961], 110 PHIL 999-1004)
MARIA VDA. DE REYES, EFREN REYES, ELVIRA REYES-TIMBOL, ERLINDA REYES-VALERIO, ERNESTO REYES, ELIZABETH REYES, ALEX, RAFAEL II, EMELINA and EVELYN, all
surnamed REYES, represented by their mother, MARIA VDA. DE REYES, petitioners, vs. THE COURT OF APPEALS AND SPOUSES DALMACIO GARDIOLA and ROSARIO MARTILLANO,
respondents.
De Lara, De Lunas & Rosales for petitioners.
Santos, Pilapil & Associates for private respondents.
SYLLABUS
1. CIVIL LAW; SUCCESSION; ORAL PARTITION AMONG HEIRS, VALID AND BINDING; NO LAW REQUIRING WRITTEN PARTITION AMONG HEIRS. The Court of Appeals correctly held that the partition
made by the children of Gavino Reyes in 1936, although oral, was valid and binding. There is no law that requires partition among heirs to be in writing to be valid.
2. ID.; ID.; PARTITION; OBJECT OF REQUIREMENT THAT A PARTITION BE PUT IN PUBLIC DOCUMENT AND REGISTERED. In Hernandez vs. Andal, this Court, interpreting Section 1 of Rule 74 of the Rules
of Court, held that the requirement that a partition be put in a public document and registered has for its purpose the protection of creditors and at the same time the protection of the heirs themselves against tardy
claims. The object of registration is to serve as constructive notice to others.
3. ID.; ID.; ID.; HEIRS OF AN ESTATE MAY ENTER INTO AN AGREEMENT IN ANY MANNER AND UPON A PLAN DIFFERENT FROM THOSE PROVIDED BY LAW WHERE NO RIGHTS OF CREDITORS ARE
AFFECTED. The intrinsic validity of partition not executed with the prescribed formalities does not come into play when there are no creditors or the rights of creditors are not affected. Where no such rights are
involved, it is competent for the heirs of an estate to enter into an agreement for distribution in a manner and upon a plan different from those provided by law. There is nothing in Section I, Rule 74 of the Rules of
Court from which it can be inferred that a writing or other formality is an essential requisite to the validity of the partition.
4. ID.; ID.; REASON FOR THE VALIDITY OF ORAL PARTITION. Barcelona, et al. vs. Barcelona, et al., 100 Phil. 251 provides the reason why oral partition is valid and why it is not covered by the Statute of
Frauds: partition among heirs or renunciation of an inheritance by some of them is not exactly a conveyance of real property for the reason that it does not involve transfer of property from one to the other, but rather
a confirmation or ratification of title or right of property by the heir renouncing in favor of another heir accepting and receiving the inheritance.
5. ID.; ID.; RIGHTS TO SUCCESSION TRANSMITTED FROM THE MOMENT OF DEATH OF DECEDENT. The rights to the succession are transmitted from the moment of death of the decedent. The estate of
the decedent would then be held in co-ownership by the heirs. In Ramirez vs. Bautista, this Court held that every co-heir has the absolute ownership of his share in the community property and may alienate, assign,
or mortgage the same, except as to purely personal rights, but the effect of any such transfer is limited to the portion which may be awarded to him upon the partition of the property.
6. ID.; ID.; ID.; ONLY SUCCESSIONAL RIGHTS RECEIVED MAY BE TRANSMITTED; SUCCESSIONAL RIGHTS NOT RECEIVED CANNOT BE TRANSFERRED BY EXTRA-JUDICIAL SETTLEMENT NOR BY
ERRONEOUS ISSUANCE OF TRANSFER CERTIFICATE OF TITLE. Petitioners, as mere successors-in-interest of Rafael Reyes, Jr., son of Rafael Reyes, Sr., can only acquire that which Rafael, Jr. could
transmit to them upon his death. The latter never became the owner of Lot No. 1-A-14 because it was sold by his father in 1943. The issuance of TCT No. T-27257 in the name of Rafael Reyes, Jr., in so far as Lot
No. 1-14-A is concerned, was clearly erroneous because he never became its owner. An extrajudicial settlement does not create a right in favor of an heir. As this Court stated in the Barcelona case, it is but a
confirmation or ratification of title or right to property. Thus, since he never had any title or right to Lot No. 1-14-A, the mere execution of the settlement did not improve his condition, and the subsequent registration
of the deed did not create any right or vest any title over the property in favor of the petitioners as heirs of Rafael Reyes, Jr. The latter cannot give them what he never had before. Nemo dare potest quod non habet.
7. ID.; PROPERTY; RECOVERY OF POSSESSION; ACTION BARRED BY LACHES. Petitioners' immediate predecessor-in-interest, Rafael Reyes, Jr., never took any action against private respondents from the
time his father sold the lot to the latter. Neither did petitioners bring any action to recover from private respondents the ownership and possession of the lot from the time Rafael Reyes, Jr. died. As categorically
admitted by petitioners in their complaint and amended complaint, it was only in or about September 1969 when, after the delivery of TCT No. 27257 by Candido Hebron to them, that they definitely discovered that
they were the owners of the property in question. And yet, despite full knowledge that private respondents were in actual physical possession of the property, it was only about thirteen and one-half (131/2) years later
that they decided to file an action for recovery of possession. The original complaint was filed in the trial court on 14 March 1983. There was then absolutely no basis for the trial court to place the burden on private
respondents to bring an action for reconveyance within four (4) years from their discovery of the issuance of the transfer certificate of title in the name of Rafael Reyes, Jr.
DECISION
DAVIDE, JR., J p:
Assailed before us in this appeal by certiorari under Rule 45 of the Rules of Court is the decision of the respondent Court of Appeals in C.A.-G.R. CV No. 11934, promulgated on 20 October 1989, 1 reversing the decision
of 1 October 1986 of Branch 21 (Imus, Cavite) of the Regional Trial Court of the Fourth Judicial Region in Civil Case No. RTC-BCV-83-17 entitled Maria vda. de Reyes, et al. vs. Spouses Dalmacio Gardiola and Rosario
Martillano and Spouses Ricardo M. Gardiola and Emelita Gardiola, 2 and the resolution of 1 March 1990 denying the petitioner's motion for reconsideration.
As culled from both decisions and the pleadings of the parties, the following facts have been preponderantly established:
During his lifetime, one Gavino Reyes owned a parcel of land of approximately 70 hectares, more or less, located at Sangayad, Ulong-Tubig, Carmona, Cavite. He sought to bring said land under the operation of the
Torrens System of registration of property. Unfortunately, he died in 1921 without the title having been issued to him. The application was prosecuted by his son, Marcelo Reyes, who was the administrator of his property.
In 1936 the above property was surveyed and subdivided by Gavino's heirs (Exh. "6"). In the subdivision plan, each resultant lot was earmarked, indicated for and assigned to a specific heir. It appears therein that two lots,
one of which is Lot No. 1-A-14 (Exh. "6-A"), were allotted to Rafael Reyes, Sr., one of Gavino's children. Per testimony of Juan Poblete, the children thereafter secured tax declarations for their respective shares.
In 1941, or about twenty (20) years after the death of Gavino, the original certificate of title for the whole property OCT No. 255 was issued. It was, however, kept by Juan Poblete, son-inlaw of Marcelo Reyes, who
was by then already deceased. The heirs of Gavino were not aware of this fact.
On 3 December 1943, Rafael Reyes, Sr. sold a parcel of land with an area of 23,431 square meters, more or less, to private respondent Dalmacio Gardiola (Exh. "5"). According to the vendee, this parcel corresponds to
Lot No. 1-A-14 of the subdivision plan aforestated. The deed of sale, however, did not specifically mention Lot No. 1-A-14. The vendee immediately took possession of the property and started paying the land taxes therein.
Cdpr
In 1945 or thereabouts, Juan Poblete "revalidated" the original Certificate of Title. As reconstituted, the new title is OCT (O-4358) RO-255 (Exhs. "4" to "4-A").
On 21 October 1967, when the heirs of Gavino Reyes executed a Deed of Extrajudicial Settlement of Estate (Exh. "D") based on the aforestated subdivision plan (Exh. "6"), the lot that was intended for Rafael Reyes, Sr.,
who was already deceased, was instead adjudicated to his only son and heir, Rafael Reyes, Jr. (the predecessor-in-interest of the petitioners herein). Private respondent Rosario Martillano signed the deed in
representation of her mother, Marta Reyes, one of the children of Gavino Reyes.
As a result of the Extrajudicial Settlement, OCT RO-255 was cancelled and in lieu thereof, several transfer certificates of title covering the subdivided lots were issued in the names of the respective adjudicatees. One of

them is TCT No. 27257 in the name of Rafael Reyes, Jr. covering Lot No. 1-A-14. The Transfer Certificates of Title were, however, kept by one Candido Hebron. On 10 January 1969, some of the heirs of Gavino Reyes
filed a case of Annulment of Partition and Recovery of Possession before the Court of First Instance of Cavite City, which was docketed therein as Civil Case No. 1267. One of the defendants in said case is herein private
respondent Rosario Martillano. The case was dismissed on 18 September 1969, but Candido Hebron was ordered by the trial court to deliver to the heirs concerned all the transfer certificates of title in his possession. 3
After obtaining the Transfer Certificate of Title for Lot No. 1-A-14 from Hebron, pursuant to the aforesaid order in Civil Case No. 1267, petitioners herein, as successors-in-interest of Rafael Reyes, Jr., filed on 14 March
1983 with the Regional Trial Court the above-mentioned Civil Case No. RTC-BCV-83-17 against private respondents (defendants therein) for recovery of possession or, in the alternative, for indemnification, accounting and
damages. They allege therein that after "having definitely discovered that they are the lawful owners of the property," (Lot No. 1-A-14), they, "including Rafael Reyes, Jr., during his lifetime, made repeated demands to (sic)
defendants to surrender the possession of and vacate the parcel of land belonging to the former, but defendants refused to vacate and surrender the possession of the said land to herein plaintiffs;" the last of the demands
was allegedly made on 8 October 1982. They further allege that they have been deprived by said defendants of the rightful possession and enjoyment of the property since September 1969 which coincides with the date
of the order in Civil Case No. 1267. 4 In their answer, private respondents deny the material averments in the complaint and assert that they are the owners of the lot in question, having bought the same from Rafael
Reyes, Sr.; that the issuance of TCT No. 27257 is null and void, for such sale was known to Rafael Reyes, Jr.; that they have been in possession of the property and have been paying the land taxes thereon; and that
petitioners are barred by prescription and/or laches. 5
Petitioners amended their complaint on 21 March 1985 to implead as additional defendants the spouses Ricardo M. Gardiola and Emelita Gardiola, on the basis of the following claims:
xxx xxx xxx
"9. Meanwhile, during the presentation of the defendants spouses Dalmacio Gardiola and Rosario Martillano's evidence the former testified that they mortgaged the subject land to the Rural
Bank of Carmona Inc. For their failure to redeem the mortgage the same was foreclosed by the bank.
10. However, within the period of one (1 ) year from such foreclosure the questioned land was redeemed by the original defendants' son in the person of Ricardo M. Gardiola, who was
knowledgeable/aware of the pendency of the above captioned case. The corresponding redemption was effected through a deed of conveyance, . . ." 6
The prayer of the amended complaint now contains the alternative relief for indemnification for the reasonable value of the property "in the event restitution of the property is no longer possible." 7
In its decision of 1 October 1986, 8 the trial court concluded that petitioners' "title over the subject property is valid and regular and thus they are entitled to its possession and enjoyment," and accordingly decided thus:
"WHEREFORE, the defendants or anyone acting for and in their behalf are hereby ordered to relinquish possession or vacate the property in question which is covered by Transfer Certificate of
Title No. T-27257 in favor of the plaintiffs.
All other claims and/or counterclaims of the parties relative to this case are dismissed for lack of proper substantiation."
The conclusion of the trial court is based on its finding that (a) there is no evidence that the heirs of Gavino Reyes entered into any written agreement of partition in 1936 based on the subdivision plan; (b) there is no
identity between Lot No. 1-14-A and the land sold to private respondents by Rafael Reyes, Sr., or otherwise stated, the description of the latter as indicated in the deed of sale (Exh. "5") does not tally with the description of
the former; and (c) moreover:
"Granting, arguendo, that the sale made by Rafael Reyes, Sr. to the defendants covered the land in question Lot No. 1-A-14 and that Transfer Certificate of Title No. T-27257 was obtained by
means of fraud, the claim of the defendants over the said property is already barred. Action for reconveyance prescribes in four (4) years from the discovery thereof. If there was fraud, the
defendant could have discovered the same in 1967 when the partition was made in as much as defendant Rosario Martillano was a party to that partition. Let us grant further that the issuance of
Transfer Certificate of Title No. T-27257 to Rafael Reyes, Jr. created a constructive or implied trust in favor of the defendants, again, the claim of the defendants is also barred. From 1967 to the
filing of their answer (let us consider this as an action for reconveyance) to this case sometime in July, 1983, a period of about sixteen (16) years had already elapsed. Prescriptibility of an action for
reconveyance based on implied or constructive trust is ten (10) years.
The trial court further held that the continued possession by private respondents, which it found to have started in 1943, did not ripen into ownership because at that time, the property was already registered, hence it
cannot be acquired by prescription or adverse possession. 9 Private respondents appealed the said decision to the Court of Appeals which docketed the appeal as C.A.-G.R. CV No. 11934. In its decision of 20 October
1989, the respondent Court of Appeals formulated the issues before it as follows:
"I
Whether or not the lower court erred in declaring that the property of the late Gavino Reyes consisting of 70 hectares was partitioned only in 1967 by his grandchildren after discovery of the
existence of OCT No. 255 and that no actual partition was made in 1936 by the decedent's children.
II
Whether or not the lower court erred in concluding that the parcel of land sold by the appellees' predecessor-in-interest, the late Rafael Reyes, Sr. to appellant Dalmacio Gardiola was not the same
parcel of land under litigation." 10
and resolved such issues, thus:
"On the first issue, We believe that the lower court committed a reversible error when it declared that the landed estate of the late Gavino Reyes was partitioned only in 1967 by the latter's
grandchildren; and that no actual partition was made in 1936 by the decedents' (sic) children. The evidence on record bears out the existence of a subdivision plan (Exh. 6) which was not
controverted nor denied by the appellees. In like manner, the lower court itself recognized the fact that the property of the late Gavino Reyes consisting of 70 hectares was surveyed and subdivided
in 1936 as evidenced by the said subdivision plan (Exh. 6). With the existence of a subdivision plan, and from the uncontroverted testimony of appellants' witness, We can only infer that at least an
oral partition, which under the law is valid and binding, was entered into by the heirs of Gavino Reyes regarding his properties in 1936. As held in a long line of decisions, extrajudicial partition can
be done orally, and the same would be valid if freely entered into (Belen v. Belen, 49 O.G. 997, March 1953). The reason for this is because a partition is not exactly a conveyance for the reason
that it does not involve transfer of property from one to the other but rather a confirmation by them of their ownership of the property. It must also be remembered that when Gavino Reyes died on
March 7, 1921, his property was admittedly not yet covered by a torrens title, as it was only in 1941 when said properties were brought into the application of the torrens system. With this factual
milieu, it can also be concluded that his heirs have indeed settled, subdivided and partitioned Gavino Reyes' landed estate without formal requirements of Rule 74 of the Rules of Court when a
parcel of land is covered by a torrens title. As told earlier, the Subdivision Plan (Exh. 6) undisputedly showed on its face that the 70 hectares of land belonging to the late Gavino Reyes was
subdivided and partitioned by his children in 1936. On this score, the partition of the said property even without the formal requirements under the rule is valid as held in the case of Hernandez vs.
Andal, 78 Phil. 176, which states:
xxx xxx xxx
Moreover, in the Deed of Sale dated December 3, 1943 (Exh. 5) executed by Rafael Reyes, Sr. in favor of appellant Dalmacio Gardiola, the land sold therein was described as 'na aking minana sa
aking ama.' This alone would confirm the contention of the appellants that there was already an actual partition (at least an oral partition) of the property of Gavino Reyes in 1936. As aforestated, the
presence of the Subdivision Plan (Exh. 6) is an (sic) evidence of such partition which appellees failed to controvert not to mention the fact that the lower court itself recognized the existence of said
plan, in the same manner that it concluded that the property was already surveyed and actually subdivided in 1936 (page 3, pars. 3 and 4, Decision).
From the foregoing considerations it is evident that the Deed of Extrajudicial Settlement of Estate (Exh. D) executed by the grandchildren of the late Gavino Reyes in 1967 is of no moment
considering that the property subject of the partition in the deed was already partitioned in 1936 by the children of Gavino Reyes. It is for this reason that the lots supposedly inherited by the
grandchildren named in the deed of 1967 were the same lots inherited and given to their respective fathers or mothers in 1936 while the land was not yet covered by the torrens system. Hence, in
the case of Rafael Reyes, Sr., the land inherited by him was two (2) parcels of land known as Lots Nos. 1-A-3 and 1-A-14 described in the Subdivision plan of 1936 (Exh. 6), which were the same
parcels of land allegedly inherited by Rafael Reyes, Jr. from Gavino Reyes in representation of his father, pursuant to the Deed of Extrajudicial Settlement of Estate for which TCT No. 27257 was

issued.
Coming to the second issue, the lower court likewise erred when it concluded that the parcel of land sold by appellee's predecessor-in-interest to appellant Dalmacio Gardiola was not the same
parcel of land under litigation. It must be pointed out that the identity of the parcel of land which the appellees sought to recover from the appellants was never an issue in the lower court, because
the litigants had already conceded that the parcel identified as Lot No. 1-A-14 in TCT No. 27257 was the same parcel of land identified as Cadastral Lot No. 1228 and 1235 described in Tax
Declaration No. 4766. Despite this admission, however, the lower court declared that 'as described in the deed of sale (Exh. 5), the land's description does not tally with the description of Lot No. 1A-14, the land in litigation.' As correctly pointed out by the appellants however, the discrepancy in the description was due to the fact that the description of the land sold in the Deed of Sale was
expressed in layman's language whereas the description of Lot No. 1-A-14 in TCT No. 27257 was done in technical terms. This was so because, when Rafael Reyes, Sr. sold the property in dispute
to appellant Dalmaco Gardiola on December 3, 1943, the only evidence of title to the land then available in so far as Rafael Reyes, Sr. was concerned was Tax Declaration No. 4766, because at
that time, neither he nor appellant Dalmacio Gardiola was aware of the existence of OCT No. 255 as in fact TCT No. 27257 was issued only in 1967. Consequently, the land subject of the Deed of
Sale was described by the vendor in the manner as described in Tax Declaration No. 4766. However, the description of the land appearing in the Deed of Sale (Exh. 5) was exactly the same land
identified as Lot No. 1-A-14 in the Subdivision Plan (Exh. 6) of 1936. Accordingly, the assumption of the lower court that 'if the land sold by Rafael Reyes, Sr. was the one now in litigation, he could
have easily indicated Lot No. 1-A-14' is bereft of merit under the foregoing circumstances. Interestingly enough, the appellees never denied the identity of the subject lot during the hearing at the
lower court. What they were denying only was the sale made by Rafael Reyes, Sr. to appellant Dalmacio Gardiola which does not hold true because of the document denominated as Deed of Sale
(Exh. 5)." 11
It concluded that the trial court erred when it ordered the private respondents or anyone acting in their behalf to relinquish the possession or vacate the property in question. It thus decreed:
"WHEREFORE, the appealed Judgment is ordered REVERSED and SET ASIDE and a new one is rendered declaring appellants to be the lawful owners of the lot identified as Lot No. 1-A-14 in
TCT No. 27257. No costs." 12
Their motion to reconsider the above decision having been denied by the Court of Appeals in its resolution of 1 March 1990, 13 petitioners filed the instant petition on 6 April 1990 after having obtained an extension of time
within which to file it.
The petition does not implead original new defendants Ricardo Gardiola and Emelita Gardiola.
As ground for their plea for the review of the decision of the Court of Appeals, petitioners allege that said court has decided questions of substance in a way not in accord with law or applicable jurisprudence when it held
that "the deed of extrajudicial settlement of estate (Exh. "D") executed by the grandchildren of the late Gavino Reyes in 1967 is of no moment considering that the property subject of the partition was already partitioned in
1938 by the children of Gavino Reyes." In support thereof, they claim that (a) TCT No. 27257 covers two parcels of land; the lot described in paragraph 1 thereof is owned by petitioners and that ownership was confirmed
by this Court in G.R. No. 79882, hence, the Court of Appeals should have affirmed the decision of the trial court; (b) private respondent Rosario Martillano was a party to the extrajudicial settlement of estate which was duly
registered in the Registry of Deeds in 1967; said registration is the operative act that gives validity to the transfer or creates a lien upon the land and also constituted constructive notice to the whole world. The court cannot
disregard the binding effect thereof. Finally, the pronouncement of the Court of Appeals that private respondents are the lawful owners of the lot in question "militates against the indefeasible and incontrovertible character
of the torrens title," 14 and allows reconveyance which is not tenable since the action therefor had already prescribed, as stated in the decision of the trial court.
In the resolution of 7 May 1990, We required respondents to comment on the petition. But even before it could do so, petitioner, without obtaining prior leave of the Court, filed on 29 May 1990 a so-called Supplemental
Arguments in Support of The Petition For Review On Certiorari 15 wherein they assert, among others, that: (a) the findings of facts of respondent Court are contrary to those of the trial court and appear to be contradicted
by the evidence on record thus calling for the review by this Court; 16 (b) it also committed misapprehension of the facts in this case and its findings are based on speculation, conjecture and surmises; (c) private
respondents' attack on petitioners' title is a collateral attack which is not allowed; even if it is allowed, the same had already prescribed and is now barred. prcd
It was only on 15 June 1990 that private respondents filed their Comment. 17 We required petitioners to reply thereto, which they complied with on 8 August 1990. 18 A rejoinder was filed by private respondents on 29
August 1990.
We gave due course to the petition on 19 September 1990 and required the parties to submit simultaneously their respective memoranda which they complied with.
Attached as Annex "A" to private respondent's Memorandum, which was filed on 10 December 1990, is the Resolution of this Court (Third Division) of 20 August 1990 in G.R. No. 92811 entitled Spouses Artemio Durumpili
and Angustia Reyes vs. The Court of Appeals and Spouses Dalmacio Gardiola and Rosario Martillano, which also involves the property of Gavino Reyes, the partition thereof among his children in 1936, and the
extrajudicial settlement in 1967.
In said resolution, this Court held:
". . . The partition made in 1936, although oral, was valid. The requirement in Article 1358 of the Civil Code that acts which have for their object the creation, transmission, modification or
extinguishment of real rights over immovable property must appear in a public instrument is only for convenience and not for validity or enforceability as between the parties themselves. [ Thunga
Hui vs. Que Bentec, 2 Phil. 561 (1903)] The subsequent execution by the heirs of the Extrajudicial Partition in 1967 did not alter the oral partition as in fact the share pertaining to Augustia Reyes
corresponded to that previously assigned to her father. Considering that Angel Reyes sold this property to Basilio de Ocampo who, in turn, sold the same to respondents, we agree with the Court of
Appeals that the latter lawfully acquired the property and are entitled to ownership and possession thereof."
In answer to the charge of private respondents that petitioners deliberately failed to cite this resolution, the latter, in their reply-memorandum dated 15 March 1991 and filed three days thereafter, allege:
"Our failure to mention the aforementioned resolution before this Honorable Court is not deliberate nor with malice aforethought. The reason is that to date, we have not yet received any resolution
to our Motion For Leave of Court To Refer Case To The Honorable Supreme Court En Banc. Moreover, we honestly feel that the resolution that will be issued therein will not be applicable to the
case before this Honorable Court's Second Division. It should be mentioned that in the Durumpili case before the Third Division, the Court of Appeals relied on the alleged confirmation of the sale
executed by Angustia Reyes, while in the Reyes case before this Second Division, there was no sale that was executed by the petitioners Reyes' predecessor-in-interest, Rafael Reyes, Jr."
The foregoing claim is not supported by the rollo of G.R. No. 92811, which reveals the following: (a) On 18 September 1990, petitioners therein, represented by De Lara, De Lunas and Rosales, who are the lawyers of
petitioners in the instant case, filed a motion for the reconsideration of the resolution of 20 August 1990. 19 b) This motion was denied in the resolution of 1 October 1990. 20 c) On 17 November 1990, petitioners therein,
through the same lawyers, filed a Motion For Leave Of Court To Refer Case To The Honorable Supreme Court En Banc and/or Motion For Reconsideration 21 wherein they specifically admit that said case and the instant
petition have "identity and/or similarity of the parties, the facts, the issues raised," even going to the extent of "graphically" illustrating where such similarities lie. 22 d) This motion was denied in the resolution of 28
November 1990. Copy thereof was furnished the attorneys for petitioners. 23 e) Entry of judgment had already been made therein and a copy thereof was sent to petitioner's counsel per Letter of Transmittal of the Deputy
Clerk of Court and Chief of the Judicial Records Office dated 20 December 1990.
What comes out prominently from the disquisitions of the parties is this simple issue: whether or not respondent Court of Appeals committed any reversible error in setting aside the decision of the trial court. LexLib
We find none. The reversal of the trial court's decision is inevitable and unavoidable because the legal and factual conclusions made by the trial court are unfounded and clearly erroneous. The Court of Appeals was not
bound to agree to such conclusions. The trial court erred in holding that: (a) there was no partition among the children of Gavino Reyes in 1936 since there is no written evidence in support thereof; yet, it admits that there
was a survey and subdivision of the property and the adjudication of specific subdivision lots to each of the children of Gavino; (b) the land sold by Rafael Reyes, Sr. to private respondents is not identical to Lot No. 1-A-14,
the lot specified for and adjudicated to Rafael Reyes, Jr. in the partition agreement; and (c) if the land sold by Rafael Reyes, Sr. to private respondent Dalmacio Gardiola is indeed Lot No. 1-A-14 and that TCT No. T-27257
was obtained through fraud, the remedy open to the vendee was an action for reconveyance, which should have been brought within four (4) years from the discovery thereof in 1967 when the Extrajudicial Settlement was
executed since private respondent Rosario Martillano, wife of Dalmacio, was a party thereto.
The Court of Appeals correctly held that the partition made by the children of Gavino Reyes in 1936, although oral, was valid and binding. There is no law that requires partition among heirs to be in writing to be valid. 24 In
Hernandez vs. Andal, supra, this Court, interpreting Section 1 of Rule 74 of the Rules of Court, held that the requirement that a partition be put in a public document and registered has for its purpose the protection of

creditors and at the same time the protection of the heirs themselves against tardy claims. The object of registration is to serve as constructive notice to others. It follows then that the intrinsic validity of partition not
executed with the prescribed formalities does not come into play when there are no creditors or the rights of creditors are not affected. Where no such rights are involved, it is competent for the heirs of an estate to enter
into an agreement for distribution in a manner and upon a plan different from those provided by law. There is nothing in said section from which it can be inferred that a writing or other formality is an essential requisite to
the validity of the partition. Accordingly, an oral partition is valid.
Barcelona, et al. vs. Barcelona, et al., supra, provides the reason why oral partition is valid and why it is not covered by the Statute of Frauds: partition among heirs or renunciation of an inheritance by some of them is not
exactly a conveyance of real property for the reason that it does not involve transfer of property from one to the other, but rather a confirmation or ratification of title or right of property by the heir renouncing in favor of
another heir accepting and receiving the inheritance.
Additionally, the validity of such oral partition in 1936 has been expressly sustained by this Court in the Resolution of 20 August 1990 in G.R. No. 92811. 25
But even if We are to assume arguendo that the oral partition executed in 1936 was not valid for some reason or another, We would still arrive at the same conclusion for upon the death of Gavino Reyes in 1921, his heirs
automatically became co-owners of his 70-hectare parcel of land. The rights to the succession are transmitted from the moment of death of the decedent. 26 The estate of the decedent would then be held in co-ownership
by the heirs. The co-heir or co-owner may validly dispose of his share or interest in the property subject to the condition that the portion disposed of is eventually allotted to him in the division upon termination of the coownership. Article 493 of the Civil Code provides:
"Each co-owner shall have the full ownership of his part and the fruits and benefits pertaining thereto, and he may even substitute another person in its enjoyment, except when personal rights are
involved. But the effect of the alienation or the mortgage, with respect to the co-owners, shall be limited to the portion which may be allotted to him in the division upon the termination of the coownership."
In Ramirez vs. Bautista, 27 this Court held that every co-heir has the absolute ownership of his share in the community property and may alienate, assign, or mortgage the same, except as to purely personal rights, but the
effect of any such transfer is limited to the portion which may be awarded to him upon the partition of the property. Cdpr
In the case at bar, the lot sold by Rafael Reyes, Sr. to private respondent Dalmacio Gardiola is his share in the estate of his deceased father, Gavino Reyes. It is the same property which was eventually adjudicated to his
son and heir, Rafael Reyes, Jr., represented in turn by his heirs petitioners herein in the extrajudicial settlement of 1967.
In respect to the issue as to whether the property sold by Rafael Reyes, Sr. is identical to Lot No. 1-14-A, the trial court based its conclusion that it is not, on his observation that the description of the former does not tally
with that of the latter, moreover, if Rafael did intend to sell Lot No. 1-14-A, he should have specifically stated it in the deed since at that time, the property had already been partitioned and said lot was adjudicated to him. In
addition to the contrary findings and conclusion of the respondent Court on this issue to which We fully agree, it is to be stressed that Rafael had this property declared for taxation purposes and the tax declaration issued
was made the basis for the description of the property in the deed of sale. Upon the execution of the deed of sale, vendee herein private respondent Dalmacio Gardiola immediately took possession of the property.
This is the very same property which is the subject matter of this case and which petitioners seek to recover from the private respondents. The main evidence adduced for their claim of ownership and possession over it is
TCT No. T-27257, the certificate of title covering Lot No. 1-14-A. They therefore admit and concede that the property claimed by private respondent, which was acquired by sale from Rafael Reyes, Sr., is none other than
Lot No. 1-14-A.
The participation of private respondent Rosario Gardiola in the Extrajudicial Settlement did not place private respondents in estoppel to question the issuance of TCT No. T-27257. As correctly maintained by private
respondents, she signed it in representation of her deceased mother, Marta Reyes, a daughter and an heir of Gavino Reyes. She did not sign for and in behalf of her husband, Dalmacio Gardiola, vendee of the share of
Rafael Reyes, Sr.
The same did not operate to divest the vendee of the share of Rafael Reyes, Sr. in the estate of Gavino. Petitioners, as mere successors-in-interest of Rafael Reyes, Jr., son of Rafael Reyes, Sr., can only acquire that
which Rafael, Jr. could transmit to them upon his death. The latter never became the owner of Lot No. 1-A-14 because it was sold by his father in 1943. The issuance of TCT No. T-27257 in the name of Rafael Reyes, Jr.,
in so far as Lot No. 1-14-A is concerned, was clearly erroneous because he never became its owner. An extrajudicial settlement does not create a right in favor of an heir. As this Court stated in the Barcelona case, 28 it is
but a confirmation or ratification of title or right to property. Thus, since he never had any title or right to Lot No. 1-14-A, the mere execution of the settlement did not improve his condition, and the subsequent registration of
the deed did not create any right or vest any title over the property in favor of the petitioners as heirs of Rafael Reyes, Jr. The latter cannot give them what he never had before. Nemo dare potest quod non habet.
There is one more point that should be stressed here. Petitioners' immediate predecessor-in-interest, Rafael Reyes, Jr., never took any action against private respondents from the time his father sold the lot to the latter.
Neither did petitioners bring any action to recover from private respondents the ownership and possession of the lot from the time Rafael Reyes, Jr. died. As categorically admitted by petitioners in their complaint and
amended complaint, it was only in or about September 1969 when, after the delivery of TCT No. 27257 by Candido Hebron to them, that they definitely discovered that they were the owners of the property in question. And
yet, despite full knowledge that private respondents were in actual physical possession of the property, it was only about thirteen and one-half (13 1/2) years later that they decided to file an action for recovery of
possession. As stated earlier, the original complaint was filed in the trial court on 14 March 1983. There was then absolutely no basis for the trial court to place the burden on private respondents to bring an action for
reconveyance within four (4) years from their discovery of the issuance of the transfer certificate of title in the name of Rafael Reyes, Jr.
The instant petition then is without merit.
WHEREFORE, judgment is hereby rendered DENYING the petition with costs against petitioners.
SO ORDERED.
Fernan, C . J ., Gutierrez, Jr., Feliciano and Bidin, JJ ., concur.
||| (Vda. de Reyes v. Court of Appeals, G.R. No. 92436, [July 26, 1991], 276 PHIL 706-725)
DANILO I. SUAREZ, EUFROCINA SUAREZ-ANDRES, MARCELO I. SUAREZ, JR., EVELYN SUAREZ-DE LEON and REGINIO I. SUAREZ, petitioners, vs. THE COURT OF APPEALS,
VALENTE RAYMUNDO, VIOLETA RAYMUNDO, MA. CONCEPCION VITO and VIRGINIA BANTA, respondents.
Villareal Law Offices for petitioners.
Nelson Loyola for private respondent.
SYLLABUS
1. CIVIL LAW; WILLS AND SUCCESSION; LEGITIME; PROPRIETARY INTEREST OF THE CHILDREN, DIFFERENT AND ADVERSE FROM THEIR MOTHER. The legitime of the surviving spouse is equal to
the legitime of each child. The proprietary interest of petitioners in the levied and auctioned property is different from and adverse to that of their mother. Petitioners became co-owners of the property not because of
their mother but through their own right as children of their deceased father. Therefore, petitioners are not barred in any way from instituting the action to annul the auction sale to protect their own interest.
DECISION
NOCON, J p:
The ultimate issue before Us is whether or not private respondents can validly acquire all the five (5) parcels of land co-owned by petitioners and registered in the name of petitioners' deceased father, Marcelo Suarez,
whose estate has not been partitioned or liquidated, after the said properties were levied and publicly sold en masse to private respondents to satisfy the personal judgment debt of Teofista Suarez, the surviving spouse of
Marcelo Suarez, mother of herein petitioners. LLphil
The undisputed facts of the case are as follows:
Herein petitioners are brothers and sisters. Their father died in 1955 and since then his estate consisting of several valuable parcels of land in Pasig, Metro Manila has lot been liquidated or partitioned. In 1977, petitioners'
widowed mother and Rizal Realty Corporation lost in the consolidated cases for rescission of contract and for damages, and were ordered by Branch 1 of the then Court of First Instance of Rizal (now Branch 151, RTC of
Pasig) to pay, jointly and severally, herein respondents the aggregate principal amount of about P70,000 as damages. 1
The judgment against petitioners' mother and Rizal Realty Corporation having become final and executory, five (5) valuable parcel of land in Pasig, Metro Manila, (worth to be millions then) were levied and sold on

execution on June 24, 1983 in favor of the private respondents as the highest bidder for the amount of P94,170.000. Private respondents were then issued a certificate of sale which was subsequently registered or August
1, 1983.
On June 21, 1984 before the expiration of the redemption period, petitioners filed a reivindicatory action 2 against private respondents and the Provincial Sheriff of Rizal, thereafter docketed as Civil Case No. 51203, for the
annulment of the auction sale and the recovery of the ownership of the levied pieces of property. Therein, they alleged, among others, that being strangers to the case decided against their mother, they cannot be held
liable therefor and that the five (5) parcels of land, of which they are co-owners, can neither be levied nor sold on execution.
On July 31, 1984, the Provincial Sheriff of Rizal issued to private respondents a final deed of sale 3 over the properties.
On October 22, 1984, Teofista Suarez joined by herein petitioners filed with Branch 151 a Motion for Reconsideration 4 of the Order dated October 10, 1984, claiming that the parcels of land are co-owned by them and
further informing the Court the filing and pendency of an action to annul the auction sale (Civil Case No. 51203), which motion however, was denied. LibLex
On February 25, 1985, a writ of preliminary injunction was issued enjoining private respondents from transferring to third parties the levied parcels of land based on the finding that the auctioned lands are co-owned by
petitioners.
On March 1, 1985, private respondent Valente Raymundo filed in Civil Case No. 51203 a Motion to Dismiss for failure on the part of the petitioners to prosecute, however, such motion was later denied by Branch 155,
Regional Trial Court, Pasig.
On December 1985, Raymundo filed in Civil Case No. 51203 an Ex-Parte Motion to Dismiss complaint for failure to prosecute. This was granted by Branch 155 through an Order dated May 29, 1986, notwithstanding
petitioner's pending motion for the issuance of alias summons to be served upon the other defendants in the said case. A motion for reconsideration was filed but was later denied.
On October 10, 1984, RTC Branch 151 issued in Civil Case Nos. 21736-21739 an Order directing Teofista Suarez and all persons claiming right under her to vacate the lots subject of the judicial sale; to desist from
removing or alienating improvements thereon; and to surrender to private respondents the owner's duplicate copy of the torrens title and other pertinent documents.
Teofista Suarez then filed with the then Court of Appeals a petition for certiorari to annul the Orders of Branch 151 dated October 10, 1984 and October 14, 1986 issued in Civil Case Nos. 21736-21739.
On December 4, 1986 petitioners filed with Branch 155 a Motion for reconsideration of the Order 5 dated September 24, 1986. In an Order dated June 10, 1987, 6 Branch 155 lifted its previous order of dismissal and
directed the issuance of alias summons. LLpr
Respondents then appealed to the Court of Appeals seeking to annul the orders dated February 25, 1985, 7 May 19, 1989 8 and February 26, 1990 9 issued in Civil Case No. 51203 and further ordering respondent Judge
to dismiss Civil Case No. 51203. The appellate court rendered its decision on July 27, 1990, 10 the dispositive portion of which reads:
"WHEREFORE, the petition for certiorari is hereby granted and the questioned orders dated February 25, 1985, May 19, 1989 and February 26, 1990 issued in Civil Case No. 51203 are hereby
annulled, further respondent Judge is ordered to dismiss Civil Case No. 51203." 11
Hence, this appeal.
Even without touching on the incidents and issues raised by both petitioner and private respondents and the developments subsequent to the filing of the complaint, We cannot but notice the glaring error committed by the
trial court.
It would be useless to discuss the procedural issue on the validity of the execution and the manner of publicly selling en masse the subject properties for auction. To start with, only one-half of the 5 parcels of land should
have been the subject of the auction sale.
The law in point is Article 777 of the Civil Code, the law applicable at the time of the institution of the case.
"The rights to the succession are transmitted from the moment of the death of the decedent."
Article 888 further provides: prLL
"The legitime of the legitimate children and descendants consists of one-half of the hereditary estate of the father and of the mother.
The latter may freely dispose of the remaining half, subject to the rights of illegitimate children and of the surviving spouse as hereinafter provided."
Article 892, par. 2 likewise provides:
"If there are two or more legitimate children or descendants, the surviving spouse shall be entitled to a portion equal to the legitime of each of the legitimate children or descendants."
Thus, from the foregoing, the legitime of the surviving spouse is equal to the legitime of each child.
The proprietary interest of petitioners in the levied and auctioned property is different from and adverse to that of their mother. Petitioners became co-owners of the property not because of their mother but through their
own right as children of their deceased father. Therefore, petitioners are not barred in any way from instituting the action to annul the auction sale to protect their own interest.
WHEREFORE, the decision of the Court of Appeals dated July 27, 1990 as well as its Resolution of August 28, 1990 are hereby REVERSED and set aside; and Civil Case No. 51203 is reinstated only to determine that
portion which belongs to petitioners and to annul the sale with regard to said portion. LLphil
SO ORDERED.
Narvasa, C .J ., Padilla and Regalado, JJ ., concur.
Melo, J ., took no part.
||| (Suarez v. Court of Appeals, G.R. No. 94918, [September 2, 1992], 288 PHIL 278-283)
NELIA A. CONSTANTINO, petitioner, vs. COURT OF APPEALS, AURORA S. ROQUE, PRISCILLA S. LUNA and JOSEFINA S. AUSTRIA, respondents.
Agcaoili Law Offices for petitioner.
Geronimo O. Veneracion, Jr. for private respondents.
SYLLABUS
1. REMEDIAL LAW; CIVIL PROCEDURE; FORMAL OFFER OF EVIDENCE; RIGHT THERETO DEEMED WAIVED IN CASE AT BENCH. The trial court was correct in holding that petitioner waived the right to
formally offer his evidence. A considerable lapse of time, about three (3) months, had already passed before petitioner's counsel made effort to formally offer his evidence. For the trial court to grant petitioner's
motion to admit her exhibits would be to condone an inexcusable laxity if not non-compliance with a court order which, in effect, would encourage needless delays and derail the speedy administration of justice.
cdasia
2. CIVIL LAW; CONTRACTS; VALIDITY; NO MEETING OF THE MINDS BETWEEN PARTIES ON LAND AREA TO BE SOLD; CASE AT BENCH. Petitioner also insists that the real intent of the parties was to
make the entire Lot 4-B the subject matter of the sale. She claims that during cross-examination respondent Aurora S. Roque admitted that she signed in behalf of her co-heirs a receipt for P30,000.00 as partial
payment for the lot occupied by Ka Baring and Lina (relatives of petitioner) and Iling (Consuelo Lim). . . . The admission of respondent Roque cannot prevail in the face of the clear evidence that there was as yet no
meeting of the minds on the land area to be sold since private respondents were still awaiting the survey to be conducted on the premises. . . . Likewise, we find the allegation of respondents that they signed the
deed prior to the survey, or before determination of the area to be sold, worthy of credit as against the contention of petitioner that they signed after the survey or on 10 October 1984. As found by the trial court, such
contention was contradicted by petitioner's own witness who positively asserted in court that the survey was conducted only on 16 October 1984 or six (6) days after the signing. Quite obviously, when respondents
affixed their signatures on the deed, it was still incomplete since petitioner who caused it to be prepared left several spaces blank, more particularly as regards the dimensions of the property to be sold. The heirs
were persuaded to sign the document only upon the assurance of petitioner that respondent Roque, pursuant to their understanding, would be present when the property would be surveyed after obtaining
permission from the Bureau of Lands. As it surfaced, the supposed understanding was merely a ruse of petitioner to induce respondents to sign the deed without which the latter would not have given their conformity
thereto. EaCSHI
3. ID.; ID.; ID.; FACT THAT DEED OF SALE WAS NOTARIZED IN A PLACE OTHER THAN WHERE SUBJECT LOT WAS SITUATED CASTS DOUBT ON DUE EXECUTION OF SAID DEED; CASE AT BENCH.
The trial court correctly appreciated the fact that the deed was notarized in Manila when it could have been notarized in Bulacan. This additional detail casts doubt on the procedural regularity in the preparation,

execution and signing of the deed. It is not easy to believe that petitioner and the ten (10) Torres heirs traveled all the way to Manila to have their questioned document notarized considering that they, with the
exception of respondent Roque, are residents of Balagtas, Bulacan, where notaries public are easy to find. Consequently, the claim of private respondents that they did not sign the document before a notary public
is more plausible than petitioner's feeble claim to the contrary.
4. ID.; ID.; FRAUD; ELEMENTS THEREOF; ANNULMENT OF CONTRACT PROPER IN CASE AT BENCH. Apparently, petitioner deceived respondents by filling the blank spaces in the deed, having the lots
surveyed and subdivided, and then causing the issuance of transfer certificates of title without their knowledge, much less consent. Thus all the elements of fraud vitiating consent for purposes of annulling a contract
concur: (a) It was employed by a contracting party upon the other; (b) It induced the other party to enter into the contract; (c) It was serious; and, (d) It resulted in damages and injury to the party seeking annulment.
Perhaps, another compelling reason for the annulment of the document of settlement and conveyance is that the second page thereof clearly manifests that the number of the subdivision plan and the respective
areas of Lots 4-A and 4-B were merely handwritten while all the rest of the statements therein were typewritten, which leads us to the conclusion that handwritten figures thereon were not available at the time the
document was formalized. IaHDcT
DECISION
BELLOSILLO, J p:
JOSEFA TORRES died intestate leaving a parcel of land located at Balagtas, Bulacan. Among her heirs are respondents Aurora S. Roque, Priscilla S. Luna and Josefina S. Austria. Sometime in 1984, the heirs of Josefa
Torres, as vendors, and petitioner Nelia A. Constantino, as vendee, entered into a contract to sell a parcel of land with a total land area of two hundred and fifty (250) square meters. The lot, owned in common by the Torres
heirs, is being occupied by petitioners' mother and sister. An adjoining lot, also co-owned by the heirs, is being occupied by spouses Severino and Consuelo Lim. Pursuant to their agreement, the heirs authorized petitioner
to prepare the necessary Deed of Extrajudicial Settlement of Estate with Sale.
After having the document drafted with several spaces left blank including the specification as to the metes and bounds of the land petitioner asked the heirs to affix their signatures on the document. The heirs signed
the document with the understanding that respondent Aurora S. Roque, one of the heirs, would be present when the latter would seek permission from the Bureau of Lands and have the land surveyed.
However, without the participation of any of the Torres heirs, the property was subsequently surveyed, subdivided and then covered by TCT Nos. T-292265 and T-292266. Petitioner did not furnish the heirs with copies of
the Deed of Extrajudicial Settlement of Estate with Salenor of the subdivision plan and the certificates of title. Upon securing a copy of the deed from the Registry of Deeds, the respondents learned that the area of the
property purportedly sold to petitioner was much bigger than that agreed upon by the parties. It already included the portion being occupied by the spouses Severino and Consuelo Lim.
On 2 June 1986, private respondents sent a letter to petitioner demanding the surrender to them of the deed of settlement and conveyance, the subdivision plan and the certificates of title; but to no avail. On 25 June 1986
respondents filed with the Regional Trial Court of Bulacan an action for annulment of the deed and cancellation of the certificates of title, with prayer for recovery of damages, attorney's fees and costs of suit. 1
Petitioner controverted the allegations of respondents by presenting the Deed of Extrajudicial Settlement of Estate with Sale dated 10 October 1984 wherein respondents agreed to divide and adjudicate among themselves
the inherited property with an area of one thousand five hundred and three (1,503) square meters. In the same document, they caused the subdivision of the property into two (2) lots according to Plan No. PSD-03-009105
identified as Lot 4-A with an area of one thousand ninety-six (1,096) square meters, and Lot 4-B with an area of four hundred and seven (407) square meters, and acknowledged the sale to petitioner of said Lot 4-B. As a
consequence, on 18 March 1985, the Register of Deeds issued TCT No. T-292265 in the name of the heirs of Josefa Torres and TCT No. T-292266 in the name of petitioner.
In reply, private respondents reiterated that all the heirs signed the document before the land was surveyed and subdivided, hence, there was as yet no definite area to be sold that could be indicated in the deed at the time
of the signing. They also claimed that they were not notified about the survey and the subdivision of the lot and therefore they could not have agreed on the area supposedly sold to petitioner. The respondent heirs insist
that they could not have agreed to the extent of the area actually reflected in the deed because it included the portion being occupied by the Lim spouses, which was already the subject of a previous agreement to sell
between them and their predecessor.
The trial court entertained serious doubts with respect to the preparation and due execution of the Deed of Extrajudicial Settlement of Estate with Sale taking into account that (a) while petitioner claimed that all the heirs
signed before the notary public and in her presence, she was not able to enumerate all the signatories to the document; (b) while petitioner claimed that the document was signed only after the survey of the land was
completed, or on 10 October 1984, such fact was negated by her own witness who testified that the survey was conducted only on 16 October 1984; and, (c) while petitioner alleged that the document was signed and
notarized in Manila no explanation was offered why the same could not have been signed and notarized in Bulacan where notaries public abound which could have been less inconvenient to the parties concerned.
Additionally, the trial court relied heavily on the assertions of respondents as reflected in their demand letter that they did not give their consent to the sale of Lot 4-B.
Thus, on the basis of the evidence on record, the trial court on 27 September 1990 ordered the annulment and cancellation of the Deed of Extrajudicial Settlement of Estate with Sale, TCT Nos. T-292265 and T-292266
and Subdivision Plan No. PSD-03-009105. It also ordered petitioner to pay private respondents P50,000.00 for moral damages, P15,000.00 for attorney's fees, and to pay the costs of suit. 2
On 16 March 1994 respondent Court of Appeals sustained the decision of the trial court, 3 and on 20 June 1994 denied the motion to reconsider its decision. 4
Petitioner faults respondent Court of Appeals: (a) for disregarding documentary evidence already presented, marked and identified on a purely technical ground, and (b) for concluding that the Deed of Extrajudicial
Settlement of Estate with Sale did not reflect the true intent of the parties.
Petitioner argues that the trial court should not have denied her motion to admit formal offer of evidence merely on the basis of technicality such as late filing, citing Siguenza v. Court of Appeals. 5 We are not persuaded.
Indeed, we held in Siguenza that rules of procedure are not to be applied in a very rigid and technical sense as they are used only to help secure, not override, substantial justice. Yet the holding is inapplicable to the
present case as the trial court had a reasonable basis for denying petitioner's motion
On February 6, 1990, Atty. Ponciano Mercado, defendant's counsel, manifested in Court that he has (sic) no more witness to present. He asked that he be given 15 days to make a formal offer of
evidence and which the Court granted. At the scheduled hearing of April 03, 1990, Atty. Ponciano Mercado . . . was not in Court. Atty. Veneracion, plaintiffs' counsel, called the attention of the Court
that Atty. Mercado has (sic) not yet filed and/or complied with the Court Order dated February 06, 1990, which is to file his formal offer of evidence. On motion of Atty. Veneracion, defendant's right
to file a formal offer of evidence was deemed waived. Atty. Veneracion waived the presentation of rebuttal offer of evidence.
On May 11, 1990, the Court was in receipt of a motion to admit formal offer of exhibits filed by the defendant thru counsel, Atty. Ponciano Mercado, on May 02, 1990. Considering that the same was
filed out of time and the plaintiffs having filed their memorandum already, the motion to admit formal offer of exhibits was denied (emphasis supplied).
The trial court was correct in holding that petitioner waived the right to formally offer his evidence. A considerable lapse of time, about three (3) months, had already passed before petitioner's counsel made effort to formally
offer his evidence. For the trial court to grant petitioner's motion to admit her exhibits: would be to condone an inexcusable laxity if not non-compliance with a court order which, in effect, would encourage needless delays
and derail the speedy administration of justice.
Petitioner also insists that the real intent of the parties was to make the entire Lot 4-B the subject matter of the sale. She claims that during cross-examination respondent Aurora S. Roque admitted that she signed in behalf
of her co-heirs a receipt for P30,000.00 as partial payment for the lot occupied by Ka Baring and Lina (relatives of petitioner) and Iling (Consuelo Lim). Moreover, according to petitioner, the assertions of private
respondents to petitioner contained in the demand letter should not necessarily be true and that the validity of the Deed of Extrajudicial Settlement of Estate with Sale was not affected by the fact that it was notarized in a
place other than where the subject matter thereof was situated, citing Sales v. Court of Appeals. 6
These other arguments of petitioner are barren and futile. The admission of respondent Roque cannot prevail in the face of the clear evidence that there was as yet no meeting of the minds on the land area to be sold since
private respondents were still awaiting the survey to be conducted on the premises. Obviously, the trial court only lent credence to the assertions in the demand letter after having weighed the respective evidence of the
parties. But even without the letter, the evidence of respondents had already amply substantiated their claims.
We ruled in the Sales case that the extrinsic validity of a document was not affected by the fact that it was notarized in a place other than where the subject matter thereof was located. What is more important under the
Notarial Law is that the notary public has authority to acknowledge the document executed within his territorial jurisdiction. The ruling in Sales is not applicable to the present case. Our concern here is not whether the
notary public had the authority to acknowledge the document executed within his territorial jurisdiction but whether respondents indeed appeared before him and signed the deed. However, the quantum of evidence shows
that they did not.

The trial court correctly appreciated the fact that the deed was notarized in Manila when it could have been notarized in Bulacan. This additional detail casts doubt on the procedural regularity in the preparation, execution
and signing of the deed. It is not easy to believe that petitioner and the ten (10) Torres heirs traveled all the way to Manila to have their questioned document notarized considering that they, with the exception of respondent
Roque, are residents of Balagtas, Bulacan, where notaries public are easy to find. Consequently, the claim of private respondents that they did not sign the document before a notary public is more plausible than
petitioner's feeble claim to the contrary.
Likewise, we find the allegation of respondents that they signed the deed prior to the survey, or before determination of the area to be sold, worthy of credit as against the contention of petitioner that they signed after the
survey or on 10 October 1984. As found by the trial court, such contention was contradicted by petitioners' own witness who positively asserted in court that the survey was conducted only on 16 October 1984 or six (6)
days after the signing. Quite obviously, when respondents affixed their signatures on the deed, it was still incomplete since petitioner who caused it to be prepared left several spaces blank, more particularly as regards the
dimensions of the property to be sold. The heirs were persuaded to sign the document only upon the assurance of petitioner that respondent Roque, pursuant to their understanding, would be present when the property
would be surveyed after obtaining permission from the Bureau of Lands. As it surfaced, the supposed understanding was merely a ruse of petitioner to induce respondents to sign the deed without which the latter would not
have given their conformity thereto. 7 Apparently, petitioner deceived respondents by filling the blank spaces in the deed, having the lots surveyed and subdivided, and then causing the issuance of transfer certificates of
title without their knowledge, much less consent. Thus all the elements of fraud vitiating consent for purposes of annulling a contract concur: (a) It was employed by a contracting party upon the other; (b) It induced the
other party to enter into the contract; (c) It was serious; and, (d) It resulted in damages and injury to the party seeking annulment. 8
Perhaps, another compelling reason for the annulment of the document of settlement and conveyance is that the second page thereof clearly manifests that the number of the subdivision plan and the respective areas of
Lots 4-A and 4-B were merely handwritten while all the rest of the statements therein were typewritten, which leads us to the conclusion that handwritten figures thereon were not available at the time the document was
formalized.
WHEREFORE, there being no error to warrant a reversal of the decision and resolution in question of respondent Court of Appeals, which affirmed the decision of the Regional Trial Court of Malolos, Bulacan, Br. 22, the
instant petition is DENIED.
SO ORDERED.
Padilla, Vitug, Kapunan and Hermosisima, Jr., JJ., concur.
||| (Constantino v. Court of Appeals, G.R. No. 116018, [November 13, 1996], 332 PHIL 68-78)
HEIRS OF GUIDO YAPTINCHAY AND ISABEL YAPTINCHAY, NAMELY: LETICIA ENCISO-GADINGAN, EMILIO ENCISO, AURORA ENCISO, AND NORBERTO ENCISO, REPRESENTED BY
LETICIA ENCISO-GADINGAN, ATTORNEY-IN-FACT, petitioners, vs. HON. ROY S. DEL ROSARIO, PRESIDING JUDGE, RTC, BRANCH 21, IMUS, CAVITE; THE REGISTER OF DEEDS FOR
TRECE MARTIRES CITY, GEORGE T. CHUA, SPS. ALFONSO NG AND ANNABELLE CHUA, SPS. ROSENDO L. DY AND DIANA DY, SPS. ALEXANDER NG AND CRISTINA NG, SPS.
SAMUEL MADRID AND BELEN MADRID, SPS. JOSE MADRID AND BERNARDA MADRID, SPS. DAVID MADRID AND VIOLETA MADRID, JONATHAN NG, SPS. VICTORIANO CHAN, JR.
AND CARMELITA CHAN, SPS. MARIE TES C. LEE AND GREGORIE W.C. LEE, JACINTO C. NG, JR., SPS. ADELAIDO S. DE GUZMAN AND ROSITA C. DE GUZMAN, SPS. RICARDO G.
ONG AND JULIE LIMIT, SPS. MISAEL ADELAIDA P. SOLIMAN AND FERDINAND SOLIMAN, SPS. MYLENE T. LIM AND ARTHUR LIM, EVELYN K. CHUA, GOLDEN BAY REALTY AND
DEVELOPMENT CORPORATION, respondents.
Jose J. Estrella, Jr., & Associates for petitioners.
Azcuna Yorac Sarmiento Arroyo & Chua Law Offices for private respondents.
SYNOPSIS
Petitioners are the legal heirs of the late Guido and Isabel Yaptinchay, the owners-claimants of Lot No. 1131 situated in Bancal, Carmona, Cavite. Petitioners discovered that a portion, if not all, of the aforesaid properties
were titled in the name of respondent Golden Bay Realty and Development Corporation (Golden Bay) under Transfer Certificate of Title Nos. 225254 and 225255. They filed a complaint for annulment and/or declaration of
nullity of TCT Nos. 493363-67 and its derivatives and as alternative reconveyance of realty with prayer for writ of preliminary injunction and/or restraining order with damages with the Regional Trial Court in Imus, Cavite.
Private respondents presented a motion to dismiss on the grounds that the complaint failed to state a cause of action and that petitioners did not have a right of action, that they have not established their status as heirs
and that the land being claimed is different from that of the private respondents. The said motion to dismiss was granted by the respondent court holding that petitioners have not shown any proof or even a semblance of it
except the allegations that they are the legal heirs of the deceased couple. Petitioners interposed a motion for reconsideration but it was denied. Hence, the present petition. Petitioners contended that the respondent court
acted with grave abuse of discretion in ruling that the issue of heirship should first be determined before the trial of the case could proceed. It is petitioners' submission that the respondent court should have proceeded with
the trial and simultaneously resolved the issue of heirship in the same case.
The Supreme Court dismissed the petition. The Court ruled that the trial court cannot make a declaration of heirship in the civil action for the reason that such a declaration can only be made in a special proceeding. Under
Section 3, Rule 1 of the 1997 Revised Rules of Court, a civil action is defined as "one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong" while a special
proceeding is "a remedy by which a party seeks to establish a status, a right, or particular fact." The Court held that the declaration of heirship can be made only in a special proceeding inasmuch as the petitioners in the
case at bar are seeking the establishment of a status or right. SEDICa
SYLLABUS
REMEDIAL LAW; CIVIL ACTIONS; TRIAL COURTS CANNOT MAKE A DECLARATION OF HEIRSHIP IN A CIVIL ACTION; SUCH DECLARATION CAN ONLY BE MADE IN A SPECIAL PROCEEDING. In Litam, etc., et
al. vs. Rivera, this court opined that the declaration of heirship must be made in an administration proceeding, and not in an independent civil action. This doctrine was reiterated in Solivio vs. Court of Appeals, where the
court held: "In Litam, et al. vs. Rivera, 100 Phil. 364, where despite the pendency of the special proceedings for the settlement of the intestate estate of the deceased Rafael Litam, the plaintiffs-appellants filed a civil action
in which they claimed that they were the children by a previous marriage of the deceased to a Chinese woman, hence, entitled to inherit his one-half share of the conjugal properties acquired during his marriage to Marcosa
Rivera, the trial court in the civil case declared that the plaintiffs-appellants were not children of the deceased, that the properties in question were paraphernal properties of his wife, Marcosa Rivera, and that the latter was
his only heir. On appeal to this Court, we ruled that 'such declarations (that Marcosa Rivera was the only heir of the decedent) is improper, in Civil Case No. 2071, it being within the exclusive competence of the court in
Special Proceedings No. 1537, in which it is not as yet, in issue, and, will not be, ordinarily, in issue until the presentation of the project of partition.' (p. 378)." The trial court cannot make a declaration of heirship in the civil
action for the reason that such a declaration can only be made in a special proceeding. Under Section 3, Rule 1 of the 1997 Revised Rules of Court, a civil action is defined as "one by which a party sues another for the
enforcement or protection of a right, or the prevention or redress of a wrong" while a special proceeding is "a remedy by which a party seeks to establish a status, a right, or a particular fact." It is then decisively clear that
the declaration of heirship can be made only in a special proceeding inasmuch as the petitioners here are seeking the establishment of a status or right. CacHES
DECISION
PURISIMA, J p:
At bar is a Petition for Certiorari under Rule 65 of the Revised Rules of Court assailing the Orders dated October 25, 1995 and February 23, 1996, respectively, of Branch 21 of the Regional Trial Court in Imus, Cavite
("RTC").
The facts that matter are, as follows:
Petitioners claim that they are the legal heirs of the late Guido and Isabel Yaptinchay, the owners-claimants of Lot No. 1131 with an area of 520,638 and Lot No. 1132 with an area of 96,235 square meters, more or less
situated in Bancal, Carmona, Cavite.
On March 17, 1994, petitioners executed an Extra-Judicial Settlement of the estate of the deceased Guido and Isabel Yaptinchay.
On August 26, 1994, petitioners discovered that a portion, if not all, of the aforesaid properties were titled in the name of respondent Golden Bay Realty and Development Corporation ("Golden Bay") under Transfer
Certificate of Title Nos. ("TCT") 225254 and 225255. With the discovery of what happened to subject parcels of land, petitioners filed a complaint for ANNULMENT and/or DECLARATION OF NULLITY OF TCT NO.
493363, 493364, 493665, 493366, 493367; and its Derivatives; As Alternative Reconveyance of Realty WITH A PRAYER FOR A WRIT OF PRELIMINARY INJUNCTION and/or RESTRAINING ORDER WITH DAMAGES,

docketed as RTC BCV-94-127 before Branch 21 of the Regional Trial Court in Imus, Cavite.
Upon learning that "Golden Bay" sold portions of the parcels of land in question, petitioners filed with the "RTC" an Amended Complaint to implead new and additional defendants and to mention the TCTs to be annulled.
But the respondent court dismissed the Amended Complaint. cdlex
Petitioners moved for reconsideration of the Order dismissing the Amended Complaint. The motion was granted by the RTC in an Order 1 dated July 7, 1995, which further allowed the herein petitioners to file a Second
Amended Complaint, 2 which they promptly did.
On August 12, 1995, the private respondents presented a Motion to Dismiss 3 on the grounds that the complaint failed to state a cause of action, that plaintiffs did not have a right of action, that they have not established
their status as heirs, that the land being claimed is different from that of the defendants, and that plaintiffs' claim was barred by laches. The said Motion to Dismiss was granted by the respondent court in its Order 4 dated
October 25, 1995, holding that petitioners "have not shown any proof or even a semblance of it except the allegations that they are the legal heirs of the above-named Yaptinchays that they have been declared the
legal heirs of the deceased couple."
Petitioners interposed a Motion for Reconsideration 5 but to no avail. The same was denied by the RTC in its Order 6 of February 23, 1996.
Undaunted, petitioners have come before this Court to seek relief from respondent court's Orders under attack.
Petitioners contend that the respondent court acted with grave abuse of discretion in ruling that the issue of heirship should first be determined before trial of the case could proceed. It is petitioners' submission that the
respondent court should have proceeded with the trial and simultaneously resolved the issue of heirship in the same case. cdll
The petition is not impressed with merit.
To begin with, petitioners' Petition for Certiorari before this Court is an improper recourse. Their proper remedy should have been an appeal. An order of dismissal, be it right or wrong, is a final order, which is subject to
appeal and not a proper subject of certiorari. 7 Where appeal is available as a remedy certiorari will not lie. 8
Neither did the respondent court commit grave abuse of discretion in issuing the questioned Order dismissing the Second Amended Complaint of petitioners, as it aptly ratiocinated and ruled:
"But the plaintiffs who claimed to be the legal heirs of the said Guido and Isabel Yaptinchay have not shown any proof or even a semblance of it except the allegations that they are the legal heirs
of the aforementioned Yaptinchays that they have been declared the legal heirs of the deceased couple. Now, the determination of who are the legal heirs of the deceased couple must be made
in the proper special proceedings in court, and not in an ordinary suit for reconveyance of property. This must take precedence over the action for reconveyance ( Elena C. Monzon, et. al., v.
Angelita Taligato, CA-G-R No. 33355, August 12, 1992)."
In Litam, etc., et. al. v. Rivera, 9 this court opined that the declaration of heirship must be made in an administration proceeding, and not in an independent civil action. This doctrine was reiterated in Solivio v. Court of
Appeals 10 where the court held: cda
"In Litam, et al. v. Rivera, 100 Phil. 364, where despite the pendency of the special proceedings for the settlement of the intestate estate of the deceased Rafael Litam, the plaintiffs-appellants filed a
civil action in which they claimed that they were the children by a previous marriage of the deceased to a Chinese woman, hence, entitled to inherit his one-half share of the conjugal properties
acquired during his marriage to Marcosa Rivera, the trial court in the civil case declared that the plaintiffs-appellants were not children of the deceased, that the properties in question were
paraphernal properties of his wife, Marcosa Rivera, and that the latter was his only heir. On appeal to this Court, we ruled that 'such declarations (that Marcosa Rivera was the only heir of the
decedent) is improper, in Civil Case No. 2071, it being within the exclusive competence of the court in Special Proceedings No. 1537, in which it is not as yet, in issue, and, will not be, ordinarily, in
issue until the presentation of the project of partition.' (p. 378)."
The trial court cannot make a declaration of heirship in the civil action for the reason that such a declaration can only be made in a special proceeding. Under Section 3, Rule 1 of the 1997 Revised Rules of Court, a civil
action is defined as "one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong" while a special proceeding is "a remedy by which a party seeks to establish a
status, a right, or a particular fact." It is then decisively clear that the declaration of heirship can be made only in a special proceeding inasmuch as the petitioners here are seeking the establishment of a status or right.
cdasia
We therefore hold that the respondent court did the right thing in dismissing the Second Amended Complaint, which stated no cause of action. In Travel Wide Associated Sales (Phils.), Inc. v. Court of Appeals, 11 it was
ruled that:
". . . if the suit is not brought in the name of or against the real party in interest, a motion to dismiss may be filed on the ground that the complaint states no cause of action."
WHEREFORE, for lack of merit, the Petition under consideration is hereby DISMISSED. No pronouncement as to costs. cdtai
SO ORDERED.
Romero and Gonzaga-Reyes, JJ.,concur.
||| (Heirs of Yaptinchay v. Del Rosario, G.R. No. 124320, [March 2, 1999], 363 PHIL 393-399)
VALENTE , petitioner, vs. TEOFISTA ISAGON VDA. DE SUAREZ, DANILO I. SUAREZ, EUFROCINA SUAREZ, MARCELO I. SUAREZ, JR, EVELYN SUAREZ, ET AL., respondents.
DECISION
NACHURA, J p:
This petition, filed under Rule 65 of the Rules of Court, assails the Court of Appeals (CA) Decision 1 and Resolution 2 in CA-G.R. SP No. 58090 which reversed, set aside and recalled the Regional Trial Court (RTC) Orders
3 in Civil Case No. 51203.
First, the long settled facts.
Marcelo and Teofista Isagon Suarez' 4 marriage was blessed with both material wealth and progeny in herein respondents, namely, Danilo, 5 Eufrocina, Marcelo Jr., Evelyn, and Reggineo, 6 all surnamed Suarez. During
their marriage, governed by the conjugal partnership of gains regime, they acquired numerous properties, which included the following: (1) a parcel of land situated in Barrio Caniogan, Pasig with an area of 348 square
meters covered by Transfer Certificate of Title (TCT) No. 30680; (2) property located in Pinagbuhatan, Pasig, with an area of 1,020 square meters under Tax Declaration No. A-016-01003; and (3) Lot Nos. 5, 6 & 7, Block 2
covered by Tax Declaration No. A-01700723 (subject properties).
After the death of Marcelo Sr. in 1955, Teofista and herein respondents, as well as Elpidio Suarez, 7 executed an Extrajudicial Settlement of Estate, 8 partitioning Marcelo Sr.'s estate, thus: DHTCaI
WHEREAS, the said deceased is survived by the parties hereto who are his only legal heirs: TEOFISTA ISAGON, being the surviving spouse, and EUFROCINA S. ANDRES, ELPIDIO SUAREZ,
DANILO SUAREZ, EVELYN SUAREZ, MARCELO SUAREZ, JR. and REGGINEO SUAREZ, being the legitimate children of the deceased with the said TEOFISTA ISAGON;
WHEREAS, the minors ELPIDIO, SUAREZ, DANILO SUAREZ, EVELYN SUAREZ, MARCELO SUAREZ, JR. and REGGINEO SUAREZ are represented herein by EUFROCINA S. ANDRES, in her
capacity as the guardian and legal administrator of the property of the said minors;
WHEREAS, there are no known debts or financial obligations of whatever nature and amount against the estate of the deceased;
NOW, THEREFORE, in consideration of the foregoing premises, the Parties have agreed to settle and liquidate the assets of the conjugal partnership between the deceased and TEOFISTA
ISAGON, and to settle and adjudicate the estate of the said deceased, by and pursuance to these presents, in the following manner, to wit:
1. That TEOFISTA ISAGON, as the surviving spouse and partner of the deceased, shall receive in absolute and exclusive ownership the following properties as her lawful share in the assets
of the conjugal partnership of gains between her and the deceased, to wit:
(a) Half (1/2) interest and participation in the parcel of land covered by Tax Declaration No. 6938, situated at Sitio Pantayan, Municipality of Taytay, Province of Rizal;
(b) Half (1/2) interest and participation in the parcel of land covered by Tax Declaration No. 6939, situated at Sitio Pantayan, Municipality of Taytay, Province of Rizal;
(c) Half (1/2) interest and participation in the parcel of land covered by TCT No. 38291, situated at Barrio Rosario, Municipality of Pasig, Province of Rizal;

(d) Half (1/2) interest and participation in the parcel of land covered by TCT No. 38290, situated at Barrio Rosario, Municipality of Pasig, Province of Rizal; aSTAIH
(e) TWELVE THOUSAND FIVE HUNDRED THIRTY PESOS AND NINETY (P12,530.90) deposited with the Commercial Bank and Trust Company of the Philippines, and THIRTYNINE PESOS (P39.00) deposited with Prudential Bank.
2. That the Parties TEOFISTA ISAGON, EUFROCINA S. ANDRES, ELPIDIO SUAREZ, DANILO SUAREZ, EVELYN SUAREZ, MARCELO SUAREZ, JR. and REGGINEO SUAREZ, shall
each and all receive and be entitled to a share equivalent to one-seventh (1/7) of the estate of the deceased MARCELO SUAREZ, which estate is comprised of the following properties, to
wit:
(a) A parcel of land covered by TCT No. 30680, situated at Barrio Kaniogan, Municipality of Pasig, Province of Rizal, with an assessed value of P4,150.00.
(b) Three (3) parcels of land covered by TCT Nos. 33982, 33983 and 33984, situated at Barrio Pineda, Municipality of Pasig, Province of Rizal, with an assessed value of P560.00.
(c) A parcel of land covered by TCT 33986, situated at Barrio Pineda, Municipality of Pasig, Province of Rizal, with an assessed value of P440.00.
(d) Two (2) parcels of land, being Lots Nos. 42 and 44 of the amendment-subdivision plan TY-4653-Amd., being a portion of Lot 2 described on the original plan II-4653, G.L.R.O.
Record No. _____, situated at Barrio Santolan, Municipality of Pasig, Province of Rizal, with a total assessed value of P590.00.
(e) Two parcels of land, being Lots Nos. 43 and 45 of the amendment-subdivision plan TY-4653-Amd., being a portion of Lot 2 described on the original plan II-4653, G.L.R.O.
Record No. _______, situated at Barrio Santolan, Municipality of Pasig, Province of Rizal, with a total assessed value of P1,190.00.
(f) A parcel of land, being Lot No. 6, Block 269 of the subdivision plan pos-112, being a portion of Lot 2, Block 348, Psd-3188, G.L.R.O. Record Nos. 375,699 and 917, situated at
San Felipe Neri, Province of Rizal, with an assessed value of P6,340.00. EICSTa
(g) A parcel of land covered by OCT No. 391, situated in the Municipality of Taytay, Province of Rizal, with an assessed value of P1,840.00.
(h) TWELVE THOUSAND (12,000) shares of stock of the Consolidated Mines, Inc. represented by Certificate No. 71-5-B (for 1,000 shares) and Certificate No. 12736 (for 11,000
shares).
PROVIDED, that their title to the properties hereinabove mentioned shall be in common and the share of each heir being pro indiviso.
Curiously, despite the partition, title to the foregoing properties, explicitly identified in the Extrajudicial Settlement of Estate as forming part of Marcelo's and Isagon's property regime, remained in the couple's name. Not
surprisingly, Teofista continued to administer and manage these properties. On the whole, apart from those now owned exclusively by Teofista, all the properties were held pro indiviso by Teofista and her children; and
respective titles thereto were not changed, with Teofista as de facto administrator thereof.
In 1975, Rizal Realty Corporation (Rizal Realty) and Teofista, the latter owning ninety percent (90%) of the former's shares of stock, were sued by petitioner Valente Raymundo, his wife Violeta, Virginia Banta and Maria
Concepcion Vito (plaintiffs) in consolidated cases for Rescission of Contract and Damages, docketed as Civil Case Nos. 21736 to 21739. Thereafter, in 1975, the then Court of First Instance (CFI) of Rizal, Branch 1,
rendered judgment: (1) rescinding the respective contracts of plaintiffs with Rizal Realty and Teofista, and (2) holding the two defendants solidarily liable to plaintiffs for damages in the aggregate principal amount of about
P70,000.00. 9
When the judgment of the CFI became final and executory, herein subject properties were levied and sold on execution on June 24, 1983 to satisfy the judgment against Teofista and Rizal Realty. The aforementioned
plaintiffs were the highest bidder, and bought the levied properties for the amount of P94,170.00. As a result, a certificate of sale was issued to them and registered in their favor on August 1, 1983. On July 31, 1984, the
Provincial Sheriff of Rizal issued a final deed of sale over the subject properties. SacTAC
Parenthetically, before expiration of the redemption period, or on June 21, 1984, herein respondents filed a revindicatory action against petitioner Valente, Violeta, Virginia and Maria Concepcion, docketed as Civil Case No.
51203, for the annulment of the auction sale and recovery of ownership of the levied properties. Essentially, respondents alleged in their complaint that they cannot be held liable for the judgment rendered against their
mother, Teofista, not having been impleaded therein; and consequently, the subject properties, which they own pro indiviso with their mother, can neither be levied nor be sold on execution.
Meanwhile, the RTC, Branch 151, formerly the CFI, Branch 1, in Civil Case Nos. 21376 to 21379, issued an Order 10 directing Teofista: (1) to vacate the subject properties, (2) to desist from despoiling, dismantling,
removing or alienating the improvements thereon, (3) to place petitioner Valente, Violeta, Virginia and Maria Concepcion in peaceful possession thereof, and (4) to surrender to them the owner's duplicate copy of the
torrens title and other pertinent documents. Herein respondents, joined by their mother, Teofista, filed a Motion for Reconsideration arguing that the subject properties are co-owned by them and further informing the RTC of
the filing and pendency of Civil Case No. 51203. Nonetheless, the trial court denied Teofista's and herein respondents' motion, reiterated its previous order, which included, among others, the order for Teofista and all
persons claiming right under her, to vacate the lots subject of the judicial sale.
Undaunted, Teofista and herein respondents filed a petition for certiorari before the CA to annul the foregoing orders. The appellate court, on July 6, 1987, dismissed Teofista's and herein respondents' petition, thus:
We believe this petition cannot prosper for two reasons. First, as purported case for certiorari it fails to show how the respondent judge had acted without or in excess of jurisdiction or with grave
abuse of discretion. The two orders being assailed were preceded by a final judgment, a corresponding writ of execution, a levy on execution and a judicial sale, all of which enjoy a strong sense
presumption of regularity. cDIHES
Secondly, as far as [petitioner] Teofista Suarez is concerned, she cannot complain about the levy because she was a party in the consolidated cases where judgment was rendered against her in
her personal capacity. Since she did not appeal from the decision, she cannot say that the judgment is erroneous for an obligation that belong to the corporation. And with respect to the children of
Teofista Suarez, who are co-petitioners in this proceedings [herein respondents], suffice it to point out that not being parties in the consolidated cases, what they should have done was to
immediately file a third party claim. The moment levy was made on the parcels of land, which they claim are theirs by virtue of hereditary succession, they should have seasonably filed such claim
to protect their rights. As the record discloses, however, the children chose to remain silent, and even allowed the auction sale to be held, filing almost a year later a half-hearted complaint to annul
the proceedings which they allowed to be dismissed by not diligently prosecuting it.
In Santos v. Mojica (10 SCRA 318), a partition case with third-party claimants, the Supreme Court came out with the following ruling: "The procedure (a petition for certiorari) followed by him (a
petitioner not party to the original partition case) in vindicating his right is not the one sanctioned by law, for he should have filed a separate and independent action making parties therein the sheriff
and the plaintiffs responsible for the execution . . . . It can, therefore, be said that (he) acted improperly in filing the present petition because his remedy was to file a separate and independent
action to vindicate his ownership over the land.
WHEREFORE, the petition is denied and the restraining order previously issued is DISSOLVED, with costs against petitioners. 11
On the other litigation front concerning Civil Case No. 51203, a writ of preliminary injunction was issued by the RTC Pasig, Branch 155, on February 25, 1985, enjoining petitioner Valente, Violeta, Virginia and Maria
Concepcion from transferring to third parties the levied properties based on its preliminary finding that the auctioned properties are co-owned by Teofista and herein respondents. Subsequently, however, Civil Case No.
51203 was dismissed by the RTC, Branch 155, at the instance of petitioner Valente for failure of herein respondents to prosecute. But in yet another turn of events, the RTC, Branch 155, lifted its previous order of dismissal
and directed the issuance of alias summons.
Thus, it was now petitioner Valente's, Violeta's, Virginia's and Maria Concepcion's turn to file a petition for certiorari with the CA, assailing the various orders of the RTC, Branch 155, which all rejected their bid to dismiss
Civil Case No. 51203. The CA granted their petition, thus: aIAEcD
And the fact that herein private respondents, as the legal heirs of Teofista Vda. de Suarez and supposedly not parties in Civil Case Nos. 21376 21379 does not preclude the application of the
doctrine of res judicata since, apart from the requisites constitutive of this procedural tenet, they were admittedly the children of Teofista Suarez, who is the real party-in-interest in the previous final
judgment. As successors-in-interest of Teofista Suarez, private respondents merely stepped into the shoes of their mother in regard to the levied pieces of property. Verily, there is identity of parties,
not only where the parties in both actions are the same, but where there is privity with them as in the cases of successors-in-interest by title subsequent to the commencement of the action or where
there is substantial identity.

Finally, the action to annul the judicial sale filed by herein private respondents is not the reinvindicatory suit, much less the third party claim contemplated by Section 17 of Rule 39.
WHEREFORE, the petition for certiorari is hereby granted and the questioned orders dated February 25, 1985, May 19, 1989 and February 26, 1990 issued in Civil Case No. 51203 are hereby
annulled; further respondent judge is ordered to dismiss Civil Case No. 51203. 12
From this ruling, herein respondents appealed to the Supreme Court. In Suarez v. Court of Appeals, 13 we reversed the appellate court, thus:
Even without touching on the incidents and issues raised by both petitioner [herein respondents] and private respondents [petitioner Valente, Violeta, Virginia and Maria Concepcion] and the
developments subsequent to the filing of the complaint, [w]e cannot but notice the glaring error committed by the trial court.
It would be useless to discuss the procedural issue on the validity of the execution and the manner of publicly selling en masse the subject properties for auction. To start with, only one-half of the 5
parcels of land [subject properties] should have been the subject of the auction sale.
The law in point is Article 777 of the Civil Code, the law applicable at the time of the institution of the case:
The rights to the succession are transmitted from the moment of the death of the decedent."
Article 888 further provides: DaHISE
"The legitime of the legitimate children and descendants consists of one-half of the hereditary estate of the father and of the mother.
The latter may freely dispose of the remaining half, subject to the rights of illegitimate children and of the surviving spouse as hereinafter provided."
Article 892, par. 2 likewise provides:
"If there are two or more legitimate children or descendants, the surviving spouse shall be entitled to a portion equal to the legitime of each of the legitimate children or descendants."
Thus, from the foregoing, the legitime of the surviving spouse is equal to the legitime of each child.
The proprietary interest of petitioners [herein respondents] in the levied and auctioned property is different from and adverse to that of their mother [Teofista]. Petitioners [herein respondents]
became co-owners of the property not because of their mother [Teofista] but through their own right as children of their deceased father [Marcelo Sr.]. Therefore, petitioners [herein respondents] are
not barred in any way from instituting the action to annul the auction sale to protect their own interest.
WHEREFORE, the decision of the Court of Appeals dated July 27, 1990 as well as its Resolution of August 28, 1990 are hereby REVERSED and set aside; and Civil Case No. 51203 is reinstated
only to determine that portion which belongs to petitioners and to annul the sale with regard to said portion.
It was at this point when another series of events transpired, culminating in the present petition. 2005jurcd
Upon our reinstatement of Civil Case No. 51203, each and every pleading filed by herein respondents, as plaintiffs therein, was hotly contested and opposed by therein defendants, including petitioner Valente. Moreover,
even at that stage, when the case had been remanded with a directive to "determine that portion which belongs to [herein respondents] and to annul the sale with regard to said portion," Civil Case No. 51203 had to be reraffled and transferred, for varied reasons, to the different court branches in Pasig City. In between all these, petitioner Valente, along with the other defendants, repeatedly filed a Motion to Dismiss Civil Case No. 51203 for
the purported failure of herein respondents to prosecute the case. Most of these Motions to Dismiss were denied.
With each transfer of Civil Case No. 51203, the judge to which the case was raffled had to study the records anew. Expectedly, part of the records went missing and were lost. On April 12, 1993, the Clerk of Court of RTC,
Branch 71, to which Civil Case No. 51203 was remanded, filed a report on the records of the case, to wit:
1. The first volume of the record in the above-entitled case was recorded as received on June 20, 1990, by Sheriff Alejandro O. Loquinario;
2. That the staff of Branch 71 at this time was sharing a small room with Branch 161 at the First Floor of the Justice Hall, and as the Branch was newly formed, it had no equipment or
furniture of its own, and was still undermanned;
3. That sometime in August 1990, Branch 71 moved to the staffroom of Branch 159 at the Second Floor of the Justice Hall;
4. That on October 25, 1990, this Court received a Notice of Judgment dated October 22, 1990 from the Court of Appeals that ruled the dismissal of the above-entitled case, and as per
standing instructions of Judge Graduacion A. Reyes-Claravall, the same was bound as volume 2 of the case;
5. That just before the Christmas vacation in 1991, the branch was forced to hastily move all of its records and equipment to branch 69, because of the unexpected notice we received that
the room we were occupying was to be demolished in order to meet the schedule for the renovation of the building; TcAECH
6. That unfortunately, the room was demolished before the undersigned could make a last check to see if everything was transferred;
7. That it was only later on that this office discovered that important documents were indeed lost, including transcripts of stenographic notes in a case that was submitted for decision;
8. That sometime in May 1992, the branch moved its Office to its present location;
9. That on March 8, 1993, this Court received a copy of a Decision of the Supreme Court reversing the earlier ruling of the Court of Appeals;
10. That it was at this time that the first volume of this case, which was bundled along with other cases which were decided and/or archived, was reported as missing;
11. That from the time the same was found to be missing, Judge Claravall ordered that a search for the same be made in all of the offices wherein this branch was forced to share a room
with, as well as the Court of Appeals, in the event that the same was transmitted to said Court;
12. That all the efforts were in vain, as said record could not be located anywhere;
13. That the undersigned now concludes that the first volume of the above-entitled case was probably lost during the renovation of the Justice Hall Building, and will have to be reconstituted
with the use of documents in the possession of the parties, or documents entered as exhibits in other Courts. 14
In this regard, herein respondents filed a Motion for Reconstitution of Records 15 of the case. Initially, petitioner Valente, and the other defendants Violeta, Virginia and Maria Concepcion opposed the motion. 16
However, the trial court eventually granted the motion for reconstitution, and ordered petitioner Valente and the other defendants to submit a copy of their Answer filed thereat and copies of other pleadings pertinent to the
case. 17 STADIH
Thereafter, three (3) incidents, among numerous others, set off by the parties' pleadings, are worth mentioning, to wit:
1. A Motion for Leave to File and Admit Supplemental Complaint 18 filed by herein respondents. The Supplemental Complaint additionally prayed that the levy and sale at public auction of the subject properties be
annulled and set aside, as the bid price was unconscionable and grossly inadequate to the current value of the subject properties. The Supplemental Complaint further sought a re-bidding with respect to Teofista's
share in the subject properties. Finally, it prayed that TCT No. 6509 in the name of petitioner Valente, Violeta, Virginia and Maria Concepcion be cancelled and TCT No. 30680 in the name of Marcelo Suarez, married
to Teofista Isagon, be reinstated.
2. A Manifestation and Motion (to Execute/Enforce Decision dated September 4, 1992 of the Supreme Court) 19 filed by herein respondents pointing out that the Supreme Court itself had noted the current increased
value of the subject properties and that petitioner Valente, Violeta, Virginia and Maria Concepcion unjustly enriched themselves in appropriating the subject properties worth millions then, for a measly bid price of
P94,170.00, for a judgment obligation worth only P70,000.00.
3. An Urgent Motion [to direct compliance by plaintiffs (herein respondents) with Supreme Court Decision or to consider the matter submitted without evidence on the part of plaintiffs] 20 filed by therein defendants,
including herein petitioner Valente, pointing out that plaintiffs (herein respondents) have yet to comply with the RTC, Branch 67 Order commanding them to submit (to the RTC) any evidence showing settlement of
the estate of the deceased Marcelo Suarez, in order for the court to determine the portion in the estate which belongs to Teofista. The Urgent Motion stated in paragraph 2, thus:
2. The defendants [including herein petitioner Valente] did everything possible to expedite the disposition of this case while the plaintiffs [herein respondents] did everything possible to
DELAY the disposition of the same obviously because the plaintiffs [herein respondents] are in full possession and enjoyment of the property in dispute. In its decision of September 4, 1992,
the SUPREME COURT nullified TWO final and executory DECISIONS of the Court of Appeals in an unprecedented action. In said decision, the Supreme Court ordered the plaintiffs [herein

respondents] to establish with evidence their personality as heirs of Marcelo Suarez, and after being able to do so, to adduce evidence that would determine what portion belongs to plaintiffs
hence the above matters need be litigated upon before the RTC can "annul the sale with regard to said portion" (belonging to the plaintiffs alleged heirs). acAIES
On these incidents, the records reveal the following Orders issued by the different branches of the RTC:
1. Order dated March 17, 1995, issued by Presiding Judge Rodrigo B. Lorenzo of Branch 266, Pasig City, admitting herein respondents' Supplemental Complaint. 21
2. Order dated January 22, 1996, issued by Judge Apolinario B. Santos resolving: (a) herein respondents' Manifestation and Motion (to execute/enforce Decision dated September 4, 1992 of the Supreme Court),
and (b) therein defendants' (including herein petitioner Valente's) Request for Answer to Written Interrogatories. 22 The RTC, Branch 67, resolved the incidents, thus:
From the foregoing uncontroverted facts, this Court is convinced beyond a shadow of doubt that the Decision of the Supreme Court of September 4, 1992, being the final arbiter in any judicial
dispute, should be implemented for the following reasons:
xxx xxx xxx
On the request for Answers to Written Interrogatories filed by the defendants, it is obvious that at this stage of the proceedings where the Supreme Court had already pronounced the undisputed
facts, which binds this court, the answer sought to be elicited through written interrogatories, therefore, are entirely irrelevant, aside from having been filed way out of time.
WHEREFORE, premises considered, this court, implements the decision of the Supreme Court dated September 4, 1992 which mandates that:
". . . and Civil Case No. 51203 is reinstated only to determine that portion which belongs to petitioner and to annul the sale with regard to said portion."
In order to enforce such mandate of the Supreme Court, this court orders that: DTcHaA
a. The auction sale of the five (5) parcels of land and all prior and subsequent proceedings in relation thereto are declared null and void.
b. Transfer Certificate of Title No. 6509 in the name of defendant Valente Raymundo is also declared null and void, and the Register of Deeds of Rizal, Pasig City, is ordered to
issue a new one in the name of the deceased Marcelo Suarez or to reinstate Transfer Certificate of Title No. 30680 in the name of Marcelo Suarez.
c. Teofista Suarez is ordered to reimburse the amount of P94,170.00, plus legal interest from the date of issuance of this order, and failing which, the portion of the estate of
Marcelo Suarez belonging to the surviving spouse, Teofista Suarez, may be levied on execution.
d. [Herein respondents], including Teofista Suarez, are hereby ordered to submit to this court any evidence showing settlement of the estate of the deceased, Marcelo Suarez, in
order for this court to determine the portion in the estate which belongs to Teofista Suarez.
Therein defendants, including petitioner Valente, filed a Motion for Reconsideration which the trial court denied on May 29, 1996.
3. Order dated September 10, 1996, issued by Judge Santos denying the appeal interposed by petitioner Valente from the January 22, 1996 and May 29, 1996 Orders, ruling that these are interlocutory orders, and,
therefore, not appealable. 23
4. Order dated April 8, 1999, issued by Pairing Judge Santiago Estrella which declared, thus:
Considering that counsel for the plaintiffs does not have the birth certificates of the heirs of the plaintiff to prove their affiliation with the deceased which is one of the matters written in the decision of
the higher court which must be complied with, and in order for counsel for the plaintiffs [herein respondents] to have the opportunity to complete all documentary evidence and in view of
abbreviating the proceedings and as prayed for, today's scheduled pre-trial is re-set for the last time to May 19, 1999 at 8:30 a.m. AaECSH
In this connection, counsel for plaintiffs [herein respondents] is advised to secure all the documentary evidence she needs material to this case which will expedite the disposition of this case. 24
This last Order and therein defendants' Urgent Motion spawned another contentious issue between the parties. In this connection, Judge Estrella issued an Order 25 requiring the parties to file their respective position
papers due to the "divergent views on the nature of the hearing that should be conducted in compliance with" our decision in Suarez. Both parties duly filed their position papers, with herein respondents attaching thereto a
copy of the Extrajudicial Settlement of Estate executed by the heirs of Marcelo Suarez in 1957.
In resolving this latest crossfire between the parties, the RTC, Branch 67, issued an Order dated January 11, 2000, which reads, in part:
This Court is of the view that the Honorable Supreme Court is not a trier of facts, precisely it directed that the records of this case be remanded to the Regional Trial Court for further proceedings.
xxx xxx xxx
It is a matter of record that there was no trial on the merits completed in the Regional Trial Court. . . . The Supreme Court reversed the judgment of the Court of Appeals and ordered the
reinstatement of Civil Case No. 51203. Naturally, there was no trial on the merits before this Court that allowed the parties to adduce evidence to establish their respective claims in the plaintiffs'
[herein respondents] complaint and in the defendants' [including petitioner Valente] counter-claim, respectively. It is in this context that the Honorable Supreme Court reinstated the "action [of herein
respondents] to annul the auction sale to protect their [herein respondents] own interest.
While this Court is of the view that trial on the merits is necessary for the purpose of giving the plaintiffs [herein respondents] a chance to adduce evidence to sustain their complaint and the
defendants [including petitioner Valente] to prove their defense, consistent with the directive of the Honorable Supreme Court (in its Decision promulgated on September 4, 1992), the Court is,
however, confronted with the very recent decision of the Honorable Supreme Court in "Heirs of Guido Yaptinchay, et al. vs. Del Rosario, et al., G.R. No. 124320, March 2, 1999" where it held that
AIDTSE
The declaration of heirship must be made in an administration proceeding, and not in an independent civil action. This doctrine was reiterated in Solve vs. Court of Appeals (182 SCRA
119, 128). The trial court cannot make a declaration of heirship in the civil action for the reason that such a declaration can only be made in a special proceeding. Under Section 3, Rule 1
of the 1997 Revised Rules of Court, a civil action is defined as "one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong"
while a special proceeding is "a remedy by which a party seeks to establish a status, a right, or a particular fact." It is then decisively clear that the declaration of heirship can be made
only in a special proceeding inasmuch as the petitioners here are seeking the establishment of a status or right.
In as much as the leading case on the matter is that of "Heirs of Yaptinchay v. Del Rosario, G.R. No. 124320, March 2, 1999" it is left with no choice but to obey said latter doctrine.
WHEREFORE, the foregoing premises considered, this Court holds that in the light of the doctrine laid down in the case of "Heirs of Yaptinchay vs. Del Rosario, G.R. No. 124320, March 2, 1999"
this case is dismissed without prejudice to the plaintiffs' [herein respondents'] filing a special proceeding consistent with said latest ruling. 26
Herein respondents moved for reconsideration thereof which, however, was denied by the RTC, Branch 67 on March 14, 2000. 27
Consequently, herein respondents filed a petition for certiorari before the CA alleging grave abuse of discretion in the trial court's order dismissing Civil Case No. 51203 without prejudice. All the defendants in the trial court
were impleaded as private respondents in the petition. Yet, curiously, only petitioner Valente filed a Comment thereto. The appellate court granted the petition, recalled and set aside RTC, Branch 67's Orders dated January
11, 2000 and March 14, 2000, and reinstated Judge Santos' Orders dated May 29, 1996 and September 6, 1996. It disposed of the petition, thus:
We agree with [herein respondents]. EIAScH
On September 4, 1992, the Supreme Court (G.R. No. 94918) reversed the decision of the Court of Appeals and mandates that Civil Case No. 51203 be reinstated in order to determine the portion
in the estate which belongs to Teofista Suarez. The sale of the parcels of land was declared null and void. Necessarily, the title (TCT No. 5809) in the name of respondents was also declared null
and void. . . .
xxx xxx xxx
Hon. Apolinario Santos of Br. 67, Regional Trial Court, Pasig City, on January 22, 1996 and on motion of [herein respondents], issued an order to execute/enforce the decision of the Supreme
Court . . . .
xxx xxx xxx

[Petitioner Valente, Violeta, Virginia and Maria Concepcion] filed a notice of appeal on the order of Judge Santos. The appeal, on motion of [herein respondents] was denied on September 10, 1996.
Obviously, the decision of the Supreme Court had become final and executory. Likewise, both orders of Judge Santos dated May 29, 1996 denying the motion for reconsideration and the denial of
the notice of appeal dated September 6, 1996 had also become final and executory.
The denial of petitioner Valente's Motion for Reconsideration prompted the filing of this present petition for certiorari.
Petitioner Valente posits that the appellate court committed grave abuse of discretion in recalling and setting aside the Orders of Judge Estrella and reinstating those of Judge Santos because:
1. The CA ruled that the Orders dated May 29, 1996 and September 6, 1996 issued by Judge Santos were final and executory, and yet the latter did not allow an appeal to be taken therefrom ratiocinating that the
questioned orders were interlocutory, and therefore, not appealable; and
2. The CA ignored and violated the Supreme Court's ruling in Heirs of Yaptinchay v. Del Rosario 28 which held that a declaration of heirship must be made in a special proceeding and not in a civil action.
We find the petition bereft of merit. DEcITS
At the outset, we note that petitioner Valente incorrectly filed a petition for certiorari to appeal the CA decision. Petitioner should have filed a petition for review on certiorari under Rule 45 of the Rules of Court. Simply
imputing in a petition that the decision sought to be reviewed is tainted with grave abuse of discretion does not magically transform a petition into a special civil action for certiorari. The CA decision disposed of the merits of
a special civil action, an original petition, filed thereat by herein respondents. That disposition is a final and executory order, appealable to, and may be questioned before, this Court by persons aggrieved thereby, such as
petitioner Valente, via Rule 45.
On this score alone, the petition should have been dismissed outright. However, we have disregarded this procedural flaw and now resolve this case based on the merits or lack thereof.
Petitioner asseverates that the assailed CA ruling "is unfair and it amounts to a trickery to prevent an appeal against a final order by claiming that the appealed order is merely interlocutory and later maintain that the same
order has become final after declaring it to be interlocutory."
We reject petitioner's paltry contention. Petitioner apparently does not comprehend the distinction between an interlocutory order which is final and executory, and a final order which disposes of the controversy or case;
much less, understand the available remedies therefrom.
We have defined an interlocutory order as referring to something between the commencement and the end of the suit which decides some point or matter but it is not the final decision on the whole controversy. 29 It does
not terminate or finally dismiss or finally dispose of the case, but leaves something to be done by the court before the case is finally decided on the merits. 30 Upon the other hand, a final order is one which leaves to the
court nothing more to do to resolve the case. 31
On more than one occasion, we laid down the test to ascertain whether an order is interlocutory or final i.e., "Does it leave something to be done in the trial court with respect to the merits of the case?" If it does, it is
interlocutory; if it does not, it is final. The key test to what is interlocutory is when there is something more to be done on the merits of the case. 32 The Orders dated May 29, 1996 and September 6, 1996 issued by Judge
Santos are interlocutory, and therefore, not appealable, as they leave something more to be done on the merits of the case. In fact, in paragraph (d) of Judge Santos' Order dated May 29, 1996, herein respondents were
directed to submit evidence showing settlement of the estate of the deceased Marcelo Sr. IDTcHa
Contrary to petitioner Valente's stance, there is no trickery or chicanery in the CA's distinction between an interlocutory and a final order. Indeed, as ruled by the CA, the RTC Order denying petitioner Valente's Notice of
Appeal attained finality when he failed to file a petition for certiorari under Rule 65 of the Rules of Court.
We cannot overemphasize the rule that the correct identification of the nature of an assailed order determines the remedies available to an aggrieved party. The old Rules of Court in Section 2, Rule 41 reads, thus:
SEC. 2. Judgments or orders subject to appeal. Only final judgments or orders shall be subject to appeal. No interlocutory or incidental judgment or order shall stay the progress of an
action, nor shall it be the subject of appeal until final judgment or order is rendered for one party or the other.
xxx xxx xxx
With the advent of the 1997 Rules of Civil Procedure, Section 1, Rule 41 now provides for the appropriate remedy to be taken from an interlocutory order, thus:
SEC. 1. Subject of appeal. An appeal may be taken from a judgment or final order that completely disposes of the case, or of a particular matter therein when declared by these Rules to
be appealable.
No appeal may be taken from:
xxx xxx xxx
(c) An interlocutory order;
xxx xxx xxx
In all the above instances where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65.
Clearly, the denial of therein defendants' (including petitioner Valente's) appeal from the Orders dated May 29, 1996 and September 6, 1996 was in order. Thus, the CA decision affirming the RTC's denial was correct.
ECaScD
Further, on this crucial distinction as applied to this case, petitioner Valente filed a petition for certiorari from the CA decision in CA-G.R. SP No. 58090, which is not an interlocutory order. It is a final order which completely
disposed of the merits of the case with nothing more left to be done therein. The correct and available remedy available to petitioner Valente was, as previously discussed, a petition for review on certiorari under Rule 45 of
the Rules of Court.
In fine, petitioner Valente erroneously sought relief through reversed remedies. He tried to appeal the interlocutory orders of the RTC which are unappealable. Thus, the RTC properly denied his Notice of Appeal, and the
CA correctly upheld the RTC. He should have filed a petition for certiorari; under Rule 65. On the other hand, from the final order of the CA, he comes before this Court on a petition for certiorari under Rule 65, when the
proper remedy is an appeal by certiorari under Rule 45.
In the recent case of Jan-Dec Construction Corporation v. Court of Appeals 33 we ruled in this wise:
As a rule, the remedy from a judgment or final order of the CA is appeal via petition for review under Rule 45 of the Rules.
Under Rule 45, decisions, final orders or resolutions of the CA in any case,i.e., regardless of the nature of the action or proceedings involved, may be appealed to the Court by filing a petition for
review, which would be but a continuation of the appellate process over the original case. It seeks to correct errors of judgment committed by the court, tribunal, or officer. In contrast, a special civil
action for certiorari under Rule 65 is an independent action based on the specific grounds therein provided and proper only if there is no appeal or any plain, speedy and adequate remedy in the
ordinary course of law. It is an extraordinary process for the correction of errors of jurisdiction and cannot be availed of as a substitute for the lost remedy of an ordinary appeal.
Independently of this procedural infirmity, even on the merits of the case, the petition does not fare otherwise. It must be dismissed for lack of merit. AHEDaI
Petitioner Valente insists that, following our ruling in Heirs of Yaptinchay v. Del Rosario, 34 herein respondents must first be declared heirs of Marcelo Sr. before they can file an action to annul the judicial sale of what is,
undisputedly, conjugal property of Teofista and Marcelo Sr.
We disagree. Our ruling in Heirs of Yaptinchay is not applicable.
Herein respondents' status as legitimate children of Marcelo Sr. and Teofista and thus, Marcelo Sr.'s heirs has been firmly established, and confirmed by this Court in Suarez v. Court of Appeals. 35 True, this Court is
not a trier of facts, 36 but as the final arbiter of disputes, 37 we found and so ruled that herein respondents are children, and heirs of their deceased father, Marcelo Sr. This having been settled, it should no longer have
been a litigated issue when we ordered a remand to the lower court. In short, petitioner Valente's, Violeta's, Virginia's, and Maria Concepcion's representation in the RTC that our ruling in Suarez required herein
respondents to present evidence of their affiliation with the deceased, Marcelo Sr., is wrong.
As was set forth in the dispositive portion of Suarez, "Civil Case No. 51203 is reinstated only to determine that portion which belongs to [herein respondents] and to annul the sale with regard to said portion." There is
clearly no intimation in our decision for the RTC to have to determine an already settled issue i.e., herein respondents' status as heirs of Marcelo Sr.

Moreover, petitioner Valente cannot assail, directly or indirectly, the status of herein respondents as legitimate children of Marcelo Sr. and Teofista, and likewise demand that herein respondents first prove their filiation to
Marcelo Sr. The following records bear out Marcelo, Sr.'s and Teofista's paternity of herein respondents, and the latter's status as legitimate children:
1. The CA decision in CA-G.R. SP Nos. 10646 to 10649 where Teofista, along with herein respondents, questioned the RTC, Branch 151's Orders dated October 10, 1984 and October 14, 1986. Although the CA
ruled against Teofista and herein respondents, it explicitly recognized the latter's status as legitimate children of Teofista and Marcelo Sr.; and 38 acHITE
2. The CA decision in CA-G.R. SP No. 20320 which incorrectly ruled that herein respondents were, as children of Teofista, merely successors-in-interest of the latter to the property and by virtue thereof, bound by
the judgment in Civil Case Nos. 21376 to 21379 consistent with the doctrine of res judicata. 39 We subsequently reversed this ruling on the wrong application of res judicata in the conclusive case of Suarez. We
retained and affirmed, however, the CA's factual finding of herein respondents' status as heirs of Marcelo Sr. We categorically held therein that "the proprietary interest of [herein respondents] in the levied and
auctioned [properties] is different from and adverse to that of [Teofista]. [Herein respondents] became co-owners of the property not because of [Teofista] but through their own right as children of their deceased
father [, Marcelo Sr.]." Clearly, herein respondents' long possessed status of legitimate children of Marcelo Sr. and Teofista cannot be indirectly or directly attacked by petitioner Valente in an action to annul a judicial
sale.
Articles 262, 40 263, 41 265 and 266 42 of the Civil Code, the applicable law at the time of Marcelo's death, support the foregoing conclusion, to wit:
Art. 262. The heirs of the husband may impugn the legitimacy of the child only in the following cases:
(1) If the husband should die before the expiration of the period fixed for bringing his action;
(2) If the husband should die after the filing of the complaint, without having desisted from the same;
(3) If the child was born after the death of the husband.
Art. 263. The action to impugn the legitimacy of the child shall be brought within one year from the recording of birth in the Civil Register, if the husband should be in the same place, or in a
proper case, any of his heirs.
If he or his heirs are absent, the period shall be eighteen months if they should reside in the Philippines; and two years if abroad. If the birth of the child has been concealed, the term shall be
counted from the discovery of the fraud. AEIDTc
Art. 265. The filiation of legitimate children is proved by the record of birth appearing in the Civil Register, or by an authentic document or a final judgment.
Art. 266. In the absence of the titles indicated in the preceding article, the filiation shall be proved by the continuous possession of status of a legitimate child.
In Heirs of Yaptinchay, the complaint for annulment and/or declaration of nullity of certain TCT's was dismissed for failure of the petitioners to demonstrate "any proof or even a semblance of it" that they had been declared
the legal heirs of the deceased couple, the spouses Yaptinchay. In stark contrast, the records of this case reveal a document, an Extrajudicial Settlement of Marcelo Sr.'s estate, which explicitly recognizes herein
respondents as Marcelo Sr.'s legitimate children and heirs. The same document settles and partitions the estate of Marcelo Sr. specifying Teofista's paraphernal properties, and separates the properties she owns in
common with her children, herein respondents. Plainly, there is no need to re-declare herein respondents as heirs of Marcelo Sr., and prolong this case interminably.
Petitioner Valente, along with Violeta, Virginia and Maria Concepcion, became owners of the subject properties only by virtue of an execution sale to recover Teofista's judgment obligation. This judgment obligation is solely
Teofista's, and payment therefor cannot be made through an execution sale of properties not absolutely owned by her. These properties were evidently conjugal properties and were, in fact, even titled in the name of
Marcelo, Sr. married to Teofista. Thus, upon Marcelo Sr.'s death, by virtue of compulsory succession, Marcelo Sr.'s share in the conjugal partnership was transmitted by operation of law to his compulsory heirs.
Compulsory succession is a distinct kind of succession, albeit not categorized as such in Article 778 43 of the Civil Code. It reserves a portion of the net estate of the decedent in favor of certain heirs, or group of heirs, or
combination of heirs, prevailing over all kinds of succession. 44 The portion that is so reserved is the legitime. Article 886 of the Civil Code defines legitime as "that part of the testator's property which he cannot dispose of
because the law has reserved it for certain heirs who are, therefore, called compulsory heirs." Herein respondents are primary compulsory heirs, 45 excluding secondary compulsory heirs, 46 and preferred over concurring
compulsory heirs in the distribution of the decedent's estate. 47 EaCSTc
Even without delving into the Extrajudicial Settlement of Marcelo Sr.'s estate in 1957, it must be stressed that herein respondents' rights to the succession vested from the moment of their father's death. 48 Herein
respondents' ownership of the subject properties is no longer inchoate; it became absolute upon Marcelo's death, although their respective shares therein remained pro indiviso. Ineluctably, at the time the subject
properties were sold on execution sale to answer for Teofista's judgment obligation, the inclusion of herein respondents' share therein was null and void.
In fine, Teofista's ownership over the subject properties is not absolute. Significantly, petitioner Valente does not even attempt to dispute the conjugal nature of the subject properties. Since Teofista owns only a portion of
the subject properties, only that portion could have been, and was actually, levied upon and sold on auction by the provincial sheriff of Rizal. Thus, a separate declaration of heirship by herein respondents is not necessary
to annul the judicial sale of their share in the subject properties.
We note the recent case of Portugal v. Portugal-Beltran, 49 where we scrutinized our rulings in Heirs of Yaptinchay and the cited cases of Litam v. Rivera 50 and Solivio v. Court of Appeals, 51 and Guilas v. CFI Judge of
Pampanga 52 cited in Solivio. We ruled thus:
The common doctrine in Litam, Solivio and Guilas in which the adverse parties are putative heirs to the estate of a decedent or parties to the special proceedings for its settlement is that if the
special proceedings are pending, or if there are no special proceedings filed but there is, under the circumstances of the case, a need to file one, then the determination of, among other issues,
heirship should be raised and settled in said special proceedings. Where special proceedings had been instituted but had been finally closed and terminated, however, or if a putative heirs has lost
the right to have himself declared in the special proceedings as co-heir and he can no longer ask for its re-opening, then an ordinary civil action can be filed for his declaration as heir in order to
bring about the annulment of the partition or distribution or adjudication of a property or properties belonging to the estate of the deceased. aCIHAD
In the case at bar, respondent, believing rightly or wrongly that she was the sole heir to Portugal's estate, executed on February 15, 1988 the questioned Affidavit of Adjudication under the second
sentence of Rule 74, Section of the Revised Rules of Court. Said rule is an exception to the general rule that when a person dies leaving property, it should be judicially administered and the
competent court should appoint a qualified administrator, in the order established in Sec. 6, Rule 78 in case the deceased left no will, or in case he did, he failed to name an executor therein.
xxx xxx xxx
It appearing, however, that in the present case the only property of the intestate estate of Portugal is the Caloocan parcel of land, to still subject it, under the circumstances of the case, to a special
proceeding which could be long, hence, not expeditious, just to establish the status of petitioners as heirs is not only impractical; it is burdensome to the estate with the costs and expenses of an
administration proceedings. And it is superfluous in light of the fact that the parties to the civil case subject of the present case, could and had already in fact presented evidence before the trial
court which assumed jurisdiction over the case upon the issues it defined during pre-trial.
In fine, under the circumstances of the present case, there being no compelling reason to still subject Portugal's estate to administration proceedings since a determination of
petitioners' status as heirs could be achieved in the civil case filed by petitioners . . . . 53
All told, under the circumstances, in addition to the already settled status of herein respondents as heirs of Marcelo Sr., there is no need to dismiss Civil Case No. 51203 and require herein respondents to institute a
separate special proceeding for a declaration of their heirship.
WHEREFORE, premises considered, the petition is DENIED. The Decision of the Court of Appeals in CA-G.R. SP No. 58090 is AFFIRMED. The Orders dated May 29, 1996 and September 6, 1996 issued by Judge Santos
are REINSTATED. Costs against the petitioner.
SO ORDERED.
Puno, C.J., * Ynares-Santiago, Austria-Martinez and Chico-Nazario, JJ., concur.
||| (Raymundo v. Vda. de Suarez, G.R. No. 149017, [November 28, 2008], 593 PHIL 28-57)
DEVELOPMENT BANK OF THE PHILIPPINES, petitioner, vs. ELLA GAGARANI, ISAGANI, ADRIAN, NATHANIEL, NIEVA, JONATHAN, DIONESIO, FLORENCE and JEREMIAS, all surnamed ASOK,
respondents.

RESOLUTION
CORONA, J p:
This is a petition for review on certiorari 1 of the December 14, 2005 decision 2 and March 28, 2006 resolution 3 of the Court of Appeals (CA) in CA-G.R. CV No. 64259. aAHDIc
The spouses Dionesio and Matea S. Asok owned several parcels of land. Upon their death on September 14, 1973 and February 22, 1982, respectively, their eleven children inherited the properties. One of the lands
inherited was a lot covered by Original Certificate of Title (OCT) No. P-4272, a free patent issued on July 19, 1967, located at Pagawan, Manticao, Misamis Oriental with an area of 39,552 sq. m. 4
Pursuant to the extrajudicial settlement of the estate with quitclaim executed by the spouses' children, the subject property was inherited by Denison Asok (Asok). As a result, OCT No. P-4272 was cancelled and Transfer
Certificate of Title (TCT) No. T-9626 was issued and registered in his name on November 17, 1987. 5
On August 31, 1989, Asok and his wife, respondent Ella Gagarani Asok, borrowed P100,000 from petitioner Development Bank of the Philippines, a government financial institution created and operating under EO 81, 6 as
amended by RA 8523. They mortgaged the subject lot as collateral to guarantee payment of the loan. On due date, however, they failed to pay the loan and the mortgage was extrajudicially foreclosed pursuant to Act
3135. 7 Petitioner emerged as the highest bidder with a bid of P163,297. 8
On November 28, 1991, a certificate of sale was issued in favor of petitioner. This was registered on December 24, 1992. 9 On March 25, 1998, petitioner's ownership over the property was consolidated and TCT No. T27172 was issued in its name. 10
Meanwhile, Asok died on October 24, 1993 and was succeeded by his surviving spouse and children (respondents). 11
On May 15, 1998, respondents filed a complaint for repurchase against petitioner in the Regional Trial Court (RTC) of Initao, Misamis Oriental, Branch 44, docketed as Civil Case No. 98-68. On July 3, 1998, they filed an
amended complaint on learning that TCT No. T-9626 had been cancelled by TCT No. T-27172 issued in the name of petitioner. They invoked their right to repurchase the property under Sec. 119 of CA 141, as amended:
12
Sec. 119. Every conveyance of land acquired under the free patent or homestead provisions, when proper, shall be subject to repurchase by the applicant, his widow, or legal heirs, within a period
of five years from date of the conveyance.
In a decision dated January 7, 1999, the RTC dismissed the complaint. Reconsideration was denied on February 3, 1999. 13 It ruled that the one-year period for redemption should be reckoned from the date of sale, i.e.,
November 28, 1991. Then the five-year period provided under Sec. 119 of CA 141 should be counted from the expiration of the redemption period, i.e., November 28, 1992. Therefore, respondents had until November 28,
1997 to exercise their right to repurchase. However, the complaint was filed on May 15, 1998 which was beyond the prescribed period. 14
Aggrieved, respondents appealed to the CA. In a decision dated December 14, 2005, the CA reversed and set aside the RTC decision. Reconsideration was denied in a resolution dated March 28, 2006. It held that the
period of redemption started from the date of registration of the certificate of sale, i.e., December 24, 1992, and not from the date of sale. Thus, respondents had until December 24, 1998 to repurchase the property and the
complaint was seasonably filed. 15 ESaITA
Hence this petition.
Petitioner raises the following issues: (1) whether Sec. 119 of CA 141 is applicable in this case; (2) whether respondents are the legal heirs of the patentees and (3) whether the right to repurchase has already prescribed.
The petition lacks merit.
Petitioner contends that respondents cannot claim the right under Sec. 119 which covers homesteads and free patents because the free patent issued to Asok's parents had already been cancelled and a new TCT had in
fact been issued to him. Thus, the property mortgaged to it was no longer covered by a free patent but by a TCT. 16
This contention deserves scant consideration.
The plain intent of Sec. 119 is to give the homesteader or patentee every chance to preserve and keep in the family the land that the State has gratuitously given him as a reward for his labor in cleaning, developing and
cultivating it. 17 Hence, the fact that the land had been inherited by the patentees' son (and a new title in his name issued) does not bring it outside the purview of Sec. 119. In fact, the policy behind the law is fulfilled
because the land remains in the family of the patentee. As we explained in Ferrer v. Mangente: 18
The applicant for a homestead is to be given all the inducement that the law offers and is entitled to its full protection. Its blessings, however, do not stop with him. This is particularly so in this case
as the appellee is the son of the deceased. There is no question then as to his status of being a legal heir. The policy of the law is not difficult to understand. The incentive for a pioneer to venture
into developing virgin land becomes more attractive if he is assured that his effort will not go for naught should perchance his life be cut short. This is merely a recognition of how closely bound
parents and children are in a Filipino family. Logic, the sense of fitness and of right, as well as pragmatic considerations thus call for continued adherence to the policy that not the individual
applicant alone but those so closely related to him as are entitled to legal succession may take full advantage of the benefits the law confers. 19
Having ruled that Sec. 119 is applicable to this case, we now go to the next issue: are respondents the "legal heirs" contemplated in the provision?
Petitioner argues that respondents are not the legal heirs of the patentees because respondents are merely their daughter-in-law and grandchildren.
We disagree. In line with the rationale behind Sec. 119, we reject a restricted definition of legal heirs. It is used in a broad sense and the law makes no distinctions. 20 In Madarcos v. de la Merced, 21 we held that:
The term "legal heirs" is used in Section 119 in a generic sense. It is broad enough to cover any person who is called to the succession either by provision of a will or by operation of law. Thus, legal
heirs include both testate and intestate heirs depending upon whether succession is by the will of the testator or by law. Legal heirs are not necessarily compulsory heirs but they may be so if the
law reserves a legitime for them. EHCcIT
xxx xxx xxx
Verily, petitioners are legal heirs. Having been decreed under the rules on intestacy as entitled to succeed to the estate of the Catain spouses due to the absence of compulsory heirs, they now step
into the shoes of the decedents. They should be considered as among the legal heirs contemplated by Section 119 as entitled to redeem the homestead.
The above interpretation of "legal heirs" as contra-distinguished from the restrictive construction given it by the lower court is more in keeping with the salutary purpose behind the enactment of
Section 119 and the jurisprudence laid down on the matter. Indeed, it is not far-fetched to arrive at a more liberal conclusion if the section is analyzed in accordance with its purpose . . . 22
Respondents inherited the property from Asok, their husband and father, who in turn inherited it from his parents. Respondent Ella Gagarani Asok, as daughter-in-law of the patentees, can be considered as among the
legal heirs who can repurchase the land in accordance with Salenillas v. CA. 23 In that case, we allowed the daughter and son-in-law of the patentees to repurchase the property because this would be "more in keeping
with the spirit of the law. We have time and again said that between two statutory interpretations, that which better serves the purpose of the law should prevail". 24 Furthermore, the law must be liberally construed in order
to carry out its purpose. 25
Finally, petitioner asserts that even if respondents could be considered as being entitled to the right under Sec. 119, this had already prescribed because the period should be counted from the date of conveyance which
means the date of sale and not the date of registration of the certificate of sale.
This argument lacks merit.
This is far from a novel issue. It was already resolved in Rural Bank of Davao City, Inc. v. CA: 26
Thus, the rules on redemption in the case of an extrajudicial foreclosure of land acquired under free patent or homestead statutes may be summarized as follows: . . . If the land is mortgaged to
parties other than rural banks, the mortgagor may redeem the property within one (1) year from the registration of the certificate of sale pursuant to Act No. 3135. If he fails to do so, he or his
heirs may repurchase the property within five (5) years from the expiration of the redemption period also pursuant to Section 119 of the Public Land Act. 27 HTcADC
There is no dispute that in extrajudicial foreclosures under Act 3135, the debtor or his or her successors-in-interest may redeem the property within one year. This redemption period should be reckoned from the date of
registration of the certificate of sale. 28 The five-year period fixed in Sec. 119 begins to run from the expiration of the one-year redemption period. 29 Here, the certificate of sale was registered on December 24, 1992 and
the one-year redemption period expired on December 24, 1993. Reckoned from that day, respondents had a five-year period, or until December 24, 1998, to exercise their right to repurchase under Sec. 119 of CA 141.
Consequently, the CA was correct in holding that the complaint filed on May 15, 1998 was on time.

WHEREFORE, the petition is hereby DENIED. Petitioner Development Bank of the Philippines is ordered to execute a deed of reconveyance in favor of respondents upon payment by the latter of the redemption price.
aETADI
No costs.
SO ORDERED.
Puno, C.J., Carpio-Morales, * Azcuna and Leonardo-de Castro, JJ., concur.
||| (Development Bank of the Phils. v. Gagarani, G.R. No. 172248, [September 17, 2008], 587 PHIL 323-332)
PAZ SAMANIEGO-CELADA, petitioner, vs. LUCIA D. ABENA, respondent.
DECISION
QUISUMBING, J p:
This is a petition for review under Rule 45 of the 1997 Rules of Civil Procedure seeking to reverse the Decision 1 dated October 13, 2000 of the Court of Appeals in CA-G.R. CV No. 41756, which affirmed the Decision 2
dated March 2, 1993 of the Regional Trial Court (RTC), Branch 66, Makati City. The RTC had declared the last will and testament of Margarita S. Mayores probated and designated respondent Lucia D. Abena as the
executor of her will. It also ordered the issuance of letters testamentary in favor of respondent.
The facts are as follows:
Petitioner Paz Samaniego-Celada was the first cousin of decedent Margarita S. Mayores (Margarita) while respondent was the decedent's lifelong companion since 1929. CTAIDE
On April 27, 1987, Margarita died single and without any ascending nor descending heirs as her parents, grandparents and siblings predeceased her. She was survived by her first cousins Catalina Samaniego-Bombay,
Manuelita Samaniego Sajonia, Feliza Samaniego, and petitioner.
Before her death, Margarita executed a Last Will and Testament 3 on February 2, 1987 where she bequeathed one-half of her undivided share of a real property located at Singalong Manila, consisting of 209.8 square
meters, and covered by Transfer Certificate of Title (TCT) No. 1343 to respondent, Norma A. Pahingalo, and Florentino M. Abena in equal shares or one-third portion each. She likewise bequeathed one-half of her
undivided share of a real property located at San Antonio Village, Makati, consisting of 225 square meters, and covered by TCT No. 68920 to respondent, Isabelo M. Abena, and Amanda M. Abena in equal shares or onethird portion each. Margarita also left all her personal properties to respondent whom she likewise designated as sole executor of her will. HacADE
On August 11, 1987, petitioner filed a petition for letters of administration of the estate of Margarita before the RTC of Makati. The case was docketed as SP Proc. No. M-1531.
On October 27, 1987, respondent filed a petition for probate of the will of Margarita before the RTC of Makati. The case was docketed as SP Proc. No. M-1607 and consolidated with SP Proc. No. M-1531.
On March 2, 1993, the RTC rendered a decision declaring the last will and testament of Margarita probated and respondent as the executor of the will. The dispositive portion of the decision states:
In view of the foregoing, judgment is hereby rendered:
1) declaring the will as probated;
2) declaring Lucia Abena as the executor of the will who will serve as such without a bond as stated in paragraph VI of the probated will;
3) ordering the issuance of letters testamentary in favor of Lucia Abena. IAETSC
So ordered. 4
Petitioner appealed the RTC decision to the Court of Appeals. But the Court of Appeals, in a decision dated October 13, 2000, affirmed in toto the RTC ruling. The dispositive portion of the Court of Appeals' decision states:
WHEREFORE, foregoing premises considered, the appeal having no merit in fact and in law, is hereby ORDERED DISMISSED and the appealed Decision of the trial court AFFIRMED IN TOTO,
with cost to oppositors-appellants.
SO ORDERED. 5
Hence, the instant petition citing the following issues:
I.
WHETHER OR NOT THE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR IN NOT INVALIDATING THE WILL SINCE IT DID NOT CONFORM TO THE FORMALITIES REQUIRED
BY LAW;
II.
WHETHER OR NOT THE COURT OF APPEALS COMMITTED ERROR IN NOT INVALIDATING THE WILL BECAUSE IT WAS PROCURED THROUGH UNDUE INFLUENCE AND PRESSURE[;]
AND HSaIDc
III.
WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN NOT DECLARING PETITIONER, HER SIBLINGS AND COUSIN AS THE LEGAL HEIRS OF MARGARITA S. MAYORES
AND IN NOT ISSUING LETTERS OF ADMINISTRATION TO HER. 6
Briefly stated, the issues are (1) whether the Court of Appeals erred in not declaring the will invalid for failure to comply with the formalities required by law, (2) whether said court erred in not declaring the will invalid
because it was procured through undue influence and pressure, and (3) whether it erred in not declaring petitioner and her siblings as the legal heirs of Margarita, and in not issuing letters of administration to petitioner.
cCaSHA
Petitioner, in her Memorandum, 7 argues that Margarita's will failed to comply with the formalities required under Article 805 8 of the Civil Code because the will was not signed by the testator in the presence of the
instrumental witnesses and in the presence of one another. She also argues that the signatures of the testator on pages A, B, and C of the will are not the same or similar, indicating that they were not signed on the same
day. She further argues that the will was procured through undue influence and pressure because at the time of execution of the will, Margarita was weak, sickly, jobless and entirely dependent upon respondent and her
nephews for support, and these alleged handicaps allegedly affected her freedom and willpower to decide on her own. Petitioner thus concludes that Margarita's total dependence on respondent and her nephews
compelled her to sign the will. Petitioner likewise argues that the Court of Appeals should have declared her and her siblings as the legal heirs of Margarita since they are her only living collateral relatives in accordance
with Articles 1009 9 and 1010 10 of the Civil Code. HaTAEc
Respondent, for her part, argues in her Memorandum 11 that the petition for review raises questions of fact, not of law and as a rule, findings of fact of the Court of Appeals are final and conclusive and cannot be reviewed
on appeal to the Supreme Court. She also points out that although the Court of Appeals at the outset opined there was no compelling reason to review the petition, the Court of Appeals proceeded to tackle the assigned
errors and rule that the will was validly executed, sustaining the findings of the trial court that the formalities required by law were duly complied with. The Court of Appeals also concurred with the findings of the trial court
that the testator, Margarita, was of sound mind when she executed the will.
After careful consideration of the parties' contentions, we rule in favor of respondent.
We find that the issues raised by petitioner concern pure questions of fact, which may not be the subject of a petition for review on certiorari under Rule 45 of the Rules of Civil Procedure.
The issues that petitioner is raising now i.e., whether or not the will was signed by the testator in the presence of the witnesses and of one another, whether or not the signatures of the witnesses on the pages of the will
were signed on the same day, and whether or not undue influence was exerted upon the testator which compelled her to sign the will, are all questions of fact.
This Court does not resolve questions of fact in a petition for review under Rule 45 of the 1997 Rules of Civil Procedure. Section 1 12 of Rule 45 limits this Court's review to questions of law only. THaDEA
Well-settled is the rule that the Supreme Court is not a trier of facts. When supported by substantial evidence, the findings of fact of the Court of Appeals are conclusive and binding on the parties and are not reviewable by
this Court, unless the case falls under any of the following recognized exceptions:
(1) When the conclusion is a finding grounded entirely on speculation, surmises and conjectures;

(2) When the inference made is manifestly mistaken, absurd or impossible;

(3) Where there is a grave abuse of discretion;
(4) When the judgment is based on a misapprehension of facts;
(5) When the findings of fact are conflicting;
(6) When the Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee; CcTHaD
(7) When the findings are contrary to those of the trial court;
(8) When the findings of fact are conclusions without citation of specific evidence on which they are based;
(9) When the facts set forth in the petition as well as in the petitioners' main and reply briefs are not disputed by the respondents; and
(10) When the findings of fact of the Court of Appeals are premised on the supposed absence of evidence and contradicted by the evidence on record. 13 STcHEI
We find that this case does not involve any of the abovementioned exceptions.
Nonetheless, a review of the findings of the RTC as upheld by the Court of Appeals, reveal that petitioner's arguments lack basis. The RTC correctly held:
With [regard] to the contention of the oppositors [Paz Samaniego-Celada, et al.] that the testator [Margarita Mayores] was not mentally capable of making a will at the time of the execution thereof,
the same is without merit. The oppositors failed to establish, by preponderance of evidence, said allegation and contradict the presumption that the testator was of sound mind (See Article 800 of
the Civil Code). In fact, witness for the oppositors, Dr. Ramon Lamberte, who, in some occasions, attended to the testator months before her death, testified that Margarita Mayores could engage in
a normal conversation and he even stated that the illness of the testator does not warrant hospitalization. . . . Not one of the oppositor's witnesses has mentioned any instance that they observed
act/s of the testator during her lifetime that could be construed as a manifestation of mental incapacity. The testator may be admitted to be physically weak but it does not necessarily follow that she
was not of sound mind. [The] testimonies of contestant witnesses are pure aforethought. aHECST
Anent the contestants' submission that the will is fatally defective for the reason that its attestation clause states that the will is composed of three (3) pages while in truth and in fact, the will consists
of two (2) pages only because the attestation is not a part of the notarial will, the same is not accurate. While it is true that the attestation clause is not a part of the will, the court, after examining the
totality of the will, is of the considered opinion that error in the number of pages of the will as stated in the attestation clause is not material to invalidate the subject will. It must be noted that the
subject instrument is consecutively lettered with pages A, B, and C which is a sufficient safeguard from the possibility of an omission of some of the pages. The error must have been brought about
by the honest belief that the will is the whole instrument consisting of three (3) pages inclusive of the attestation clause and the acknowledgement. The position of the court is in consonance with the
"doctrine of liberal interpretation" enunciated in Article 809 of the Civil Code which reads:
"In the absence of bad faith, forgery or fraud, or undue [and] improper pressure and influence, defects and imperfections in the form of attestation or in the language used
therein shall not render the will invalid if it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of Article 805."
The court also rejects the contention of the oppositors that the signatures of the testator were affixed on different occasions based on their observation that the signature on the first page is
allegedly different in size, texture and appearance as compared with the signatures in the succeeding pages. After examination of the signatures, the court does not share the same observation as
the oppositors. The picture (Exhibit "H-3") shows that the testator was affixing her signature in the presence of the instrumental witnesses and the notary. There is no evidence to show that the first
signature was procured earlier than February 2, 1987. cTEICD
Finally, the court finds that no pressure nor undue influence was exerted on the testator to execute the subject will. In fact, the picture reveals that the testator was in a good mood and smiling with
the other witnesses while executing the subject will (See Exhibit "H").
In fine, the court finds that the testator was mentally capable of making the will at the time of its execution, that the notarial will presented to the court is the same notarial will that was executed and
that all the formal requirements (See Article 805 of the Civil Code) in the execution of a will have been substantially complied with in the subject notarial will. 14 (Emphasis supplied). IcDCaT
Thus, we find no reason to disturb the abovementioned findings of the RTC. Since, petitioner and her siblings are not compulsory heirs of the decedent under Article 887 15 of the Civil Code and as the decedent validly
disposed of her properties in a will duly executed and probated, petitioner has no legal right to claim any part of the decedent's estate.
WHEREFORE, the petition is DENIED. The assailed Decision dated October 13, 2000 of the Court of Appeals in CA-G.R. CV No. 41756 is AFFIRMED. HASDcC
Costs against petitioner.
SO ORDERED.
Carpio-Morales, Tinga, Velasco, Jr. and Brion, JJ., concur.
||| (Samaniego-Celada v. Abena, G.R. No. 145545, [June 30, 2008], 579 PHIL 60-69)
MANUEL L. LEE, complainant, vs. ATTY. REGINO B. TAMBAGO, respondent.
RESOLUTION
CORONA, J p:
In a letter-complaint dated April 10, 2000, complainant Manuel L. Lee charged respondent Atty. Regino B. Tambago with violation of the Notarial Law and the ethics of the legal profession for notarizing a spurious last will
and testament.
In his complaint, complainant averred that his father, the decedent Vicente Lee, Sr., never executed the contested will. Furthermore, the spurious will contained the forged signatures of Cayetano Noynay and Loreto Grajo,
the purported witnesses to its execution.
In the said will, the decedent supposedly bequeathed his entire estate to his wife Lim Hock Lee, save for a parcel of land which he devised to Vicente Lee, Jr. and Elena Lee, half-siblings of complainant. IETCAS
The will was purportedly executed and acknowledged before respondent on June 30, 1965. 1 Complainant, however, pointed out that the residence certificate 2 of the testator noted in the acknowledgment of the will was
dated January 5, 1962. 3 Furthermore, the signature of the testator was not the same as his signature as donor in a deed of donation 4 (containing his purported genuine signature). Complainant averred that the signatures
of his deceased father in the will and in the deed of donation were "in any way (sic) entirely and diametrically opposed from (sic) one another in all angle[s]." 5
Complainant also questioned the absence of notation of the residence certificates of the purported witnesses Noynay and Grajo. He alleged that their signatures had likewise been forged and merely copied from their
respective voters' affidavits.
Complainant further asserted that no copy of such purported will was on file in the archives division of the Records Management and Archives Office of the National Commission for Culture and the Arts (NCCA). In this
connection, the certification of the chief of the archives division dated September 19, 1999 stated:
Doc. 14, Page No. 4, Book No. 1, Series of 1965 refers to an AFFIDAVIT executed by BARTOLOME RAMIREZ on June 30, 1965 and is available in this Office['s] files. 6 ICDcEA
Respondent in his comment dated July 6, 2001 claimed that the complaint against him contained false allegations: (1) that complainant was a son of the decedent Vicente Lee, Sr. and (2) that the will in question was fake
and spurious. He alleged that complainant was "not a legitimate son of Vicente Lee, Sr. and the last will and testament was validly executed and actually notarized by respondent per affidavit 7 of Gloria Nebato, commonlaw wife of Vicente Lee, Sr. and corroborated by the joint affidavit 8 of the children of Vicente Lee, Sr., namely Elena N. Lee and Vicente N. Lee, Jr. . . . ." 9 ATCEIc
Respondent further stated that the complaint was filed simply to harass him because the criminal case filed by complainant against him in the Office of the Ombudsman "did not prosper".
Respondent did not dispute complainant's contention that no copy of the will was on file in the archives division of the NCCA. He claimed that no copy of the contested will could be found there because none was filed.
Lastly, respondent pointed out that complainant had no valid cause of action against him as he (complainant) did not first file an action for the declaration of nullity of the will and demand his share in the inheritance.
In a resolution dated October 17, 2001, the Court referred the case to the Integrated Bar of the Philippines (IBP) for investigation, report and recommendation. 10

In his report, the investigating commissioner found respondent guilty of violation of pertinent provisions of the old Notarial Law as found in the Revised Administrative Code. The violation constituted an infringement of legal
ethics, particularly Canon 1 11 and Rule 1.01 12 of the Code of Professional Responsibility (CPR). 13 Thus, the investigating commissioner of the IBP Commission on Bar Discipline recommended the suspension of
respondent for a period of three months. HDTISa
The IBP Board of Governors, in its Resolution No. XVII-2006-285 dated May 26, 2006, resolved:
[T]o ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, with modification, the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein
made part of this Resolution as Annex "A"; and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and considering Respondent's failure to
comply with the laws in the discharge of his function as a notary public, Atty. Regino B. Tambago is hereby suspended from the practice of law for one year and Respondent's notarial commission is
Revoked and Disqualified from reappointment as Notary Public for two (2) years. 14
We affirm with modification.
A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate, to take effect after his death. 15 A will may either be notarial or holographic.
The law provides for certain formalities that must be followed in the execution of wills. The object of solemnities surrounding the execution of wills is to close the door on bad faith and fraud, to avoid substitution of wills and
testaments and to guarantee their truth and authenticity. 16 aSIETH
A notarial will, as the contested will in this case, is required by law to be subscribed at the end thereof by the testator himself. In addition, it should be attested and subscribed by three or more credible witnesses in the
presence of the testator and of one another. 17
The will in question was attested by only two witnesses, Noynay and Grajo. On this circumstance alone, the will must be considered void. 18 This is in consonance with the rule that acts executed against the provisions of
mandatory or prohibitory laws shall be void, except when the law itself authorizes their validity.
The Civil Code likewise requires that a will must be acknowledged before a notary public by the testator and the witnesses. 19 The importance of this requirement is highlighted by the fact that it was segregated from the
other requirements under Article 805 and embodied in a distinct and separate provision. 20
An acknowledgment is the act of one who has executed a deed in going before some competent officer or court and declaring it to be his act or deed. It involves an extra step undertaken whereby the signatory actually
declares to the notary public that the same is his or her own free act and deed. 21 The acknowledgment in a notarial will has a two-fold purpose: (1) to safeguard the testator's wishes long after his demise and (2) to assure
that his estate is administered in the manner that he intends it to be done. STIcaE
A cursory examination of the acknowledgment of the will in question shows that this particular requirement was neither strictly nor substantially complied with. For one, there was the conspicuous absence of a notation of
the residence certificates of the notarial witnesses Noynay and Grajo in the acknowledgment. Similarly, the notation of the testator's old residence certificate in the same acknowledgment was a clear breach of the law.
These omissions by respondent invalidated the will.
As the acknowledging officer of the contested will, respondent was required to faithfully observe the formalities of a will and those of notarization. As we held in Santiago v. Rafanan: 22
The Notarial Law is explicit on the obligations and duties of notaries public. They are required to certify that the party to every document acknowledged before him had presented the proper
residence certificate (or exemption from the residence tax); and to enter its number, place of issue and date as part of such certification. HDTISa
These formalities are mandatory and cannot be disregarded, considering the degree of importance and evidentiary weight attached to notarized documents. 23 A notary public, especially a lawyer, 24 is bound to strictly
observe these elementary requirements.
The Notarial Law then in force required the exhibition of the residence certificate upon notarization of a document or instrument:
Section 251. Requirement as to notation of payment of [cedula] residence tax. Every contract, deed, or other document acknowledged before a notary public shall have certified thereon
that the parties thereto have presented their proper [cedula] residence certificate or are exempt from the [cedula] residence tax, and there shall be entered by the notary public as a part of
such certificate the number, place of issue, and date of each [cedula] residence certificate as aforesaid. 25 AEITDH
The importance of such act was further reiterated by Section 6 of the Residence Tax Act 26 which stated:
When a person liable to the taxes prescribed in this Act acknowledges any document before a notary public . . . it shall be the duty of such person . . . with whom such transaction is had or business
done, to require the exhibition of the residence certificate showing payment of the residence taxes by such person . . . .
In the issuance of a residence certificate, the law seeks to establish the true and correct identity of the person to whom it is issued, as well as the payment of residence taxes for the current year. By having allowed
decedent to exhibit an expired residence certificate, respondent failed to comply with the requirements of both the old Notarial Law and the Residence Tax Act. As much could be said of his failure to demand the exhibition
of the residence certificates of Noynay and Grajo.
On the issue of whether respondent was under the legal obligation to furnish a copy of the notarized will to the archives division, Article 806 provides:
Art. 806. Every will must be acknowledged before a notary public by the testator and the witness. The notary public shall not be required to retain a copy of the will, or file another with
the office of the Clerk of Court. (emphasis supplied) IDcTEA
Respondent's failure, inadvertent or not, to file in the archives division a copy of the notarized will was therefore not a cause for disciplinary action.
Nevertheless, respondent should be faulted for having failed to make the necessary entries pertaining to the will in his notarial register. The old Notarial Law required the entry of the following matters in the notarial register,
in chronological order: ACETID
1. nature of each instrument executed, sworn to, or acknowledged before him;
2. person executing, swearing to, or acknowledging the instrument;
3. witnesses, if any, to the signature;
4. date of execution, oath, or acknowledgment of the instrument;
5. fees collected by him for his services as notary;
6. give each entry a consecutive number; and
7. if the instrument is a contract, a brief description of the substance of the instrument. 27
In an effort to prove that he had complied with the abovementioned rule, respondent contended that he had crossed out a prior entry and entered instead the will of the decedent. As proof, he presented a photocopy of his
notarial register. To reinforce his claim, he presented a photocopy of a certification 28 stating that the archives division had no copy of the affidavit of Bartolome Ramirez. AHcaDC
A photocopy is a mere secondary evidence. It is not admissible unless it is shown that the original is unavailable. The proponent must first prove the existence and cause of the unavailability of the original, 29 otherwise,
the evidence presented will not be admitted. Thus, the photocopy of respondent's notarial register was not admissible as evidence of the entry of the execution of the will because it failed to comply with the requirements for
the admissibility of secondary evidence.
In the same vein, respondent's attempt to controvert the certification dated September 21, 1999 30 must fail. Not only did he present a mere photocopy of the certification dated March 15, 2000; 31 its contents did not
squarely prove the fact of entry of the contested will in his notarial register.
Notaries public must observe with utmost care 32 and utmost fidelity the basic requirements in the performance of their duties, otherwise, the confidence of the public in the integrity of notarized deeds will be undermined.
33
Defects in the observance of the solemnities prescribed by law render the entire will invalid. This carelessness cannot be taken lightly in view of the importance and delicate nature of a will, considering that the testator and
the witnesses, as in this case, are no longer alive to identify the instrument and to confirm its contents. 34 Accordingly, respondent must be held accountable for his acts. The validity of the will was seriously compromised

as a consequence of his breach of duty. 35 IEAacT

In this connection, Section 249 of the old Notarial Law provided:
Grounds for revocation of commission. The following derelictions of duty on the part of a notary public shall, in the discretion of the proper judge of first instance, be sufficient ground for the
revocation of his commission:
xxx xxx xxx
(b) The failure of the notary to make the proper entry or entries in his notarial register touching his notarial acts in the manner required by law.
xxx xxx xxx
(f) The failure of the notary to make the proper notation regarding cedula certificates. 36
These gross violations of the law also made respondent liable for violation of his oath as a lawyer and constituted transgressions of Section 20 (a), Rule 138 of the Rules of Court 37 and Canon 1 38 and Rule 1.01 39 of the
CPR. cHSIAC
The first and foremost duty of a lawyer is to maintain allegiance to the Republic of the Philippines, uphold the Constitution and obey the laws of the land. 40 For a lawyer is the servant of the law and belongs to a profession
to which society has entrusted the administration of law and the dispensation of justice. 41
While the duty to uphold the Constitution and obey the law is an obligation imposed on every citizen, a lawyer assumes responsibilities well beyond the basic requirements of good citizenship. As a servant of the law, a
lawyer should moreover make himself an example for others to emulate. 42 Being a lawyer, he is supposed to be a model in the community in so far as respect for the law is concerned. 43
The practice of law is a privilege burdened with conditions. 44 A breach of these conditions justifies disciplinary action against the erring lawyer. A disciplinary sanction is imposed on a lawyer upon a finding or
acknowledgment that he has engaged in professional misconduct. 45 These sanctions meted out to errant lawyers include disbarment, suspension and reprimand. HaAIES
Disbarment is the most severe form of disciplinary sanction. 46 We have held in a number of cases that the power to disbar must be exercised with great caution 47 and should not be decreed if any punishment less
severe such as reprimand, suspension, or fine will accomplish the end desired. 48 The rule then is that disbarment is meted out only in clear cases of misconduct that seriously affect the standing and character of the
lawyer as an officer of the court. 49
Respondent, as notary public, evidently failed in the performance of the elementary duties of his office. Contrary to his claims that he "exercised his duties as Notary Public with due care and with due regard to the
provision of existing law and had complied with the elementary formalities in the performance of his duties . . .," we find that he acted very irresponsibly in notarizing the will in question. Such recklessness warrants the less
severe punishment of suspension from the practice of law. It is, as well, a sufficient basis for the revocation of his commission 50 and his perpetual disqualification to be commissioned as a notary public. 51
WHEREFORE, respondent Atty. Regino B. Tambago is hereby found guilty of professional misconduct. He violated (1) the Lawyer's Oath; (2) Rule 138 of the Rules of Court; (3) Canon 1 and Rule 1.01 of the Code of
Professional Responsibility; (4) Art. 806 of the Civil Code and (5) the provisions of the old Notarial Law.
Atty. Regino B. Tambago is hereby SUSPENDED from the practice of law for one year and his notarial commission REVOKED. Because he has not lived up to the trustworthiness expected of him as a notary public and as
an officer of the court, he is PERPETUALLY DISQUALIFIED from reappointment as a notary public. prcd
Let copies of this Resolution be furnished to all the courts of the land, the Integrated Bar of the Philippines and the Office of the Bar Confidant, as well as made part of the personal records of respondent.
SO ORDERED.
Puno, C.J., Sandoval-Gutierrez, Azcuna and Leonardo-de Castro, JJ., concur.
||| (Lee v. Tambago, A.C. No. 5281, [February 12, 2008], 568 PHIL 363-378)
DANILO ALUAD, LEONORA ALUAD, DIVINA ALUAD, PROSPERO ALUAD, and CONNIE ALUAD, petitioners, vs. ZENAIDO ALUAD, respondent.
DECISION
CARPIO-MORALES, J p:
Petitioners' mother, Maria Aluad (Maria), and respondent Zenaido Aluad were raised by the childless spouses Matilde Aluad (Matilde) and Crispin Aluad (Crispin). ISADET
Crispin was the owner of six lots identified as Lot Nos. 674, 675, 676, 677, 680, and 682 of the Pilar Cadastre, Capiz. After Crispin died, his wife Matilde adjudicated the lots to herself. 1
On November 14, 1981, Matilde executed a document entitled "Deed of Donation of Real Property Inter Vivos" 2 (Deed of Donation) in favor of petitioners' mother Maria 3 covering all the six lots which Matilde inherited
from her husband Crispin. The Deed of Donation provided:
That, for and in consideration of the love and affection of the DONOR [Matilde] for the DONEE [Maria], the latter being adopted and hav[ing] been brought up by the former the DONOR, by these
presents, transfer and convey, BY WAY OF DONATION, unto the DONEE the property above-described, to become effective upon the death of the DONOR, but in the event that the DONEE
should die before the DONOR, the present donation shall be deemed rescinded and [of] no further force and effect; Provided, however, that anytime during the lifetime of the DONOR or
anyone of them who should survive, they could use[,] encumber or even dispose of any or even all of the parcels of land herein donated. 4 (Emphasis and underscoring supplied)
On September 30, 1986, Original Certificates of Title over Lot Nos. 674 and 676 were issued in Matilde's name.
On August 26, 1991, Matilde sold Lot No. 676 to respondent by a Deed of Absolute Sale of Real Property. 5
Subsequently or on January 14, 1992, Matilde executed a last will and testament, 6 devising Lot Nos. 675, 677, 682, and 680 to Maria, and her "remaining properties" including Lot No. 674 to respondent.
Matilde died on January 25, 1994, while Maria died on September 24 of the same year. 7
On August 21, 1995, Maria's heirs-herein petitioners filed before the Regional Trial Court (RTC) of Roxas City a Complaint, 8 for declaration and recovery of ownership and possession of Lot Nos. 674 and 676, and
damages against respondent, alleging:
That in 1978, plaintiff[s] possessed the two (2) parcels of land above-described until January 1991 when defendant entered and possessed the two (2) parcels of land claiming as the adopted son of
Crispin Aluad who refused to give back possession until Matilde Aluad died in [1994] and then retained the possession thereof up to and until the present time, thus, depriving the plaintiffs of the
enjoyment of said parcels of land . . .; AcISTE
That after the death of Matilde R. Aluad, the plaintiffs succeeded by inheritance by right of representation from their deceased mother, Maria Aluad who is the sole and only daughter of Matilde
Aluad[.] 9
To the complaint respondent alleged in his Answer. 10
That Lot 674 is owned by the defendant as this lot was adjudicated to him in the Last Will and Testament of Matilde Aluad . . . while Lot 676 was purchased by him from Matilde Aluad. These two
lots are in his possession as true owners thereof. 11 (Underscoring supplied)
Petitioners later filed a Motion for Leave to Amend Complaint Already Filed to Conform to Evidence 12 to which it annexed an Amended Complaint 13 which cited the donation of the six lots via Deed of Donation in favor of
their mother Maria. Branch 15 of the RTC granted the motion and admitted the Amended Complaint. 14
Respondent filed an Amended Answer 15 contending, inter alia, that the Deed of Donation is forged and falsified and petitioners' change of theory showed that "said document was not existing at the time they filed their
complaint and was concocted by them after realizing that their false claim that their mother was the only daughter of Matild[e] Aluad cannot in anyway be established by them"; 16 and that if ever said document does exist,
the same was already revoked by Matilde "when [she] exercised all acts of dominion over said properties until she sold Lot 676 to defendant and until her death with respect to the other lots without any opposition from
Maria Aluad." 17
The trial court, by Decision 18 of September 20, 1996, held that Matilde could not have transmitted any right over Lot Nos. 674 and 676 to respondent, she having previously alienated them to Maria via the Deed of
Donation. Thus it disposed:
WHEREFORE, in view of the foregoing, judgment is hereby rendered:

1. Declaring the plaintiffs as the rightful owners of the subject Lots Nos. 674 and 676, Pilar Cadastre;
2. Ordering the defendant to deliver the possession of the subject lots to the plaintiffs;
3. Ordering the defendant to pay the plaintiffs:
a. Thirty thousand pesos (P30,000.00) as attorney's fees;
b. Twenty thousand pesos (P20,000.00), representing the income from subject Lot 676, a year from 1991 up to the time said lot is delivered to the plaintiffs, together
with the interest thereof at the legal rate until fully paid; cSaCDT
c. Ten thousand pesos (P10,000.00), representing the income from the subject Lot No. 674, a year from 1991 up to the time said lot is delivered to the plaintiffs, plus
legal interest thereof at the legal rate until fully paid; and
d. The costs of the suit.
Defendant's counterclaim is ordered dismissed for lack of merit.
SO ORDERED. 19
On petitioners' motion, the trial court directed the issuance of a writ of execution pending appeal. 20 Possession of the subject lots appears to have in fact been taken by petitioners.
By Decision 21 of August 10, 2006, the Court of Appeals reversed the trial court's decision, it holding that the Deed of Donation was actually a donation mortis causa, not inter vivos, and as such it had to, but did not,
comply with the formalities of a will. Thus, it found that the Deed of Donation was witnessed by only two witnesses and had no attestation clause which is not in accordance with Article 805 of the Civil Code, reading:
Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by
his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.
The testator or the person requested by him to write his name and the instrumental witnesses of the will shall, also sign, as aforesaid, each and every page thereof, except the last on the left margin
and all the pages shall be numbered correlatively in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon which the will is written, and the fact that that testator signed the will and every page thereof, or caused some other person to write his
name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator, and of
one another.
If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. ITaESD
While the appellate court declared respondent as the rightful owner of Lot No. 676 , it did not so declare with respect to Lot No. 674, as Matilde's last will and testament had not yet been probated. Thus the Court of
Appeals disposed:
WHEREFORE, finding the instant petition worthy of merit, the same is hereby GRANTED and the Decision of the Regional Trial Court of Roxas City, Branch 15, dated 20 September 1996, in Civil
Case No. V-6686 for declaration of ownership, recovery of ownership and possession, and damages is REVERSED and SET ASIDE.
A new one is entered in its stead declaring defendant-appellant as the lawful owner of Lot [No.] 676 of the Pilar Cadastre. Accordingly, plaintiffs-appellees are directed to return the possession of the
said lot to the defendant-appellant.
Moreover, plaintiffs-appellees are ordered to pay P40,000.00 to defendant-appellant as attorney's fees and litigation expenses.
Costs against plaintiffs-appellees.
SO ORDERED. 22 (Emphasis in the original; underscoring supplied)
Their Motion for Reconsideration 23 having been denied, 24 petitioners filed the present Petition for Review, 25 contending that the Court of Appeals erred:
I
. . . WHEN IT REVERSED THE DECISION OF THE COURT BELOW (RTC, Branch 15, Roxas City) HOLDING THAT THE DEED OF DONATION INTER VIVOS IN FAVOR OF PETITIONERS'
MOTHER IS IN FACT A DONATION MORTIS CAUSA.
II
. . . WHEN IT RULED THAT RESPONDENT IS THE RIGHTFUL OWNER OF LOT NO. 676 AS LOT BUYER ON THE BASIS OF A DEED OF SALE EXECUTED BY THE DONOR WHO HAD NO
MORE RIGHT TO SELL THE SAME. AISHcD
III
. . . WHEN IT FAILED TO DECLARE PETITIONERS THE RIGHTFUL OWNER OF LOT NO. 674 AFTER HAVING RULED WHEN IT HELD THAT RESPONDENT CANNOT BE DECLARED
OWNER THEREOF.
IV
. . . WHEN IT HELD THAT THE ISSUANCE OF A WRIT OF EXECUTION PENDING APPEAL IS IN VIOLATION OF PARAGRAPH (a) SECTION 2, RULE 39, OF THE RULES OF COURT (AND
ORDERING PETITIONERS TO RETURN POSSESSION OF LOT 676 TO RESPONDENT) AND ORDERING PETITIONERS TO PAY ATTORNEY'S FEES AND COST[S] OF SUIT. 26
As did the appellate court, the Court finds the donation to petitioners' mother one of mortis causa, it having the following characteristics:
(1) It conveys no title or ownership to the transferee before the death of the transferor; or what amounts to the same thing, that the transferor should retain the ownership (full or naked) and
control of the property while alive;
(2) That before the death of the transferor, the transfer should be revocable by the transferor at will, ad nutum; but revocability may be provided for indirectly by means of a reserved power in
the donor to dispose of the properties conveyed; and
(3) That the transfer should be void if the transferor should survive the transferee. 27 (Emphasis and underscoring supplied)
The phrase in the earlier-quoted Deed of Donation "to become effective upon the death of the DONOR" admits of no other interpretation than to mean that Matilde did not intend to transfer the ownership of the six lots to
petitioners' mother during her (Matilde's) lifetime. 28
The statement in the Deed of Donation reading "anytime during the lifetime of the DONOR or anyone of them who should survive, they could use, encumber or even dispose of any or even all the parcels of land
herein donated" 29 means that Matilde retained ownership of the lots and reserved in her the right to dispose them. For the right to dispose of a thing without other limitations than those established by law is an attribute of
ownership. 30 The phrase in the Deed of Donation "or anyone of them who should survive" is of course out of sync. For the Deed of Donation clearly stated that it would take effect upon the death of the donor, hence, said
phrase could only have referred to the donor Matilde. Petitioners themselves concede that such phrase does not refer to the donee, thus: cSATEH
. . . [I]t is well to point out that the last provision (sentence) in the disputed paragraph should only refer to Matilde Aluad, the donor, because she was the only surviving spouse at the time the
donation was executed on 14 November 1981, as her husband Crispin Aluad [] had long been dead as early as 1975. 31
The trial court, in holding that the donation was inter vivos, reasoned:
. . . The donation in question is subject to a resolutory term or period when the donor provides in the aforequoted provisions, "but in the event that the DONEE should die before the DONOR, the
present donation shall be deemed rescinded and [of] no further force and effect". When the donor provides that should the "DONEE" . . . die before the DONOR, the present donation shall be
deemed rescinded and [of] no further force and effect" the logical construction thereof is that after the execution of the subject donation, the same became effective immediately and shall be
"deemed rescinded and [of] no further force and effect" upon the arrival of a resolutory term or period, i.e., the death of the donee which shall occur before that of the donor. Understandably, the

arrival of this resolutory term or period cannot rescind and render of no further force and effect a donation which has never become effective, because, certainly what donation is there to be
rescinded and rendered of no further force and effect upon the arrival of said resolutory term or period if there was no donation which was already effective at the time when the donee died? 32
(Underscoring supplied)
A similar ratio in a case had been brushed aside by this Court, however, thus:
. . . [P]etitioners contend that the stipulation on rescission in case petitioners [donee] die ahead of [donor] Cabatingan is a resolutory condition that confirms the nature of the donation as inter vivos.
Petitioners' arguments are bereft of merit. 33
xxx xxx xxx
. . . The herein subject deeds expressly provide that the donation shall be rescinded in case [donees] the petitioners predecease [the donor] Conchita Cabatingan. As stated in Reyes v. Mosqueda,
one of the decisive characteristics of a donation mortis causa is that the transfer should be considered void if the donor should survive the donee. This is exactly what Cabatingan provided for in her
donations. If she really intended that the donation should take effect during her lifetime and that the ownership of the properties donated to the donee or independently of, and not by reason of her
death, she would not have expressed such proviso in the subject deeds. 34 (Underscoring supplied) EaCSHI
As the Court of Appeals observed, ". . . [t]hat the donation is mortis causa is fortified by Matilde's acts of possession as she continued to pay the taxes for the said properties which remained under her name; appropriated
the produce; and applied for free patents for which OCTs were issued under her name". 35
The donation being then mortis causa, the formalities of a will should have been observed 36 but they were not, as it was witnessed by only two, not three or more witnesses following Article 805 of the Civil Code. 37
Further, the witnesses did not even sign the attestation clause 38 the execution of which clause is a requirement separate from the subscription of the will and the affixing of signatures on the left-hand margins of the pages
of the will. So the Court has emphasized:
. . . Article 805 particularly segregates the requirement that the instrumental witnesses sign each page of the will from the requisite that the will be "attested and subscribed by [the instrumental
witnesses]. The respective intents behind these two classes of signature[s] are distinct from each other. The signatures on the left-hand corner of every page signify, among others, that the
witnesses are aware that the page they are signing forms part of the will. On the other hand, the signatures to the attestation clause establish that the witnesses are referring to the statements
contained in the attestation clause itself. Indeed, the attestation clause is separate and apart from the disposition of the will. An unsigned attestation clause results in an unattested will. Even if
the instrumental witnesses signed the left-hand margin of the page containing the unsigned attestation clause, such signatures cannot demonstrate these witnesses' undertakings in the clause,
since the signatures that do appear on the page were directed towards a wholly different avowal.
. . . It is the witnesses, and not the testator, who are required under Article 805 to state the number of pages used upon which the will is written; the fact that the testator had signed the will and
every page thereof; and that they witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. The only proof in the will that the witnesses have stated
these elemental facts would be their signatures on the attestation clause. 39 (Emphasis and underscoring supplied)
Furthermore, the witnesses did not acknowledge the will before the notary public, 40 which is not in accordance with the requirement of Article 806 of the Civil Code that every will must be acknowledged before a notary
public by the testator and the witnesses.
More. The requirement that all the pages of the will must be numbered correlatively in letters placed on the upper part of each page was not also followed. 41
The Deed of Donation which is, as already discussed, one of mortis causa, not having followed the formalities of a will, it is void and transmitted no right to petitioners' mother. But even assuming arguendo that the
formalities were observed, since it was not probated, no right to Lot Nos. 674 and 676 was transmitted to Maria. 42 Matilde thus validly disposed of Lot No. 674 to respondent by her last will and testament, subject of
course to the qualification that her (Matilde's) will must be probated. With respect to Lot No. 676, the same had, as mentioned earlier, been sold by Matilde to respondent on August 26, 1991. CASIEa
Petitioners nevertheless argue that assuming that the donation of Lot No. 674 in favor of their mother is indeed mortis causa, hence, Matilde could devise it to respondent, the lot should nevertheless have been awarded to
them because they had acquired it by acquisitive prescription, they having been in continuous, uninterrupted, adverse, open, and public possession of it in good faith and in the concept of an owner since 1978. 43
Petitioners failed to raise the issue of acquisitive prescription before the lower courts, however, they having laid their claim on the basis of inheritance from their mother. As a general rule, points of law, theories, and issues
not brought to the attention of the trial court cannot be raised for the first time on appeal. 44 For a contrary rule would be unfair to the adverse party who would have no opportunity to present further evidence material to the
new theory, which it could have done had it been aware of it at the time of the hearing before the trial court. 45
WHEREFORE, the petition is DENIED.
SO ORDERED.
Quisumbing, Tinga, Velasco, Jr. and Brion, JJ., concur
||| (Aluad v. Aluad, G.R. No. 176943, [October 17, 2008], 590 PHIL 711-724)
2. Estate of the deceased Victorina Villaranda. EUSEBIA LIM, petitioner-appellant, vs. JULIANA CHINCO, oppositor-appellee.
Perfecto Gabriel and Eusebio Orense for appellant.
Camus & Delgado for appellee.
SYLLABUS
1. WILLS; LACK OF TESTAMENTARY CAPACITY; COMA RESULTING FROM CEREBRAL HEMORRHAGE. The alleged testatrix, a woman of about 80 years of age, was stricken with apoplexy,
incident to cerebral hemorrhage, and was kept prostrate in bed, in a state of coma, for three days, at the end of which she was removed to a hospital where she died four days later. Just before her removal to
the hospital a will was made for her by an attorney, who also signed her name thereto, purportedly at her request. At the time the will was made the proof showed that the testatrix was in a comatose condition
and devoid of the power of articulate speech. Held, that testamentary capacity was lacking and that the purported will was not valid.
DECISION
STREET, J p:
This is a contest over the probable of a paper writing purporting to be the will of Victorina Villaranda y Diaz, a former resident of the municipality of Meycauayan, Province of Bulacan, who died in the
Hospital of San Juan de Dios, in the City of Manila, on June 9, 1929. The deceased left no descendants or ascendants, and the document produced as her will purports to leave her estate, consisting of properties
valued at P50,000, more or less, chiefly to three collateral relatives, Eusebia, Crispina, and Maria, of the surname of Lim. This instrument was offered for probate by Eusebia Lim, named in the instrument as executrix.
Opposition was made by Juliana Chinco, a full sister of the deceased. Upon hearing the cause the trial court sustained the opposition and disallowed the will on the ground that the testatrix did not have testamentary
capacity at the time the instrument purports to have been executed by her. From this judgment the proponent of the will appealed.
The deceased was a resident of Meycauayan, Province of Bulacan, and was about 80 years of age at the time of her death. On the morning of June 2, 1929, she was stricken with apoplexy, incident to
cerebral hemorrhage, and was taken in an unconscious condition, seated in a chair, to her room. Doctor Geronimo Z. Gaanan, a local physician of Meycauayan, visited the old lady, with whom he was well acquainted,
three or four times, the first visit having occurred between 6 and 7 p.m. of June 3d. Upon examining the patient, he found her insensible and incapable of talking or controlling her movements. On the same day the
parish priest called for the purpose of administering the last rites of the church, and being unable to take her confession, he limited himself to performing the office of extreme unction. Doctor Isidoro Lim, of Manila,
was also called upon to visit the patient and he came to see her two or three times. With his approval, it was decided to take the woman to the hospital of San Juan de Dios in Manila, and on the morning of June 5,
1929, the ambulance from this hospital arrived, in charge of Doctor Guillermo Lopez del Castillo, a resident physician of the hospital. At about 11 o'clock a.m. on that day she was embarked on the ambulance and
taken to the hospital, where she died four days later.
The purported will, which is the subject of this proceeding, was prepared by Perfecto Gabriel, a practicing attorney of Manila, whose wife appears to be related to the chief beneficiaries named in the will.
This gentleman arrived upon the scene at 9 or 10 o'clock on the forenoon of June 5, 1929. After informing himself of the condition of the testatrix, he went into a room adjacent to that occupied by the patient and,

taking a sheet from an exercise book, wrote the instrument in question. He then took it into the sick room for execution. With this end in view Gabriel suggested to Doctor Lopez del Castillo that he would be pleased to
have Doctor Castillo sign as a witness, but the latter excused himself for the reason that he considered the old lady to be lacking in testamentary capacity. Another person present was Marcos Ira, a first cousin of the
deceased and attorney Gabriel asked him also whether or not he was willing to sign as one of the witnesses. Ira replied in a discouraging tone, and the attorney turned away without pressing the matter. In the end
three persons served as witnesses, and two relatives of his wife. The intended testatrix was not able to affix her signature to the document, and it was signed for her by the attorney.
The vital question in the case is whether the supposed testatrix had testamentary capacity at the time the paper referred to was signed. Upon this point we are of the opinion, as was the trial judge, that she
had not. The proof shows by a marked preponderance that the deceased, on the morning of June 5, 1929, was in a comatose condition and incapable of performing any conscious and valid act. The testimony of
Doctor Gaanan and Doctor Lopez del Castillo is sufficient upon this point, and this testimony is well corroborated by Paciana Diaz and Irene Ahorro. The first of these witnesses was the one who chiefly cared for the
deceased during her last illness in Meycauayan until she was carried away to the hospital in Manila; and the second was a neighbor, who was called in when the stroke of apoplexy first occurred and who visited the
patient daily until she was removed from Meycauayan.
The testimony of these witnesses is convincing to the effect that the patient was in a continuous state of coma during the entire period of her stay in Meycauayan, subsequent to the attack, and that on the
forenoon of June 5, 1929, she did not have sufficient command of her faculties to enable her to do any valid act. Doctor Lim, the physician from Manila, testified for the proponent of the will. His testimony tends to
show that the patient was not suffering from cerebral hemorrhage but from uraemic trouble, and that, after the first attack, the patient was much relieved and her mind so far cleared up that she might have made a will
on the morning of June 5th. The attorney testified that he was able to communicate with the deceased when the will was made, and that he read the instrument over to her clause by clause and asked her whether it
expressed her wishes. He says that she made signs that enabled him to understand that she concurred in what was written. But it is clear, even upon the statement of this witness, that the patient was unable to utter
intelligent speech. Upon the authority of Perry vs. Elio (29 Phil., 134), the paper offered for probate was properly disallowed.
The judgment appealed from will therefore be affirmed, and it is so ordered, with costs against the appellant.
Avancea, C. J., Johnson, Villamor and Villa-Real, JJ., concur.
Malcolm and Johns, JJ., concurred, but being absent at the date of the promulgation of the opinion, their names do not appear signed thereto. AVANCEA, C. J.
Separate Opinions
ROMUALDEZ, J., dissenting:
I am of opinion that the will in question is genuine and that it was drawn up and signed with all the legal requisites; therefore, I vote for its allowance, and the consequent reversal of the judgment appealed
from.
||| (Lim v. Chinco, G.R. No. 33592, [March 31, 1931], 55 PHIL 891-894)
1. WILLS; PROBATE; SIGNING IN THE PRESENCE OF TESTATOR AND AGUSTIN BARRERA, ET AL., proponents-appellants, vs. JOSE TAMPOCO, ET AL., oppositors-appellees.
Jesus G. Barrera for appellants.
Filemon Cajator for appellees.
SYLLABUS
1. WILLS; PROBATE; SIGNING IN THE PRESENCE OF TESTATOR AND ATTESTING WITNESSES; CONFLICT IN TESTIMONY OF ATTESTING WITNESSES. Two attesting witnesses testified
that the will was signed by the testatrix and by the three attesting witnesses in the presence of each other, while the other attesting witness testified to the contrary. The court gave weight to the testimony of the
first two one of whom is an attorney and justice of the peace who drafted the will, the court also considering the fact that the witness who testified against the due execution of the will, signed the attestation
clause stating that the will was signed by the testatrix and the witnesses in the presence of each other.
2. ID.; ID.; ID.; RELATIVES OF BENEFICIARIES AS ATTESTING WITNESSES. The fact that the witnesses to the execution of the will are related to some of the beneficiaries thereunder, is not
sufficient to make them biased witnesses.
3. ID.; ID.; ID.; READING OF WILL NOT NECESSARY. It is not necessary that the will be read upon its signing and in the presence of the witnesses.
4. ID.; ID.; ID.; OMISSION OF SOME RELATIVES AS BENEFICIARIES DOES NOT AFFECT DUE EXECUTION OF WILL. The court did not attempt to discover the motives of the testatrix in
leaving her properties to the person named in the will and admitting therefrom the oppositors. As the will was found to have been executed free from falsification, fraud, trickery or undue influence, with the
testatrix having testamentary capacity, the court was compelled to give expression thereto.
DECISION
PARAS, J p:
Oliva Villapaa died in Tarlac, Tarlac, on December 13, 1948. On December 31, 1948, a petition was filed by Agustin Parrera in the Court of First Instance of Tarlac for the probate of the will executed by
Oliva Villapaa on July 17, 1948, and for the appointment of the petitioner as executor. According to the petition the properties left by the testatrix are worth P94,852.96, and the heirs instituted are nephews and
nieces and grandchildren in the collateral line. Jose Tampoco and Victoriano Tampoco, alleged grandchildren of the testatrix in the direct line, filed an opposition, claiming that the will was not executed and attested in
accordance with law, that the testratrix lacked testamentary capacity, that there was undue influence and pressure in its execution, that the signature of Oliva Villapaa was obtained by fraud and trickery, and that the
testamentary provisions are illegal. Consorcia Lintang, Nemesio Villapaa, Marcos Villapaa, Jesus Villapaa, Vicente Villapaa, Ursulo Villapaa, Avelina Villapaa and Rosario Villapaa, alleged nephews and
nieces, also filed an opposition on substantially the same grounds on which the opposition of Jose and Victoriano Tampoco was based. After protracted trial, and more than a year after the submission of the case, a
decision was rendered by the Court of First Instance of Tarlac on August 11, 1951, disallowing the will. The court found that Oliva Villapaa had testamentary capacity, that there was no forgery, fraud, trickery or undue
influence in the execution of the will, and that preterition of forced heirs is not a ground for denying probate; but the will was disallowed because it was not the personal last will and testament of the deceased and it
was not based on the finding that Oliva Villapaa did not furnish the names of the persons instituted as heirs and that the will was not read to her before she signed it. The second ground is premised on the
conclusion that attesting witness Laureano Antonio was not present when Oliva Villapaa and attesting witness Honorio Lacson signed the will; that Antonio only partially saw the signing by attesting witness Modesto
Puno; and that Oliva Villapaa saw Antonio sign only two or three times. From this decision the petitioner has appealed.
According to appellant's evidence, two or three days before July 10, 1948, Pilar Taedo called on Modesto Puno, a lawyer and justice of the peace of Concepcion, Tarlac, and requested the latter to come to
Manila for a conference with Oliva Villapaa, aunt of Pilar. On July 10, 1948, Atty. Puno, complying with this request, went to the house of Pilar Taedo in Singalong Street where Oliva was staying. The latter, after
preliminary greetings and courtesies, informed Atty. Puno that she wanted him to prepare her will, giving the names of the heirs and the properties to be left. Oliva Villapaa asked Atty. Puno to get the description of
the properties from the herein appellant, Agustin Barrera, husband of Pilar Taedo. Atty. Puno noted the wishes of Oliva, and, as there was then no available typewriter, he informed the old woman that he would
prepare the will in his office in Concepcion and come back with it on the following Saturday. As promised, on or July 17, 1948, Atty. Puno returned to the house of Oliva Villapaa in Singalong, carrying with him one
original and three copies, in typewritten form, of the will he drafted in accordance with the instructions of Oliva Villapaa. Atty. Puno arrived at about noon. He read the will to Oliva to find out whether it conformed to
her wishes, and she indicated that it was all right. After lunch Atty. Puno manifested that two other witnesses were necessary, whereupon Pilar Taedo requested Honorio Lacson and Laureano Antonio, who were then
living in the first floor of the house, to come up. Lacson and Antonio did as requested. Asked by Oliva Villapaa if they could act as attesting witnesses to her will, both agreed. Oliva Villapaa, Atty. Puno, Lacson and
Antonio were then seated around a small rectangular table in the sala, and at this juncture Atty. Puno gave a copy of the will to Oliva, Lacson and Antonio, while he retained one. The attorney again read the will aloud,
advising the rest to check their respective copies. As Oliva Villapaa agreed to the will, she proceeded to sign all the four copies, on the lines previously placed by Atty. Puno, followed successively by Lacson, Atty.
Puno and Antonio, all in the presence of each other. After the signing, Atty. Puno gave the original and a copv to Oliva, and retained the other two copies. Atty. Puno, Lacson and Antonio stayed for a while and even
ate merienda prepared by the sisters Pilar and Beatriz Taedo. Oliva Villapaa delivered her will to Agustin Barrera for safekeeping on October 17, 1948 when she was taken to the U. S. T. Hospital where she
remained until November 7, 1948. On this date her doctors lost all hope for her recovery and Oliva Villapaa was brought to Tarlac, Tarlac, her home town, where, as already stated, she died on December 13, 1948.
According to the evidence for the oppositors-appellees, the will presented in court by the petitioner was not executed in accordance with law, in that attesting witness Laureano Antonio did not see the

testatrix and attesting witness Lacson sign the will or any of its copies, that he saw Atty. Puno when the latter was already half thru signing the document, and that the testatrix did not see Antonio sign all the copies.
After a thorough study of the record and mature reflection on the conflicting evidence, we are constrained to conclude that the trial court erred in denying probate of the will.
Of the three attesting witnesses, namely, Atty. Modesto Puno, Honorio Lacson and Laureano Antonio, the first two testified positively that the will was signed by the testatrix and the three witnesses in the
presence of each other, and that it was read to the testratrix before being signed. In view of the opposition filed by the two sets of oppositors, the third attesting witness, Laureano Antonio, had to be presented by the
petitioner but, contrary to expectations, Antonio testified that he arrived at the scene of the execution of the will after the testatrix and Honorio Lacson had already signed and after Atty. Puno was half through affixing
his signatures, and that the testatrix left before Antonio finished signing all the copies. By numerical superiority alone, the weight of the testimony of Atty. Puno and Honorio Lacson out-balances the probative value of
the testimony of Laureano Antonio. Intrinsically, we cannot state that Laureano Antonio spoke the truth on the witness stand, since, in the first place, the attestation clause signed by him contradicts his pretense and,
in the second place, there is enough evidence on the record to show that in his conferences with Atty. Barrera before taking the witness stand, Antonio never gave the slightest indication that he was not present when
the testatrix and the other witnesses signed the will or that the testatrix left before Antonio finished signing. Modesto Puno is a lawyer and at the time a justice of the peace, and it is improbable that he would
unnecessarily risk his honor and reputation. Indeed, the trial court gave the impression that Atty. Puno was anxious to strictly meet the requirements of the law and in the absence, as in the case at bar, of any reason
for a hasty completion, we do not believe that Atty. Puno would have allowed the signing of the will to be proceeded with unless three attesting witnesses were already present. On the other hand, we can fairly state
that there was in fact no hurry on the part of any of the participants in the will, because the testatrix Oliva Villapaa was not dying (she died some five months after the execution of the will) and the parties could
therefore take all the time that they wanted. Indeed, none of the three witnesses, left the house of Oliva Villapaa and they even stayed therein until after merienda time.
The fact that Atty. Puno is the brother of Jose Puno who is the husband of Carmen Taedo, one of the beneficiaries of the will, and that Honorio Lacson is the husband of Bibiana Lacson who is a first
cousin of Agustin Barrera, herein petitioner and husband of Pilar Taedo, is not sufficient to make them biased witnesses. If Atty. Puno had any material interest, this fact should have caused him to be more careful in
seeing to it that the formalities of the law were strictly complied with, and this should be true with respect to Honorio Lacson.
In deciding against the probate of the will, the trial court believed the testimony of Laureano Antonio to the effect that he arrived at the place of the signing at about 2:30 in the afternoon, and thereby found
that a greater part of the proceeding was finished, because Atty. Puno declared in one place that "the signing of the testament commenced around between one o'clock and two o'clock" and in another place that the
signing took place "around between two and three o'clock;" and Honorio Lacson declared that he was called by Pilar Taedo to act as witness at around two o'clock or two thirty. From the testimony of Atty. Puno and
Honorio Lacson the court concluded that the signing actually commenced between one and two o'clock. We are of the opinion that the specification of the time of the signing refers to an immaterial or unimportant
detail which, in view of the lapse of time, might have been a mistake by one or the other participant in the execution of Oliva's will. What is important and decisive and this should be impressed in the mind of an
attorney preparing and taking charge of the signing of will, is that the testatrix and each of the three attesting witnesses must affix their signatures in the presence of one another. In the case before us, Atty. Puno
and Honorio Lacson both attesting witnesses, categorically affirmed that this procedure was followed. At any rate, even under the testimony of Atty. Puno and Honorio Lacson, the signing could have taken place at
about or after two thirty, since the former declared that it took place between two and three o'clock and Honorio Lacson stated that the time was two or two thirty.
Another point invoked by the trial court against the probate of the will is the circumstance that, while Atty. Puno testified that he placed the lines on which the testatrix and the witnesses were to sign before
he read the document to the testatrix to whom he gave the original, witness Lacson testified that Atty. Puno read the original after giving a copy to the testatrix, and after reading Atty. Puno placed the lines for
signatures. This discrepancy again refers to a minor detail which is not sufficient to negative the truthfulness of Atty. Puno and Honorio Lacson on the main and important fact that the will was signed by the testatrix
and the three attesting witnesses in the presence of each other.
Oppositors-appellees presented in corroboration of the testimony of Laureano Antonio, Joaquin Villapaa and Consolacion del Mundo. Joaquin Villapaa, a painter, allegedly painted the house of Agustin
Barrera in July, 1948 and saw the execution of the will. Consolacion del Mundo allegedly was then the maid of Oliva Villapaa. Apart from the fact that there is evidence to show that both Joaquin Villapaa and
Consolacion del Mundo were not yet employed in the house of Oliva when the latter's will was executed, there is little or no reason for their version to prevail over the positive testimony of Atty. Puno and Honorio
Lacson, considering that the latter's testimony is even corroborated by two other witnesses, Bibiana Lacson and Beatriz Taedo. Certainly the story of Joaquin Villapaa and Consolacion del Mundo can have no
greater weight than that of Laureano Antonio.
In holding that the will was not that of Oliva Villapaa, the trial court found that it was not read to her; and this finding was premised on the alleged contradiction of Atty. Puno and Honorio Lacson regarding
the sequence of the reading of the will and the placing of lines for signatures, and regarding the question whether a copy or the original was handed to the testatrix. As we have already observed, the discrepancy
relates to an insignificant matter which cannot vitally detract from the credibility of Atty. Puno to the effect that upon arrival at the house of Oliva Villapaa at about noon, he read the will to her with a view to finding
whether she was agreeable thereto. It is not necessary that said will be read upon its signing and in the presence of the witnesses.
The trial court also concluded that the testatrix could not have furnished the names of the heirs instituted under the will, because (1) Salvador Taedo, one of such heirs, was long dead and (2) Marcelo
Villapaa, another instituted heir, was non-existent, since Oliva Villapaa did not have a grandson by such name. It is true that Salvador Taedo was already dead and the testatrix knew about it, but it is not
uncommon for a woman of old age, confused by the big number of her relatives, to commit the mistake of unwittingly mentioning a dead one. With respect to the instituted heir, Marcelo Villapaa, while it appears that
Oliva did not have a grandson answering to that name, there is evidence tending to show that Pioquinto Villapaa, a child of Ruperta Pineda, must have been referred to, because Oliva, who was the child's godmother, originally wanted said child to be baptized as Marcelo, after his father. Moreover, if Atty. Puno had supplied the names instituted as heirs, he would have consulted all the interested parties and would be sure
that no mistake of the kind was made.
As a closing observation, it is not for us to discover the motives of Oliva Villapaa in leaving her properties to the person named in the will, and omitting therefrom the oppositors-appellees. Suffice it to state
that the trial court itself found the will to have been executed free from falsification, fraud, trickery or undue influence, with Oliva having testamentary capacity; and in such a situation it becomes our duty to give
expression to her will.
Wherefore, the appealed order is reversed and the will executed by Oliva Villapaa on July 17, 1948, is hereby allowed. So ordered without costs.
Pablo, Bengzon, Padilla, Montemayor, Reyes, Jugo, Bautista Angelo and Labrador, JJ., concur.
||| (Barrera v. Tampoco, G.R. No. L-5263, [February 17, 1954], 94 PHIL 346-353)
THE HEIRS OF THE LATE MATILDE MONTINOLA-SANSON, petitioners, vs. COURT OF APPEALS and EDUARDO F. HERNANDEZ, respondents.
SYLLABUS
1. REMEDIAL LAW; CIVIL ACTIONS; NEW TRIAL; NEWLY DISCOVERED EVIDENCE AND AFFIDAVITS OF MERIT; REQUIREMENTS UNDER RULE 53 NOT COMPLIED WITH. Said motion for new trial is not in
substantial compliance with the requirements of Rule 53. The lone affidavit of a witness who was already presented during the hearing is hardly sufficient to justify the holding of new trial. The alleged new witnesses were
unnamed without any certainty as to their appearance before the court to testify. Affiant attests only on his belief that they would testify if and when they are subpoenaed by the court. Furthermore, the allegations in the
affidavit as to the undue influence exerted on the testatrix are mere conclusions and not statement of facts. The requisite affidavits must state facts and not mere conclusions or opinions, otherwise they are not valid. The
affidavits are required to avoid waste of the court's time if the newly discovered evidence turns out to be immaterial or of any evidentiary weight. Moreover, it could not be said that the evidence sought to be presented is
new having been discovered only after the trial. It is apparent from the allegations of affiant that efforts to locate the witnesses were exerted only after the decision of the appellate court was handed down. The trial lasted
for about four years so that petitioner had ample time to find said alleged witnesses who were admittedly known to her. The evidence which the petitioner now proposes to present could have been discovered and
presented during the hearing of the case, and there is no sufficient reason for concluding that had the petitioner exercised proper diligence she would not have been able to discover said evidence.
2. ID.; ID.; ID.; MOTION FOR PURPOSE OF DELAYING PROCEEDINGS, PRO-FORMA. It is very patent that the motion for new trial was filed by petitioner only for the purpose of delaying the proceedings. In fact,
petitioner's son in his manifestation admitted that he had to request a new law firm to do everything legally possible to meet the deadline for the filing of a motion for reconsideration and/or for new trial. This would explain
the haphazard preparation of the motion, thus failing to comply with the requirements of Rule 53, which was filed on the last day of the reglementary period of appeal so that the veracity of the ground relied upon is
questionable. The appellate court correctly denied the motion for new trial.

3. ID.; ID.; ID.; ID.; RUNNING OF PERIOD OF APPEAL, NOT INTERRUPTED. The motion for new trial being pro-forma, it does not interrupt the running of the period for appeal. Since petitioner's motion was filed on
September 24, 1986, the fifteenth or last day of the period to appeal, the decision of the respondent court became final on the following day, September 25. And when the motion for reconsideration of petitioner was filed on
October 30, 1986, it was obviously filed out of time.
4. ID.; CIVIL PROCEDURE; JUDGMENT; FINALITY THEREOF RENDERED FINDINGS OF PROBATE COURT CONCLUSIVE AND NO LONGER SUBJECT TO REVIEW. Since the questioned decision has already
become final and executory, it is no longer within the province of this Court to review it. This being so, the findings of the probate court as to the due execution of the will and the testamentary capacity of testatrix are now
conclusive.
5. ID.; EVIDENCE; FINDINGS OF FACT OF THE PROBATE COURT AND COURT OF APPEALS, CONCLUSIVE. The factual findings of the probate court and the Court of Appeals that the will in question was executed
according to the formalities required by law are conclusive on the Supreme Court when supported by evidence. We have examined the records of this case and find no error in the conclusion arrived at by the respondent
court that the contested will was duly executed in accordance with law.
6. CIVIL LAW; SUCCESSION; PRETERITION, JUSTIFIED. Petitioner alleges that her exclusion from the alleged holographic will was without rhyme or reason, being the only surviving sister of the testatrix with whom
she shares an intimate relationship, thus demonstrating the lack of testamentary capacity of testatrix. In the case of Pecon v. Coronel, it was held "The appellants emphasize the fact that family ties in this country are
very strongly knit and that the exclusion of a relative from one's estate is an exceptional case. It is true that the ties of relationship in the Philippines are very strong, but we understand that cases of preterition of relatives
from the inheritance are not rare. The liberty to dispose of one's estate by will when there are no forced heirs is rendered sacred by the Civil Code in force in the Philippines since 1889 . . . " Article 842 of the Civil Code
provides that one who has no compulsory heirs may dispose by will of all his estate or any part of it in favor of any person having capacity to succeed. It is within the right of the testatrix not to include her only sister who is
not a compulsory heir in her will. Nevertheless, per testimony of Asuncion Gemperle, the latter had reserved two boxes of jewelry worth P850,000.00 for petitioner. Furthermore, petitioner's son Francis was instituted as an
heir in the contested will.
7. ID.; ID.; FAILURE TO DISPOSE ALL PROPERTIES, NOT AN INDICATION OF UNSOUNDNESS OF MIND. Petitioner still insists that the fact that in her holographic will the testatrix failed to dispose of all of her estate
is an indication of the unsoundness of her mind. We cannot subscribe to this contention. Art. 841 of the Civil Code provides "A will shall be valid even though it should not contain an institution of an heir, or such
institution should not comprise the entire estate, and even though the person so instituted should not accept the inheritance or should be incapacitated to succeed. In such cases, the testamentary dispositions made in
accordance with law shall be complied with and the remainder of the estate shall pass to the legal heirs." Thus, the fact that in her holographic will, testatrix disposed of only eleven (11) of her real properties does not
invalidate the will, or is it an indication that the testatrix was of unsound mind. The portion of the estate undisposed of shall pass on to the heirs of the deceased in intestate succession.
8. ID.; ID.; INSTITUTION OF BLOOD RELATIVES AS HEIRS, NOT AN INDICATION OF UNDUE INFLUENCE. Neither is undue influence present just because blood relatives, other than compulsory heirs have been
omitted, for while blood ties are strong in the Philippines, it is the testator's right to disregard non-compulsory heirs. The fact that some heirs are more favored than others is proof of neither fraud or undue influence.
Diversity of apportionment is the usual reason for making a testament, otherwise, the decedent might as well die intestate.
9. REMEDIAL LAW; SPECIAL PROCEEDINGS; ALLEGATION OF UNDUE INFLUENCE MUST BE SUPPORTED BY SUBSTANTIAL EVIDENCE. The contention of the petitioner that the will was obtained by undue
influence or improper pressure exerted by the beneficiaries of the will cannot be sustained on mere conjecture or suspicion; as it is not enough that there was opportunity to exercise undue influence or a possibility that it
may have been exercised. The exercise of improper pressure and undue influence must be supported by substantial evidence that it was actually exercised.
10. CIVIL LAW; SUCCESSION; WILL ITSELF, MOST AUTHENTIC PROOF OF TESTATOR'S TESTAMENTARY CAPACITY. Finally, We quote with approval the observation of the respondent court "There is likewise
no question as to the due execution of the subject Will. To Our minds, the most authentic proof that deceased had testamentary capacity at the time of the execution of the Will, is the Will itself.
DECISION
GANCAYCO, J p:
This is a petition for review on certiorari of the decision of the Court of Appeals 1 promulgated August 29, 1986 affirming in toto the decision of the Regional Trial Court of Manila, Branch XXII 2 dated March 21, 1985, the
dispositive part of which reads:
"WHEREFORE, the Court renders judgment declaring the holographic will marked in evidence as Exhibit "H" as one wholly written, dated, and signed freely by the late Herminia Montinola in
accordance with law while in possession of full testamentary capacity, and allowing and admitting the same to probate.
"Upon the finality of the decision, let letters testamentary issue to the executor, Eduardo F. Hernandez, as well as the certificate of probate prescribed under Section 13 of Rule 76 of the Rules of
Court.
SO ORDERED." 3
This case arose from a petition filed by private respondent Atty. Eduardo F. Hernandez on April 22, 1981 with the Court of First Instance of Manila (now Regional Trial Court) seeking the probate of the holographic will of the
late Herminia Montinola executed on January 28, 1980. 4 The testatrix, who died single, parentless and childless on March 29, 1981 at the age of 70 years, devised in this will several of her real properties to specified
persons.
On April 29, 1981, private respondent who was named executor in the will filed an urgent motion for appointment of special administrator. 5 With the conformity of all the relatives and heirs of the testatrix except oppositor,
the court in its order of May 5, 1981 6 appointed private respondent as Special Administrator of the testate estate of deceased.
On June 29, 1981, Matilde Montinola Sanson (petitioner), the only surviving sister of the deceased but who was not named in the said will, filed her Opposition to Probate of Will, 7 alleging inter alia: that the subject will was
not entirely written, dated and signed by the testatrix herself and the same was falsely dated or antedated; that the testatrix was not in full possession of her mental faculties to make testamentary dispositions; that undue
influence was exerted upon the person and mind of the testatrix by the beneficiaries named in the will; and that the will failed to institute a residual heir to the remainder of the estate.
After a hearing on the merits, the probate court, finding the evidence presented in support of the petition to be conclusive and overwhelming, rendered its decision allowing the probate of the disputed will.
Petitioner thus appealed the decision of the probate court to the Court of Appeals which affirmed in toto the decision. 8
On September 24, 1986, petitioner filed with the respondent court a motion for new trial. 9 Attached to her motion was the Affidavit of Merit of Gregorio Montinola Sanson, petitioner's son, alleging that witnesses have been
located whose testimonies could shed light as to the ill health of the testatrix as well as undue influence exerted on the latter.
The appellate court in its resolution of October 13, 1986, 10 denied the motion for new trial of petitioner on the following grounds: (1) the Affidavit of Merit attached to the motion alleged that efforts were exerted to locate
unnamed witnesses only after the court's decision was handed down, and (2) the unnamed witnesses would allegedly shed light on the fact of grave illness of the testatrix as well as the undue influence exerted on her
which are merely corroborative or cumulative since these facts were brought to light during the trial.
The motion for reconsideration of petitioner dated October 27, 1986 11 was likewise denied by the appellate court in its resolution of November 20, 1986 12 on the ground that the affidavit of one Patricia Delgado submitted
with the motion constitutes cumulative evidence and the motion being in reality a second motion for reconsideration which is prescribed by law.
In the petition now before Us, petitioner assigned the following errors:
"I
THE RESPONDENT COURT OF APPEALS ERRED IN DENYING PETITIONERS' MOTION FOR NEW TRIAL ON THE GROUND THAT THE EVIDENCE SOUGHT TO BE PRESENTED IS
MERELY CUMULATIVE.
II
THE SAID COURT ERRED IN DENYING PETITIONERS' MOTION FOR RECONSIDERATION OF THE RESOLUTION DENYING THE AFORESAID MOTION FOR NEW TRIAL.
III
AT ANY RATE, THE SAID COURT ERRED IN HOLDING THAT THE HOLOGRAPHIC WILL IN QUESTION WAS WHOLLY WRITTEN, DATED AND SIGNED BY THE LATE HERMINIA

MONTINOLA.
IV
THE SAID COURT ERRED IN NOT FINDING THAT THE ALLEGED WILL WAS FRAUDULENTLY ANTEDATED TO CONCEAL ITS ACTUAL DATE OF EXECUTION AND TO SHIELD IT
FROM PROBABLE DISPUTES AS TO THE TESTAMENTARY CAPACITY ON THE PART OF THE ALLEGED TESTATRIX AT THE TIME OF ITS ACTUAL EXECUTION.
V
THE SAID COURT ERRED IN HOLDING THAT THE LATE HERMINIA MONTINOLA WAS NOT SUBJECTED TO UNDUE PRESSURE AND IMPROPER IMPORTUNINGS ON THE PART
OF THOSE STANDING TO BENEFIT FROM THE ALLEGED WILL.
VI
THE SAID COURT ERRED IN ALLOWING THE HOLOGRAPHIC WILL IN QUESTION TO PROBATE."
In the meantime, petitioner who passed away on November 3, 1986, was substituted by her heirs.
In the first and second assigned errors, petitioners maintain that the appellate court erred in denying the motion for new trial insisting that the new evidence sought to be presented is not merely corroborative or cumulative.
On the other hand, the contention of private respondent is that the motion for new trial was a pro-forma motion because it was not in accordance with Sec. 1, Rule 53 of the Rules of Court. We find merit in this contention.
Section 1, Rule 53 provides
"Before a final order or judgment rendered by the Court of Appeals becomes executory, a motion for new trial may be filed on the ground of newly discovered evidence which could not have been
discovered prior to the trial in the Court below by the exercise of the diligence and which is of such a character as would probably change the result. The motion shall be accompanied by affidavits
showing the facts constituting the grounds therefor and the newly discovered evidence."
The affidavit of merit executed by Gregorio Montinola Sanson alleged the following:
xxx xxx xxx
"3. That in her plea for new trial in the said case, I have exerted efforts to locate witnesses whose whereabouts were not known to us during the trial in the lower court, but I have finally succeeded
in tracking them down;
"4. That despite their initial reluctance to testify in this case, law convinced that they would testify under proper subpoena for purposes of shedding light on the fact that the testatrix was gravely ill at
or about the time that the questioned will was allegedly executed;
"5. That they had the clear opportunity to know the circumstances under which the purported will was executed; and that they know for a fact that there was `undue influence' exerted by petitioner
and other relatives to procure improper favors from the testatrix;
xxx xxx xxx" 13
Said motion for new trial is not in substantial compliance with the requirements of Rule 53. The lone affidavit of a witness who was already presented during the hearing is hardly sufficient to justify the holding of new trial.
The alleged new witnesses were unnamed without any certainty as to their appearance before the court to testify. Affiant attests only on his belief that they would testify if and when they are subpoenaed by the court.
Furthermore, the allegations in the affidavit as to the undue influence exerted on the testatrix are mere conclusions and not statement of facts. The requisite affidavits must state facts and not mere conclusions or opinions,
otherwise they are not valid. 14 The affidavits are required to avoid waste of the court's time if the newly discovered evidence turns out to be immaterial or of any evidentiary weight.
Moreover, it could not be said that the evidence sought to be presented is new having been discovered only after the trial. It is apparent from the allegations of affiant that efforts to locate the witnesses were exerted only
after the decision of the appellate court was handed down. The trial lasted for about four years so that petitioner had ample time to find said alleged witnesses who were admittedly known to her. The evidence which the
petitioner now propose to present could have been discovered and presented during the hearing of the case, and there is no sufficient reason for concluding that had the petitioner exercised proper diligence she would not
have been able to discover said evidenced. 15
In addition, We agree with the appellate court that since the alleged illness of the testatrix as well as the charges of undue influence exerted upon her had been brought to light during the trial, and new evidence on this
point is merely corroborative and cumulative which is generally not a ground for new trial. 16 Accordingly, such evidence even if presented will not carry much probative weight which can alter the judgment. 17
It is very patent that the motion for new trial was filed by petitioner only for the purpose of delaying the proceedings. In fact, petitioner's son in his manifestation admitted that he had to request a new law firm to do
everything legally possible to meet the deadline for the filing of a motion for reconsideration and/or for new trial. 18 This would explain the haphazard preparation of the motion, thus failing to comply with the requirements
of Rule 53, which was filed on the last day of the reglementary period of appeal so that the veracity of the ground relied upon is questionable. The appellate court correctly denied the motion for new trial.
The motion for new trial being pro-forma, it does not interrupt the running of the period for appeal. 19 Since petitioner's motion was filed on September 24, 1986, the fifteenth or last day of the period to appeal, the decision
of the respondent court became final on the following day, September 25. And when the motion for reconsideration of petitioner was filed on October 30, 1986, it was obviously filed out of time.
Since the questioned decision has already become final and executory, it is no longer within the province of this Court to review it. This being so, the findings of the probate court as to the due execution of the will and the
testamentary capacity of testatrix are now conclusive. 20
At any rate, even assuming that We can still review this case on its merits, the petition will also have to fail.
During the hearing before the probate court, not only were three (3) close relatives of the testatrix presented but also two (2) expert witnesses who declared that the contested will and signature are in the handwriting of the
testatrix. These testimonies more than satisfy the requirements of Art. 811 of the Civil Code 21 in conjunction with Section 11 of Rule 76, Revised Rules of Court, 22 for the probate of holographic wills.
As regards the alleged antedating of the will, petitioner failed to present competent proof that the will was actually executed sometime in June 1980 when the testatrix was already seriously ill and dying of terminal lung
cancer. She relied only on the supposed inconsistencies in the testimony of Asuncion Gemperle, niece and constant companion of testatrix, which upon careful examination did not prove such claim of antedating.
The factual findings of the probate court and the Court of Appeals that the will in question was executed according to the formalities required by law are conclusive on the Supreme Court when supported by evidence. 23
We have examined the records of this case and find no error in the conclusion arrived at by the respondent court that the contested will was duly executed in accordance with law.
Petitioner alleges that her exclusion from the alleged holographic will was without rhyme or reason, being the only surviving sister of the testatrix with whom she shares an intimate relationship, thus demonstrating the lack
of testamentary capacity of testatrix.
In the case of Pecon v. Coronel, 24 it was held
"The appellants emphasize the fact that family ties in this country are very strongly knit and that the exclusion of a relative from one's estate is an exceptional case. It is true that the ties of
relationship in the Philippines are very strong, but we understand that cases of preterition of relatives from the inheritance are not rare. The liberty to dispose of one's estate by will when there are
no forced heirs is rendered sacred by the Civil Code in force in the Philippines since 1889 . . . "
Article 842 of the Civil Code provides that one who has no compulsory heirs may dispose by will of all his estate or any part of it in favor of any person having capacity to succeed.
It is within the right of the testatrix not to include her only sister who is not a compulsory heir in her will. Nevertheless, per testimony of Asuncion Gemperle, the latter had reserved two boxes of jewelry worth P850,000.00
for petitioner. Furthermore, petitioner's son Francis was instituted as an heir in the contested will.
Petitioner still insists that the fact that in her holographic will the testatrix failed to dispose of all of her estate is an indication of the unsoundness of her mind.
We cannot subscribe to this contention. Art. 841 of the Civil Code provides
"A will shall be valid even though it should not contain an institution of an heir, or such institution should not comprise the entire estate, and even though the person so instituted should not accept
the inheritance or should be incapacitated to succeed.
In such cases, the testamentary dispositions made in accordance with law shall be complied with and the remainder of the estate shall pass to the legal heirs."

Thus, the fact that in her holographic will, testatrix disposed of only eleven (11) of her real properties does not invalidate the will, or is it an indication that the testatrix was of unsound mind. The portion of the estate
undisposed of shall pass on to the heirs of the deceased in intestate successor.
Neither is undue influence present just because blood relatives, other than compulsory heirs have been omitted, for while blood ties are strong in the Philippines, it is the testator's right to disregard non-compulsory heirs.
25 The fact that some heirs are more favored than others is proof of neither fraud or undue influence. 26 Diversity of apportionment is the usual reason for making a testament, otherwise, the decedent might as well die
intestate. 27
The contention of the petitioner that the will was obtained by undue influence or improper pressure exerted by the beneficiaries of the will cannot be sustained on mere conjecture or suspicion; as it is not enough that there
was opportunity to exercise undue influence or a possibility that it may have been exercised. 28 The exercise of improper pressure and undue influence must be supported by substantial evidence that it was actually
exercised. 29
Finally, We quote with approval the observation of the respondent court
"There is likewise no question as to the due execution of the subject Will. To Our minds, the most authentic proof that deceased had testamentary capacity at the time of the execution of the Will, is
the Will itself which according to a report of one of the two expert witnesses (Exhibits X to X-3) reveals the existence of significant handwriting characteristics such as:
'1. Spontaneity, freedom, and speed of writing.
xxx xxx xxx
'3. good line quality.
'4. presence of natural variation. . . .' (Exhibit X).
The characteristics of spontaneity, freedom and good line quality could not be achieved by the testatrix if it was true that she was indeed of unsound mind/or under undue influence or improper
pressure when she executed the Will."
IN VIEW OF THE FOREGOING CONSIDERATIONS, the petition is DENIED for lack of merit with costs against petitioner. The decision of respondent court dated August 29, 1986 affirming in toto the decision of the
Regional Trial Court of Manila dated March 21, 1985 is hereby declared to be immediately executory.
SO ORDERED.
Teehankee, C.J., Narvasa, Cruz and Grio-Aquino, JJ., concur.
||| (Heirs of Montinola-Sanson v. Court of Appeals, G.R. No. 76648, [February 26, 1988], 241 PHIL 1045-1058)
SPOUSES ROBERTO AND THELMA AJERO, petitioners, vs. THE COURT OF APPEALS AND CLEMENTE SAND, respondents.
DECISION
PUNO, J p:
This is an appeal by certiorari from the Decision of the Court of Appeals 1 in CA-G.R. CV No. 22840, dated March 30, 1992, the dispositive portion of which reads:
"PREMISES CONSIDERED, the questioned decision of November 19, 1988 of the trial court is hereby REVERSED and SET ASIDE, and the petition for probate is hereby DISMISSED. No costs."
The earlier Decision was rendered by the RTC of Quezon City, Branch 94, 2 in Sp. Proc. No. Q-37171, and the instrument submitted for probate is the holographic will of the late Annie Sand, who died on November
25, 1982.
In the will, decedent named as devisees, the following: petitioners Roberto and Thelma Ajero, private respondent Clemente Sand, Meriam S. Arong, Leah Sand, Lilia Sand, Edgar Sand, Fe Sand, Lisa S. Sand, and Dr.
Jose Ajero, Sr., and their children. prLL
On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for allowance of decedent's holographic will. They alleged that at the time of its execution, she was of sound and disposing mind, not acting under duress,
fraud or undue influence, and was in every respect capacitated to dispose of her estate by will.
Private respondent opposed the petition on the grounds that: neither the testament's body nor the signature therein was in decedent's handwriting; it contained alterations and corrections which were not duly signed by
decedent; and, the will was procured by petitioners through improper pressure and undue influence. The petition was likewise opposed by Dr. Jose Ajero. He contested the disposition in the will of a house and lot located in
Cabadbaran, Agusan Del Norte. He claimed that said property could not be conveyed by decedent in its entirety, as she was not its sole owner.
Notwithstanding the oppositions, the trial court admitted the decedent's holographic will to probate. It found, inter alia:
"Considering then that the probate proceedings herein must decide only the question of identity of the will, its due execution and the testamentary capacity of the testatrix, this probate court finds no
reason at all for the disallowance of the will for its failure to comply with the formalities prescribed by law nor for lack of testamentary capacity of the testatrix.
"For one, no evidence was presented to show that the will in question is different from the will actually executed by the testatrix. The only objections raised by the oppositors . . . are that the will was
not written in the handwriting of the testatrix which properly refers to the question of its due execution, and not to the question of identity of will. No other will was alleged to have been executed by
the testatrix other than the will herein presented. Hence, in the light of the evidence adduced, the identity of the will presented for probate must be accepted, i.e., the will submitted in Court must be
deemed to be the will actually executed by the testatrix.
"xxx xxx xxx
"While the fact that it was entirely written, dated and signed in the handwriting of the testatrix has been disputed, the petitioners, however, have satisfactorily shown in Court that the holographic will
in question was indeed written entirely, dated and signed in the handwriting of the testatrix. Three (3) witnesses who have convincingly shown knowledge of the handwriting of the testatrix have
been presented and have explicitly and categorically identified the handwriting with which the holographic will in question was written to be the genuine handwriting and signature of the testatrix.
Given then the aforesaid evidence, the requirement of the law that the holographic will be entirely written, dated and signed in the handwriting of the testatrix has been complied with.
"xxx xxx xxx
"As to the question of the testamentary capacity of the testatrix, (private respondent) Clemente Sand himself has testified in Court that the testatrix was completely in her sound mind when he
visited her during her birthday celebration in 1981, at or around which time the holographic will in question was executed by the testatrix. To be of sound mind, it is sufficient that the testatrix, at the
time of making the will, knew the value of the estate to be disposed of, the proper object of her bounty, and the character of the testamentary act . . . The will itself shows that the testatrix even had
detailed knowledge of the nature of her estate. She even identified the lot number and square meters of the lots she had conveyed by will. The objects of her bounty were likewise identified
explicitly. And considering that she had even written a nursing book which contained the law and jurisprudence on will and succession, there is more than sufficient showing that she knows the
character of the testamentary act.
"In this wise, the question of identity of the will, its due execution and the testamentary capacity of the testatrix has to be resolved in favor of the allowance of probate of the will submitted herein.
"Likewise, no evidence was presented to show sufficient reason for the disallowance of herein holographic will. While it was alleged that the said will was procured by undue and improper pressure
and influence on the part of the beneficiary or of some other person, the evidence adduced have not shown any instance where improper pressure or influence was exerted on the testatrix. (Private
respondent) Clemente Sand has testified that the testatrix was still alert at the time of the execution of the will, i.e., at or around the time of her birth anniversary celebration in 1981. It was also
established that she is a very intelligent person and has a mind of her own. Her independence of character and to some extent, her sense of superiority, which has been testified to in Court, all show
the unlikelihood of her being unduly influenced or improperly pressured to make the aforesaid will. It must be noted that the undue influence or improper pressure in question herein only refer to the
making of a will and not as to the specific testamentary provisions therein which is the proper subject of another proceeding. Hence, under the circumstances, this Court cannot find convincing
reason for the disallowance of the will herein.

"Considering then that it is a well-established doctrine in the law on succession that in case of doubt, testate succession should be preferred over intestate succession, and the fact that no
convincing grounds were presented and proven for the disallowance of the holographic will of the late Annie Sand, the aforesaid will submitted herein must be admitted to probate." 3 (Emphasis
omitted.)
On appeal, said Decision was reversed, and the petition for probate of decedent's will was dismissed. The Court of Appeals found that, "the holographic will fails to meet the requirements for its validity." 4 It held that the
decedent did not comply with Articles 813 and 814 of the New Civil Code, which read, as follows:
"Article 813: When a number of dispositions appearing in a holographic will are signed without being dated, and the last disposition has a signature and date, such date validates the dispositions
preceding it, whatever be the time of prior dispositions."
"Article 814: In case of insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the same by his full signature."
It alluded to certain dispositions in the will which were either unsigned and undated, or signed but not dated. It also found that the erasures, alterations and cancellations made thereon had not been authenticated by
decedent. llcd
Thus, this appeal which is impressed with merit.
Section 9, Rule 76 of the Rules of Court provides that wills shall be disallowed in any of the following cases:
"(a) If not executed and attested as required by law;
(b) If the testator was insane, or otherwise mentally incapable to make a will, at the time of its execution;
(c) If it was executed under duress, or the influence of fear, or threats;
(d) If it was procured by undue and improper pressure and influence, on the part of the beneficiary, or of some other person for his benefit;
(e) If the signature of the testator was procured by fraud or trick, and he did not intend that the instrument should be his will at the time of fixing his signature thereto."
In the same vein, Article 839 of the New Civil Code reads:
"Article 839: The will shall be disallowed in any of the following cases:
(1) If the formalities required by law have not been complied with;
(2 If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution;
(3) If it was executed through force or under duress, or the influence of fear, or threats;
(4) If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person;
(5) If the signature of the testator was procured by fraud;
(6) If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto."
These lists are exclusive; no other grounds can serve to disallow a will. 5 Thus, in a petition to admit a holographic will to probate, the only issues to be resolved are: (1) whether the instrument submitted is, indeed, the
decedent's last will and testament; (2) whether said will was executed in accordance with the formalities prescribed by law; (3) whether the decedent had the necessary testamentary capacity at the time the will was
executed; and, (4) whether the execution of the will and its signing were the voluntary acts of the decedents. 6
In the case at bench, respondent court held that the holographic will of Anne Sand was not executed in accordance with the formalities prescribed by law. It held that Articles 813 and 814 of the New Civil Code, ante, were
not complied with, hence, it disallowed the probate of said will. This is erroneous. cdrep
We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479 (1919), that:
"The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and
authenticity. Therefore, the laws on this subject should be interpreted in such a way as to attain these primordial ends. But, on the other hand, also one must not lose sight of the fact that it is not the
object of the law to restrain and curtail the exercise of the right to make a will. So when an interpretation already given assures such ends, any other interpretation whatsoever, that adds nothing but
demands more requisites entirely unnecessary, useless and frustrative of the testator's last will, must be disregarded."
For purposes of probating non-holographic wills, these formal solemnities include the subscription, attestation, and acknowledgment requirements under Articles 805 and 806 of the New Civil Code.
In the case of holographic wills, on the other hand, what assures authenticity is the requirement that they be totally autographic or handwritten by the testator himself, 7 as provided under Article 810 of the New Civil Code,
thus:
"A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the
Philippines, and need not be witnessed." (Emphasis supplied.)
Failure to strictly observe other formalities will not result in the disallowance of a holographic will that is unquestionably handwritten by the testator.
A reading of Article 813 of the New Civil Code shows that its requirement affects the validity of the dispositions contained in the holographic will, but not its probate. If the testator fails to sign and date some of the
dispositions, the result is that these dispositions cannot be effectuated. Such failure, however, does not render the whole testament void.
Likewise, a holographic will can still be admitted to probate, notwithstanding non-compliance with the provisions of Article 814. In the case of Kalaw vs. Relova, 132 SCRA 237, 242 (1984), this Court held: cdrep
"Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic Will have not been noted under his signature, . . . the Will is not thereby invalidated as
a whole, but at most only as respects the particular words erased, corrected or interlined. Manresa gave an identical commentary when he said 'la omision de la salvedad no anula el testamento,
segun la regla de jurisprudencia establecida en la sentencia de 4 de Abril de 1895.'" 8 (Emphasis omitted.)
Thus, unless the unauthenticated alterations, cancellations or insertions were made on the date of the holographic will or on testator's signature, 9 their presence does not invalidate the will itself. 10 The lack of
authentication will only result in disallowance of such changes.
It is also proper to note that the requirements of authentication of changes and signing and dating of dispositions appear in provisions (Articles 813 and 814) separate from that which provides for the necessary conditions
for the validity of the holographic will (Article 810). The distinction can be traced to Articles 678 and 688 of the Spanish Civil Code, from which the present provisions covering holographic wills are taken. They read as
follows:
"Article 678: A will is called holographic when the testator writes it himself in the form and with the requisites required in Article 688.
"Article 688: Holographic wills may be executed only by persons of full age.
"In order that the will be valid it must be drawn on stamped paper corresponding to the year of its execution, written in its entirety by the testator and signed by him, and must contain a statement of
the year, month and day of its execution.
"If it should contain any erased, corrected, or interlined words, the testator must identify them over his signature.
"Foreigners may execute holographic wills in their own language."
This separation and distinction adds support to the interpretation that only the requirements of Article 810 of the New Civil Code and not those found in Articles 813 and 814 of the same Code are essential to the
probate of a holographic will.
The Court of Appeals further held that decedent Annie Sand could not validly dispose of the house and lot located in Cabadbaran, Agusan del Norte, in its entirety. This is correct and must be affirmed. LexLib
As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic validity of the will sought to be probated. However, in exceptional instances, courts are not powerless to do what the situation
constrains them to do, and pass upon certain provisions of the will. 11 In the case at bench, decedent herself indubitably stated in her holographic will that the Cabadbaran property is in the name of her late father, John H.

Sand (which led oppositor Dr. Jose Ajero to question her conveyance of the same in its entirety.). Thus, as correctly held by respondent court, she cannot validly dispose of the whole property, which she shares with her
father's other heirs.
IN VIEW WHEREOF, the instant petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. CV No. 22840, dated March 30, 1992, is REVERSED and SET ASIDE, except with respect to the invalidity of the
disposition of the entire house and lot in Cabadbaran, Agusan del Norte. The Decision of the Regional Trial Court of Quezon City, Branch 94 in Sp. Proc. No. Q-37171, dated November 19, 1988, admitting to probate the
holographic will of decedent Annie Sand, is hereby REINSTATED, with the above qualification as regards the Cabadbaran property. No costs. LexLib
SO ORDERED.
Narvasa, C.J., Padilla, Regalado and Mendoza, JJ., concur.
||| (Spouses Ajero v. Court of Appeals, G.R. No. 106720, [September 15, 1994])
IN THE MATTER OF THE TESTATE ESTATE OF EDWARD E. CHRISTENSEN, DECEASED. ADOLFO C. AZNAR, Executor and LUCY CHRISTENSEN, Heir of the deceased, Executor and Heir-appellees,
vs. HELEN CHRISTENSEN GARCIA, oppositor-appellant.
M. R. Sotelo for executor and heir-appellees.
Leopoldo M. Abellera and Jovito Salonga for oppositor-appellant.
SYLLABUS
1. PRIVATE INTERNATIONAL LAW; DETERMINATION OF CITIZENSHIP; U.S. CITIZENSHIP NOT LOST BY STAY IN PHILIPPINES BEFORE INDEPENDENCE. The citizenship that the deceased acquired in
California when he resided there from 1904 to 1913 was never lost by his stay in the Philippines, for the latter was a territory of the United States until 1946, and the deceased appears to have considered himself as
a citizen of California by the fact that when he executed his will in 1951 he declared that he was a citizen of that State; so that he appears never intended to abandon his California citizenship by acquiring another.
2. ID.; VALIDITY OF TESTAMENTARY PROVISIONS; MEANING OF "NATIONAL LAW" IN ARTICLE 16, CIVIL CODE; CONFLICT OF LAW RULES IN CALIFORNIA TO BE APPLIED IN CASE AT BAR. The
"national law" indicated in Article 16 of the Civil Code cannot possibly apply to any general American law, because there is no such law governing the validity of testamentary provisions in the United States, each
state of the union having its own private law applicable to its citizen only and in force only within the state. It can therefore refer to no other than the private law of the state of which the decedent was a citizen. In the
case at bar, the State of California, prescribes two sets of laws for its citizens, an internal law for its citizens domiciled in other jurisdiction. Hence, reason demands that the California conflict of law rules should be
applied in this jurisdiction in the case at bar.
3. ID.; ID.; DOMICILE; FACTORS CONSIDERED IN DETERMINING ALIEN'S DOMICILE IN THE PHILIPPINES. An American citizen who was born in New York, migrated to California, resided there for nine
years, came to the Philippine in 1913, and very rarely returned to California and only for short visits, and who appears to have never owned or acquired a home or properties in that state, shall be considered to have
his domicile in the Philippines.
4. ID.; ID.; ID.; RULE OF RESORTING TO THE LAW OF THE DOMICILE IN DETERMINING MATTERS WITH FOREIGN ELEMENT INVOLVED. The rule laid down of resorting to the law of the domicile in the
determination of matters with foreign element involved is in accord with the general principle of American law that the domiciliary law should govern in most matters or rights which follow the person of the owner.
5. ID.; ID.; ID.; ID.; COURT OF DOMICILE BOUND TO APPLY ITS OWN LAW AS DIRECTED IN THE CONFLICT OF LAW RULE OF DECEDENT'S STATE; APPLICATION OF THE RENVOI DOCTRINE. The
conflict of law rule in California, Article 946, Civil Code, refers back the case, when a decedent is not domiciled in California, to the law of his domicile, the Philippines in the case at bar. The court of domicile can not
and should refer the case back to California, as such action would leave the issue incapable of determination, because the case will then be tossed back and forth between the two states. If the question has to be
decided, the Philippine court must apply its own law as the Philippines was the domicile of the decedent, as directed in the conflict of law rule of the state of the decedent, California, and especially because the
internal law of California provides no legitime for natural children, while the Philippine law (Articles 887 (4) and 894, Civil Code of the Philippines) makes natural children legally acknowledged forced heirs of the
parent recognizing them.
6. ID.; ID.; ID.; ID.; ID.; ID.; PHILIPPINE LAW TO BE APPLIED IN CASE AT BAR. As the domicile of the deceased, who was a citizen of California, was the Philippines, the validity of the provisions of his will
depriving his acknowledge natural child of the latter's legacy, should be governed by the Philippine law, pursuant to Article 946 of the Civil Code of California, not by the law of California.
DECISION
LABRADOR, J p:
This is an appeal from a decision of the Court of First Instance of Davao, Hon. Vicente N. Cusi, Jr., presiding, in Special Proceeding No. 622 of said court, dated September 14, 1949, approving among other things the final
accounts of the executor, directing the executor to reimburse Maria Lucy Christensen the amount of P3,600 paid by her to Helen Christensen Garcia as her legacy, and declaring Maria Lucy Christensen entitled to the
residue of the property to be enjoyed during her lifetime, and in case of death without issue, one-half of said residue to be payable to Mrs. Carrie Louise C. Borton, etc., in accordance with the provisions of the will of the
testator Edward E. Christensen. The will was executed in Manila on March 5, 1951 and contains the following provisions:
"3. I declare . . . that I have but one (1) child, named Maria Lucy Christensen (now Mrs. Bernard Daney), who was born in the Philippines about twenty-eight years ago, and who is now
residing at No. 665 Rodger Young Village, Los Angeles, California, U.S.A.
"4. I further declare that I now have no living ascendants, and no descendents except my above named daughter, Maria Lucy Christensen Daney.
xxx xxx xxx
"7. I give, devise and bequeath unto Maria Helen Christensen, now married to Eduardo Garcia, about eighteen years of age and who, notwithstanding the fact that she was baptized
Christensen, is not in any way related to me, nor has she been at any time adopted by me, and who, from all information I have now resides in Egpit, Digos, Davao, Philippines, the sum of
Three Thousand Six Hundred Pesos (P3,600.00), Philippine Currency, the same to be deposited in trust for the said Maria Helen Christensen with the Davao Branch of the Philippine National
Bank, and paid to her at the rate of One Hundred Pesos (P100.00), Philippine Currency per month until the principal thereof as well as any interest which may have accrued thereon, is
exhausted.
xxx xxx xxx
"12. I hereby give devise and bequeath unto my well-beloved daughter, the said Maris Lucy Christensen Daney (Mrs. Bernard Daney), now residing as aforesaid at No. 665 Rodger Young
Village, Los Angeles, California, U.S.A., all the income from the rest, remainder, and residue of my property and estate, real, personal and/or mixed, of whatsoever kind or character, and
wheresoever situated, of which I may be possessed at my death and which may have come to me from any source whatsoever, during her lifetime: . . ."
It is in accordance with the above-quoted provisions that the executor in his final account and project partition ratified the payment of only P3,600 to Helen Christensen Garcia and proposed that the residue of the estate be
transferred to his daughter, Maria Lucy Christensen.
Opposition to the approval of the project of partition was filed by Helen Christensen Garcia, insofar as it deprives her (Helen) of her legitime as an acknowledged natural child, she having been declared by Us in G.R. Nos.
L-11483-84 an acknowledged natural child of the deceased Edward E. Christensen. The legal grounds of opposition are (a) that the distribution should be governed by the laws of the Philippines, and (b) that said order of
distribution is contrary thereto insofar as it denies to Helen Christensen, one of two acknowledged natural children, one-half of the estate in full ownership. In amplification of the above grounds it was alleged that the law
that should govern the estate of the deceased Christensen should not be the internal law of California alone, but the entire law thereof because several foreign elements are involved, that the forum is the Philippines and
even if the case were decided in California, Section 946 of the California Civil Code, which requires that the domicile of the decedent apply, should be applicable. It was also alleged that Maria Helen Christensen having
been declared an acknowledged natural child of the decedent, she is deemed for all purposes legitimate from the time of her birth.
The court below ruled that as Edward E. Christensen was a citizen of the United States and of the State of California at the time of his death, the successional rights and intrinsic validity of the provisions in his will are to be
governed by the law of California, in accordance with which a testator has the right to dispose of his property in the way he desires, because the right of absolute dominion over his property is sacred and inviolable (In re
McDaniel's Estate, 77 Cal. Appl. 2d 877, 176 P. 2d 952, and In re Kaufman, 117 Cal. 286, 49 Pac. 192, cited in page 179, Record on Appeal). Oppositor Maria Helen Christensen, through counsel, filed various motions for

reconsideration, but these were denied. Hence this appeal.

The most important assignments of error are as follows:
I
THE LOWER COURT ERRED IN IGNORING THE DECISION OF THE HONORABLE SUPREME COURT THAT HELEN IS THE ACKNOWLEDGED NATURAL CHILD OF EDWARD E.
CHRISTENSEN AND, CONSEQUENTLY, IN DEPRIVING HER OF HER JUST SHARE IN THE INHERITANCE.
II
THE LOWER COURT ERRED IN ENTIRELY IGNORING AND/OR FAILING TO RECOGNIZE THE EXISTENCE OF SEVERAL FACTORS, ELEMENTS AND CIRCUMSTANCES CALLING FOR
THE APPLICATION OF INTERNATIONAL LAW.
III
THE LOWER COURT ERRED IN FAILING TO RECOGNIZE THAT UNDER INTERNATIONAL LAW, PARTICULARLY UNDER THE RENVOI DOCTRINE, THE INTRINSIC VALIDITY OF THE
TESTAMENTARY DISPOSITION OR THE DISTRIBUTION OF THE ESTATE OF THE DECEASED EDWARD E. CHRISTENSEN SHOULD BE GOVERNED BY THE LAWS OF THE PHILIPPINES.
IV
THE LOWER COURT ERRED IN NOT DECLARING THAT THE SCHEDULE OF DISTRIBUTION SUBMITTED BY THE EXECUTOR IS CONTRARY TO THE PHILIPPINE LAWS.
V
THE LOWER COURT ERRED IN NOT DECLARING THAT UNDER THE PHILIPPINE LAWS HELEN CHRISTENSEN GARCIA IS ENTITLED TO ONE-HALF (1/2) OF THE ESTATE IN FULL
OWNERSHIP.
There is no question that Edward E. Christensen was a citizen of the United States and of the State of California at the time of his death. But there is also no question that at the time of his death he was domiciled in the
Philippines, as witness the following facts admitted by the executor himself in appellee's brief:
"In the proceedings for admission of the will to probate, the facts of record show that the deceased Edward E. Christensen was born on November 29, 1875, in New York City, N. Y., U.S.A.; his first
arrival in the Philippines, as an appointed school teacher, was on July 1, 1901, on board the U.S. Army Transport 'Sheridan' with Port of Embarkation as the City of San Francisco, in the State of
California, U.S.A. He stayed in the Philippines until 1904.
"In December, 1904, Mr. Christensen returned to the United States and stayed there for the following nine years until 1913, during which time he resided in, and was teaching school in Sacramento,
California.
"Mr. Christensen's next arrival in the Philippines was in July of the year 1913. However, in 1928, he again departed the Philippines for the United States and came back here the following year,
1929. Some nine years later, in 1938, he again returned to his own country, and came back to the Philippines the following year, 1939.
"Being an American citizen, Mr. Christensen was interned by the Japanese Military Forces in the Philippines during World War II. Upon liberation, in April 1945, he left for the United States but
returned to the Philippines in December, 1945. Appellees' Collective Exhibits '6', CFI Davao, Sp. Proc. 622. as Exhibits 'AA', 'BB' and 'CC-Daney'; Exhs. 'MM', 'MM-1', 'MM-2-Daney', and p. 473,
t.s.n., July 21, 1953.
"In April, 1951, Edward E. Christensen returned once more to California shortly after the making of his last will and testament (now in question herein) which he executed at his lawyers' offices in
Manila on March 5, 1951. He died at the St. Luke's Hospital in the City of Manila on April 30, 1953." (Pp. 2-3)
In arriving at the conclusion that the domicile of the deceased is the Philippines, we are persuaded by the fact that he was born in New York, migrated to California and resided there for nine years, and since he came to the
Philippines in 1913 he returned to California very rarely and only for short visits (perhaps to relatives), and considering that he appears never to have owned or acquired a home or properties in that state, which would
indicate that he would ultimately abandon the Philippines and make home in the State of California.
"Sec. 16. Residence is a term used with many shades of meaning from mere temporary presence to the most permanent abode. Generally, however, it is used to denote something more
than mere physical presence." (Goodrich on Conflict of Laws, p. 29)
As to his citizenship, however, we find that the citizenship that he acquired in California when he resided in Sacramento, California from 1904 to 1913, was never lost by his stay in the Philippines, for the latter was a
territory of the United States (not a state) until 1946 and the deceased appears to have considered himself as a citizen of California by the fact that when he executed his will in 1951 he declared that he was a citizen of that
State; so that he appears never to have intended to abandon his California citizenship by acquiring another. This conclusion is in accordance with the following principle expounded by Goodrich in his Conflict of Laws.
"The terms 'residence' and 'domicile' might well be taken to mean the same thing, a place of permanent abode. But domicile, as has been shown, has acquired a technical meaning. Thus one may
be domiciled in a place where he has never been. And he may reside in a place where he has no domicile. The man with two homes, between which he divides his time, certainly resides in each
one, while living in it. But if he went on business which would require his presence for several weeks or months, he might properly be said to have sufficient connection with the place to be called a
resident. It is clear, however, that, if he treated his settlement as continuing only for the particular business in hand, not giving up his former "home," he could not be a domiciled New Yorker.
Acquisition of a domicile of choice requires the exercise of intention as well as physical presence. Residence simply requires bodily presence as an inhabitant in a given place, while domicile
requires bodily presence in that place and also an intention to make it one's domicile.' Residence, however, is a term used with many shades of meaning, from the merest temporary presence to the
most permanent abode, and it is not safe to insist that any one use is the only proper one." (Goodrich, p. 29)
The law that governs the validity of his testamentary dispositions is defined in Article 16 of the Civil Code of the Philippines, which is as follows:
"ART. 16. Real property as well as personal property is subject to the law of the country where it is situated.
"However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall
be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be
found."
The application of this article in the case at bar requires the determination of the meaning of the term "national law" as used therein.
There is no single American law governing the validity of testamentary provisions in the United States, each state of the Union having its own private law applicable to its citizens only and in force only within the state. The
"national law" indicated in Article 16 of the Civil Code above quoted can not, therefore, possibly mean or apply to any general American law. So it can refer to no other than the private law of the state of which the decedent
is a citizen, in the case at bar, the private law of the State of California.
The next question is: What is the law in California governing the disposition of personal property? The decision of the court below, sustains the contention of the executor-appellee that under the California Probate Code, a
testator may dispose of his property by will in the form and manner he desires, citing the case of Estate of McDaniel, 77 Cal. Appl. 2d 877, 176 P. 2d 952. But appellant invokes the provisions of Article 946 of the Civil Code
of California, which is as follows:
"If there is no law to the contrary, in the place where personal property is situated, it is deemed to follow the person of its owner, and is governed by the law of his domicile."
The existence of this provision is alleged in appellant's opposition and is not denied. We have checked it in the California Civil Code and it is there. Appellee, on the other hand, relies on the case cited in the decision
and testified to by a witness. (Only the case Kaufman is correctly cited.) It is argued on executor's behalf that as the deceased Christensen was a citizen of the State of California, the internal law thereof, which is that
given in the above-cited case, should govern the determination of the validity of the testamentary provisions of Christensen's will, such law being in force in the State of California of which Christensen was a citizen.
Appellant, on the other hand, insists that Article 946 should be applicable, and in accordance therewith and following the doctrine of renvoi, the question of the validity of the testamentary provision in question should
be referred back to the law of the decedent's domicile, which is the Philippines.

The theory or doctrine of renvoi has been defined by various authors, thus:
"The problem has been stated in this way: 'When the Conflict of Laws rule of the forum refers a jural matter to a foreign law for decision, is the reference to the corresponding rule of the Conflict of
Law of that foreign law, or is the reference to the purely internal rules of law of the foreign system; i.e., to the totality of the foreign law, minus its Conflict of Laws rules?
"On logic, the solution is not an easy one. The Michigan court chose to accept the renvoi, that is, applied the Conflict of Laws rule of Illinois which referred the matter back to Michigan law. But once
having determined that the Conflict of Laws principle is the rule looked to, it is difficult to see why the reference back should not have been to Michigan Conflict of Laws. This would have resulted in
the 'endless chain of references' which has so often been criticized by legal writers. The opponents of the renvoi would have looked merely to the internal law of Illinois, thus rejecting the renvoi or
the reference back. Yet there seems no compelling logical reason why the original reference should be to the internal law rather than to the Conflict of Laws rule. It is true that such a solution avoids
going on a merry-go-round, but those who have accepted the renvoi theory avoid this inextricabilis circulas by getting off at the second reference and at that point applying internal law. Perhaps the
opponents of the renvoi are a bit more consistent for they look always to internal law as the rule of reference.
"Strangely enough, both the advocates for and the objectors to the renvoi plead that greater uniformity will result from adoption of their respective views. And still more strange is the fact that the
only way to achieve uniformity in this choice-of-law problem is if in the dispute the two states whose laws form the legal basis of the litigation disagree as to whether the renvoi should be accepted. If
both reject, or both accept the doctrine, the result of the litigation will vary with the choice of the forum. In the case stated above, had the Michigan court rejected the renvoi, judgment would have
been against the woman; if the suit had been brought in the Illinois courts, and they too rejected the renvoi, judgment would be for the woman. The same result would happen, though the courts
would switch with respect to which would hold liability, if both courts accepted the renvoi.
"The Restatement accepts the renvoi theory in two instances: where the title to land is in question, and where the validity of a decree of divorce is challenged. In these cases, the Conflict of Laws
rule of the situs of the land, or the domicile of the parties in the divorce case, is applied by the forum, but any further reference goes only to the internal law. Thus, a person's title to land, recognized
by the situs, will be recognized by every court; and every divorce, valid by the domicile of the parties, will be valid everywhere." (Goodrich, Conflict of Laws, Sec. 7, pp. 13-14.)
"X, a citizen of Massachusetts, dies intestate, domiciled in France, leaving movable property in Massachusetts, England, and France. The question arises as to how this property is to be distributed
among X's next of kin.
"Assume (1) that this question arises in a Massachusetts court. There the rule of the conflict of laws as to intestate succession to movables calls for an application of the law of the deceased's last
domicile. Since by hypothesis X's last domicile was France, the natural thing for the Massachusetts court to do would be to turn to French statute of distributions, or whatever corresponds thereto in
French law, and decree a distribution accordingly. An examination of French law, however, would show that if a French court were called upon to determine how this property should be distributed, it
would refer the distribution to the national law of the deceased, thus applying the Massachusetts state of distributions. So on the surface of things the Massachusetts court has open to it alternative
course of action: (a) either to apply the French laws as to intestate succession, or (b) to resolve itself into a French court and apply the Massachusetts statute of distributions, on the assumption that
this is what a French court would do. If it accepts the so-called renvoi doctrine, it will follow the latter course, thus applying its own law.
"This is one type of renvoi. A jural matter is presented which the conflict-of-laws rule of the forum refers to a foreign law, the conflict-of-laws rule of which, in turn refers the matter back again to the
law of the forum. This is renvoi in the narrower sense. The German term for this judicial process is 'Ruckverweisung.'" (Harvard Law Review, Vol. 31, pp. 523-571.)
"After a decision has been arrived at that a foreign law is to be resorted to as governing a particular case, the further question may arise: Are the rules as to the conflict of laws contained in such
foreign law also to be resorted to? This is a question which, while it has been considered by the courts in but a few instances, has been the subject of frequent discussion by textwriters and
essayists; and the doctrine involved has been descriptively designated by them as the 'Renvoyer' to send back, or the Ruchversweisung', or the 'Weiterverweisung', since an affirmative answer to
the question postulated and the operation of the adoption of the foreign law in toto would in many cases result in returning the main controversy to be decided according to the law of the forum . . .
(15 C.J.S. 872.)
"Another theory, known as the 'doctrine of renvoi', has been advanced. The theory of the doctrine of renvoi is that the court of the forum, in determining the question before it, must take into account
the whole law of the other jurisdiction, but also its rules as to conflict of laws, and then apply the law to the actual question which the rules of the other jurisdiction prescribe. This may be the law of
the forum. The doctrine of the renvoi has generally been repudiated by the American authorities." (2 Am. Jur. 296.)
The scope of the theory of renvoi has also been defined and the reasons for its application in a country explained by Prof. Lorenzen in an article in the Yale Law Journal, Vol. 27, 1917-1918, pp. 509-531. The pertinent parts
of the article are quoted herein below:
"The recognition of the renvoi theory implies that the rules of the conflict of laws are to be understood as incorporating not only the ordinary or internal law of the foreign state or country, but its rules
of the conflict of laws as well. According to this theory 'the law of a country' means the whole of its law.
xxx xxx xxx
"Von Bar presented his views at the meeting of the institute of International Law, at Neuchatel, in 1900, in the form of the following theses:
"(1) Every court shall observe the law of its country as regards the application of foreign laws.
"(2) Provided that no express provision to the contrary exists, the court shall respect:
"(a) The provisions of a foreign law which disclaims the right to bind its nationals abroad as regards their personal statute, and desires that said personal statute shall be determined by law of
the domicile, or even by the law of the place where the act in question occurred.
"(b) The decision of two or more foreign systems of law, provided it be certain that one of them is necessarily competent, which agree in attributing the determination of a question to the same
system of law.
xxx xxx xxx
"If, for example, the English Law directs its judge to distribute the personal estate of an Englishman who has died domiciled in Belgium in accordance with the law of his domicile, he must first
inquire whether the law of Belgium would distribute personal property upon death in accordance with the law of domicile, and if he finds that the Belgian law would make the distribution in
accordance with the law of nationality that is the English law, he must accept this reference back to his own law."
We note that Article 946 of the California Civil Code as its conflict of laws rule, while the rule applied in In re Kaufman, supra, its internal law. If the law on succession and the conflict of law rules of California are to be
enforced jointly, each in its own intended and appropriate sphere, the principle cited In re Kaufman should apply to citizens living in the State, but Article 946 should apply to such of its citizens as are not domiciled in
California but in other jurisdictions. The rule laid down of resorting to the law of the domicile in the determination of matters with foreign element involved is in accord with the general principle of American law that the
domiciliary law should govern in most matters or rights which follow the person of the owner.
"When a man dies leaving personal property in one or more estates, and leaves a will directing the manner of distribution of the property, the law of the state where he was domiciled at the time of
his death will be looked to in deciding legal questions about the will, almost as completely as the law of the situs is consulted in questions about the devise of land. It is logical that, since the
domiciliary rules control devolution of the personal estate in case of intestate succession, the same rules should determine the validity of an attempted testamentary disposition of the property. Here,
also, it is not that the domiciliary has effect beyond the borders of the domiciliary state. The rules of the domicile are recognized as controlling by the Conflict of Laws rules at the situs of the
property, and the reason for the recognition as in the case of intestate succession, is the general convenience of the doctrine. The New York court has said on the point; 'The general principle that a
disposition of personal property valid at the domicile of the owner, is valid everywhere, is one of universal application. It had its origin in that international comity which was one of the first fruits of
civilization, and in this age, when business intercourse and the process of accumulating property take but little notice of boundary lines, the practical wisdom and justice of the rule is more apparent
than ever.'" (Goodrich, Conflict of Laws, Sec. 164, pp. 442-443.)

Appellees argue that what Article 16 of the Civil Code of the Philippines pointed out as the national law is the internal law of California. But as above explained the laws of California have prescribed two sets of laws for its
citizens, one for residents therein and another for those domiciled in other jurisdictions. Reason demands that We should enforce the California internal law prescribed for its citizens residing therein, and enforce the conflict
of law rules law for the citizens domiciled abroad. If we must enforce the law of California as in comity we are bound to do, as so declared in Article 16 of our Civil Code, then we must enforce the law of California in
accordance with the express mandate thereof and as above explained, i.e., apply the internal law for residents therein, and its conflict of laws rule for those domiciled abroad.
It is argued on appellees behalf that the clause "if there is no law to the contrary in the place where the property is situated" in Sec. 946 of the California Civil Code refers to Article 16 of the Civil Code of the Philippines and
that the law to the contrary in the Philippines is the provision in said Article 16 that the national of the deceased should govern. This contention can not be sustained. As explained in the various authorities cited above the
national law mentioned in Article 16 of our Civil Code is the law on conflict of laws in the California Civil Code, i.e., Article 946, which authorizes the reference or return of the question to the law of the testator's domicile.
The conflict of law rule in California, Article 946, Civil Code, precisely refers back the case, when a decedent is not domiciled in California, to the law of his domicile, the Philippines in the case at bar. The court of the
domicile can not and should not refer the case back to California; such action would leave the issue incapable of determination because the case will then be like a football, tossed back and forth between the two states,
between the country of which the decedent was a citizen and the country of his domicile. The Philippine court must apply its own law as directed in the conflict of law rule of the state of the decedent, if the question has to
be decided, especially as the application of the internal law of California provides no legitime for children while the Philippine law, Arts. 887 (4) and 894, Civil Code of the Philippines, makes natural children legally
acknowledged forced heirs of the parent recognizing them.
The Philippine cases (In Re Estate of Johnson, 39 Phil., 156; Riera vs. Palmaroli, 40 Phil., 105; Miciano vs. Brimo, 50 Phil., 867; Babcock Templeton vs. Rider Babcock, 52 Phil., 130; and Gibbs vs. Government, 59 Phil.,
293.) cited by appellees to support the decision can not possibly apply in the case at bar, for two important reasons, i.e., the subject in each case does not appear to be a citizen of a state in the United States but with
domicile in the Philippines, and it does not appear in each case that there exists in the state of which the subject is a citizen, a law similar to or identical with Art. 946 of the California Civil Code.
We therefore find that as the domicile of the deceased Christensen, a citizen of California, is the Philippines, the validity of the provisions of his will depriving his acknowledged natural child, the appellant, should be
governed by the Philippine law, the domicile, pursuant to Art. 946 of the Civil Code of California, not by the internal law of California.
WHEREFORE, the decision appealed from is hereby reversed and the case returned to the lower court with instructions that the partition be made as the Philippine law on succession provides. Judgment reversed, with
costs against appellees.
Padilla, Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Paredes, Dizon, Regala and Makalintal, JJ., concur.
Bengzon, C.J., took no part.
||| (Aznar v. Garcia, G.R. No. L-16749, [January 31, 1963], 117 PHIL 96-110)
TESTATE ESTATE OF AMOS G. BELLIS, deceased, PEOPLE'S BANK & TRUST COMPANY, executor, MARIA CRISTINA BELLIS and MIRIAM PALMA BELLIS, oppositors-appellants, vs. EDWARD A.
BELLIS, ET AL., heirs-appellees.
Vicente R. Macasaet and Jose D. Villena for oppositors-appellant.
Paredes, Poblador, Cruz & Nazareno for heirs-appellees E.A. Bellis, et al.
Quijano and Arroyo for heirs-appellees W. S. Bellis, et al.
J .R. Balonkita for appellees People's Bank & Trust Company.
Ozaeta, Gibbs & Ozaeta for appellee A. B. Allsman.
SYLLABUS
1. PRIVATE INTERNATIONAL LAW; LAW APPLICABLE WITH REFERENCE TO THE INTESTATE AND TESTAMENTARY SUCCESSION OF AN ALIEN; SCOPE OF ARTS. 16 (2) AND 1039, CIVIL CODE. Article
16, par. 2, and Article 1039 of the Civil Code, render applicable the national law of the decedent, in intestate or testamentary successions, with regard to four items: (a) the order of succession; (b) the amount of
successional rights; (c) the intrinsic validity of the provisions of the will; and (d) the capacity to succeed.
2. ID.; LEGITIMATES; FOREIGN NATIONALS. It is evident that whatever public policy or good customs may be involved in our system of legitimates, Congress has not intended to extend the same to the
succession of foreign nationals. For its has chosen to leave, inter alia, the amount of successional rights, to the decedent's national law. Specific provisions must prevail over general ones.
3. ID.; ID.; ID.; FOREIGNER'S WILL; CASE AT BAR. Appellants point out that the decedent executed two wills one to govern his Texas estate and the other his Philippine estate arguing from this that he
intended Philippine law to govern his Philippine estate. Assuming that such was the decedent's intention in executing a separate Philippine will, it would not alter the law, for as this Court ruled in the Miciano vs.
Brimo (50 Phil., 867) case, a provision in a foreigner's will to the effect that his properties shall be distributed in accordance with Philippine law and not with his national law, is illegal and void for his national law
cannot be ignored in regard to those matters that Article 10 now Article 16 of the Civil Code states said national law should govern. The parties admit that the decedent, Amos G. Bellis, was a citizen of the State
of Texas, U.S.A., and that under the laws of Texas, there are no forced heirs or legitimates. 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.
DECISION
BENGZON, J.P., J p:
This is a direct appeal to us, upon a question purely of law, from an order of the Court of First Instance of Manila dated April 30, 1964, approving the project of partition filed by the executor in Civil Case No. 37089 therein.
The facts of the case are as follows:
Amos G. Bellis, born in Texas, was "a citizen of the State of Texas and of the United States." By his first wife, Mary E. Mallen, whom he divorced, he had five legitimate children: Edward A. Bellis, George Bellis (who predeceased him in infancy), Henry A. Bellis, Alexander Bellis and Anna Bellis Allsman; by his second wife, Violet Kennedy, who survived him, he had three legitimate children: Edwin G. Bellis, Walter S. Bellis and Dorothy
Bellis; and finally, he had three illegitimate children: Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis.
On August 5, 1952, Amos G. Bellis executed a will in the Philippines, in which he directed that after all taxes, obligations, and expenses of administration are paid for, his distributable estate should be divided, in trust, in the
following order and manner: (a) $240,000.00 to his first wife, Mary E. Mallen; (b) P120,000.00 to his three illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis, and Miriam Palma Bellis, or P40,000.00 each and (c)
after the foregoing two items have been satisfied, the remainder shall go to his seven surviving children by his first and second wives, namely: Edward A. Bellis, Henry A. Bellis, Alexander Bellis, and Anna Bellis Allsman,
Edwin G. Bellis, Walter S. Bellis, and Dorothy E. Bellis, in equal shares.
Subsequently, or on July 8, 1958, Amos G. Bellis died, a resident of San Antonio, Texas, U.S.A. His will was admitted to probate in the Court of First Instance of Manila on September 15, 1958.
The People's Bank and Trust Company, as executor of the will, paid all the bequests therein including the amount of $240,000.00 in the form of shares of stock to Mary E. Mallen and to the three (3) illegitimate children,
Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis, various amounts totalling P40,000.00 each in satisfaction of their respective legacies, or a total of P120,000.00, which it released from time to time according
as the lower court approved and allowed the various motions or petitions filed by the latter three requesting partial advances on account of their respective legacies.
On January 8, 1964, preparatory to closing its administration, the executor submitted and filed its "Executor's Final Account, Report of Administration and Project of Partition" wherein it reported, inter alia, the satisfaction of
the legacy of Mary E. Mallen by the delivery to her of shares of stock amounting to $240,000.00, and the legacies of Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis in the amount of P40,000.00 each or a
total of P120.000.00. In the project of partition, the executor pursuant to the "Twelfth" clause of the testator's Last Will and Testament divided the residuary estate into seven equal portions for the benefit of the
testator's seven legitimate children by his first and second marriages.
On January 17, 1964, Maria Cristina Bellis and Miriam Palma Bellis filed their respective oppositions to the project of partition on the ground that they were deprived of their legitimes as illegitimate children and, therefore,
compulsory heirs of the deceased.
Amos Bellis, Jr. interposed no opposition despite notice to him, proof of service of which is evidenced by the registry receipt submitted on April 27, 1964 by the executor. 1

After the parties filed their respective memoranda and other pertinent pleadings, the lower court, on April 30, 1964, issued an order overruling the oppositions and approving the executor's final account, report and
administration and project of partition. Relying upon Art. 16 of the Civil Code, it applied the national law of the decedent, which in this case is Texas law, which did not provide for legitimes.
Their respective motions for reconsideration having been denied by the lower court on June 11, 1964, oppositors-appellants appealed to this Court to raise the issue of which law must apply Texas law or Philippine law.
In this regard, the parties do not submit the case on, nor even discuss, the doctrine of renvoi, applied by this Court in Aznar vs. Christensen Garcia, L-16749, January 31, 1963. Said doctrine is usually pertinent where the
decedent is a national of one country, and a domicile of another. In the present case, it is not disputed that the decedent was both a national of Texas and a domicile thereof at the time of his death. 2 So that even assuming
Texas has a conflict of law rule providing that the domiciliary system (law of the domicile) should govern, the same would not result in a reference back (renvoi) to Philippine law, but would still refer to Texas law.
Nonetheless, if Texas has a conflict of law rule adopting the situs theory (lex rei sitae) calling for the application of the law of the place where the properties are situated, renvoi would arise, since the properties here
involved are found in the Philippines. In the absence, however, of proof as to the conflict of law rule of Texas, it should not be presumed different from ours. 3 Appellants' position is therefore not rested on the doctrine of
renvoi. As stated, they never invoked nor even mentioned it in their arguments. Rather, they argue that their case falls under the circumstances mentioned in the third paragraph of Article 17 in relation to Article 16 of the
Civil Code.
Article 16, par. 2, and Art. 1039 of the Civil Code, render applicable the national law of the decedent, in intestate or testamentary successions, with regard to four items: (a) the order of succession; (b) the amount of
successional rights; (c) the intrinsic validity of the provisions of the will; and (d) the capacity to succeed. They provide that
"Art 16. Real property as well as personal property is subject to the law of the country where it is situated.
"However", intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall
be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be
found."
"Art. 1039. Capacity to succeed is governed by the law of the nation of the decedent."
Appellants would however counter that Article 17, paragraph three, of the Civil Code, stating that
"Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws, or
judgments promulgated, or by determinations or conventions agreed upon in a foreign country."
prevails as the exception to Art. 16, par. 2 of the Civil Code aforequoted. This is not correct. Precisely, Congress deleted the phrase, "notwithstanding the provisions of this and the next preceding article" when they
incorporated Art. 11 of the old Civil Code as Art. 17 of the new Civil Code, while reproducing without substantial change the second paragraph of Art. 10 of the old Civil Code as Art. 16 in the new. It must have been
their purpose to make the second paragraph of Art. 16 a specific provision in itself which must be applied in testate and intestate successions. As further indication of this legislative intent, Congress added a new
provision, under Art. 1039, which decrees that capacity to succeed is to be governed by the national law of the decedent.
It is therefore evident that whatever public policy or good customs may be involved in our system of legitimes, Congress has not intended to extend the same to the succession of foreign nationals. For it has specifically
chosen to leave, inter alia, the amount of successional rights, to the decedent's national Law. Specific provisions must prevail over general ones.
Appellants would also point out that the decedent executed two wills one to govern his Texas estate and the other his Philippine estate arguing from this that he intended Philippine law to govern his Philippine estate.
Assuming that such was the decedent's intention in executing a separate Philippine will, it would not alter the law, for as this Court ruled in Miciano vs. Brimo, 50 Phil. 867, 870, a provision in a foreigner's will to the effect
that his properties shall be distributed in accordance with Philippine law and not with his national law, is illegal and void, for his national law cannot be ignored in regard to those matters that Article 10 now Article 16 of
the Civil Code states said national law should govern.
The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, U.S.A., and that under the laws of Texas, there are no forced heirs or legitimes. Accordingly, since the intrinsic validity of the
provision of the will and the amount of successional rights are to be determined under Texas law, the Philippine law on legitimes cannot be applied to the testacy of Amos G. Bellis.
Wherefore, the order of the probate court is hereby affirmed in toto, with costs against appellant. So ordered.
Concepcion, C .J ., Reyes, J .B.L., Dizon, Regala, Makalintal Zaldivar, Sanchez and Castro, JJ., concur.
Footnotes
||| (Bellis v. Bellis, G.R. No. L-23678, [June 6, 1967], 126 PHIL 726-733)
LOURDES L. DOROTHEO, petitioner, vs. COURT OF APPEALS, NILDA D. QUINTANA, for Herself and as Attorney-in-Fact of VICENTE DOROTHEO and JOSE DOROTHEO, respondents.
Midpantao L. Adil for petitioner.
Carag, Esparagoza & Associates for private respondents.
SYNOPSIS
Private respondents were the legitimate children of Alejandro Dorotheo and Aniceta Reyes. Aniceta died in 1969 without her estate being settled. After Alejandro's death, petitioner, who claims to have taken care of
Alejandro before he died, filed a special proceeding for the probate of the latter's will and testament. The probate court admitted the will to probate. Private respondents did not appeal from said order. In 1983, they filed a
"Motion to Declare The Will Intrinsically Void." The trial court granted the motion. Petitioner moved for reconsideration. Upon denial of her motion for reconsideration, petitioner appealed to the Court of Appeals but the
same was dismissed for failure to file appellant's brief within the extended period granted. The dismissal become final and executory and a corresponding entry of judgment was forthwith issued by the Court of Appeals.
The lower court, to implement the final and executory order, issued a writ of execution. Judge Zain B. Angas set aside the Order directing the issuance of the writ of execution, on the ground that the order was merely
"interlocutory", hence, not final in character. Private respondents filed a petition before the Court of Appeals which nullified the assailed Orders of Judge Zain. Hence, the present petition. Petitioner contended that in issuing
the assailed orders, Judge Angas cannot be said to have no jurisdiction because he was particularly designated to hear the case.
The Supreme Court dismissed the petition. The Court ruled that a final decision or order can no longer be disturbed or reopened no matter how erroneous it may be. In setting aside the Order that had attained finality, the
trial court in effect nullified the entry of judgment made by the Court of Appeals. The Court stressed that a lower court cannot reverse or set aside decisions or orders of a superior court, for to do so would be to negate the
hierarchy of the courts and nullify the essence of review. The Court also reiterated the rule that a judgment on a probated will, albeit erroneous, is binding on the whole world. With respect to the last will and testament, the
Court upheld the trial court in holding that the rules of intestacy shall apply. According to the Court, although the will is extrinsically valid, its provisions however are not in accordance with the laws of succession rendering it
intrinsically void, hence, the law mandates that the rules of intestacy shall apply.
SYLLABUS
1. REMEDIAL LAW; CIVIL PROCEDURE; JUDGMENTS; A FINAL AND EXECUTORY DECISION OR ORDER CAN NO LONGER BE DISTURBED OR REOPENED NO MATTER HOW ERRONEOUS IT MAY BE.
A final and executory decision or order can no longer be disturbed or reopened no matter how erroneous it may be. In setting aside the January 30, 1986 Order that has attained finality, the trial court in effect
nullified the entry of judgment made by the Court of Appeals. It is well settled that a lower court cannot reverse or set aside decisions or orders of a superior court, for to do so would be to negate the hierarchy of
courts and nullify the essence of review. It has been ruled that a final judgment on probated will, albeit erroneous, is binding on the whole world. It has been consistently held that if no appeal is taken in due time from
a judgment or order of the trial court, the same attains finality by mere lapse of time. Thus, the order allowing the will became final and the question determined by the court in such order can no longer be raised
anew, either in the same proceedings or in a different motion. The matters of due execution of the will and the capacity of the testator acquired the character of res judicata and cannot again be brought into question,
all juridical questions in connection therewith being for once and forever closed. Such final order makes the will conclusive against the whole world as to its extrinsic validity and due execution. DACcIH
2. ID.; ID.; ID.; RAISING ISSUES PREVIOUSLY LITIGATED BY OTHER COURTS WOULD AMOUNT TO FORUM SHOPPING; FORUM SHOPPING ALSO OCCURS WHEN THE SAME ISSUE HAD ALREADY
BEEN RESOLVED ADVERSELY BY SOME OTHER COURT. The only instance where a party interested in a probate proceeding may have a final liquidation set aside is when he is left out by reason of
circumstances beyond his control or through mistake or inadvertence not imputable to negligence, which circumstances do not concur herein. Petitioner was privy to the suit calling for the declaration of the intrinsic

invalidity of the will, as she precisely appealed from an unfavorable order therefrom. Although the final and executory Order of January 30, 1986 wherein private respondents were declared as the only heirs do not
bind those who are not parties thereto such as the alleged illegitimate son of the testator, the same constitutes res judicata with respect to those who were parties to the probate proceedings. Petitioner cannot again
raise those matters anew for relitigation otherwise that would amount to forum-shopping. It should be remembered that forum shopping also occurs when the same issue had already been resolved adversely by
some other court. It is clear from the executory order that the estates of Alejandro and his spouse should be distributed according to the laws of intestate succession.
3. CIVIL LAW; SUCCESSION; EVEN IF A WILL WAS VALIDLY EXECUTED, IF THE TESTATOR PROVIDES FOR DISPOSITIONS THAT DEPRIVES OR IMPAIRS THE LAWFUL HEIRS OF THEIR LEGITIME OR
RIGHTFUL INHERITANCE ACCORDING TO THE LAWS ON SUCCESSION, THE UNLAWFUL PROVISION/DISPOSITIONS THEREOF CANNOT BE GIVEN EFFECT. Under the Civil Code, due execution
includes a determination of whether the testator was of sound and disposing mind at the time of its execution, that he had freely executed the will and was not acting under duress, fraud, menace or undue influence
and that the will is genuine and not a forgery, that he was of the proper testamentary age and that he is a person not expressly prohibited by law from making a will. The intrinsic validity is another matter and
questions regarding the same may still be raised even after the will has been authenticated. Thus, it does not necessarily follow that an extrinsically valid last will and testament is always intrinsically valid. Even if the
will was validly executed, if the testator provides for dispositions that deprives or impairs the lawful heirs of their legitime or rightful inheritance according to the laws on succession, the unlawful
provisions/dispositions thereof cannot be given effect. This is specially so when the courts had already determined in a final and executory decision that the will is intrinsically void. Such determination having attained
that character of finality is binding on this Court which will no longer be disturbed. Not that this Court finds the will to be intrinsically valid, but that a final and executory decision of which the party had the opportunity
to challenge before the higher tribunals must stand and should no longer be reevaluated. Failure to avail of the remedies provided by law constitutes waiver. And if the party does not avail of other remedies despite
its belief that it was aggrieved by a decision or court action, then it is deemed to have fully agreed and is satisfied with the decision or order.
4. CIVIL LAW; SUCCESSION; THE RULES OF INTESTACY SHALL APPLY IN CASES WHERE A WILL IS EXTRINSICALLY VALID BUT THE INTRINSIC PROVISIONS THEREOF ARE VOID; CASE AT BAR. It
can be clearly inferred from Article 960 of the Civil Code, on the law of successional rights that testacy is preferred to intestacy. But before there could be testate distribution, the will must pass the scrutinizing test
and safeguards provided by law considering that the deceased testator is no longer available to prove the voluntariness of his actions, aside from the fact that the transfer of the estate is usually onerous in nature
and that no one is presumed to give Nemo praesumitur donare. No intestate distribution of the estate can be done until and unless the will had failed to pass both its extrinsic and intrinsic validity. If the will is
extrinsically void, the rules of intestacy apply regardless of the intrinsic validity thereof. If it is extrinsically valid, the next test is to determine its intrinsic validity that is whether the provisions of the will are valid
according to the laws of succession. In this case, the court had ruled that the will of Alejandro was extrinsically valid but the intrinsic provisions thereof were void. Thus, the rules of intestacy apply as correctly held by
the trial court.
5. ID.; ID.; TESTAMENTARY DISPOSITIONS OF PROPERTIES NOT BELONGING EXCLUSIVELY TO THE TESTATOR OR PROPERTIES WHICH ARE PART OF THE CONJUGAL REGIME CANNOT BE GIVEN
EFFECT. Alejandro's disposition in his will of the alleged share in the conjugal properties of his late spouse, whom he described as his "only beloved wife," is not a valid reason to reverse a final and executory
order. Testamentary dispositions of properties not belonging exclusively to the testator or properties which are part of the conjugal regime cannot be given effect. Matters with respect to who owns the properties that
were disposed of by Alejandro in the void will may still be properly ventilated and determined in the intestate proceedings for the settlement of his and that of his late spouse's estate.
DECISION
YNARES-SANTIAGO, J p:
May a last will and testament admitted to probate but declared intrinsically void in an order that has become final and executory still be given effect? This is the issue that arose from the following antecedents: llcd
Private respondents were the legitimate children of Alejandro Dorotheo and Aniceta Reyes. The latter died in 1969 without her estate being settled. Alejandro died thereafter. Sometime in 1977, after Alejandro's death,
petitioner, who claims to have taken care of Alejandro before he died, filed a special proceeding for the probate of the latter's last will and testament. In 1981, the court issued an order admitting Alejandro's will to probate.
Private respondents did not appeal from said order. In 1983, they filed a "Motion To Declare The Will Intrinsically Void." The trial court granted the motion and issued an order, the dispositive portion of which reads:
"WHEREFORE, in view of the foregoing, Order is hereby issued declaring Lourdes Legaspi not the wife of the late Alejandro Dorotheo, the provisions of the last will and testament of Alejandro
Dorotheo as intrinsically void, and declaring the oppositors Vicente Dorotheo, Jose Dorotheo and Nilda Dorotheo Quintana as the only heirs of the late spouses Alejandro Dorotheo and Aniceta
Reyes, whose respective estates shall be liquidated and distributed according to the laws on intestacy upon payment of estate and other taxes due to the government." 1
Petitioner moved for reconsideration arguing that she is entitled to some compensation since she took care of Alejandro prior to his death although she admitted that they were not married to each other. Upon denial of her
motion for reconsideration, petitioner appealed to the Court of Appeals, but the same was dismissed for failure to file appellant's brief within the extended period granted. 2 This dismissal became final and executory on
February 3, 1989 and a corresponding entry of judgment was forthwith issued by the Court of Appeals on May 16, 1989. A writ of execution was issued by the lower court to implement the final and executory Order.
Consequently, private respondents filed several motions including a motion to compel petitioner to surrender to them the Transfer Certificates of Titles (TCT) covering the properties of the late Alejandro. When petitioner
refused to surrender the TCT's, private respondents filed a motion for cancellation of said titles and for issuance of new titles in their names. Petitioner opposed the motion. LLjur
An Order was issued on November 29, 1990 by Judge Zain B. Angas setting aside the final and executory Order dated January 30, 1986, as well as the Order directing the issuance of the writ of execution, on the ground
that the order was merely "interlocutory", hence not final in character. The court added that the dispositive portion of the said Order even directs the distribution of the estate of the deceased spouses. Private respondents
filed a motion for reconsideration which was denied in an Order dated February 1, 1991. Thus, private respondents filed a petition before the Court of Appeals, which nullified the two assailed Orders dated November 29,
1990 and February 1, 1991.
Aggrieved, petitioner instituted a petition for review arguing that the case filed by private respondents before the Court of Appeals was a petition under Rule 65 on the ground of grave abuse of discretion or lack of
jurisdiction. Petitioner contends that in issuing the two assailed orders, Judge Angas cannot be said to have no jurisdiction because he was particularly designated to hear the case. Petitioner likewise assails the Order of
the Court of Appeals upholding the validity of the January 30, 1986 Order which declared the intrinsic invalidity of Alejandro's will that was earlier admitted to probate.
Petitioner also filed a motion to reinstate her as executrix of the estate of the late Alejandro and to maintain the status quo or lease of the premises thereon to third parties. 3 Private respondents opposed the motion on the
ground that petitioner has no interest in the estate since she is not the lawful wife of the late Alejandro.
The petition is without merit. A final and executory decision or order can no longer be disturbed or reopened no matter how erroneous it may be. In setting aside the January 30, 1986 Order that has attained finality, the trial
court in effect nullified the entry of judgment made by the Court of Appeals. It is well settled that a lower court cannot reverse or set aside decisions or orders of a superior court, for to do so would be to negate the hierarchy
of courts and nullify the essence of review. It has been ruled that a final judgment on probated will, albeit erroneous, is binding on the whole world. 4
It has been consistently held that if no appeal is taken in due time from a judgment or order of the trial court, the same attains finality by mere lapse of time. Thus, the order allowing the will became final and the question
determined by the court in such order can no longer be raised anew, either in the same proceedings or in a different motion. The matters of due execution of the will and the capacity of the testator acquired the character of
res judicata and cannot again be brought into question, all juridical questions in connection therewith being for once and forever closed. 5 Such final order makes the will conclusive against the whole world as to its extrinsic
validity and due execution. 6
It should be noted that probate proceedings deals generally with the extrinsic validity of the will sought to be probated, 7 particularly on three aspects: cdtai
whether the will submitted is indeed, the decedent's last will and testament;
compliance with the prescribed formalities for the execution of wills;
the testamentary capacity of the testator; 8
and the due execution of the last will and testament. 9
Under the Civil Code, due execution includes a determination of whether the testator was of sound and disposing mind at the time of its execution, that he had freely executed the will and was not acting under duress,
fraud, menace or undue influence and that the will is genuine and not a forgery, 10 that he was of the proper testamentary age and that he is a person not expressly prohibited by law from making a will. 11
The intrinsic validity is another matter and questions regarding the same may still be raised even after the will has been authenticated. 12 Thus, it does not necessarily follow that an extrinsically valid last will and testament

is always intrinsically valid. Even if the will was validly executed, if the testator provides for dispositions that deprives or impairs the lawful heirs of their legitime or rightful inheritance according to the laws on succession, 13
the unlawful provisions/dispositions thereof cannot be given effect. This is specially so when the courts had already determined in a final and executory decision that the will is intrinsically void. Such determination having
attained that character of finality is binding on this Court which will no longer be disturbed. Not that this Court finds the will to be intrinsically valid, but that a final and executory decision of which the party had the
opportunity to challenge before the higher tribunals must stand and should no longer be reevaluated. Failure to avail of the remedies provided by law constitutes waiver. And if the party does not avail of other remedies
despite its belief that it was aggrieved by a decision or court action, then it is deemed to have fully agreed and is satisfied with the decision or order. As early as 1918, it has been declared that public policy and sound
practice demand that, at the risk of occasional errors, judgments of courts must at some point of time fixed by law 14 become final otherwise there will be no end to litigation. Interes rei publicae ut finis sit litium the very
object of which the courts were constituted was to put an end to controversies. 15 To fulfill this purpose and to do so speedily, certain time limits, more or less arbitrary, have to be set up to spur on the slothful. 16 The only
instance where a party interested in a probate proceeding may have a final liquidation set aside is when he is left out by reason of circumstances beyond his control or through mistake or inadvertence not imputable to
negligence, 17 which circumstances do not concur herein.
Petitioner was privy to the suit calling for the declaration of the intrinsic invalidity of the will, as she precisely appealed from an unfavorable order therefrom. Although the final and executory Order of January 30, 1986
wherein private respondents were declared as the only heirs do not bind those who are not parties thereto such as the alleged illegitimate son of the testator, the same constitutes res judicata with respect to those who
were parties to the probate proceedings. Petitioner cannot again raise those matters anew for relitigation otherwise that would amount to forum-shopping. It should be remembered that forum shopping also occurs when
the same issue had already been resolved adversely by some other court. 18 It is clear from the executory order that the estates of Alejandro and his spouse should be distributed according to the laws of intestate
succession.
Petitioner posits that the January 30, 1986 Order is merely interlocutory, hence it can still be set aside by the trial court. In support thereof, petitioner argues that "an order merely declaring who are heirs and the shares to
which set of heirs is entitled cannot be the basis of execution to require delivery of shares from one person to another particularly when no project of partition has been filed." 19 The trial court declared in the January 30,
1986 Order that petitioner is not the legal wife of Alejandro, whose only heirs are his three legitimate children (petitioners herein), and at the same time it nullified the will. But it should be noted that in the same Order, the
trial court also said that the estate of the late spouses be distributed according to the laws of intestacy. Accordingly, it has no option but to implement that order of intestate distribution and not to reopen and again reexamine the intrinsic provisions of the same will. cdtai
It can be clearly inferred from Article 960 of the Civil Code, on the law of successional rights that testacy is preferred to intestacy. 20 But before there could be testate distribution, the will must pass the scrutinizing test and
safeguards provided by law considering that the deceased testator is no longer available to prove the voluntariness of his actions, aside from the fact that the transfer of the estate is usually onerous in nature and that no
one is presumed to give Nemo praesumitur donare. 21 No intestate distribution of the estate can be done until and unless the will had failed to pass both its extrinsic and intrinsic validity. If the will is extrinsically void, the
rules of intestacy apply regardless of the intrinsic validity thereof. If it is extrinsically valid, the next test is to determine its intrinsic validity that is whether the provisions of the will are valid according to the laws of
succession. In this case, the court had ruled that the will of Alejandro was extrinsically valid but the intrinsic provisions thereof were void. Thus, the rules of intestacy apply as correctly held by the trial court.
Furthermore, Alejandro's disposition in his will of the alleged share in the conjugal properties of his late spouse, whom he described as his "only beloved wife", is not a valid reason to reverse a final and executory order.
Testamentary dispositions of properties not belonging exclusively to the testator or properties which are part of the conjugal regime cannot be given effect. Matters with respect to who owns the properties that were
disposed of by Alejandro in the void will may still be properly ventilated and determined in the intestate proceedings for the settlement of his and that of his late spouse's estate.
Petitioner's motion for appointment as administratrix is rendered moot considering that she was not married to the late Alejandro and, therefore, is not an heir.
WHEREFORE, the petition is DENIED and the decision appealed from is AFFIRMED.
SO ORDERED. cda
Davide, Jr., C.J., Puno, Kapunan and Pardo, JJ., concur.
||| (Dorotheo v. Court of Appeals, G.R. No. 108581, [December 8, 1999], 377 PHIL 851-862)
FELIX AZUELA, petitioner, vs. COURT OF APPEALS, GERALDA AIDA CASTILLO substituted by ERNESTO G. CASTILLO, respondents.
DECISION
TINGA, J p:
The core of this petition is a highly defective notarial will, purportedly executed by Eugenia E. Igsolo (decedent), who died on 16 December 1982 at the age of 80. In refusing to give legal recognition to the due execution of
this document, the Court is provided the opportunity to assert a few important doctrinal rules in the execution of notarial wills, all self-evident in view of Articles 805 and 806 of the Civil Code.
A will whose attestation clause does not contain the number of pages on which the will is written is fatally defective. A will whose attestation clause is not signed by the instrumental witnesses is fatally
defective. And perhaps most importantly, a will which does not contain an acknowledgment, but a mere jurat, is fatally defective. Any one of these defects is sufficient to deny probate. A notarial will with all
three defects is just aching for judicial rejection.
There is a distinct and consequential reason the Civil Code provides a comprehensive catalog of imperatives for the proper execution of a notarial will. Full and faithful compliance with all the detailed requisites under
Article 805 of the Code leave little room for doubt as to the validity in the due execution of the notarial will. Article 806 likewise imposes another safeguard to the validity of notarial wills that they be acknowledged before
a notary public by the testator and the witnesses. A notarial will executed with indifference to these two codal provisions opens itself to nagging questions as to its legitimacy.
The case stems from a petition for probate filed on 10 April 1984 with the Regional Trial Court (RTC) of Manila. The petition filed by petitioner Felix Azuela sought to admit to probate the notarial will of Eugenia E. Igsolo,
which was notarized on 10 June 1981. Petitioner is the son of the cousin of the decedent.
The will, consisting of two (2) pages and written in the vernacular Pilipino, read in full:
HULING HABILIN NI EUGENIA E. IGSOLO
SA NGALAN NG MAYKAPAL, AMEN:
AKO, si EUGENIA E. IGSOLO, nakatira sa 500 San Diego St., Sampaloc, Manila, pitongput siyam (79) na gulang, nasa hustong pagi-isip, pag-unawa at memoria ay nag-hahayag na ito na ang
aking huling habilin at testamento, at binabali wala ko lahat ang naunang ginawang habilin o testamento:
Una-Hinihiling ko na ako ay mailibing sa Sementerio del Norte, La Loma sang-ayong sa kaugalian at patakaran ng simbahang katoliko at ang taga-pag-ingat (Executor) ng habiling ito ay magtatayo
ng bantayog upang silbing ala-ala sa akin ng aking pamilya at kaibigan;
Pangalawa-Aking ipinagkakaloob at isinasalin ang lahat ng karapatan sa aking pamangkin na si Felix Azuela, na siyang nag-alaga sa akin sa mahabang panahon, yaong mga bahay na nakatirik sa
lote numero 28, Block 24 at nakapangalan sa Pechaten Korporasyon, ganoon din ibinibigay ko ang lahat ng karapatan sa bahay na nakatirik sa inoopahan kong lote, numero 43, Block 24 na pagaari ng Pechaten Corporation. Ipinagkakaloob kong buong buo ang lahat ng karapatan sa bahay at lupa na nasa 500 San Diego St., Lot 42, Block 24, Sampaloc, Manila kay Felix Azuela at ang
pagkakaloob kong ito ay walang pasubali't at kondiciones;
Pangatlo- Na ninunumbrahan ko si VART PAGUE na siyang nagpapatupad ng huling habiling ito at kagustuhan ko rin na hindi na kailanman siyang mag-lagak ng piyansiya.
Aking nilagdaan ang Huling Habilin na ito dito sa Maynila ika 10 ng Hunyo, 1981. TcDHSI
(Sgd.)
EUGENIA E. IGSOLO
(Tagapagmana)
PATUNAY NG MGA SAKSI
Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling dahong ito, na ipinahayag sa amin ni Eugenia E. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayon ika-10 ng Hunyo 1981,

ay nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at bawa't dahon, sa harap ng lahat at bawa't sa amin, at kami namang mga saksi ay
lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at bawa't isa sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawa't dahon ng kasulatan ito.
EUGENIA E. IGSOLO
address: 500 San Diego St.
Sampaloc, Manila Res. Cert. No. A-7717-37
Issued at Manila on March 10, 1981.
QUIRINO AGRAVA
address: 1228-Int. 3, Kahilum
Pandacan, Manila Res. Cert. No. A-458365
Issued at Manila on Jan. 21, 1981
LAMBERTO C. LEAO
address: Avenue 2, Blcok 7,
Lot 61, San Gabriel, G.MA., Cavite Res.
Cert. No. A-768277 issued at Carmona, Cavite
on Feb. 7, 1981
JUANITO ESTRERA
address: City Court Compound,
City of Manila Res. Cert. No. A574829
Issued at Manila on March 2, 1981.
Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1981 dito sa Lungsod ng Maynila.
(Sgd.)
PETRONIO Y. BAUTISTA
NOTARIO PUBLIKO
Until Dec. 31, 1981
PTR-152041-1/2/81-Manila
TAN # 1437-977-8 1
Doc. No. 1232;
Page No. 86;
Book No. 43;
Series of 1981
The three named witnesses to the will affixed their signatures on the left-hand margin of both pages of the will, but not at the bottom of the attestation clause.
The probate petition adverted to only two (2) heirs, legatees and devisees of the decedent, namely: petitioner himself, and one Irene Lynn Igsolo, who was alleged to have resided abroad. Petitioner prayed that the will be
allowed, and that letters testamentary be issued to the designated executor, Vart Prague.
The petition was opposed by Geralda Aida Castillo (Geralda Castillo), who represented herself as the attorney-in-fact of "the 12 legitimate heirs" of the decedent. 2 Geralda Castillo claimed that the will is a forgery, and that
the true purpose of its emergence was so it could be utilized as a defense in several court cases filed by oppositor against petitioner, particularly for forcible entry and usurpation of real property, all centering on petitioner's
right to occupy the properties of the decedent. 3 It also asserted that contrary to the representations of petitioner, the decedent was actually survived by 12 legitimate heirs, namely her grandchildren, who were then
residing abroad. Per records, it was subsequently alleged that decedent was the widow of Bonifacio Igsolo, who died in 1965, 4 and the mother of a legitimate child, Asuncion E. Igsolo, who predeceased her mother by
three (3) months. 5
Oppositor Geralda Castillo also argued that the will was not executed and attested to in accordance with law. She pointed out that decedent's signature did not appear on the second page of the will, and the will was not
properly acknowledged. These twin arguments are among the central matters to this petition.
After due trial, the RTC admitted the will to probate, in an Order dated 10 August 1992. 6 The RTC favorably took into account the testimony of the three (3) witnesses to the will, Quirino Agrava, Lamberto Leano, and
Juanito Estrada. The RTC also called to fore "the modern tendency in respect to the formalities in the execution of a will . . . with the end in view of giving the testator more freedom in expressing his last wishes;" 7 and from
this perspective, rebutted oppositor's arguments that the will was not properly executed and attested to in accordance with law.
After a careful examination of the will and consideration of the testimonies of the subscribing and attesting witnesses, and having in mind the modern tendency in respect to the formalities in the
execution of a will, i.e., the liberalization of the interpretation of the law on the formal requirements of a will with the end in view of giving the testator more freedom in expressing his last wishes, this
Court is persuaded to rule that the will in question is authentic and had been executed by the testatrix in accordance with law.
On the issue of lack of acknowledgement, this Court has noted that at the end of the will after the signature of the testatrix, the following statement is made under the sub-title, "Patunay Ng Mga
Saksi":
"Ang kasulatang ito, na binubuo ng _____ dahon pati ang huling dahong ito, na ipinahayag sa amin ni Eugenia N. Igsolo, tagapagmana na siya niyang Huling Habilin, ngayong ika-10 ng
Hunyo 1981, ay nilagdaan ng nasabing tagapagmana sa ilalim ng kasulatang nabanggit at sa kaliwang panig ng lahat at bawa't dahon, sa harap ng lahat at bawa't sa amin, at kami
namang mga saksi ay lumagda sa harap ng nasabing tagapagmana at sa harap ng lahat at bawa't isa sa amin, sa ilalim ng nasabing kasulatan at sa kaliwang panig ng lahat at bawa't
dahon ng kasulatan ito."
The aforequoted declaration comprises the attestation clause and the acknowledgement and is considered by this Court as a substantial compliance with the requirements of the law.
On the oppositor's contention that the attestation clause was not signed by the subscribing witnesses at the bottom thereof, this Court is of the view that the signing by the subscribing witnesses on
the left margin of the second page of the will containing the attestation clause and acknowledgment, instead of at the bottom thereof, substantially satisfies the purpose of identification and
attestation of the will.
With regard to the oppositor's argument that the will was not numbered correlatively in letters placed on upper part of each page and that the attestation did not state the number of pages thereof, it
is worthy to note that the will is composed of only two pages. The first page contains the entire text of the testamentary dispositions, and the second page contains the last portion of the attestation
clause and acknowledgement. Such being so, the defects are not of a serious nature as to invalidate the will. For the same reason, the failure of the testatrix to affix her signature on the left margin
of the second page, which contains only the last portion of the attestation clause and acknowledgment is not a fatal defect.
As regards the oppositor's assertion that the signature of the testatrix on the will is a forgery, the testimonies of the three subscribing witnesses to the will are convincing enough to establish the
genuineness of the signature of the testatrix and the due execution of the will. 8
The Order was appealed to the Court of Appeals by Ernesto Castillo, who had substituted his since deceased mother-in-law, Geralda Castillo. In a Decision dated 17 August 1995, the Court of Appeals reversed the trial

court and ordered the dismissal of the petition for probate. 9 The Court of Appeals noted that the attestation clause failed to state the number of pages used in the will, thus rendering the will void and undeserving of
probate. 10
Hence, the present petition.
Petitioner argues that the requirement under Article 805 of the Civil Code that "the number of pages used in a notarial will be stated in the attestation clause" is merely directory, rather than mandatory, and thus susceptible
to what he termed as "the substantial compliance rule." 11
The solution to this case calls for the application of Articles 805 and 806 of the Civil Code, which we replicate in full.
Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by
his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.
The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left
margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page.
The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his
name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one
another.
If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them.
Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the
office of the Clerk of Court.
The appellate court, in its Decision, considered only one defect, the failure of the attestation clause to state the number of pages of the will. But an examination of the will itself reveals several more deficiencies.
As admitted by petitioner himself, the attestation clause fails to state the number of pages of the will. 12 There was an incomplete attempt to comply with this requisite, a space having been allotted for the insertion of the
number of pages in the attestation clause. Yet the blank was never filled in; hence, the requisite was left uncomplied with.
The Court of Appeals pounced on this defect in reversing the trial court, citing in the process Uy Coque v. Navas L. Sioca 13 and In re: Will of Andrada. 14 In Uy Coque, the Court noted that among the defects of the will in
question was the failure of the attestation clause to state the number of pages contained in the will. 15 In ruling that the will could not be admitted to probate, the Court made the following consideration which remains highly
relevant to this day: "The purpose of requiring the number of sheets to be stated in the attestation clause is obvious; the document might easily be so prepared that the removal of a sheet would completely change
the testamentary dispositions of the will and in the absence of a statement of the total number of sheets such removal might be effected by taking out the sheet and changing the numbers at the top of the
following sheets or pages. If, on the other hand, the total number of sheets is stated in the attestation clause the falsification of the document will involve the inserting of new pages and the forging of the signatures of the
testator and witnesses in the margin, a matter attended with much greater difficulty." 16
The case of In re Will of Andrada concerned a will the attestation clause of which failed to state the number of sheets or pages used. This consideration alone was sufficient for the Court to declare "unanim[ity] upon the
point that the defect pointed out in the attesting clause is fatal." 17 It was further observed that "it cannot be denied that the . . . requirement affords additional security against the danger that the will may be tampered with;
and as the Legislature has seen fit to prescribe this requirement, it must be considered material." 18
Against these cited cases, petitioner cites Singson v. Florentino 19 and Taboada v. Hon. Rosal, 20 wherein the Court allowed probate to the wills concerned therein despite the fact that the attestation clause did not state
the number of pages of the will. Yet the appellate court itself considered the import of these two cases, and made the following distinction which petitioner is unable to rebut, and which we adopt with approval:
Even a cursory examination of the Will (Exhibit "D"), will readily show that the attestation does not state the number of pages used upon which the will is written. Hence, the Will is void and
undeserving of probate.
We are not impervious of the Decisions of the Supreme Court in "Manuel Singson versus Emilia Florentino, et al., 92 Phil. 161 and Apolonio [Taboada] versus Hon. Avelino Rosal, et al., 118 SCRA
195," to the effect that a will may still be valid even if the attestation does not contain the number of pages used upon which the Will is written. However, the Decisions of the Supreme Court are not
applicable in the aforementioned appeal at bench. This is so because, in the case of "Manuel Singson versus Emilia Florentino, et al., supra," although the attestation in the subject Will did not state
the number of pages used in the will, however, the same was found in the last part of the body of the Will:
"xxx xxx xxx
The law referred to is article 618 of the Code of Civil Procedure, as amended by Act No. 2645, which requires that the attestation clause shall state the number of pages or sheets upon
which the will is written, which requirement has been held to be mandatory as an effective safeguard against the possibility of interpolation or omission of some of the pages of the will to
the prejudice of the heirs to whom the property is intended to be bequeathed (In re Will of Andrada, 42 Phil. 180; Uy Coque vs. Navas L. Sioca, 43 Phil., 405; Gumban vs. Gorcho, 50
Phil. 30; Quinto vs. Morata, 54 Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio decidendi of these cases seems to be that the attestation clause must contain a statement of
the number of sheets or pages composing the will and that if this is missing or is omitted, it will have the effect of invalidating the will if the deficiency cannot be supplied, not by evidence
aliunde, but by a consideration or examination of the will itself. But here the situation is different. While the attestation clause does not state the number of sheets or pages upon which the
will is written, however, the last part of the body of the will contains a statement that it is composed of eight pages, which circumstance in our opinion takes this case out of the rigid rule of
construction and places it within the realm of similar cases where a broad and more liberal view has been adopted to prevent the will of the testator from being defeated by purely
technical considerations." (page 165-165, supra) (Underscoring supplied)
In "Apolonio Tabaoda versus Hon. Avelino Rosal, et al." supra, the notarial acknowledgement in the Will states the number of pages used in the:
"xxx xxx xxx
We have examined the will in question and noticed that the attestation clause failed to state the number of pages used in writing the will. This would have been a fatal defect were it not
for the fact that, in this case, it is discernible from the entire will that it is really and actually composed of only two pages duly signed by the testatrix and her instrumental witnesses. As
earlier stated, the first page which contains the entirety of the testamentary dispositions is signed by the testatrix at the end or at the bottom while the instrumental witnesses signed at the
left margin. The other page which is marked as "Pagina dos" comprises the attestation clause and the acknowledgment. The acknowledgment itself states that "this Last Will and
Testament consists of two pages including this page" (pages 200-201, supra) (Underscoring supplied).
However, in the appeal at bench, the number of pages used in the will is not stated in any part of the Will. The will does not even contain any notarial acknowledgment wherein the number of pages
of the will should be stated. 21
Both Uy Coque and Andrada were decided prior to the enactment of the Civil Code in 1950, at a time when the statutory provision governing the formal requirement of wills was Section 618 of the Code of Civil Procedure.
22 Reliance on these cases remains apropos, considering that the requirement that the attestation state the number of pages of the will is extant from Section 618. 23 However, the enactment of the Civil Code in 1950 did
put in force a rule of interpretation of the requirements of wills, at least insofar as the attestation clause is concerned, that may vary from the philosophy that governed these two cases. Article 809 of the Civil Code states:
"In the absence of bad faith, forgery, or fraud, or undue and improper pressure and influence, defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved
that the will was in fact executed and attested in substantial compliance with all the requirements of article 805."
In the same vein, petitioner cites the report of the Civil Code Commission, which stated that "the underlying and fundamental objective permeating the provisions on the [law] on [wills] in this project consists in the
[liberalization] of the manner of their execution with the end in view of giving the testator more [freedom] in [expressing] his last wishes. This objective is in accord with the [modern tendency] in respect to the formalities in
the execution of wills." 24 However, petitioner conveniently omits the qualification offered by the Code Commission in the very same paragraph he cites from their report, that such liberalization be "but with sufficient
safeguards and restrictions to prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the testator." 25

Caneda v. Court of Appeals 26 features an extensive discussion made by Justice Regalado, speaking for the Court on the conflicting views on the manner of interpretation of the legal formalities required in the execution of
the attestation clause in wills. 27 Uy Coque and Andrada are cited therein, along with several other cases, as examples of the application of the rule of strict construction. 28 However, the Code Commission opted to
recommend a more liberal construction through the "substantial compliance rule" under Article 809. A cautionary note was struck though by Justice J.B.L. Reyes as to how Article 809 should be applied:
. . . The rule must be limited to disregarding those defects that can be supplied by an examination of the will itself: whether all the pages are consecutively numbered; whether the signatures appear
in each and every page; whether the subscribing witnesses are three or the will was notarized. All these are facts that the will itself can reveal, and defects or even omissions concerning them in the
attestation clause can be safely disregarded. But the total number of pages, and whether all persons required to sign did so in the presence of each other must substantially appear in the
attestation clause, being the only check against perjury in the probate proceedings. 29 (Emphasis supplied.)
The Court of Appeals did cite these comments by Justice J.B.L. Reyes in its assailed decision, considering that the failure to state the number of pages of the will in the attestation clause is one of the defects which cannot
be simply disregarded. In Caneda itself, the Court refused to allow the probate of a will whose attestation clause failed to state that the witnesses subscribed their respective signatures to the will in the presence of the
testator and of each other, 30 the other omission cited by Justice J.B.L. Reyes which to his estimation cannot be lightly disregarded.
Caneda suggested: "[I]t may thus be stated that the rule, as it now stands, is that omission which can be supplied by an examination of the will itself, without the need of resorting to extrinsic evidence, will not be fatal and,
correspondingly, would not obstruct the allowance to probate of the will being assailed. However, those omissions which cannot be supplied except by evidence aliunde would result in the invalidation of the attestation
clause and ultimately, of the will itself." 31 Thus, a failure by the attestation clause to state that the testator signed every page can be liberally construed, since that fact can be checked by a visual examination; while a
failure by the attestation clause to state that the witnesses signed in one another's presence should be considered a fatal flaw since the attestation is the only textual guarantee of compliance. 32
The failure of the attestation clause to state the number of pages on which the will was written remains a fatal flaw, despite Article 809. The purpose of the law in requiring the clause to state the number of pages on which
the will is written is to safeguard against possible interpolation or omission of one or some of its pages and to prevent any increase or decrease in the pages. 33 The failure to state the number of pages equates with the
absence of an averment on the part of the instrumental witnesses as to how many pages consisted the will, the execution of which they had ostensibly just witnessed and subscribed to. Following Caneda, there is
substantial compliance with this requirement if the will states elsewhere in it how many pages it is comprised of, as was the situation in Singson and Taboada. However, in this case, there could have been no substantial
compliance with the requirements under Article 805 since there is no statement in the attestation clause or anywhere in the will itself as to the number of pages which comprise the will.
At the same time, Article 809 should not deviate from the need to comply with the formal requirements as enumerated under Article 805. Whatever the inclinations of the members of the Code Commission in incorporating
Article 805, the fact remains that they saw fit to prescribe substantially the same formal requisites as enumerated in Section 618 of the Code of Civil Procedure, convinced that these remained effective safeguards against
the forgery or intercalation of notarial wills. 34 Compliance with these requirements, however picayune in impression, affords the public a high degree of comfort that the testator himself or herself had decided to convey
property post mortem in the manner established in the will. 35 The transcendent legislative intent, even as expressed in the cited comments of the Code Commission, is for the fruition of the testator's
incontestable desires, and not for the indulgent admission of wills to probate.
The Court could thus end here and affirm the Court of Appeals. However, an examination of the will itself reveals a couple of even more critical defects that should necessarily lead to its rejection.
For one, the attestation clause was not signed by the instrumental witnesses. While the signatures of the instrumental witnesses appear on the left-hand margin of the will, they do not appear at the bottom of the
attestation clause which after all consists of their averments before the notary public.
Cagro v. Cagro 36 is material on this point. As in this case, "the signatures of the three witnesses to the will do not appear at the bottom of the attestation clause, although the page containing the same is signed by the
witnesses on the left-hand margin." 37 While three (3) Justices 38 considered the signature requirement had been substantially complied with, a majority of six (6), speaking through Chief Justice Paras, ruled that the
attestation clause had not been duly signed, rendering the will fatally defective.
There is no question that the signatures of the three witnesses to the will do not appear at the bottom of the attestation clause, although the page containing the same is signed by the witnesses on
the left-hand margin.
We are of the opinion that the position taken by the appellant is correct. The attestation clause is "a memorandum of the facts attending the execution of the will" required by law to be made by the
attesting witnesses, and it must necessarily bear their signatures. An unsigned attestation clause cannot be considered as an act of the witnesses, since the omission of their signatures at the
bottom thereof negatives their participation.
The petitioner and appellee contends that signatures of the three witnesses on the left-hand margin conform substantially to the law and may be deemed as their signatures to the attestation clause.
This is untenable, because said signatures are in compliance with the legal mandate that the will be signed on the left-hand margin of all its pages. If an attestation clause not signed by the three
witnesses at the bottom thereof, be admitted as sufficient, it would be easy to add such clause to a will on a subsequent occasion and in the absence of the testator and any or all of the witnesses.
39
The Court today reiterates the continued efficacy of Cagro. Article 805 particularly segregates the requirement that the instrumental witnesses sign each page of the will, from the requisite that the will be "attested and
subscribed by [the instrumental witnesses]." The respective intents behind these two classes of signature are distinct from each other. The signatures on the left-hand corner of every page signify, among others, that the
witnesses are aware that the page they are signing forms part of the will. On the other hand, the signatures to the attestation clause establish that the witnesses are referring to the statements contained in the attestation
clause itself. Indeed, the attestation clause is separate and apart from the disposition of the will. An unsigned attestation clause results in an unattested will. Even if the instrumental witnesses signed the left-hand margin of
the page containing the unsigned attestation clause, such signatures cannot demonstrate these witnesses' undertakings in the clause, since the signatures that do appear on the page were directed towards a wholly
different avowal. SHcDAI
The Court may be more charitably disposed had the witnesses in this case signed the attestation clause itself, but not the left-hand margin of the page containing such clause. Without diminishing the value of the
instrumental witnesses' signatures on each and every page, the fact must be noted that it is the attestation clause which contains the utterances reduced into writing of the testamentary witnesses themselves. It is the
witnesses, and not the testator, who are required under Article 805 to state the number of pages used upon which the will is written; the fact that the testator had signed the will and every page thereof; and that they
witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. The only proof in the will that the witnesses have stated these elemental facts would be their signatures on the
attestation clause.
Thus, the subject will cannot be considered to have been validly attested to by the instrumental witnesses, as they failed to sign the attestation clause.
Yet, there is another fatal defect to the will on which the denial of this petition should also hinge. The requirement under Article 806 that "every will must be acknowledged before a notary public by the testator and the
witnesses" has also not been complied with. The importance of this requirement is highlighted by the fact that it had been segregated from the other requirements under Article 805 and entrusted into a separate provision,
Article 806. The non-observance of Article 806 in this case is equally as critical as the other cited flaws in compliance with Article 805, and should be treated as of equivalent import.
In lieu of an acknowledgment, the notary public, Petronio Y. Bautista, wrote "Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10 (sic), 1981 dito sa Lungsod ng Maynila." 40 By no manner of contemplation can those
words be construed as an acknowledgment. An acknowledgment is the act of one who has executed a deed in going before some competent officer or court and declaring it to be his act or deed. 41 It involves an extra step
undertaken whereby the signor actually declares to the notary that the executor of a document has attested to the notary that the same is his/her own free act and deed.
It might be possible to construe the averment as a jurat, even though it does not hew to the usual language thereof. A jurat is that part of an affidavit where the notary certifies that before him/her, the document was
subscribed and sworn to by the executor. 42 Ordinarily, the language of the jurat should avow that the document was subscribed and sworn before the notary public, while in this case, the notary public averred that he
himself "signed and notarized" the document. Possibly though, the word "ninotario" or "notarized" encompasses the signing of and swearing in of the executors of the document, which in this case would involve the
decedent and the instrumental witnesses.
Yet even if we consider what was affixed by the notary public as a jurat, the will would nonetheless remain invalid, as the express requirement of Article 806 is that the will be "acknowledged", and not merely subscribed

and sworn to. The will does not present any textual proof, much less one under oath, that the decedent and the instrumental witnesses executed or signed the will as their own free act or deed. The acknowledgment made
in a will provides for another all-important legal safeguard against spurious wills or those made beyond the free consent of the testator. An acknowledgement is not an empty meaningless act. 43 The acknowledgment
coerces the testator and the instrumental witnesses to declare before an officer of the law that they had executed and subscribed to the will as their own free act or deed. Such declaration is under oath and under pain of
perjury, thus allowing for the criminal prosecution of persons who participate in the execution of spurious wills, or those executed without the free consent of the testator. It also provides a further degree of assurance that
the testator is of certain mindset in making the testamentary dispositions to those persons he/she had designated in the will.
It may not have been said before, but we can assert the rule, self-evident as it is under Article 806. A notarial will that is not acknowledged before a notary public by the testator and the witnesses is fatally
defective, even if it is subscribed and sworn to before a notary public.
There are two other requirements under Article 805 which were not fully satisfied by the will in question. We need not discuss them at length, as they are no longer material to the disposition of this case. The provision
requires that the testator and the instrumental witnesses sign each and every page of the will on the left margin, except the last; and that all the pages shall be numbered correlatively in letters placed on the upper part of
each page. In this case, the decedent, unlike the witnesses, failed to sign both pages of the will on the left margin, her only signature appearing at the so-called "logical end" 44 of the will on its first page. Also, the will itself
is not numbered correlatively in letters on each page, but instead numbered with Arabic numerals. There is a line of thought that has disabused the notion that these two requirements be construed as mandatory. 45 Taken
in isolation, these omissions, by themselves, may not be sufficient to deny probate to a will. Yet even as these omissions are not decisive to the adjudication of this case, they need not be dwelt on, though indicative as they
may be of a general lack of due regard for the requirements under Article 805 by whoever executed the will.
All told, the string of mortal defects which the will in question suffers from makes the probate denial inexorable.
WHEREFORE, the petition is DENIED. Costs against petitioner. ESHAcI
SO ORDERED.
Quisumbing, Carpio and Carpio Morales, JJ., concur.
||| (Azuela v. Court of Appeals, G.R. No. 122880, [April 12, 2006], 521 PHIL 263-285)
In the Matter of the Probate of the Last Will and Testament of the Deceased Brigido Alvarado, CESAR ALVARADO, petitioner, vs. HON. RAMON G. GAVIOLA, JR., Presiding Justice, HON. MA.
ROSARIO QUETULIO LOSA and HON. LEONOR INES LUCIANO, Associate Justices, Intermediate Appellate Court, First Division (Civil Cases), and BAYANI MA. RINO , respondents.
Vicente R. Redor for petitioner.
Bayani Ma. Rino for and in his own behalf.
SYLLABUS
1. CIVIL LAW; PROBATE OF WILL; ART. 808, NEW CIVIL CODE; SCOPE OF THE TERM "BLINDNESS". The following pronouncement in Garcia vs. Vasquez provides an insight into the scope of the term
"blindness" as used in Art. 808, to wit: "The rationale behind the requirement of reading the will to the testator if he is blind or incapable of reading the will himself (as when he is illiterate), is to make the provisions
thereof known to him, so that he may be able to object if they are not in accordance with his wishes . . ." Clear from the foregoing is that Art. 808 applies not only to blind testators but also to those who, for one
reason or another, are "incapable of reading the(ir) will(s)." Since Brigido Alvarado was incapable of reading the final drafts of his will and codicil on the separate occasions of their execution due to his "poor,"
"defective," or "blurred" vision, there can be no other course for us but to conclude that Brigido Alvarado comes within the scope of the term "blind" as it is used in Art. 808. Unless the contents were read to him, he
had no way of ascertaining whether or not the lawyer who drafted the will and codicil did so conformably with his instructions.
2. ID.; ID.; ID.; WILL MUST BE READ TWICE; PURPOSE. Article 808 requires that in case of testators like Brigido Alvarado, the will shall be read twice; once, by one of the instrumental witnesses and, again, by
the notary public before whom the will was acknowledged. The purpose is to make known to the incapacitated testator the contents of the document before signing and to give him an opportunity to object if anything
is contrary to his instructions.
3. ID.; ID.; ID.; SUBSTANTIAL COMPLIANCE THEREWITH, ACCEPTABLE; REASON. This Court has held in a number of occasions that substantial compliance is acceptable where the purpose of the law has
been satisfied, the reason being that the solemnities surrounding the execution of wills are intended to protect the testator from all kinds of fraud and trickery but are never intended to be so rigid and inflexible as to
destroy the testamentary privilege. The spirit behind the law was served though the letter was not. Although there should be strict compliance with the substantial requirements of the law in order to insure the
authenticity of the will, the formal imperfections should be brushed aside when they do not affect its purpose and which, when taken into account, may only defeat the testator's will.
4. ID.; ID.; ID.; ID.; CASE AT BAR. In the case at bar, private respondent read the testator's will and codicil aloud in the presence of the testator, his three instrumental witnesses, and the notary public. Prior and
subsequent thereto, the testator affirmed, upon being asked, that the contents read corresponded with his instructions. Only then did the signing and acknowledgement take place. There is no evidence, and
petitioner does not so allege, that the contents of the will and codicil were not sufficiently made known and communicated to the testator. On the contrary, with respect to the "Huling Habilin," the day of the execution
was not the first time that Brigido had affirmed the truth and authenticity of the contents of the draft. The uncontradicted testimony of Atty. Rino is that Brigido Alvarado already acknowledged that the will was drafted
in accordance with his expressed wishes even prior to 5 November 1977 when Atty. Rino went to the testator's residence precisely for the purpose of securing his conformity to the draft.
DECISION
BELLOSILLO, J p:
Before us is an appeal from the Decision dated 11 April 1986 1 of the First Civil Cases Division of the then Intermediate Appellate Court, now Court of Appeals, which affirmed the Order dated 27 June 1983 2 of the
Regional Trial Court of Sta. Cruz, Laguna, admitting to probate the last will and testament 3 with codicil 4 of the late Brigido Alvarado.
On 5 November 1977, the 79-year old Brigido Alvarado executed a notarial will entitled "Huling Habilin" wherein he disinherited an illegitimate son (petitioner) and expressly revoked a previously executed holographic will at
the time awaiting probate before Branch 4 of the Regional Trial Court of Sta. Cruz, Laguna.
As testified to by the three instrumental witnesses, the notary public and by private respondent who were present at the execution, the testator did not read the final draft of the will himself. Instead, private respondent, as
the lawyer who drafted the eight-paged document, read the same aloud in the presence of the testator, the three instrumental witnesses and the notary public. The latter four followed the reading with their own respective
copies previously furnished them.
Meanwhile, Brigido's holographic will was subsequently admitted to probate on 9 December 1977. On the 29th day of the same month, a codicil entitled "Kasulatan ng Pagbabago sa Ilang Pagpapasiya na Nasasaad sa
Huling Habilin na May Petsa Nobiembre 5, 1977 ni Brigido Alvarado" was executed changing some dispositions in the notarial will to generate cash for the testator's eye operation. Brigido was then suffering from
glaucoma. But the disinheritance and revocatory clauses were unchanged. As in the case of the notarial will, the testator did not personally read the final draft of the codicil. Instead, it was private respondent who read it
aloud in his presence and in the presence of the three instrumental witnesses (same as those of the notarial will) and the notary public who followed the reading using their own copies.
A petition for the probate of the notarial will and codicil was filed upon the testator's death on 3 January 1979 by private respondent as executor with the Court of First Instance, now Regional Trial Court, of Siniloan,
Laguna. 5 Petitioner, in turn, filed an Opposition on the following grounds: that the will sought to be probated was not executed and attested as required by law; that the testator was insane or otherwise mentally
incapacitated to make a will at the time of its execution due to senility and old age; that the will was executed under duress, or influence of fear or threats; that it was procured by undue and improper pressure and influence
on the part of the beneficiary who stands to get the lion's share of the testator's estate; and lastly, that the signature of the testator was procured by fraud or trick.
When the oppositor (petitioner) failed to substantiate the grounds relied upon in the Opposition, a Probate Order was issued on 27 June 1983 from which an appeal was made to respondent court. The main thrust of the
appeal was that the deceased was blind within the meaning of the law at the time his "Huling Habilin" and the codicil attached thereto were executed; that since the reading required by Art. 808 of the Civil Code was
admittedly not complied with, probate of the deceased's last will and codicil should have been denied.
On 11 April 1986, the Court of Appeals rendered the decision under review with the following findings: that Brigido Alvarado was not blind at the time his last will and codicil were executed; that assuming his blindness, the
reading requirement of Art. 808 was substantially complied with when both documents were read aloud to the testator with each of the three instrumental witnesses and the notary public following the reading with their
respective copies of the instruments. The appellate court then concluded that although Art. 808 was not followed to the letter, there was substantial compliance since its purpose of making known to the testator the contents

of the drafted will was served.

The issues now before us can be stated thus: Was Brigido Alvarado blind for purposes of Art. 808 at the time his "Huling Habilin" and its codicil were executed? If so, was the double-reading requirement of said article
complied with?
Regarding the first issue, there is no dispute on the following facts: Brigido Alvarado was not totally blind at the time the will and codicil were executed. However, his vision on both eyes was only of "counting fingers at three
(3) feet" by reason of the glaucoma which he had been suffering from for several years and even prior to his first consultation with an eye specialist on 14 December 1977.
The point of dispute is whether the foregoing circumstances would qualify Brigido as a "blind" testator under Art. 808 which reads:
"Art. 808. If the testator is blind, the will shall be read to him twice; once, by one of the subscribing, witnesses, and again, by the notary public before whom the will is acknowledged."
Petitioner contends that although his father was not totally blind when the will and codicil were executed, he can be so considered within the scope of the term as it is used in Art. 808. To support his stand, petitioner
presented before the trial court a medical certificate issued by Dr. Salvador R. Salceda, Director of the Institute of Ophthalmology (Philippine Eye Research Institute), 6 the contents of which were interpreted in layman's
terms by Dr. Ruperto Roasa, whose expertise was admitted by private respondent. 7 Dr. Roasa explained that although the testator could visualize fingers at three (3) feet, he could no longer read either printed or
handwritten matters as of 14 December 1977, the day of his first consultation. 8
On the other hand, the Court of Appeals, contrary to the medical testimony, held that the testator could still read on the day the will and the codicil were executed but chose not to do so because of "poor eyesight." 9 Since
the testator was still capable of reading at that time, the court a quo concluded that Art. 808 need not be complied with.
We agree with petitioner in this respect.
Regardless of respondent's staunch contention that the testator was still capable of reading at the time his will and codicil were prepared, the fact remains and this was testified to by his witnesses, that Brigido did not do so
because of his "poor," 10 "defective, " 11 or "blurred" 12 vision making it necessary for private respondent to do the actual reading for him.
The following pronouncement in Garcia vs. Vasquez 13 provides an insight into the scope of the term "blindness" as used in Art. 808, to wit:
"The rationale behind the requirement of reading the will to the testator if he is blind or incapable of reading the will himself (as when he is illiterate), is to make the provisions thereof known to him,
so that he may be able to object if they are not in accordance with his wishes . . ."
Clear from the foregoing is that Art. 808 applies not only to blind testators but also to those who, for one reason or another, are "incapable of reading the(ir) will(s)." Since Brigido Alvarado was incapable of reading the final
drafts of his will and codicil on the separate occasions of their execution due to his "poor," "defective," or "blurred" vision, there can be no other course for us but to conclude that Brigido Alvarado comes within the scope of
the term "blind" as it is used in Art. 808. Unless the contents were read to him, he had no way of ascertaining whether or not the lawyer who drafted the will and codicil did so conformably with his instructions. Hence, to
consider his will as validly executed and entitled to probate, it is essential that we ascertain whether Art. 808 had been complied with.
Article 808 requires that in case of testators like Brigido Alvarado, the will shall be read twice; once, by one of the instrumental witnesses and, again, by the notary public before whom the will was acknowledged. The
purpose is to make known to the incapacitated testator the contents of the document before signing and to give him an opportunity to object if anything is contrary to his instructions.
That Art. 808 was not followed strictly is beyond cavil. Instead of the notary public and an instrumental witness, it was the lawyer (private respondent) who drafted the eight-paged will and the five-paged codicil who read the
same aloud to the testator, and read them only once, not twice as Art. 808 requires.
Private respondent however insists that there was substantial compliance and that the single reading suffices for purposes of the law. On the other hand, petitioner maintains that the only valid compliance is a strict
compliance or compliance to the letter and since it is admitted that neither the notary public nor an instrumental witness read the contents of the will and codicil to Brigido, probate of the latter's will and codicil should have
been disallowed.
We sustain private respondent's stand and necessarily, the petition must be denied.
This Court has held in a number of occasions that substantial compliance is acceptable where the purpose of the law has been satisfied, the reason being that the solemnities surrounding the execution of wills are intended
to protect the testator from all kinds of fraud and trickery but are never intended to be so rigid and inflexible as to destroy the testamentary privilege. 14
In the case at bar, private respondent read the testator's will and codicil aloud in the presence of the testator, his three instrumental witnesses, and the notary public. Prior and subsequent thereto, the testator affirmed,
upon being asked, that the contents read corresponded with his instructions. Only then did the signing and acknowledgement take place. There is no evidence, and petitioner does not so allege, that the contents of the will
and codicil were not sufficiently made known and communicated to the testator. On the contrary, with respect to the "Huling Habilin," the day of the execution was not the first time that Brigido had affirmed the truth and
authenticity of the contents of the draft. The uncontradicted testimony of Atty. Rino is that Brigido Alvarado already acknowledged that the will was drafted in accordance with his expressed wishes even prior to 5 November
1977 when Atty. Rino went to the testator's residence precisely for the purpose of securing his conformity to the draft. 15
Moreover, it was not only Atty. Rino who read the documents on 5 November and 29 December 1977. The notary public and the three instrumental witnesses likewise read the will and codicil, albeit silently. Afterwards, Atty.
Nonia de la Pena (the notary public) and Dr. Crescente O. Evidente (one of the three instrumental witnesses and the testator's physician) asked the testator whether the contents of the documents were of his own free will.
Brigido answered in the affirmative. 16 With four persons following the reading word for word with their own copies, it can be safely concluded that the testator was reasonably assured that what was read to him (those
which he affirmed were in accordance with his instructions), were the terms actually appearing on the typewritten documents. This is especially true when we consider the fact that the three instrumental witnesses were
persons known to the testator, one being his physician (Dr. Evidente) and another (Potenciano C. Ranieses) being known to him since childhood.
The spirit behind the law was served though the letter was not. Although there should be strict compliance with the substantial requirements of the law in order to insure the authenticity of the will, the formal imperfections
should be brushed aside when they do not affect its purpose and which, when taken into account, may only defeat the testator's will. 17
As a final word to convince petitioner of the propriety of the trial court's Probate Order and its affirmance by the Court of Appeals, we quote the following pronouncement in Abangan v. Abangan, 18 to wit:
"The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid the substitution of wills and testaments and to guaranty their truth and
authenticity. Therefore the laws on the subject should be interpreted in such a way as to attain these primordial ends. But, on the other hand, also one must not lose sight of the fact that it is not the
object of the law to restrain and curtail the exercise of the right to make a will. So when an interpretation already given assures such ends, any other interpretation whatsoever, that adds nothing but
demands more requisites entirely unnecessary, useless and frustrative of the testator's will, must be disregarded" (emphasis supplied).
Brigido Alvarado had expressed his last wishes in clear and unmistakable terms in his "Huling Habilin" and the codicil attached thereto. We are unwilling to cast these aside for the mere reason that a legal requirement
intended for his protection was not followed strictly when such compliance had been rendered unnecessary by the fact that the purpose of the law, i.e., to make known to the incapacitated testator the contents of the draft
of his will, had already been accomplished. To reiterate, substantial compliance suffices where the purpose has been served.
WHEREFORE, the petition is DENIED and the assailed Decision of respondent Court of Appeals dated 11 April 1986 is AFFIRMED. Considering the length of time that this case has remained pending, this decision is
immediately executory. Costs against petitioner.
SO ORDERED.
Cruz, Grio-Aquino, Davide, Jr. and Quiason, JJ ., concur.
||| (In re Alvarado v. Gaviola, Jr., G.R. No. 74695, [September 14, 1993])
SALUD TEODORO VDA.. DE PEREZ, petitioner, vs. HON. ZOTICO A. TOLETE in his capacity as Presiding Judge, Branch 18, RTC Bulacan, respondent.
SYLLABUS
1. REMEDIAL LAW; SPECIAL PROCEEDINGS; SETTLEMENT OF DECEDENT'S ESTATE; ALLOWANCE OF WILLS PROBATED ABROAD; EVIDENCE NECESSARY THEREFOR; CASE AT BAR. The
respective wills of the Cunanan spouses, who were American citizens, will only be effective in this country upon compliance with the following provisions of the Civil Code of the Philippines. . . . 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. Except for the first and last requirements, the petitioner submitted all the
needed evidence.
2. ID.; ID.; ID.; ID.; NOTICE OF TESTATOR'S KNOWN HEIRS, LEGATEES, AND DEVISEES, A PRE-REQUISITE THEREFOR; CASE AT BAR. 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. 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, . . ."
3. ID.; ID.; ID.; JOINT PROBATE OF SEPARATE WILLS PROPER IN CASE AT BAR; REASON. 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. Respondent Judge's view that the Rules on allowance of wills is couched in singular terms and therefore
should be interpreted to mean that there should be separate probate proceedings for the wills of the Cunanan spouses is too literal and simplistic an approach. Such view overlooks the provisions of Section 2, Rule
1 of the Revised Rules of Court, which advise that the rules shall be "liberally construed in order to promote their object and to assist the parties in obtaining just, speedy, and inexpensive determination of every
action and proceeding." A literal application of the Rules should be avoided if they would only result in the delay in the administration of justice.
DECISION
QUIASON, J p:
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.
I
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). LibLex
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 estates:
"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 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 Trial Court, Malolos, Bulacan a petition for the reprobate of the two wills 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 administratrix.
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. cdrep
Counsel for the Philippine American Life Insurance 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 motion 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. prLL
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 wordly goods to his wife and nothing to his brothers and sisters; and (5) that Dr. Rafael G. Cunanan, Jr. had unlawfully disbursed $215,000.00 to the Cunanan heirs,
misappropriated $15,000.00 for himself and irregularly assigned assets of the estates to his American lawyer (Records, pp. 151-160).
In their reply, the Cunanan heirs stressed that on November 24, 1982, petitioner and the Cunanan heirs had entered into an agreement in the United States "to settle and divide equally the estates," and that under Section
2 of Rule 77 the "court shall fix a time and place for the hearing and cause notice thereof to be given as in case of an original will presented for allowance" (Records, pp. 184-185). LLphil
Petitioner asked that Dr. Rafael G. Cunanan, Jr. be cited for contempt of court for failure to comply with the Order of June 23, 1983 and for appropriating money of the estate for his own benefit. She also alleged that she
had impugned the agreement of November 24, 1982 before the Surrogate Court of Onondaga, New York which rendered a decision on April 13, 1983, finding that "all assets are payable to Dr. Evelyn P. Cunanan's
executor to be then distributed pursuant to EPTL4-1.1 subd [a] par [4]" (Rollo, p. 52).
On their part, the Cunanan heirs replied that petitioner was estopped from claiming that they were heirs by the agreement to divide equally the estates. They asserted that by virtue of Section 2 of Rule 77 of the Rules of
Court, the provision of Sections 3, 4 and 5 of Rule 76 on the requirement of notice to all heirs, executors, devisees and legatees must be complied with. They reiterated their prayer: (1) that the proceedings in the case be
nullified; (2) that petitioner be disqualified as special administratrix: (3) that she be ordered to submit an inventory of all goods, chattels and monies which she had received and to surrender the same to the court; and (4)
that Dr. Rafael Cunanan, Sr. be appointed the regular administrator.
Petitioner filed a rejoinder, stating that in violation of the April 13, 1983 decision of the American court Dr. Rafael G. Cunanan, Jr. made "unauthorized disbursements from the estates as early as July 7, 1982" (Records, p.
231). Thereafter, petitioner moved for the suspension of the proceedings as she had "to attend to the settlement proceedings" of the estate of the Cunanan spouses in New York (Records, p. 242). The Cunanans heirs
opposed this motion and filed a manifestation, stating that petitioner had received $215,000.00 "from the Surrogate's Court as part of legacy" based on the aforesaid agreement of November 24, 1982 (Records, p. 248).
On February 21, 1984, Judge de la Llana issued an order, disallowing the reprobate of the two wills, recalling the appointment of petitioner as special administratrix, requiring the submission of petitioner of an inventory of
the property received by her as special administratrix and declaring all pending incidents moot and academic. Judge de la Llana reasoned out that petitioner failed to prove the law of New York on procedure and allowance
of wills and the court had no way of telling whether the wills were executed in accordance with the law of New York. In the absence of such evidence, the presumption is that the law of succession of the foreign country is
the same as the law of the Philippines. However, he noted, that there were only two witnesses to the wills of the Cunanan spouses and the Philippine law requires three witnesses and that the wills were not signed on each
and every page, a requirement of the Philippine law. cdphil
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. LLphil
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). LLjur
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 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). LexLib
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 County 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 "G2");
(d) the respective wills of Evelyn and Jose (Exhs. "F-3", "F-6" and Exh. "G-3" "G-6");
(e) certificates of Judge Reagan and the Chief Clerk certifying to the genuineness and authenticity of the exemplified copies of the two wills (Exhs. "F-7" and "F-7"); prcd
(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 properly executed, genuine and valid and that the said instruments were admitted to probate and established as wills valid to pass real
and personal property (Exhs. "H-5" and "I-5"); and
(l) certificates of Judge Reagan and the Chief Clerk on the genuineness and authenticity of each other's signatures in the exemplified copies of the decrees of probate, letters testamentary
and proceedings held in their court (Exhs. "H-6" and "I-6")" (Rollo, pp. 13-16).
Petitioner adds that the wills had been admitted to probate in the Surrogate Court's Decision of April 13, 1983 and that the proceedings were terminated on November 29, 1984.
The respective wills of the Cunanan spouses, who were American citizens, will only be effective in this country upon compliance with the following provisions 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. cdphil
The necessity of presenting evidence on the foreign laws upon which the probate in the foreign country is based is impelled by the fact that our courts cannot take judicial notice of them ( Philippine Commercial and
Industrial Bank v. Escolin, 56 SCRA 266 [1974]).
Petitioner must have perceived this omission as in fact she moved for more time to submit the pertinent procedural and substantive New York laws but which request respondent Judge just glossed over. While the probate
of a will is a special proceeding wherein courts should relax the rules on evidence, the goal is to receive the best evidence of which the matter is susceptible before a purported will is probated or denied probate ( Vda. de
Ramos v. Court of Appeals, 81 SCRA 393 [1978]).
There is merit in petitioner's insistence that the separate wills of the Cunanan spouses should be probated jointly. Respondent Judge's view that the Rules on allowance of wills is couched in singular terms and therefore
should be interpreted to mean that there should be separate probate proceedings for the wills of the Cunanan spouses is too literal and simplistic an approach. Such view overlooks the provisions of Section 2, Rule 1 of the
Revised Rules of Court, which advise that the rules shall be "liberally construed in order to promote their object and to assist the parties in obtaining just, speedy, and inexpensive determination of every action and
proceeding." llcd
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. LexLib
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.
Davide, Jr., Bellosillo and Kapunan, JJ., concur.
Cruz, J., is on leave.
||| (Vda. de Perez v. Tolete, G.R. No. 76714, [June 2, 1994])
[G.R. No. L-4067. November 29, 1951.]
In the Matter of the Will of ANTERO MERCADO, deceased. ROSARIO GARCIA, petitioner, vs. JULIANA LACUESTA, ET AL., respondents.
Elviro L. Peralta and Hermenegildo A. Prieto, for petitioner.
Faustino B. Tobia, Juan I. Ines and Federico Tacason, for respondents.
SYLLABUS
1. WILLS; ATTESTATION CLAUSE; SIGNING BY ANOTHER OF TESTATOR'S NAME AT LATTER'S DIRECTION. When the testator expressly caused another to sign the former's name, this fact
must be recited in the attestation clause. Otherwise, the will is fatally defective.
2. ID.; SIGNATURE OF TESTATOR; CROSS. Where the cross appearing on a will is not the usual signature of the testator or even one of the ways by which he signed his name, that cross cannot
be considered a valid signature.
DECISION

PARAS, C.J p:
This is an appeal from a decision of the Court of Appeals disallowing the will of Antero Mercado dated January 3, 1943. The will is written in the Ilocano dialect and contains the following attestation clause:
"We, the undersigned, by these presents do declare that the foregoing testament of Antero Mercado was signed by himself and also by us below his name and of this attestation clause
and that of the left margin of the three pages thereof. Page three the continuation of this attestation clause; this will is written in Ilocano dialect which is spoken and understood by the testator, and it
bears the corresponding number in letter which compose of three pages and all of them were signed in the presence of the testator and witnesses, and the witnesses in the presence of the testator
and all and each and every one of us witnesses.
"In testimony, whereof, we sign this testament, this the third day of January, one thousand nine hundred forty three, (1943) A.D.
(Sgd.) "NUMERIANO EVANGELISTA (Sgd.) ROSENDO CORTES
(Sgd.) BIBIANA ILLEGIBLE"
The will appears to have been signed by Atty. Florentino Javier who wrote the name of Antero Mercado, followed below by "A ruego del testador" and the name of Florentino Javier. Antero Mercado is
alleged to have written a cross immediately after his name. The Court of Appeals, reversing the judgment of the Court of First Instance of Ilocos Norte, ruled that the attestation clause failed (1) to certify that the will
was signed on all the left margins of the three pages and at the end of the will by Atty. Florentino Javier at the express request of the testator in the presence of the testator and each and every one of the witnesses;
(2) to certify that after the signing of the name of the testator by Atty. Javier at the former's request said testator has written a cross at the end of his name and on the left margin of the three pages of which the will
consists and at the end thereof; (3) to certify that the three witnesses signed the will in all the pages thereon in the presence of the testator and of each other.
In our opinion, the attestation clause is fatally defective for failing to state that Antero Mercado caused Atty. Florentino Javier to write the testator's name under his express direction, as required by section
618 of the Code of Civil Procedure. The herein petitioner (who is appealing by way of certiorari from the decision of the Court of Appeals) argues, however, that there is no need for such recital because the cross
written by the testator after his name is a sufficient signature and the signature of Atty. Florentino Javier is a surplusage. Petitioner's theory is that the cross is as much a signature as a thumbmark, the latter having
been held sufficient by this Court in the cases of De Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil., 479; Payad vs. Tolentino, 62 Phil., 848; Neyra vs. Neyra, 76 Phil., 296 and Lopez vs. Liboro,
81 Phil., 429.
It is not here pretended that the cross appearing on the will is the usual signature of Antero Mercado or even one of the ways by which he signed his name. After mature reflection, we are not prepared to
liken the mere sign of a cross to a thumbmark, and the reason is obvious. The cross cannot and does not have the trustworthiness of a thumbmark.
What has been said makes it unnecessary for us to determine whether there is a sufficient recital in the attestation clause as to the signing of the will by the testator in the presence of the witnesses, and by
the latter in the presence of the testator and of each other.
Wherefore, the appealed decision is hereby affirmed, with costs against the petitioner. So ordered.
Feria, Pablo, Bengzon, Padilla, Reyes, Jugo and Bautista Angelo, JJ., concur.
||| (In re: Mercado v. Lacuesta, G.R. No. L-4067, [November 29, 1951], 90 PHIL 489-491)
YAP TUA, petitioner-appellee, vs. YAP CA KUAN and YAP CA LLU, objectors-appellants.
Chicote & Miranda for appellants.
O'Brien & DeWitt for appellee.
SYLLABUS
1. WILLS; FORM OF SIGNATURE; FIRST NAME OF TESTATOR ONLY. It has been held time again that one who makes a will may sign the same by the use of a mark, the name having been
written by others. If the writing of a mark simply upon a will is sufficient indication of the intention of the person to make and execute it, then certainly the writing of a portion or all of the name ought to be
accepted as a clear indication of intention to execute it. The man who cannot write and who is obliged to make his mark simply therefore upon the will, is held to "sign" as effectually as if he had written his
initials or his full name. It would seem to be sufficient, under the law requiring a signature by the person making a will to make his mark, to place his initials or all or any part of his name thereon.
2. ID.; SIGNATURE OF TESTATOR AND WITNESSES. While the rule is absolute that one who makes a will must sign the same in the presence of the witnesses and that the witnesses must sign
in the presence of each other, as well as in the presence of the one making the will, yet, nevertheless, the actual seeing of the signature made is not necessary. It is sufficient if the signatures are made where it
is possible for each of the necessary parties, if they so desire, to see the signatures placed upon the will.
DECISION
JOHNSON, J p:
It appears from the record that on the 23d of August, 1909, one Perfecto Gabriel, representing the petitioner, Yap Tua, presented a petition in the Court of First Instance of the city of Manila, asking that the
will of Tomasa Elizaga Yap Caong be admitted to probate, as the last will and testament of Tomasa Elizaga Yap Caong, deceased. It appears that the said Tomasa Elizaga Yap Caong died in the city of Manila on the
11th day of August, 1909. Accompanying said petition and attached thereto was the alleged will of the deceased. It appears that the will was signed by deceased, as well as Anselmo Zacarias, Severo Tabora, and
Timoteo Paez.
Said petition, after due notice was given, was brought on for hearing on the 18th day of September, 1909. At that hearing several witnesses were sworn. Timoteo Paez declared that he was 48 years of age;
that he had known the said Tomasa Elizaga Yap Caong; that she had died on the 11th day of August, 1909; that before her death she had executed a last will and testament; that he was present at the time of the
execution of the same; that he had signed the will as a witness; that Aselmo Zacarias and Severo Tabora had also signed said will as witnesses and that they had signed the will in the presence of the deceased.
Pablo Agustin also declared as a witness and said that he was 40 years of age; that he knew Tomasa Elizaga Yap Caong during her lifetime; that she died on the 11th day of August, 1909, in the city of
Manila; that before her death she had executed a last will and testament; that he was present at the time said last will was executed; that there were also present Timoteo Paez and Severo Tabora and a person called
Anselmo; that the said Tomasa Elizaga Yap Caong signed the will in the presence of the witnesses; that he had seen her sign the will with his own eyes; that the witnesses has signed the will in the presence of the
said Tomasa Elizaga Yap Caong and in the presence of each other; that the said Tomasa Elizaga Yap Caong signed the will voluntarily; and in his judgment, she was in the possession of her faculties; that there were
no threats or intimidation used to induce her to sign the will; that she signed it voluntarily.
No further witnesses were called and there was no further opposition presented to the legalization of the said will.
After hearing the foregoing witnesses, the Honorable A. S. Crossfield, judge, on the 29th day of September, 1909, ordered that the last will and testament of Tomasa Elizaga Yap Caong be allowed and
admitted to probate. The will was attached to the record and marked Exhibit A. The court further ordered that one Yap Tua be a appointed as executor of the will, upon the giving of a bond, the amount of which was to
be fixed later.
From the record it appears that no further proceedings were had until the 28th of February, 1910, when Yap Ca Kuan and Yap Ca Llu appeared and presented a petition, alleging that they were interested in
the matters of the sail will and desired to intervene asked that a guardian ad litem be appointed to represented them in the cause.
On the 1st day of March, 1910, the court appointed Gabriel La O as guardian ad litem of said parties. Gabriel La O accepted said appointment, took the oath of office and entered upon the performance of
his duties as guardian ad litem of said parties. On the 2d day of March, 1910, the said Gabriel La O appeared in court and presented a motion in which he alleged, in substance:
First. That the will dated the 11th day of August, 1909, and admitted to probate by order of the court on the 29th day of September, 1909, was null, for the following reasons:
"(a) Because the same had not been authorized nor signed by the witnesses as the law prescribes.

"(b) Because at the time of the execution of the will, the said Tomasa Elizaga Yap Caong was not then mentally capacitated to execute the same, due to her sickness.
"(c) Because her signature to the will had been obtained through fraud and illegal influence upon the part of persons who were to receive a benefit from the same, and because the
said Tomasa Elizaga Yap Caong had no intention of executing the same."
Second. That before the execution of the said will, which they alleged to be null, the said Tomasa Elizaga Yap Caong had executed another will, with all the formalities required by law, upon the 6th
day of August, 1909.
Third. That the said Yap Ca Kuan and Yap Ca Llu were minors and that, even though they had been negligent in presenting their opposition to the legalization of the will, said negligent was
excusable, on account of their age.
Upon the foregoing facts the court was requested to annul and set aside the order of the 29th day of September, 1909, and to grant to said minors an opportunity to present new proof relating to the due
execution of said will. Said petition was based upon the provisions of section 113 of the Code of Procedure in Civil Actions.
While it is not clear from the record, apparently the said minors in their petition for a new trial, attached to said petition the alleged will of August 6, 1909, of the said Tomasa Elizaga Yap Caong, and the
affidavits of Severo Tabora, Cleotilde and Cornelia Serrano.
Upon the 10th day of March, 1910, upon the hearing of said motion for rehearing, the Honorable A. S. Crossfield, judge, granted said motion and ordered that the rehearing should take place upon the 18th
day of March, 1910, and directed that notice should be given to the petitioners of said rehearing and to all other persons interested in the will. At the rehearing a number of witnesses were examined.
It will be remembered that one of the grounds upon which the new trial was requested was that the deceased, Tomasa Elizaga Yap Caong, had not signed the will (Exhibit A) of the 11th of August, 1909; that
it support of that allegation, the protestants, during the rehearing, presented a witness called Tomasa Puzon. Puzon testified that he was a professor and an expert in handwriting, and upon being shown the will (of
August 11, 1909) Exhibit A, testified that the name and surname on Exhibit A, in his judgment were written by two different hands, though the given name is the same as that upon Exhibit 1 (the will of August 6, 1909),
because he found in the name "Tomasa" in Exhibit A a similarity in the tracing to the "Tomasa" in Exhibit 1; that comparing the surname on Exhibit A with the surname on Exhibit 1 he found that the character of the
writing was thoroughly distinguished and different by the tracing and by the direction of the letters in the said two exhibits; that from his experience and observation he believed that the name "Tomasa" and "Yap
Caong," appearing in the signature on Exhibit A were written by different persons.
Puzon, being cross-questioned with reference to his capacity as an expert in handwriting, testified that while he was a student in the Ateneo de Manila, he had studied penmanship; that he could not tell
exactly when that was, except that he had concluded his course in the year 1882; that since that time he had been telegraph operator for seventeen years and that he had acted as an expert in handwriting in the
courts in the provinces.
Gabriel La O was called as a witness during the rehearing and testified that he had drawn the will of the 6th of August, 1909, at the request of Tomasa Elizaga Yap Caong; that it was drawn in accordance
with her request and under her directions; that she had signed it; that the same had been signed by three witnesses in her presence and in the presence of each other; that the will was written in her house; that she
was sick and was lying in her bed, but that she sat up to sign the will; that she signed the will with great difficulty; that she was in her right mind.
The said Severo Tabora was also called as a witness again during the rehearing. He testified that he knew Tomasa Elizaga Yap Caong during her lifetime; that she was dead; that his signature as a witness
to Exhibit A (the will of August 11, 1909) was placed there by him; that the deceased, Tomasa Elizaga Yap Caong, became familiar with the contents of the will because she signed it before he (the witness) did; that he
did not know whether anybody there told her to sign the will or not; that he signed two wills; that he did not know La O; that he did not believe that Tomasa had signed the will (Exhibit A) before he arrived at the house;
that he was not sure that he had seen Tomasa Elizaga Yap Caong sign Exhibit A because there were many people and there was a screen at the door and he could not see; that he was called as a witness to sign the
second will and was told by the people there that it was the same as the first; that the will (Exhibit A) was on a table, far from the patient, in the house but outside the room where the patient was; that the will was
signed by Paez and himself; that Anselmo Zacarias was there; that he was not sure whether Anselmo Zacarias signed the will or not; that he was not sure whether Tomasa Elizaga Yap Caong could see the table on
which the will was written at the time it was signed or not; that there were many people in the house; that he remembered the names of Pedro and Lorenzo; that he could not remember the names of any others; that
the will remained on the table after he signed it; that after he signed the will he went into the room where Tomasa was lying; that the will was left on the table outside; that Tomasa was very ill; that he heard the people
asking Tomasa to sign the will after he (the witness) has signed it; that he saw Paez sign the will; that he could not remember whether Anselmo Zacarias had signed the will, because immediately after he and Paez
signed it, he left because he was hungry; that the place where the table was located was in the same house, on the floor, about two steps down from the floor on which Tomasa was.
Rufino R. Papa was called as a witness for the purpose of supporting the allegation that Tomasa Elizaga Yap Caong was mentally incapacitated to make the will dated August 11, 1909 (Exhibit A). Papa
declared that he was a physician; that he knew Tomasa Elizaga Yap Caong; that he had treated her in the month of August; that he visited her first on the 8th day of August; that he visited her again on the 9th and
10th days of August; that on the first visit he found the sick woman completely weak very weak from her sickness, in the third stage tuberculosis; that she was lying in bed; that on the first visit he found her with but
little sense, the second day also, and on the third day she had lost all her intelligence; that she died on the 11th of August; that he was requested to issue the death certificate; that when he asked her (Tomasa)
whether she was feeling any pain or anything of that kind, she did not answer at all; that she was in a condition of stupor, induced, as he believed, by the stage of uraemia from which she was suffering.
Anselmo Zacarias, who had signed the will of August 11, 1909, also called as a witness during the rehearing. He testified that he had known Tomasa Elizaga Yap Caong since he was a child; that Tomasa
was dead; that he had written the will Exhibit A; that it was all in his writing except the last part, which was written by Carlos Sobaco; that he had written the will Exhibit A at the request of the uncle of Tomasa; that
Lorenzo, the brother of the deceased, was the one who had instructed him as to the terms of the will; that the deceased had not spoken to him concerning the terms of the will; that the will was written in the dining
room of the residence of the deceased; that Tomasa was in another room different from that in which the will was written; that the will was not written in the presence of Tomasa; that he signed the will as a witness in
the room where Tomasa was lying; that the other witnesses signed the will in the same room; that when he went into the room where the sick woman was (Tomasa Elizaga Yap Caong) Lorenzo had the will in his
hands; that when Lorenzo came to the bed he showned the will to his sister (Tomasa) and requested her to sign it; that she was lying stretched out on the bed and two women, who were taking care of her, helped her
to sit up, supporting her by placing their hands at her back; that when she started to write her name, he withdrew from the bed on account of the heat inside the room; when he came back again to the sick bed the will
was signed as was again in the hands of Lorenzo; that he did not see Tomasa sign the will because he withdrew from the room; that he did not know whether Tomasa had been informed of the contests of the will or
not; he supposed she must have read it because Lorenzo turned the will over to her; that when Lorenzo asked her to sign the will, he did not know what she said he could not hear her voice; that he did not know
whether the sick woman saw him sign the will or not; that he believed that Tomasa died the next day after the will had been signed; that the other two witnesses, Timoteo Paez and Severo Tabora, had signed the will
in the room with the sick woman; that he saw them sign the will and that they saw him sign it; that he was not sure whether the testatrix could have seen them at the time they signed the will or not; that there was a
screen before the bed; that he did not think that Lorenzo had been giving instructions as to the contents of the will; that bout ten or fifteen minutes elapsed from the time Lorenzo handed the will to Tomasa before she
started to sign it; that the pen with which she signed the will was given to her and she held it.
Cleotilde Mariano testified that he was a cigarette maker; that he knew Tomasa Elizaga Yap Caong and that she was dead; that she had made two wills; that the first one was written by La O and the
second by Zacarias; that he was present at the time Zacarias wrote the second one; that he was present when the second will was taken to Tomasa for signature; that Lorenzo had told Tomasa that the second will
was exactly like the first; that Tomasa said she could not sign it.
On cross examination he testified that there was a lot of visitors there; that Zacarias was not there; that Paez and Tabora were there; that he had told Tomasa that the second will was exactly like the first.
During the rehearing Cornelia
Serrano and Pedro Francisco were also examined as witnesses. There is nothing in their testimony, however, which in our opinion is important.
In rebuttal Julia de la Cruz was called as a witness. She testified that she was 19 years of age; that she knew Tomasa Elizaga Yap Caong during her lifetime; that she lived in the house of Tomasa during
the last week of her illness; that Tomasa had made two wills; that she was present when the second one was executed; that a lawyer had drawn the will in the dining room and after it had been drawn and everything
finished, it was taken to where Doa Tomasa was, for her signature; that it was taken her by Anselmo Zacarias; that she was present at the time Tomasa signed the will that there were many other people present also;
that she did not see Timoteo Paez there; that she saw Severo Tabora that Anselmo Zacarias was present; that she did not hear Cleotilde Mariano ask Tomasa to sign the will; that she did not hear Lorenzo say to

Tomasa that the second will was the same as the first; that Tomasa asked her to help her to sit up and to put a pillow to her back when Zacarias gave her some paper or document and asked her to sign it; that she
saw Tomasa take hold of the pen and try to sign it but she did not see the place she signed the document, for the reason that she left room; that she saw Tomasa sign the document but did not see on what place of
document she signed; that she heard Tomasa ask for another notary public and that a notary public came the next morning that Tomasa was able to move about in the bed; that she had seen Tomasa in the act of
starting to write her signature when she told her to get her some water.
Yap Cao Quiang was also called as a witness in rebuttal. He testified that he knew Tomasa Elizaga Yap Caong and knew that she had made a will; that he saw the will at the time it was written; that he saw
Tomasa sign it on her bed he did not hear Lorenzo ask Tomasa to sign the will that Lorenzo had handed the will to Tomasa to sign; that he saw the witnesses sign the will on a table near the bed; that the table was
outside the curtain or screen and near the entrance to the room where Tomasa was lying.
Lorenzo Yap Caong testified as a witness on rebuttal. He said that he knew Anselmo Zacarias and that Zacarias wrote the will of Tomasa Elizaga Yap Caong; that Tomasa had given him instructions; that
Tomasa had said that she wanted to make another will; that he had seen the witnesses sign the will; that the will was on the table near the bed of Tomasa; that Tomasa, from where she was lying in the bed, could see
the table where the witnesses had signed the will.
During the rehearing certain other witnesses were also examined; in our opinion, however, it is unnecessary to quote from them for the reason that their testimony in no way affects the preponderance of
proof above quoted.
At the close of the rehearing the Honorable A. S. Crossfield, judge, in an extended opinion, reached the conclusion that the last will and testament of Tomasa Elizaga Yap Caong, which was attached to the
record and marked Exhibit A was the last will and testament of the said Tomasa Elizaga Yap Caong and admitted it to probate and ordered that the administrator therefore appointed should continue as such
administrator. From that order the protestants appealed to this court, and made the following assignments of or error:
"I. The court erred in declaring that the will, Exhibit A, was executed by the deceased Tomasa Yap Caong, without the intervention of any external influence on the part of other
persons.
"II. The court erred in declaring that the testator had clear knowledge and knew what she was doing at the time of signing the will.
"III. The court erred in declaring that the signature of the deceased Tomasa Yap Caong in the first will, Exhibit 1, is identical with that which appears in the second will, Exhibit A.
"IV. The court erred in declaring that the will, Exhibit A, was executed in accordance with the law."
With reference to the first assignment of error, to wit, that undue influence was brought to bear upon Tomasa Elizaga Yap Caong in the execution of her will of August 11th 1909 (Exhibit A), the lower court
found that no undue influence had been exercised over the mind of the said Tomasa Elizaga Yap Caong. While it is true that some of the witnesses testified that the brother of Tomasa, one Lorenzo, had attempted to
unduly influence he mind in the execution of her will, upon the other hand, there were several witnesses who testified that Lorenzo did not attempt, at the time of the execution of the will, to influence her mind in any
way. The lower court having had an opportunity to see, to hear, and the note the witnesses during their examination, reached the conclusion that a preponderance of the evidence showed that no undue influence had
been used. We find no good reason in the record for reversing his conclusions upon that question.
With the reference to the second assignment of error, to wit, that Tomasa Elizaga Yap Caong was not sound mind and memory at the time of the execution of the will, we find the same conflict in the
declarations of the witnesses which we found with reference to the undue influence. While the testimony of Dr. Papa is very strong relating to the mental condition of Tomasa Elizaga Yap Caong, yet, nevertheless, his
testimony related to a time perhaps twenty-four hours before the execution of the will in question (Exhibit A). Several witnesses testified that at the time the will was presented to her for her signature, she was of sound
mind and memory and asked for a pen and ink and kept the will in her possession for ten or fifteen minutes and finally signed it. The lower court found that there was a preponderance of evidence sustaining the
conclusion that Tomasa Elizaga Yap Caong was of sound mind and memory and in the possession of her faculties at the time she signed this will. In view of the conflict in the testimony of the witnesses and the finding
of the lower court, we do not feel justified in reversing his conclusions upon that question.
With reference to the third assignment of error, to wit, that the lower court committed an error in declaring that the signature of Tomasa Elizaga Yap Caong, on her first will (August 6, 1909, Exhibit 1), is
identical with that which appears in the second will (August 11, 1909, Exhibit A), it may be said:
First. That whether or not Tomasa Elizaga Yap Caong executed the will of August 6, 1909 (Exhibit 1), was not the question presented to the court. The question presented was whether or not she had
duly executed the will of August 11, 1909 (Exhibit A).
Second. There appears to be but little doubt that Tomasa Elizaga Yap Caong did execute the will of August 6, 1909.
Several witnesses testified to that fact. The mere fact, however, that she executed a former will is no proof that she did not execute a later will. She had perfect right, by will, to dispose of her property, in
accordance with the provisions of law, up to the very last moment her life. She had a perfect right to change, alter, modify or revoke any and all of her former wills and to make a new one. Neither will the fact that the
new will fails to expressly revoke all former wills, in any way sustain the charge that she did not make the new will.
Third. In said third assignment of error there is involved in the testament that "The signature of Tomasa Elizaga Yap Caong, in her first will (Exhibit 1) was not identical with that which appears in her
second will (Exhibit A)" the inference that she had not signed the second will and all the argument of the appellants relating to said third assignment of error is based upon the alleged fact that Tomasa Elizaga
Yap Caong did not sign Exhibit A. Several witnesses testified that they saw her write the name "Tomasa." One of the witnesses testified that she had written he full name. We are of the opinion, and we think the
law sustains our conclusion, that if Tomasa Elizaga Yap Caong signed any portion of her name to the will, with the intention to sign the same, that will amount to a signature. It has been held time and time again
that one who makes a will may sign the same by using a mark, the name having been written by others. If writing a mark simply upon a will is sufficient indication of the intention of the person to make and
execute a will, then certainly the writing of a portion or all of her name ought to be accepted as a clear indication of her intention to execute the will. ( Re Goods of Savory, 15 Jur., 1042; Addy vs. Grix, 8 Ves. Jr.,
504; Baker vs. Dening, 8 Ad. & El., 94; Long vs. Zook, 13 Penn., 400; Vernon vs. Kirk, 30 Penn., 218; Cozzen's Will, 61 Penn., 196; Re Goods of Emerson, L. R. 9 Ir., 443; Main vs. Ryder, 84 Penn., 217.)
We find a very interesting case reported in 131 Pennsylavania State, 220 (6 L. R. A., 353), and cited by the appellees, which was known as "Knox's Appeal." In this case one Harriett S. Knox died very
suddenly on the 17th of October, 1888, at the residence of her father. After her death a paper was found in her room, wholly in her handwriting, written with a lead pencil, upon three sides of an ordinary folded sheet of
note paper and bearing the signature simply of "Herriett." In this paper the deceased attempted to make certain disposition of her property. The will was presented for probate. The probation was opposed upon the
ground that the same did not contain the signature of the deceased. That was the only question presented to the court, whether the signature, in the form above indicated, was a sufficient signature to constitute said
paper the last will and testament of Harriett S. Knox. It was admitted that the entire paper was in the handwriting of the deceased. In deciding that question, Justice Mitchell said:
"The precise case of a signature by the first name only, does appear to have arisen either in England or the United States; but the principle on which the decisions already referred to
were based, especially those in regard to signing by initials only, are equally applicable to the present case, and additional force is given to them by the decisions as to what constitutes a binding
signature to a contract. (Palmer vs. Stephens, 1 Denio, 478; Sanborne vs. Flager, 9 Allen, 474; Weston vs. Myers, 33 Ill., 424; Salmon Falls, etc. Co. vs. Goddard, 14 How. (U. S.,), 446.)"
The man who cannot write and who is obliged to make his mark simply therefor, upon the will, is held to "sign" as effectually as if he had written his initials or his full name. It would seem to be sufficient,
under the law requiring a signature by the person making a will, to make his mark, to place his initials or all or any part of his name thereon. In the present case we think the proof shows, by a large preponderance,
that Tomasa Elizaga Yap Caong, if she did not sign her full name, did at least sign he given name "Tomas," and that is sufficient to satisfy the statute.
With reference to the fourth assignment of error, it may be said that the argument which has preceded is sufficient to answer it also.
During the trial of the cause protestants made a strong effort to show that Tomasa Elizaga Yap Caong did not sign her name in the presence of the witnesses and that they did not sign their names in her
presence nor in the presence of each other. Upon that question there is considerable conflict of proof. An effort was made to show that the will was signed by the witnesses in one room and by Tomasa in another. A
plan of the room or rooms in which the will was signed was presented as proof and it was shown that there was but one room; that one part of the room was one or two steps below the floor or the other; that the table
on which the witnesses signed the will was located upon the lower floor of the room. It was also shown that from the bed in which Tomasa was lying, it was possible for her to see the table on which the witnesses
signed the will. While the rule is absolute that one who makes a will must sign the same in the presence of the witnesses and that the witnesses must sign in the presence of each other, as well as in the presence of

the one making the will, yet, nevertheless, the actual seeing of the signatures made is not necessary. It is sufficient if the signatures are made where it is possible for each of the necessary parties, if they desire to see,
may see the signature placed upon the will.
In case like the present where there is no much conflict in the proof, it is very difficult for the courts to reach conclusions that are absolutely free from doubt. Great weight must be given by appellate courts
who do not see or hear the witnesses, to the conclusions of the trial courts who had that opportunity.
Upon a full consideration of the record, we find that a preponderance of the proof shows that Tomasa Elizaga Yap Caong did execute, freely and voluntarily, while she was in the right use of all of her
faculties, the will dated August 11, 1909 (Exhibit A). Therefore the judgment of the lower court admitting said will to probate is hereby affirmed with costs.
Arellano, C. J., Torres, Carson, Moreland and Araullo, JJ., concur.
||| (Yap Tua v. Yap Ca Kuan, G.R. No. 6845, [September 1, 1914], 27 PHIL 579-593)
In re will of Ana Abangan. GERTRUDIS ABANGAN, executrix-appellee, vs. ANASTACIA ABANGAN ET AL., opponents-appellants.
Filemon Sotto for appellants.
M. Jesus Cuenco for appellee.
SYLLABUS
1. WILLS; ATTESTATION. In a will consisting of two sheets the first of which contains all the testamentary dispositions and is signed at the bottom by the testator and three witnesses and the
second contains only the attestation clause and is signed also at the bottom by the three witnesses, it is not necessary that both sheets be further signed on their margins by the testator and the witnesses, or
be paged.
2. ID.; ID; TESTATOR'S SIGNATURE. The testator's signature is not necessary in the attestation clause because this, as its name implies, appertains only to the witnesses and not to the testator.
3. ID.; DIALECT IN WHICH WRITTEN; PRESUMPTION. The circumstance appearing in the will itself that same was executed in the city of Cebu and in the dialect of this locality where the
testatrix was a neighbor is enough, in the absence of any proof to the contrary, to presume that she knew this dialect in which her will is written.
DECISION
AVANCEA, J p:
On September 19, 1917, the Court of First Instance of Cebu admitted to probate Ana Abangan's will executed July, 1916. From this decision the opponents appealed.
Said document, duly probated as Ana Abangan's will, consists of two sheets, the first of which contains all of the disposition of the testatrix, duly signed at the bottom by Martin Montalban (in the name and
under the direction of the testatrix) and by three witnesses. The following sheet contains only the attestation clause duly signed at the bottom by the three instrumental witnesses. Neither of these sheets is signed on
the left margin by the testatrix and the three witnesses, nor numbered by letters; and these omissions, according to appellants' contention, are defects whereby the probate of the will should have been denied. We are
of the opinion that the will was duly admitted to probate.
In requiring that each and every sheet of the will should also be signed on the left margin by the testator and three witnesses in the presence of each other, Act No. 2645 (which is the one applicable in the
case) evidently has for its object (referring to the body of the will itself) to avoid the substitution of any of said sheets, thereby changing the testator's dispositions. But when these dispositions are wholly written on only
one sheet signed at the bottom by the testator and three witnesses (as the instant case), their signatures on the left margin of said sheet would be completely purposeless. In requiring this signature on the margin, the
statute took into consideration, undoubtedly, the case of a will written on several sheets and must have referred to the sheets which the testator and the witnesses do not have to sign at the bottom. A different
interpretation would assume that the statute requires that this sheet, already signed at the bottom, be signed twice. We cannot attribute to the statute such an intention. As these signatures must be written by the
testator and the witnesses in the presence of each other, it appears that, if the signatures at the bottom of the sheet guaranties its authenticity, another signature on its left margin would be unnecessary; and if they do
not guaranty, same signatures, affixed on another part of same sheet, would add nothing. We cannot assume that the statute regards of such importance the place where the testator and the witnesses must sign on
the sheet that it would consider that their signatures written on the bottom do not guaranty the authenticity of the sheet but, if repeated on the margin, give sufficient security.
In requiring that each and every page of a will must be numbered correlatively in letters placed on the upper part of the sheet, it is likewise clear that the object of Act No. 2645 is to know whether any sheet
of the will has been removed. But, when all the dispositive parts of a will are written .on one sheet only, the object of the statute disappears because the removal of this single sheet, although unnumbered, cannot be
hidden.
What has been said is also applicable to the attestation clause. Wherefore, without considering whether or not this clause is an essential part of the will, we hold that in the one accompanying the will in
question, the signatures of the testatrix and of the three witnesses on the margin and the numbering of the pages of the sheet are formalities not required by the statute. Moreover, referring specially to the signature of
the testatrix, we can add that same is not necessary in the attestation clause because this, as its name implies, appertains only to the witnesses and not to the testator since the latter does not attest, but executes, the
will.
Synthesizing our opinion, we hold that in a will consisting of two sheets the first of which contains all the testamentary dispositions and is signed at the bottom by the testator and three witnesses and the
second contains only the attestation clause and is signed also at the bottom by the three witnesses, it is not necessary that both sheets be further signed on their margins by the testator and the witnesses, or be
paged.
The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity.
Therefore the laws on this subject should be interpreted in such a way as to attain these primordial ends. But, on the other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and
curtail the exercise of the right to make a will. So when an interpretation already given assures such ends, any other interpretation whatsoever, that adds nothing but demands more requisites entirely unnecessary,
useless and frustrative of the testator's last will, must be disregarded.
As another ground for this appeal, it is alleged the records do not show that the testatrix knew the dialect in which the will is written. But the circumstance appearing in the will itself that same was executed
in the city of Cebu and in the dialect of this locality where the testatrix was a neighbor is enough, in the absence of any proof to the contrary, to presume that she knew this dialect in which this will is written.
For the foregoing considerations, the judgment appealed from is hereby affirmed with costs against the appellants. So ordered.
Arellano, C. J., Torres, Johnson, Araullo, Street and Malcolm, JJ., concur.
||| (In re: Abangan v. Abangan, G.R. No. 13431, [November 12, 1919], 40 PHIL 476-480)
Testacy of Sixto Lopez. JOSE S. LOPEZ, petitioner-appellee, vs. AGUSTIN LIBORO, oppositor-appellant.
Tirona, Gutierrez & Adorable for appellant.
Ramon Diokno for appellee.
SYLLABUS
1. WILLS; PAGING; PURPOSE; OMISSION OF PAGE NUMBER SUPPLIED BY OTHER MEANS OF IDENTIFICATION. The purpose of the law in prescribing the paging of wills is to guard
against fraud, and to afford means of preventing the substitution or of detecting the loss of any of its pages. (Abangan vs. Abangan, 40 Phil., 476.) The omission to put a page number on a sheet, if that be
necessary, may be supplied by other forms of identification more trustworthy than the conventional numeral words or characters.
2. ID.; EVIDENCE; WITNESSES, CREDIBILITY OF; CONTRADICTIONS ON INCIDENTS. contradictions in the testimony of the instrumental witnesses as are set out in the appellant's brief are
incidents, not all of which every one of the witnesses can be supposed to have perceived, or to recall in the same order in which they occurred. Far from being an evidence of falsehood, the contradictions
constitute an evidence of good faith.
3. ID.; SIGNATURE BY MARK. A statute requiring a will to be "signed" is satisfied if the signature is made by the testator's mark.

4. ID.; EVIDENCE; ADMISSION OF FURTHER EVIDENCE AFTER PARTY HAS RESTED; DISCRETION OF COURT. It is within the discretion of the court whether or not to admit further
evidence after the party offering the evidence has rested, and this discretion will not be reviewed except where it has clearly been abused.
5. ID.; ID.; ADMISSION OF FURTHER EVIDENCE AFTER MOTION FOR NONSUIT OF DEMURRER TO EVIDENCE; DISCRETION OF COURT. It is within the sound discretion of the court
whether or not it will allow the case to be reopened for the further introduction of evidence after a motion or request for a nonsuit, or a demurrer to the evidence, and the case may be reopened after the court
has announced its intention as to its ruling on the request, motion, or demurrer, or has granted it or has denied the same, or after the motion has been granted, if the order has not been written, or entered upon
the minutes or signed.
6. ID.; ID.; EVIDENCE ALLOWABLE AFTER DIRECT PROOFS. After the parties have produced their respective direct proofs, they are allowed to offer rebutting evidence only, but the court, for
good reasons, in the furtherance of justice, may permit them to offer evidence upon their original case, and its ruling will not be disturbed in the appellate court where no abuse of discretion appears. (Siuliong &
Co. vs. Ylagan, 43 Phil., 393; U. S. vs. Alviar, 36 Phil., 804.) So, generally, additional evidence is allowed when it is newly discovered, or where it has been omitted through inadvertence or mistake, or where
the purpose of the evidence is to correct evidence previously offered.
7. ID.; LANGUAGE; KNOWLEDGE OF TESTATOR NEED NOT BE EXPRESSED IN WILL; PROOF "ALIUNDE." There is no statutory requirement that the testator's understanding of the language
used in the will be expressed therein. It is a matter that may be established by proof aliunde.
DECISION
TUASON, J p:
In the Court of First Instance of Batangas the appellant opposed unsuccessfully the probate of what purports to be the last will and testament (Exhibit A) of Don Sixto Lopez, who died at the age of 83 in
Balayan, Batangas, on March 3, 1947, almost six months after the document in question was executed. In the court below, the present appellant specified five grounds for his opposition, to wit: (1) that the deceased
never executed the alleged will; (2) that his signature appearing in said will was a forgery; (3) that at the time of the execution of the will, he was wanting in testamentary as well as mental capacity due to advanced
age; (4) that, if he did ever execute said will, it was not executed and attested as required by law, and one of the alleged instrumental witnesses was incapacitated to act as such; and it was procured by duress,
influence of fear and threats and undue and improper pressure and influence on the part of the beneficiaries instituted therein, principally the testator's sister, Clemencia Lopez, and the herein proponent, Jose S.
Lopez; and (5) that the signature of the testator was procured by fraud or trick.
In this instance only one of these objections is reiterated, formulated in these words: "That the court a quo erred in holding that the document Exhibit "A" was executed in all particulars as required by law."
To this objection is added the alleged error of the court "in allowing the petitioner to introduce evidence that Exhibit "A" was written in a language known to the decedent after petitioner rested his case and over the
vigorous objection of the oppositor."
The will in question comprises two pages, each of which is written on one side of a separate sheet. The first sheet is not paged either in letters or in Arabic numerals. This, the appellant believes, is a fatal
defect.
The purpose of the law in prescribing the paging of wills is to guard against fraud, and to afford means of preventing the substitution or of detecting the loss of any of its pages. (Abangan vs. Abangan, 40
Phil., 476.) In the present case, the omission to put a page number on the first sheet, if that be necessary, is supplied by other forms of identification more trustworthy than the conventional numeral words or
characters. The unnumbered page is clearly identified as the first page by the internal sense of its contents considered in relation to the contents of the second page. By their meaning and coherence, the first and
second lines on the second page are undeniably a continuation of the last sentence of the testament, before the attestation clause, which starts at the bottom of the preceding page. Furthermore, the unnumbered
page contains the caption "TESTAMENTO," the invocation of the Almighty, and a recital that the testator was in full use of his testamentary faculty, all of which, in the logical order of sequence, precede the direction
for the disposition of the maker's property. Again, as page two contains only the two lines above mentioned, the attestation clause, the mark of the testator and the signatures of the witnesses, the other sheet can not
by any possibility be taken for other than page one. Abangan vs. Abangan, supra, and Fernandez vs. Vergel de Dios, 46 Phil., 922 are decisive of this issue.
Although not falling within the purview and scope of the first assignment of error, the matter of the credibility of the witnesses is assailed under this heading. On the merits we do not believe that the
appellant's contention deserves serious consideration. Such contradictions in the testimony of the instrumental witnesses as are set out in the appellant's brief are incidents not all of which every one of the witnesses
can be supposed to have perceived, or to recall in the same order in which they occurred.
"Everyday life and the result of investigations made in the field of experimental psychology show that the contradictions of witnesses generally occur in the details of a certain incident,
after a long series of questionings, and far from being an evidence of falsehood constitute a demonstration of good faith. Inasmuch as not all those who witness an incident are impressed in like
manner, it is but natural that in relating their impressions they should not agree in the minor details; hence, the contradictions in their testimony." (People vs. Limbo, 49 Phil., 99.)
The testator affixed his thumbmark to the instrument instead of signing his name. The reason for this was that the testator was suffering from "partial paralysis." While another in testator's place might have
directed someone else to sign for him, as appellant contends should have been done, there is nothing curious or suspicious in the fact that the testator chose the use of mark as the means of authenticating his will. It
was a matter of taste or preference. Both ways are good. A statute requiring a will to be "signed" is satisfied if the signature is made by the testator's mark. (De Gala vs. Gonzales and Ona, 53 Phil., 108; 28 R. C. L.,
117.)
With reference to the second assignment of error, we do not share the opinion that the trial court committed an abuse of discretion in allowing the appellant to offer evidence to prove knowledge of Spanish
by the testator, the language in which the will is drawn, after the petitioner had rested his case and after the opponent had moved for dismissal of the petition on the ground of insufficiency of evidence. It is within the
discretion of the court whether or not to admit further evidence after the party offering the evidence has rested, and this discretion will not be reviewed except where it has clearly been abused. (64 C. J., 160.) More, it
is within the sound discretion of the court whether or not it will allow the case to be reopened for the further introduction of evidence after a motion or request for a nonsuit, or a demurrer to the evidence, and the case
may be reopened after the court has announced its intention as to its ruling on the request, motion, or demurrer, or has granted it or has denied the same, or after the motion has been granted, if the order has not
been written, or entered upon the minutes or signed. (64 C. J., 164.)
In this jurisdiction this rule has been followed. After the parties have produced their respective direct proofs, they are allowed to offer rebutting evidence only, but, it has been held, the court, for good
reasons, in the furtherance of justice, may permit them to offer evidence upon their original case, and its ruling will not be disturbed in the appellate court where no abuse of discretion appears. (Siuliong & Co. vs.
Ylagan, 43 Phil., 393; U. S. vs. Alviar, 36 Phil., 804.) So, generally, additional evidence is allowed when it is newly discovered, or where it has been omitted through inadvertence or mistake, or where the purpose of
the evidence is to correct evidence previously offered. (I Moran's Comments on the Rules of Court, 2d ed., 545; 64 C. J., 160-163.) The omission to present evidence on the testator's knowledge of Spanish had not
been deliberate. It was due to a misapprehension or oversight.
Although alien to the second assignment of error, the appellant impugns the will for its silence on the testator's understanding of the language used in the testament. There is no statutory requirement that
such knowledge be expressly stated in the will itself. It is a matter that may be established by proof aliunde. This Court so impliedly ruled in Gonzales vs. Laurel, 46 Phil., 781, in which the probate of a will written in
Tagalog was ordered although it did not say that the testator knew that idiom. In fact, there was not even extraneous proof on the subject other than the fact that the testator resided in a Tagalog region, from which the
court said "a presumption arises that said Maria Tapia knew the Tagalog dialect."
The order of the lower court ordering the probate of the last will and testament of Don Sixto Lopez is affirmed, with costs.
Paras, Actg. C.J., Pablo, Perfecto, Bengzon, Briones, and Padilla, JJ., concur.
||| (Lopez v. Liboro, G.R. No. L-1787, [August 27, 1948], 81 PHIL 429-434)
In the Matter of the Will of ANTERO MERCADO, deceased. ROSARIO GARCIA, petitioner, vs. JULIANA LACUESTA, ET AL., respondents.
Elviro L. Peralta and Hermenegildo A. Prieto, for petitioner.

Faustino B. Tobia, Juan I. Ines and Federico Tacason, for respondents.

SYLLABUS
1. WILLS; ATTESTATION CLAUSE; SIGNING BY ANOTHER OF TESTATOR'S NAME AT LATTER'S DIRECTION. When the testator expressly caused another to sign the former's name, this fact
must be recited in the attestation clause. Otherwise, the will is fatally defective.
2. ID.; SIGNATURE OF TESTATOR; CROSS. Where the cross appearing on a will is not the usual signature of the testator or even one of the ways by which he signed his name, that cross cannot
be considered a valid signature.
DECISION
PARAS, C.J p:
This is an appeal from a decision of the Court of Appeals disallowing the will of Antero Mercado dated January 3, 1943. The will is written in the Ilocano dialect and contains the following attestation clause:
"We, the undersigned, by these presents do declare that the foregoing testament of Antero Mercado was signed by himself and also by us below his name and of this attestation clause
and that of the left margin of the three pages thereof. Page three the continuation of this attestation clause; this will is written in Ilocano dialect which is spoken and understood by the testator, and it
bears the corresponding number in letter which compose of three pages and all of them were signed in the presence of the testator and witnesses, and the witnesses in the presence of the testator
and all and each and every one of us witnesses.
"In testimony, whereof, we sign this testament, this the third day of January, one thousand nine hundred forty three, (1943) A.D.
(Sgd.) "NUMERIANO EVANGELISTA (Sgd.) ROSENDO CORTES
(Sgd.) BIBIANA ILLEGIBLE"
The will appears to have been signed by Atty. Florentino Javier who wrote the name of Antero Mercado, followed below by "A ruego del testador" and the name of Florentino Javier. Antero Mercado is
alleged to have written a cross immediately after his name. The Court of Appeals, reversing the judgment of the Court of First Instance of Ilocos Norte, ruled that the attestation clause failed (1) to certify that the will
was signed on all the left margins of the three pages and at the end of the will by Atty. Florentino Javier at the express request of the testator in the presence of the testator and each and every one of the witnesses;
(2) to certify that after the signing of the name of the testator by Atty. Javier at the former's request said testator has written a cross at the end of his name and on the left margin of the three pages of which the will
consists and at the end thereof; (3) to certify that the three witnesses signed the will in all the pages thereon in the presence of the testator and of each other.
In our opinion, the attestation clause is fatally defective for failing to state that Antero Mercado caused Atty. Florentino Javier to write the testator's name under his express direction, as required by section
618 of the Code of Civil Procedure. The herein petitioner (who is appealing by way of certiorari from the decision of the Court of Appeals) argues, however, that there is no need for such recital because the cross
written by the testator after his name is a sufficient signature and the signature of Atty. Florentino Javier is a surplusage. Petitioner's theory is that the cross is as much a signature as a thumbmark, the latter having
been held sufficient by this Court in the cases of De Gala vs. Gonzales and Ona, 53 Phil., 104; Dolar vs. Diancin, 55 Phil., 479; Payad vs. Tolentino, 62 Phil., 848; Neyra vs. Neyra, 76 Phil., 296 and Lopez vs. Liboro,
81 Phil., 429.
It is not here pretended that the cross appearing on the will is the usual signature of Antero Mercado or even one of the ways by which he signed his name. After mature reflection, we are not prepared to
liken the mere sign of a cross to a thumbmark, and the reason is obvious. The cross cannot and does not have the trustworthiness of a thumbmark.
What has been said makes it unnecessary for us to determine whether there is a sufficient recital in the attestation clause as to the signing of the will by the testator in the presence of the witnesses, and by
the latter in the presence of the testator and of each other.
Wherefore, the appealed decision is hereby affirmed, with costs against the petitioner. So ordered.
Feria, Pablo, Bengzon, Padilla, Reyes, Jugo and Bautista Angelo, JJ., concur.
||| (In re: Mercado v. Lacuesta, G.R. No. L-4067, [November 29, 1951], 90 PHIL 489-491)
IN THE MATTER OF THE PETITION FOR THE PROBATE OF THE WILL OF DOROTEA PEREZ, (deceased): APOLONIO TABOADA, petitioner, vs. HON. AVELINO S. ROSAL, as Judge of the Court of
First Instance of Southern Leyte, (Branch III, Maasin), respondent.
Erasmo M. Diola for petitioner.
Aurelio S. Rosal in his own behalf.
SYNOPSIS
Petitioner filed a petition for probate of the will of the late Dorotea Perez and presented as evidence the alleged will and the testimony of one of the subscribing witnesses thereto. However, the trial court disallowed the will
for want of formality in its execution because the will was signed at the bottom of the page solely by the testatrix and at the left hand margin by three instrumental witnesses. Respondent judge interpreted Article 805 of the
Civil Code to require that, for a notarial will to be valid, it is not enough that only the testatrix signs at the "end" of the will but all the three subscribing witnesses must also sign at the same place or at the end, in the
presence of the testatrix and of one another, because the attesting witnesses to the will attest not merely the will itself but also the signature of the testator. Petitioner's motion for reconsideration and subsequent motion for
the appointment of special administrator were likewise denied.
On certiorari, the Supreme Court held a) that the objects of attestation and subscription were fully met and satisfied in the present case when the instrumental witnesses signed at the left margin of the sole page which
contains all the testamentary dispositions, especially so when the will was properly identified by a subscribing witness to be the same will executed by the testatrix; and b) that the failure of the attestation clause to state the
number of pages used in writing the will would have been a fatal defect were it not for the fact that it is really and actually composed of only two pages duly signed by the testatrix and her instrumental witnesses.
Petition granted. Assailed orders of probate court set aside. Respondent court is ordered to allow probate of the will and to conduct further proceedings.
SYLLABUS
1. CIVIL LAW; WILLS AND TESTAMENTS; NOTARIAL WILL; FORMALITIES; ATTESTATION AND SUBSCRIPTION; DEFINED. Under Article 805 of the Civil Code, the will must be subscribed or signed at its end
by the testator himself or by the testator's name written by another person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the
testator and of one another. Attestation consists in witnessing the testator's execution of the will in order to see and take note mentally that those things are done which the statute requires for the execution of a will
and that the signature of the testator exists as a fact. On the other hand, subscription is the signing of the witnesses' names upon the same paper for the purpose of identification of such paper as the will which was
executed by the testator (Ragsdale v. Hill, 269 SW 2d 911).
2. ID.; ID.; ID.; ID.; ID.; FULLY COMPLIED WITH IN CASE AT BAR. The objects of attestation and of subscription were fully met and satisfied in the present case when the instrumental witnesses signed at the left
margin of the sole page which contains all the testamentary dispositions, especially so when the will was properly identified by subscribing witness Vicente Timkang to be the same will executed by the testatrix.
There was no question of fraud or substitution behind the questioned order.
3. ID.; ID.; ID.; ID.; TREND TOWARDS LIBERAL CONSTRUCTION. While perfection in the drafting of a will may be desirable, unsubstantial departure from the usual forms should be ignored, especially where
the authenticity of the will is not assailed. (Gonzales vs. Gonzales, 90 Phil. 444, 449) The law is to be liberally construed, "the underlying and fundamental objective permeating the provision on the law on wills in this
project consists in the liberalization of the manner of their execution with the end in view of giving the testator more freedom in expressing his last wishes but with sufficient safeguards and restrictions to prevent the
commission of fraud and the exercise of undue and improper pressure and influence upon the testator. This objective is in accord with the modern tendency in respect to the formalities in the execution of a will"
(Report of the Code Commission, p. 103).
4. ID.; ID.; ID.; ID.; ATTESTATION CLAUSE; FAILURE TO STATE THE NUMBER OF PAGES USED IN WRITING THE WILL IS FATAL; EXCEPTION; CASE AT BAR. The failure of the will's attestation clause to

state the number of pages used in writing the will would have been a fatal defect were it not for the fact that, in this case, it is discernible from the entire will that it is really and actually composed of only two pages
duly signed by the testatrix and her instrumental witnesses (See Singson vs. Florentino, et al. (192 Phil. 161, 1641 and Icasiano vs. Icasiano, [11 SCRA 422, 429].)
DECISION
GUTIERREZ, JR., J p:
This is a petition for review of the orders issued by the Court of First Instance of Southern Leyte, Branch III, in Special Proceedings No. R-1713, entitled "In the Matter of the Petition for Probate of the Will of Dorotea Perez,
Deceased; Apolonio Taboada, Petitioner," which denied the probate of the will, the motion for reconsideration and the motion for appointment of a special administrator.
In the petition for probate filed with the respondent court, the petitioner attached the alleged last will and testament of the late Dorotea Perez. Written in Cebuano-Visayan dialect, the will consists of two pages. The first
page contains the entire testamentary dispositions and is signed at the end or bottom of the page by the testatrix alone and at the left hand margin by the three (3) instrumental witnesses. The second page which contains
the attestation clause and the acknowledgment is signed at the end of the attestation clause by the three 13) attesting witnesses and at the left hand margin by the testatrix.
Since no opposition was filed after the petitioner's compliance with the requirement of publications, the trial court commissioned the branch clerk of court to receive the petitioner's evidence. Accordingly, the petitioner
submitted his evidence and presented Vicente Timkang, one of the subscribing witnesses to the will, who testified on its genuineness and due execution.
The trial court, thru then Presiding Judge Ramon C. Pamatian issued the questioned order denying the probate of the will of Dorotea Perez for want of a formality in its execution. In the same order, the petitioner was also
required to submit the names of the intestate heirs with their corresponding addresses so that they could be properly notified and could intervene in the summary settlement of the estate.
Instead of complying with the order of the trial court, the petitioner filed a manifestation and/or motion ex parte praying for a thirty-day period within which to deliberate on any step to be taken as a result of the disallowance
of the will. He also asked that the ten-day period required by the court to submit the names of intestate heirs with their addresses be held in abeyance.
The petitioner filed a motion for reconsideration of the order denying the probate of the will. However, the motion together with the previous manifestation and/or motion could not be acted upon by the Honorable Ramon C.
Pamatian due to his transfer to his new station at Pasig, Rizal. The said motions or incidents were still pending resolution when respondent Judge Avelino S. Rosal assumed the position of presiding judge of the respondent
court.
Meanwhile, the petitioner filed a motion for the appointment of special administrator.
Subsequently, the new Judge denied the motion for reconsideration as well as the manifestation and/or motion filed ex parte. In the same order of denial, the motion for the appointment of special administrator was likewise
denied because of the petitioner's failure to comply with the order requiring him to submit the names of the intestate heirs and their addresses.
The petitioner decided to file the present petition.
For the validity of a formal notarial will, does Article 805 of the Civil Code require that the testatrix and all the three instrumental and attesting witnesses sign at the end of the will and in the presence of the testatrix and of
one another?
Article 805 of the Civil Code provides:
"Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express
direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.
"The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left
margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page.
"The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his
name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the with and the pages thereof in the presence of the testator and of one
another.
"If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them."
The respondent Judge interprets the above-quoted provision of law to require that, for a notarial will to be valid, it is not enough that only the testatrix signs at the "end" but all the three subscribing witnesses must also sign
at the same place or at the end, in the presence of the testatrix and of one another because the attesting witnesses to a will attest not merely the will itself but also the signature of the testator. It is not sufficient compliance
to sign the page, where the end of the will is found, at the left hand margin of that page.
On the other hand, the petitioner maintains that Article 805 of the Civil Code does not make it a condition precedent or a matter of absolute necessity for the extrinsic validity of the will that the signatures of the subscribing
witnesses should be specifically located at the end of the will after the signature of the testatrix. He contends that it would be absurd that the legislature intended to place so heavy an import on the space or particular
location where the signatures are to be found as long as this space or particular location wherein the signatures are found is consistent with good faith and the honest frailties of human nature.
We find the petition meritorious.
Undoubtedly, under Article 805 of the Civil Code, the will must be subscribed or signed at its end by the testator himself or by the testator's name written by another person in his presence, and by his express direction, and
attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.
It must be noted that the law uses the terms attested and subscribed. Attestation consists in witnessing the testator's execution of the will in order to see and take note mentally that those things are done which the statute
requires for the execution of a will and that the signature of the testator exists as a fact. On the other hand, subscription is the signing of the witnesses' names upon the same paper for the purpose of identification of such
paper as the will which was executed by the testator. (Ragsdale v. Hill, 269 SW 2d 911).
Insofar as the requirement of subscription is concerned, it is our considered view that the will in this case was subscribed in a manner which fully satisfies the purpose of identification.
The signatures of the instrumental witnesses on the left margin of the first page of the will attested not only to the genuineness of the signature of the testatrix but also the due execution of the will as embodied in the
attestation clause.
While perfection in the drafting of a will may be desirable, unsubstantial departure from the usual forms should be ignored, especially where the authenticity of the will is not assailed. (Gonzales v. Gonzales, 90 Phil. 444,
449).
The law is to be liberally construed, "the underlying and fundamental objective permeating the provisions on the law on wills in this project consists in the liberalization of the manner of their execution with the end in view of
giving the testator more freedom in expressing his last wishes but with sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the
testator. This objective is in accord with the modern tendency in respect to the formalities in the execution of a will" (Report of the Code Commission, p. 103).
Parenthetically, Judge Ramon C. Pamatian stated in his questioned order that were it not for the defect in the place of signatures of the witnesses, he would have found the testimony sufficient to establish the validity of the
will.
The objects of attestation and of subscription were fully met and satisfied in the present case when the instrumental witnesses signed at the left margin of the sole page which contains all the testamentary dispositions,
especially so when the will was properly identified by subscribing witness Vicente Timkang to be the same will executed by the testatrix. There was no question of fraud or substitution behind the questioned order. prLL
We have examined the will in question and noticed that the attestation clause failed to state the number of pages used in writing the will. This would have been a fatal defect were it not for the fact that, in this case, it is
discernible from the entire will that it is really and actually composed of only two pages duly signed by the testatrix and her instrumental witnesses. As earlier stated, the first page which contains the entirety of the
testamentary dispositions is signed by the testatrix at the end or at the bottom while the instrumental witnesses signed at the left margin. The other page which is marked as "Pagina dos" comprises the attestation clause
and the acknowledgment. The acknowledgment itself states that "This Last Will and Testament consists of two pages including this page."
In Singson v. Florentino, et al. (92 Phil. 161, 164), this Court made the following observations with respect to the purpose of the requirement that the attestation clause must state the number of pages used:
"The law referred to is Article 618 of the Code of Civil Procedure, as amended by Act No. 2645, which requires that the attestation clause shall state the number of pages or sheets upon which the

will is written, which requirement has been held to be mandatory as an effective safeguard against the possibility of interpolation or omission of some of the pages of the will to the prejudice of the
heirs to whom the property is intended to be bequeathed (In re will of Andrada, 42 Phil. 180; Uy Coque vs. Navas L. Sioca, 43 Phil. 405; Gumban vs. Gorecho, 50 Phil. 30; Quinto vs. Morata, 54
Phil. 481; Echevarria vs. Sarmiento, 66 Phil. 611). The ratio decidendi of these cases seems to be that the attestation clause must contain a statement of the number of sheets or passes composing
the will and that if this is missing or is omitted, it will have the effect of invalidating the will if the deficiency cannot be supplied, not by evidence aliunde, but by a consideration or examination of the
will itself. But here the situation is different. While the attestation clause does not state the number of sheets or pages upon which the will is written, however, the last part of the body of the will
contains a statement that it is composed of eight pages, which circumstance in our opinion takes this case out of the rigid rule of construction and places it within the realm of similar cases where a
broad and more liberal view has been adopted to prevent the will of the testator from being defeated by purely technical considerations."
Icasiano v. Icasiano (11 SCRA 422, 429) has the following ruling which applies a similar liberal approach: Cdpr
" . . . Impossibility of substitution of this page is assured not only (sic) the fact that the testatrix and two other witnesses, did sign the defective page, but also by its bearing the coincident imprint of
the seal of the notary public before whom the testament was ratified by testatrix and all three witnesses. The law should not be so strictly and literally interpreted as to penalize the testatrix on
account of the inadvertence of a single witness over whose conduct she had no control, where the purpose of the law to guarantee the identity of the testament and its component pages is
sufficiently attained, no intentional or deliberate deviation existed, and the evidence on record attest to the full observance of the statutory requisites. Otherwise, as stated in Vda. de Gil. vs.
Murciano, 49 Off. Gaz 1459, at 1479 (decision on reconsideration) 'witnesses may sabotage the will by muddling or bungling it or the attestation clause.'"
WHEREFORE, the present petition is hereby granted. The orders of the respondent Court which denied the probate of the will, the motion for reconsideration of the denial of probate, and the motion for appointment of a
special administrator are set aside. The respondent court is ordered to allow the probate of the will and to conduct further proceedings in accordance with this decision. No pronouncement of costs.
SO ORDERED.
||| (In Re: Taboada v. Rosal, G.R. No. L-36033, [November 5, 1982], 203 PHIL 572-580)
BEATRIZ NERA, ET AL., plaintiffs-appellees, vs. NARCISA RIMANDO, defendant-appellant.
Valerio Fontanilla and Andres Asprer for appellant.
Anacleto Diaz for appellees.
SYLLABUS
1. EXECUTION OF WILLS; POSITION OF TESTATOR AND WITNESS WHEN WILL IS SUBSCRIBED. The position of testator and of the witnesses to a will, at the moment of the subscription by
each, must be such that they may see each other sign if they choose to do so.
2. ID.; ID.; SIGNING IN THE PRESENCE OF EACH OTHER. The question whether the testator and the subscribing witnesses to an alleged will sign the instrument in the presence of each other
does not depend upon proof of the fact that their eyes were actually cast upon the paper at the moment of its subscription by each of them, but whether at that moment existing conditions and the position of the
parties, with relation to each other, were such that by merely casting their eyes in the proper direction they could have seen each other sign.
3. ID.; ID.; ID.; ONE WITNESS IN OUTER ROOM WHEN WH.L IS SIGNED. If one subscribing witness to a will is shown to have been in an outer room at the time when the testator and the other
witnesses attach their signatures to the instrument in an inner room, the will would be held invalid the attaching of the said signatures, under such circumstances, not being done "in the presence" of the
witness in the outer room.
DECISION
CARSON, J p:
The only question raised by the evidence in this case as to the due execution of the instrument propounded as a will in the court below, is whether one of the subscribing witnesses was present in the small
room where it was executed at the time when the testator and the other subscribing witnesses attached their signatures; or whether at that time he was outside, some eight or ten feet away, in a large room connecting
with the smaller room by a doorway, across which was hung a curtain which made it impossible for one in the outside room to see the testator and the other subscribing witnesses in the act of attaching their signatures
to the instrument.
A majority of the members of the court is of opinion that this subscribing witness was in the small room with the testator and the other subscribing witnesses at the time when they attached their signatures to
the instrument, and this finding, of course, disposes of the appeal and necessitates the affirmance of the decree admitting the document to probate as the last will and testament of the deceased.
The trial judge does not appear to have considered the determination of this question of fact of vital importance in the determination of this case, as he was of opinion that under the doctrine laid down in the
case of Jaboneta vs. Gustilo (5 Phil. Rep., 541) the alleged fact that one of the subscribing witnesses was in the outer room when the testator and the other describing witnesses signed the instrument in the inner
room, had it been proven, would not be sufficient in itself to invalidate the execution of the will. But we are unanimously of opinion that had this subscribing witness been proven to have been in the outer room at the
time when the testator and the other subscribing witnesses attached their signatures to the instrument in the inner room, it would have been invalid as a will, the attaching of those signatures under circumstances not
being done "in the presence" of the witness in the outer room. This because the line of vision from this witness to the testator and the other subscribing witnesses would necessarily have been impeded by the curtain
separating the inner from the outer one "at the moment of inscription of each signature."
In the case just cited, on which the trial court relied, we held that:
"The true test of presence of the testator and the witnesses in the execution of a will is not whether they actually saw each other sign, but whether they might have been seen each other
sign, had they chosen to do so, considering their mental and physical condition and position with relation to each other at the moment of inscription of each signature."
But it is especially to be noted that the position of the parties with relation to each other at the moment of the subscription of each signature, must be such that they may see each other sign if they choose to
do so. This, of course, does not mean that the testator and the subscribing witnesses may be held to have executed the instrument in the presence of each other if it appears that they would not have been able to see
each other sign at that moment, without changing their relative positions or existing conditions. The evidence in the case relied upon by the trial judge discloses that "at the moment when the witness Javellana signed
the document he was actually and physically present and in such position with relation to Jaboneta that he could see everything that took place by merely casting his eyes in the proper direction and without any
physical obstruction to prevent his doing so." And the decision merely laid down the doctrine that the question whether the testator and the subscribing witnesses to an alleged will sign the instrument in the presence of
each other does not depend upon proof of the fact that their eyes were actually cast upon the paper at the moment of its subscription by each of them, but that at that moment existing conditions and their position with
relation to each other were such that by merely casting the eyes in the proper direction they could have seen each other sign. To extend the doctrine further would open the door to the possibility of all manner of fraud,
substitution, and the like, and would defeat the purpose for which this particular condition is prescribed in the code as one of the requisites in the execution of a will.
The decree entered by the court below admitting the instrument propounded therein to probate as the last will and testament of Pedro Rimando, deceased, is affirmed with costs of this instance against the
appellant.
Arellano, C.J., Mapa, Moreland and Trent, JJ., concur.
||| (Nera v. Rimando, G.R. No. L-5971, [February 27, 1911], 18 PHIL 450-453)
PAULA T. LLORENTE, petitioner, vs. COURT OF APPEALS and ALICIA F. LLORENTE, respondents.
E.A. Dacanay for petitioner.
Pardalis, Navarro & Sales for private respondents.
SYNOPSIS
The deceased Lorenzo N. Llorente was an enlisted serviceman of the United States Navy from 1927 to 1957 and a naturalized American citizen. On February 22, 1937, Lorenzo married petitioner Paula Llorente. Before

the outbreak of the Pacific War, Lorenzo departed for the United States and Paula stayed in the conjugal home in barrio Antipolo, Nabua, Camarines Sur. When Lorenzo returned to the Philippines to visit his wife in 1945,
he discovered that his wife Paula was pregnant and was "living in" and having an adulterous relationship with his brother, Ceferino Llorente. Lorenzo refused to forgive Paula and live with her. Lorenzo returned to the
United States and filed for divorce with the Superior Court of the State of California in and for the County of San Diego. Paula was represented by counsel, John Riley, and actively participated in the proceedings. The
Superior Court of the State of California, for the County of San Diego found all factual allegations to be true and issued an interlocutory judgment of divorce. The divorce decree became final in 1952. On January 16, 1958,
Lorenzo married Alicia F. Llorente in Manila. Apparently, Alicia had no knowledge of the first marriage even if they resided in the same town as Paula, who did not oppose the marriage or cohabitation. From 1958 to 1985,
Lorenzo and Alicia lived together as husband and wife and produced three children, Raul, Luz and Beverly, all surnamed Llorente. On March 13, 1981, Lorenzo executed a Last Will and Testament. In the will, Lorenzo
bequeathed all his property to Alicia and their three children. On December 14, 1983, Lorenzo filed with the Regional Trial Court, Iriga, Camarines Sur, a petition for the probate and allowance of his last will and testament
wherein Lorenzo moved that Alicia be appointed Special Administratrix of his estate. The trial court admitted the will to probate. On June 11, 1985, before the proceedings could be terminated, Lorenzo died. Paula filed with
the same court a petition for letters of administration over Lorenzo's estate in her favor. Alicia also filed in the testate proceeding a petition for the issuance of letters testamentary. The trial court denied Alicia's petition and
ruled that the divorce decree granted to the late Lorenzo Llorente was void and inapplicable in the Philippines, therefore, her marriage to Lorenzo was likewise void. The trial court appointed Paula Llorente as legal
administrator of the estate of the deceased, Lorenzo Llorente. Respondent Alicia filed with the trial court a motion for reconsideration, but was denied. Alicia appealed to the Court of Appeals. The appellate court
promulgated its decision, affirming with modification the decision of the trial court. The trial court declared Alicia as co-owner of whatever properties she and the deceased Lorenzo may have acquired during the twenty-five
(25) years of cohabitation. Petitioner Paula moved for reconsideration, but was denied for lack of merit. Hence, the present petition.
The Supreme Court reversed and set aside the ruling of the trial court and recognized as valid and as a matter of comity the decree of divorce granted in favor of the deceased Lorenzo N. Llorente by the Superior Court of
the State of California in and for the County of San Diego, made final on December 4, 1952. According to the Court, the "national law" indicated in Article 16 of the Civil Code cannot possibly apply to the general American
law. There is no such law governing the validity of testamentary provisions in the United States. Each State of the union has its own law applicable to its citizens and in force only within the State. It can, therefore, refer to
no other than the law of the State of which the decedent was a resident and there was also no showing that the application of the renvoi doctrine was called for or required by New York State law. The Court also said that
the clear intent of Lorenzo to bequeath his property to his second wife and children by her was glaringly shown in the will he executed and the Court did not wish to frustrate Lorenzo's wishes, since he was a foreigner, not
covered by Philippine laws on family rights and duties, status, condition and legal capacity. The Court remanded the cases to the court of origin for determination of the intrinsic validity of Lorenzo N. Llorente's will and
determination of the parties' successional rights allowing proof of foreign law.
SYLLABUS
1. CIVIL LAW; PRIVATE INTERNATIONAL LAW; RENVOI DOCTRINE; NOT APPLICABLE IN CASE AT BAR. True, foreign laws do not prove themselves in our jurisdiction and our courts are not authorized to
take judicial notice of them. Like any other fact, they must be alleged and proved. While the substance of the foreign law was pleaded, the Court of Appeals did not admit the foreign law. The Court of Appeals and the
trial court called to the fore the renvoi doctrine, where the case was "referred back" to the law of the decedent's domicile, in this case, Philippine law. We note that while the trial court stated that the law of New York
was not sufficiently proven, in the same breath it made the categorical, albeit equally unproven statement that "American law follows the 'domiciliary theory, hence, Philippine law applies when determining the validity
of Lorenzo's will. First, there is no such thing as one American law. The "national law" indicated in Article 16 of the Civil Code cannot possibly apply to general American law. There is no such law governing the
validity of testamentary provisions in the United States. Each State of the union has its own law applicable to its citizens and in force only within the State. It can therefore refer to no other than the law of the State of
which the decedent was a resident. Second, there is no showing that the application of the renvoi doctrine is called for or required by New York State law. The trial court held that the will was intrinsically invalid since
it contained dispositions in favor of Alice, who in the trial court's opinion was a mere paramour. The trial court threw the will out, leaving Alice, and her two children, Raul and Luz, with nothing. The Court of Appeals
also disregarded the will. It declared Alice entitled to one half () of whatever property she and Lorenzo acquired during their cohabitation, applying Article 144 of the Civil Code of the Philippines. The hasty
application of Philippine law and the complete disregard of the will, already probated as duly executed in accordance with the formalities of Philippine law, is fatal, especially in light of the factual and legal
circumstances here obtaining.
2. ID.; ID.; VALIDITY OF FOREIGN DIVORCE; DIVORCE OBTAINED BY PETITIONER'S HUSBAND ABROAD VALID AND RECOGNIZED BY PHILIPPINE LAWS AS A MATTER OF COMITY; SETTLED
DOCTRINES. In Van Dorn v. Romillo, Jr., we held that owing to the nationality principle embodied in Article 15 of the Civil Code, only Philippine nationals are covered by the policy against absolute divorces, the
same being considered contrary to our concept of public policy and morality. In the same case, the Court ruled that aliens may obtain divorces abroad, provided they are valid according to their national law. Citing
this landmark case, the Court held in Quita v. Court of Appeals, that once proven that respondent was no longer a Filipino citizen when he obtained the divorce from petitioner, the ruling in Van Dorn would become
applicable and petitioner could "very well lose her right to inherit" from him. In Pilapil v. Ibay-Somera, we recognized the divorce obtained by the respondent in his country, the Federal Republic of Germany. There,
we stated that divorce and its legal effects may be recognized in the Philippines insofar as respondent is concerned in view of the nationality principle in our civil law on the status of persons. For failing to apply these
doctrines, the decision of the Court of Appeals must be reversed. We hold that the divorce obtained by Lorenzo H. Llorente from his first wife Paula was valid and recognized in this jurisdiction as a matter of comity.
Now, the effects of this divorce (as to the succession to the estate of the decedent) are matters best left to the determination of the trial court.
3. ID.; ID.; FORMALITIES OF WILL EXECUTED BY FOREIGN NATIONALS SHALL BE GOVERNED BY PHILIPPINE LAW; DETERMINATION OF SUCCESSIONAL RIGHTS BEST PROVED BY FOREIGN LAW
WHICH MUST BE DULY PLEADED AND PROVED; CASE AT BAR. The clear intent of Lorenzo to bequeath his property to his second wife and children by her is glaringly shown in the will he executed. We do
not wish to frustrate his wishes, since he was a foreigner, not covered by our laws on "family rights and duties, status, condition and legal capacity." Whether the will is intrinsically valid and who shall inherit from
Lorenzo are issues best proved by foreign law which must be pleaded and proved. Whether the will was executed in accordance with the formalities required is answered by referring to Philippine law. In fact, the will
was duly probated. As a guide however, the trial court should note that whatever public policy or good customs may be involved in our system of legitimes, Congress did not intend to extend the same to the
succession of foreign nationals. Congress specifically left the amount of successional rights to the decedent's national law.
DECISION
PARDO, J p:
The Case
The case raises a conflict of laws issue.
What is before us is an appeal from the decision of the Court of Appeals 1 modifying that of the Regional Trial Court, Camarines Sur, Branch 35, Iriga City 2 declaring respondent Alicia F. Llorente (hereinafter referred to as
"Alicia"), as co-owners of whatever property she and the deceased Lorenzo N. Llorente (hereinafter referred to as "Lorenzo") may have acquired during the twenty-five (25) years that they lived together as husband and
wife.
The Facts
The deceased Lorenzo N. Llorente was an enlisted serviceman of the United States Navy from March 10, 1927 to September 30, 1957. 3
On February 22, 1937, Lorenzo and petitioner Paula Llorente (hereinafter referred to as "Paula") were married before a parish priest, Roman Catholic Church, in Nabua, Camarines Sur. 4
Before the outbreak of the Pacific War, Lorenzo departed for the United States and Paula stayed in the conjugal home in barrio Antipolo, Nabua, Camarines Sur. 5
On November 30, 1943, Lorenzo was admitted to United States citizenship and Certificate of Naturalization No. 5579816 was issued in his favor by the United States District Court, Southern District of New York. 6
Upon the liberation of the Philippines by the American Forces in 1945, Lorenzo was granted an accrued leave by the U.S. Navy, to visit his wife and he visited the Philippines. 7 He discovered that his wife Paula was
pregnant and was "living in" and having an adulterous relationship with his brother, Ceferino Llorente. 8
On December 4, 1945, Paula gave birth to a boy registered in the Office of the Registrar of Nabua as "Crisologo Llorente," with the certificate stating that the child was not legitimate and the line for the father's name was
left blank. 9
Lorenzo refused to forgive Paula and live with her. In fact, on February 2, 1946, the couple drew a written agreement to the effect that (1) all the family allowances allotted by the United States Navy as part of Lorenzo's

salary and all other obligations for Paula's daily maintenance and support would be suspended; (2) they would dissolve their marital union in accordance with judicial proceedings; (3) they would make a separate
agreement regarding their conjugal property acquired during their marital life; and (4) Lorenzo would not prosecute Paula for her adulterous act since she voluntarily admitted her fault and agreed to separate from Lorenzo
peacefully. The agreement was signed by both Lorenzo and Paula and was witnessed by Paula's father and stepmother. The agreement was notarized by Notary Public Pedro Osabel. 10
Lorenzo returned to the United States and on November 16, 1951 filed for divorce with the Superior Court of the State of California in and for the County of San Diego. Paula was represented by counsel, John Riley, and
actively participated in the proceedings. On November 27, 1951, the Superior Court of the State of California, for the County of San Diego found all factual allegations to be true and issued an interlocutory judgment of
divorce. 11
On December 4, 1952, the divorce decree became final. 12
In the meantime, Lorenzo returned to the Philippines. CADHcI
On January 16, 1958, Lorenzo married Alicia F. Llorente in Manila. 13 Apparently, Alicia had no knowledge of the first marriage even if they resided in the same town as Paula, who did not oppose the marriage or
cohabitation. 14
From 1958 to 1985, Lorenzo and Alicia lived together as husband and wife. 15 Their twenty-five (25) year union produced three children, Raul, Luz and Beverly, all surnamed Llorente. 16
On March 13, 1981, Lorenzo executed a Last Will and Testament. The will was notarized by Notary Public Salvador M. Occiano, duly signed by Lorenzo with attesting witnesses Francisco Hugo, Francisco Neibres and Tito
Trajano. In the will, Lorenzo bequeathed all his property to Alicia and their three children, to wit:
"(1) I give and bequeath to my wife ALICIA R. FORTUNO exclusively my residential house and lot, located at San Francisco, Nabua, Camarines Sur, Philippines, including ALL the personal
properties and other movables or belongings that may be found or existing therein;
"(2) I give and bequeath exclusively to my wife Alicia R. Fortuno and to my children, Raul F. Llorente, Luz F. Llorente and Beverly F. Llorente, in equal shares, all my real properties
whatsoever and wheresoever located, specifically my real properties located at Barangay Aro-Aldao, Nabua, Camarines Sur; Barangay Paloyon, Nabua, Camarines Sur; Barangay Baras,
Sitio Puga, Nabua, Camarines Sur; and Barangay Paloyon, Sitio Nalilidong, Nabua, Camarines Sur;
"(3) I likewise give and bequeath exclusively unto my wife Alicia R. Fortuno and unto my children, Raul F. Llorente, Luz F. Llorente and Beverly F. Llorente, in equal shares, my real properties
located in Quezon City Philippines, and covered by Transfer Certificate of Title No. 188652; and my lands in Antipolo, Rizal, Philippines, covered by Transfer Certificate of Title Nos. 124196
and 165188, both of the Registry of Deeds of the province of Rizal, Philippines;
"(4) That their respective shares in the above-mentioned properties, whether real or personal properties, shall not be disposed of, ceded, sold and conveyed to any other persons, but could
only be sold, ceded, conveyed and disposed of by and among themselves;
"(5) I designate my wife ALICIA R. FORTUNO to be the sole executor of this my Last Will and Testament, and in her default or incapacity of the latter to act, any of my children in the order of
age, if of age;
"(6) I hereby direct that the executor named herein or her lawful substitute should served (sic) without bond;
"(7) I hereby revoke any and all my other wills, codicils, or testamentary dispositions heretofore executed, signed, or published, by me;
"(8) It is my final wish and desire that if I die, no relatives of mine in any degree in the Llorente's Side should ever bother and disturb in any manner whatsoever my wife Alicia R. Fortunato
and my children with respect to any real or personal properties I gave and bequeathed respectively to each one of them by virtue of this Last Will and Testament." 17
On December 14, 1983, Lorenzo filed with the Regional Trial Court, Iriga, Camarines Sur, a petition for the probate and allowance of his last will and testament wherein Lorenzo moved that Alicia be appointed Special
Administratrix of his estate. 18
On January 18, 1984, the trial court denied the motion for the reason that the testator Lorenzo was still alive. 19
On January 24, 1984, finding that the will was duly executed, the trial court admitted the will to probate. 20
On June 11, 1985, before the proceedings could be terminated, Lorenzo died. 21
On September 4, 1985, Paula filed with the same court a petition 22 for letters of administration over Lorenzo's estate in her favor. Paula contended (1) that she was Lorenzo's surviving spouse, (2) that the various property
were acquired during their marriage, (3) that Lorenzo's will disposed of all his property in favor of Alicia and her children, encroaching on her legitime and 1/2 share in the conjugal property. 23
On December 13, 1985, Alicia filed in the testate proceeding (Sp. Proc. No. IR-755), a petition for the issuance of letters testamentary. 24
On October 14, 1985, without terminating the testate proceedings, the trial court gave due course to Paula's petition in Sp. Proc. No. IR-888. 25
On November 6, 13 and 20, 1985, the order was published in the newspaper "Bicol Star". 26
On May 18, 1987, the Regional Trial Court issued a joint decision, thus: ISaCTE
"Wherefore, considering that this court has so found that the divorce decree granted to the late Lorenzo Llorente is void and inapplicable in the Philippines, therefore the marriage he contracted with
Alicia Fortunato on January 16, 1958 at Manila is likewise void. This being so the petition of Alicia F. Llorente for the issuance of letters testamentary is denied. Likewise, she is not entitled to receive
any share from the estate even if the will especially said so her relationship with Lorenzo having gained the status of paramour which is under Art. 739 (1).
"On the other hand, the court finds the petition of Paula Titular Llorente, meritorious, and so declares the intrinsic disposition of the will of Lorenzo Llorente dated March 13, 1981 as void and
declares her entitled as conjugal partner and entitled to one-half of their conjugal properties, and as primary compulsory heir, Paula T. Llorente is also entitled to one-third of the estate and then onethird should go to the illegitimate children, Raul, Luz and Beverly, all surname (sic) Llorente, for them to partition in equal shares and also entitled to the remaining free portion in equal shares.
"Petitioner, Paula Llorente is appointed legal administrator of the estate of the deceased, Lorenzo Llorente. As such let the corresponding letters of administration issue in her favor upon her filing a
bond in the amount (sic) of P100,000.00 conditioned for her to make a return to the court within three (3) months a true and complete inventory of all goods, chattels, rights, and credits, and estate
which shall at any time come to her possession or to the possession of any other person for her, and from the proceeds to pay and discharge all debts, legacies and charges on the same, or such
dividends thereon as shall be decreed or required by this court; to render a true and just account of her administration to the court within one (1) year, and at any other time when required by the
court and to perform all orders of this court by her to be performed.
"On the other matters prayed for in respective petitions for want of evidence could not be granted.
"SO ORDERED." 27
In time, Alicia filed with the trial court a motion for reconsideration of the aforequoted decision. 28
On September 14, 1987, the trial court denied Alicia's motion for reconsideration but modified its earlier decision, stating that Raul and Luz Llorente are not children "legitimate or otherwise" of Lorenzo since they were not
legally adopted by him. 29 Amending its decision of May 18, 1987, the trial court declared Beverly Llorente as the only illegitimate child of Lorenzo, entitling her to one-third (1/3) of the estate and one-third (1/3) of the free
portion of the estate. 30
On September 28, 1987, respondent appealed to the Court of Appeals. 31
On July 31, 1995, the Court of Appeals promulgated its decision, affirming with modification the decision of the trial court in this wise:
"WHEREFORE, the decision appealed from is hereby AFFIRMED with the MODIFICATION that Alicia is declared as co-owner of whatever properties she and the deceased may have acquired
during the twenty-five (25) years of cohabitation.
"SO ORDERED." 32
On August 25, 1995, petitioner filed with the Court of Appeals a motion for reconsideration of the decision. 33

On March 21, 1996, the Court of Appeals, 34 denied the motion for lack of merit.
Hence, this petition. 35
The Issue
Stripping the petition of its legalese and sorting through the various arguments raised, 36 the issue is simple. Who are entitled to inherit from the late Lorenzo N. Llorente?
We do not agree with the decision of the Court of Appeals. We remand the case to the trial court for ruling on the intrinsic validity of the will of the deceased.
The Applicable Law
The fact that the late Lorenzo N. Llorente became an American citizen long before and at the time of: (1) his divorce from Paula; (2) marriage to Alicia; (3) execution of his will; and (4) death, is duly established, admitted
and undisputed.
Thus, as a rule, issues arising from these incidents are necessarily governed by foreign law.
The Civil Code clearly provides:
"ARTICLE 15. Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad.
SCcHIE
"ARTICLE 16. Real property as well as personal property is subject to the law of the country where it is situated.
"However, intestate and testamentary succession, 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." (italics ours)
True, foreign laws do not prove themselves in our jurisdiction and our courts are not authorized to take judicial notice of them. Like any other fact, they must be alleged and proved. 37
While the substance of the foreign law was pleaded, the Court of Appeals did not admit the foreign law. The Court of Appeals and the trial court called to the fore the renvoi doctrine, where the case was "referred back" to
the law of the decedent's domicile, in this case, Philippine law.
We note that while the trial court stated that the law of New York was not sufficiently proven, in the same breath it made the categorical, albeit equally unproven statement that "American law" follows the 'domiciliary theory'
hence, Philippine law applies when determining the validity of Lorenzo's will. 38
First, there is no such thing as one American law. The "national law" indicated in Article 16 of the Civil Code cannot possibly apply to general American law. There is no such law governing the validity of testamentary
provisions in the United States. Each State of the union has its own law applicable to its citizens and in force only within the State. It can therefore refer to no other than the law of the State of which the decedent was a
resident. 39 Second, there is no showing that the application of the renvoi doctrine is called for or required by New York State law.
The trial court held that the will was intrinsically invalid since it contained dispositions in favor of Alice, who in the trial court's opinion was a mere paramour. The trial court threw the will out, leaving Alice, and her two
children, Raul and Luz, with nothing.
The Court of Appeals also disregarded the will. It declared Alice entitled to one half (1/2) of whatever property she and Lorenzo acquired during their cohabitation, applying Article 144 of the Civil Code of the Philippines.
The hasty application of Philippine law and the complete disregard of the will, already probated as duly executed in accordance with the formalities of Philippine law, is fatal, especially in light of the factual and legal
circumstances here obtaining.
Validity of the Foreign Divorce
In Van Dorn v. Romillo, Jr. 40 we held that owing to the nationality principle embodied in Article 15 of the Civil Code, only Philippine nationals are covered by the policy against absolute divorces, the same being considered
contrary to our concept of public policy and morality. In the same case, the Court ruled that aliens may obtain divorces abroad, provided they are valid according to their national law.
Citing this landmark case, the Court held in Quita v. Court of Appeals, 41 that once proven that respondent was no longer a Filipino citizen when he obtained the divorce from petitioner, the ruling in Van Dorn would become
applicable and petitioner could "very well lose her right to inherit" from him.
In Pilapil v. Ibay-Somera, 42 we recognized the divorce obtained by the respondent in his country, the Federal Republic of Germany. There, we stated that divorce and its legal effects may be recognized in the Philippines
insofar as respondent is concerned in view of the nationality principle in our civil law on the status of persons.
For failing to apply these doctrines, the decision of the Court of Appeals must be reversed. 43 We hold that the divorce obtained by Lorenzo H. Llorente from his first wife Paula was valid and recognized in this jurisdiction
as a matter of comity. Now, the effects of this divorce (as to the succession to the estate of the decedent) are matters best left to the determination of the trial court.
Validity of the Will
The Civil Code provides:
"ARTICLE 17. The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed.
"When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines in a foreign country, the solemnities established by Philippine laws shall be
observed in their execution." (italics ours)
The clear intent of Lorenzo to bequeath his property to his second wife and children by her is glaringly shown in the will he executed. We do not wish to frustrate his wishes, since he was a foreigner, not covered by our
laws on "family rights and duties, status, condition and legal capacity." 44
Whether the will is intrinsically valid and who shall inherit from Lorenzo are issues best proved by foreign law which must be pleaded and proved. Whether the will was executed in accordance with the formalities required is
answered by referring to Philippine law. In fact, the will was duly probated. HAICcD
As a guide however, the trial court should note that whatever public policy or good customs may be involved in our system of legitimes, Congress did not intend to extend the same to the succession of foreign nationals.
Congress specifically left the amount of successional rights to the decedent's national law. 45
Having thus ruled, we find it unnecessary to pass upon the other issues raised.
The Fallo
WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals in CA-G. R. SP No. 17446 promulgated on July 31, 1995 is SET ASIDE.
In lieu thereof, the Court REVERSES the decision of the Regional Trial Court and RECOGNIZES as VALID the decree of divorce granted in favor of the deceased Lorenzo N. Llorente by the Superior Court of the State of
California in and for the County of San Diego, made final on December 4, 1952.
Further, the Court REMANDS the cases to the court of origin for determination of the intrinsic validity of Lorenzo N. Llorente's will and determination of the parties' successional rights allowing proof of foreign law with
instructions that the trial court shall proceed with all deliberate dispatch to settle the estate of the deceased within the framework of the Rules of Court.
No costs.
SO ORDERED.
Davide, Jr., C.J., Puno, Kapunan, and Ynares-Santiago, JJ., concur.
||| (Llorente v. Court of Appeals, G.R. No. 124371, [November 23, 2000], 399 PHIL 342-357)
TESTATE ESTATE OF AMOS G. BELLIS, deceased, PEOPLE'S BANK & TRUST COMPANY, executor, MARIA CRISTINA BELLIS and MIRIAM PALMA BELLIS, oppositors-appellants, vs. EDWARD A.
BELLIS, ET AL., heirs-appellees.
Vicente R. Macasaet and Jose D. Villena for oppositors-appellant.
Paredes, Poblador, Cruz & Nazareno for heirs-appellees E.A. Bellis, et al.

Quijano and Arroyo for heirs-appellees W. S. Bellis, et al.

J .R. Balonkita for appellees People's Bank & Trust Company.
Ozaeta, Gibbs & Ozaeta for appellee A. B. Allsman.
SYLLABUS
1. PRIVATE INTERNATIONAL LAW; LAW APPLICABLE WITH REFERENCE TO THE INTESTATE AND TESTAMENTARY SUCCESSION OF AN ALIEN; SCOPE OF ARTS. 16 (2) AND 1039, CIVIL CODE. Article
16, par. 2, and Article 1039 of the Civil Code, render applicable the national law of the decedent, in intestate or testamentary successions, with regard to four items: (a) the order of succession; (b) the amount of
successional rights; (c) the intrinsic validity of the provisions of the will; and (d) the capacity to succeed.
2. ID.; LEGITIMATES; FOREIGN NATIONALS. It is evident that whatever public policy or good customs may be involved in our system of legitimates, Congress has not intended to extend the same to the
succession of foreign nationals. For its has chosen to leave, inter alia, the amount of successional rights, to the decedent's national law. Specific provisions must prevail over general ones.
3. ID.; ID.; ID.; FOREIGNER'S WILL; CASE AT BAR. Appellants point out that the decedent executed two wills one to govern his Texas estate and the other his Philippine estate arguing from this that he
intended Philippine law to govern his Philippine estate. Assuming that such was the decedent's intention in executing a separate Philippine will, it would not alter the law, for as this Court ruled in the Miciano vs.
Brimo (50 Phil., 867) case, a provision in a foreigner's will to the effect that his properties shall be distributed in accordance with Philippine law and not with his national law, is illegal and void for his national law
cannot be ignored in regard to those matters that Article 10 now Article 16 of the Civil Code states said national law should govern. The parties admit that the decedent, Amos G. Bellis, was a citizen of the State
of Texas, U.S.A., and that under the laws of Texas, there are no forced heirs or legitimates. 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.
DECISION
BENGZON, J.P., J p:
This is a direct appeal to us, upon a question purely of law, from an order of the Court of First Instance of Manila dated April 30, 1964, approving the project of partition filed by the executor in Civil Case No. 37089 therein.
The facts of the case are as follows:
Amos G. Bellis, born in Texas, was "a citizen of the State of Texas and of the United States." By his first wife, Mary E. Mallen, whom he divorced, he had five legitimate children: Edward A. Bellis, George Bellis (who predeceased him in infancy), Henry A. Bellis, Alexander Bellis and Anna Bellis Allsman; by his second wife, Violet Kennedy, who survived him, he had three legitimate children: Edwin G. Bellis, Walter S. Bellis and Dorothy
Bellis; and finally, he had three illegitimate children: Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis.
On August 5, 1952, Amos G. Bellis executed a will in the Philippines, in which he directed that after all taxes, obligations, and expenses of administration are paid for, his distributable estate should be divided, in trust, in the
following order and manner: (a) $240,000.00 to his first wife, Mary E. Mallen; (b) P120,000.00 to his three illegitimate children, Amos Bellis, Jr., Maria Cristina Bellis, and Miriam Palma Bellis, or P40,000.00 each and (c)
after the foregoing two items have been satisfied, the remainder shall go to his seven surviving children by his first and second wives, namely: Edward A. Bellis, Henry A. Bellis, Alexander Bellis, and Anna Bellis Allsman,
Edwin G. Bellis, Walter S. Bellis, and Dorothy E. Bellis, in equal shares.
Subsequently, or on July 8, 1958, Amos G. Bellis died, a resident of San Antonio, Texas, U.S.A. His will was admitted to probate in the Court of First Instance of Manila on September 15, 1958.
The People's Bank and Trust Company, as executor of the will, paid all the bequests therein including the amount of $240,000.00 in the form of shares of stock to Mary E. Mallen and to the three (3) illegitimate children,
Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis, various amounts totalling P40,000.00 each in satisfaction of their respective legacies, or a total of P120,000.00, which it released from time to time according
as the lower court approved and allowed the various motions or petitions filed by the latter three requesting partial advances on account of their respective legacies.
On January 8, 1964, preparatory to closing its administration, the executor submitted and filed its "Executor's Final Account, Report of Administration and Project of Partition" wherein it reported, inter alia, the satisfaction of
the legacy of Mary E. Mallen by the delivery to her of shares of stock amounting to $240,000.00, and the legacies of Amos Bellis, Jr., Maria Cristina Bellis and Miriam Palma Bellis in the amount of P40,000.00 each or a
total of P120.000.00. In the project of partition, the executor pursuant to the "Twelfth" clause of the testator's Last Will and Testament divided the residuary estate into seven equal portions for the benefit of the
testator's seven legitimate children by his first and second marriages.
On January 17, 1964, Maria Cristina Bellis and Miriam Palma Bellis filed their respective oppositions to the project of partition on the ground that they were deprived of their legitimes as illegitimate children and, therefore,
compulsory heirs of the deceased.
Amos Bellis, Jr. interposed no opposition despite notice to him, proof of service of which is evidenced by the registry receipt submitted on April 27, 1964 by the executor. 1
After the parties filed their respective memoranda and other pertinent pleadings, the lower court, on April 30, 1964, issued an order overruling the oppositions and approving the executor's final account, report and
administration and project of partition. Relying upon Art. 16 of the Civil Code, it applied the national law of the decedent, which in this case is Texas law, which did not provide for legitimes.
Their respective motions for reconsideration having been denied by the lower court on June 11, 1964, oppositors-appellants appealed to this Court to raise the issue of which law must apply Texas law or Philippine law.
In this regard, the parties do not submit the case on, nor even discuss, the doctrine of renvoi, applied by this Court in Aznar vs. Christensen Garcia, L-16749, January 31, 1963. Said doctrine is usually pertinent where the
decedent is a national of one country, and a domicile of another. In the present case, it is not disputed that the decedent was both a national of Texas and a domicile thereof at the time of his death. 2 So that even assuming
Texas has a conflict of law rule providing that the domiciliary system (law of the domicile) should govern, the same would not result in a reference back (renvoi) to Philippine law, but would still refer to Texas law.
Nonetheless, if Texas has a conflict of law rule adopting the situs theory (lex rei sitae) calling for the application of the law of the place where the properties are situated, renvoi would arise, since the properties here
involved are found in the Philippines. In the absence, however, of proof as to the conflict of law rule of Texas, it should not be presumed different from ours. 3 Appellants' position is therefore not rested on the doctrine of
renvoi. As stated, they never invoked nor even mentioned it in their arguments. Rather, they argue that their case falls under the circumstances mentioned in the third paragraph of Article 17 in relation to Article 16 of the
Civil Code.
Article 16, par. 2, and Art. 1039 of the Civil Code, render applicable the national law of the decedent, in intestate or testamentary successions, with regard to four items: (a) the order of succession; (b) the amount of
successional rights; (c) the intrinsic validity of the provisions of the will; and (d) the capacity to succeed. They provide that
"Art 16. Real property as well as personal property is subject to the law of the country where it is situated.
"However", intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall
be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be
found."
"Art. 1039. Capacity to succeed is governed by the law of the nation of the decedent."
Appellants would however counter that Article 17, paragraph three, of the Civil Code, stating that
"Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws, or
judgments promulgated, or by determinations or conventions agreed upon in a foreign country."
prevails as the exception to Art. 16, par. 2 of the Civil Code aforequoted. This is not correct. Precisely, Congress deleted the phrase, "notwithstanding the provisions of this and the next preceding article" when they
incorporated Art. 11 of the old Civil Code as Art. 17 of the new Civil Code, while reproducing without substantial change the second paragraph of Art. 10 of the old Civil Code as Art. 16 in the new. It must have been
their purpose to make the second paragraph of Art. 16 a specific provision in itself which must be applied in testate and intestate successions. As further indication of this legislative intent, Congress added a new
provision, under Art. 1039, which decrees that capacity to succeed is to be governed by the national law of the decedent.
It is therefore evident that whatever public policy or good customs may be involved in our system of legitimes, Congress has not intended to extend the same to the succession of foreign nationals. For it has specifically
chosen to leave, inter alia, the amount of successional rights, to the decedent's national Law. Specific provisions must prevail over general ones.

Appellants would also point out that the decedent executed two wills one to govern his Texas estate and the other his Philippine estate arguing from this that he intended Philippine law to govern his Philippine estate.
Assuming that such was the decedent's intention in executing a separate Philippine will, it would not alter the law, for as this Court ruled in Miciano vs. Brimo, 50 Phil. 867, 870, a provision in a foreigner's will to the effect
that his properties shall be distributed in accordance with Philippine law and not with his national law, is illegal and void, for his national law cannot be ignored in regard to those matters that Article 10 now Article 16 of
the Civil Code states said national law should govern.
The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, U.S.A., and that under the laws of Texas, there are no forced heirs or legitimes. Accordingly, since the intrinsic validity of the
provision of the will and the amount of successional rights are to be determined under Texas law, the Philippine law on legitimes cannot be applied to the testacy of Amos G. Bellis.
Wherefore, the order of the probate court is hereby affirmed in toto, with costs against appellant. So ordered.
Concepcion, C .J ., Reyes, J .B.L., Dizon, Regala, Makalintal Zaldivar, Sanchez and Castro, JJ., concur.
||| (Bellis v. Bellis, G.R. No. L-23678, [June 6, 1967], 126 PHIL 726-733)
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.
SYLLABUS
1. REMEDIAL LAW; SPECIAL CIVIL ACTION; CERTIORARI; GRAVE ABUSE OF DISCRETION; GRANT OF MOTION TO WITHDRAW OPPOSITION TO PROBATE OF WILL IN CASE AT BAR, NOT A CASE OF.
We find no grave abuse of discretion on the part of the respondent judge when he allowed withdrawal of petitioner's opposition to the probate of the will. No proof was adduced to support petitioner's contention that
the motion to withdraw was secured through fraudulent means and that Atty. Franco Loyola was not his counsel of record. The records show that after the filing of the contested motion, the petitioner at a later date,
filed a manifestation wherein he confirmed that the Motion to Dismiss Opposition was his voluntary act and deed. Moreover, at the time the motion was filed, the petitioner's former counsel, Atty. Jose P. Lagrosa had
long withdrawn from the case and had been substituted by Atty. Franco Loyola who in turn filed the motion. The present petitioner cannot, therefore, maintain that the old man's attorney of record was Atty. Lagrosa at
the time of filing the motion. Since the withdrawal was in order, the respondent judge acted correctly in hearing the probate of the will ex-parte, there being no other opposition to the same.
2. ID.; SPECIAL PROCEEDINGS; PROBATE OF WILL; PROBATE COURT, SCOPE OF AUTHORITY. As a general rule, the probate court's authority is limited only to the extrinsic validity of the will, the due
execution thereof, the testatrix's testamentary capacity and the compliance with the requisites or solemnities prescribed by law. The intrinsic validity of the will normally comes only after the court has declared that
the will has been duly authenticated. However, where practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated, the court should meet the issue (Maninang, v.
Court of Appeals, 114 SCRA 478).
3. CIVIL LAW; WILLS AND SUCCESSION; INTRINSIC VALIDITY OF WILLS GOVERNED BY THE NATIONAL LAW OF THE DECEDENT; CASE AT BAR. It is a settled rule that as regards the intrinsic validity of
the provisions of the will, as provided for by Articles 16(2) and 1039 of the Civil Code, the national law of the decedent must apply. In the case at bar, although on its face, the will appeared to have preterited the
petitioner and thus, the respondent judge should have denied its probate outright, the private respondents have sufficiently established that Adoracion Campos was, at the time of her death, an American citizen and
a permanent resident of Philadelphia, Pennsylvania, U.S.A.. Therefore, the law governing Adoracion Campos' will is the law of Pennsylvania, U.S.A., which is the national law of the decedent. Under the
Pennsylvania law, no legitimes are provided for, and all the estate may be given away by the testatrix to a complete stranger.
4. REMEDIAL LAW; SPECIAL PROCEEDINGS; SETTLEMENT OF ESTATE; COURT OF FIRST INSTANCE OF THE PROVINCE WHERE THE ESTATE IS LOCATED HAS JURISDICTION. 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 the 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.
5. ID.; ID.; ID.; ID.; PETITIONER ESTOPPED FROM QUESTIONING JURISDICTION OF COURT IN CASE AT BAR. Petitioner is now estopped from questioning the jurisdiction of the probate court in the petition
for relief. It is a settled rule that a party cannot invoke the jurisdiction of a court to secure affirmative relief, against his opponent and after failing to obtain such relief, repudiate or question that same jurisdiction (See
Saulog Transit, Inc. v. Hon. Manuel Lazaro, et al., G.R. No. 63284, April 4, 1984).
DECISION
GUTIERREZ, JR., J p:
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. LLjur
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 will and testament on July 10, 1975, according to the laws of Pennsylvania,
U.S.A., nominating Wilfredo Barzaga of New Jersey as executor; that after the testatrix' death, her last will and testament was presented, probated, allowed, and registered with the Registry of Wills at the County of
Philadelphia, U.S.A., that Clement L. McLaughlin, the administrator who was appointed after Dr. Barzaga had declined and waived his appointment as executor in favor of the former, is also a resident of Philadelphia,
U.S.A., and that therefore, there is an urgent need for the appointment of an administratrix to administer and eventually distribute the properties of the estate located in the Philippines. Cdpr
On January 11, 1978, an opposition to the reprobate of the will was filed by herein petitioner alleging among other things, that he has every reason to believe that the will in question is a forgery; that the intrinsic provisions
of the will are null and void; and that even if pertinent American laws on intrinsic provisions are invoked, the same could not apply inasmuch as they would work injustice and injury to him.
On December 1, 1978, however, the petitioner through his counsel, Atty. Franco Loyola, filed a Motion to Dismiss Opposition (With Waiver of Rights or Interests) stating that he "has been able to verify the veracity thereof
(of the will) and now confirms the same to be truly the probated will of his daughter Adoracion." Hence, an ex-parte presentation of evidence for the reprobate of the questioned will was made.
On January 10, 1979, the respondent judge issued an order to wit:
"At the hearing, it has been satisfactorily established that Adoracion C. Campos, in her lifetime, was a citizen of the United States of America with a permanent residence at 4633 Ditman Street,
Philadelphia, PA 19124, (Exhibit D); that when alive, Adoracion C. Campos executed a Last Will and Testament in the county of Philadelphia, Pennsylvania, U.S.A., according to the laws thereat
(Exhibits E-3 to E-3-b); that while in temporary sojourn in the Philippines, Adoracion C. Campos died in the City of Manila (Exhibit C) leaving property both in the Philippines and in the United States
of America; that the Last Will and Testament of the late Adoracion C. Campos was admitted and granted probate by the Orphan's Court Division of the Court of Common Pleas, the probate court of
the Commonwealth of Pennsylvania, County of Philadelphia, U.S.A., and letters of administration were issued in favor of Clement J. McLaughlin, all in accordance with the laws of the said foreign
country on procedure and allowance of wills (Exhibits E to E-10); and that the petitioner is not suffering from any disqualification which would render her unfit as administratrix of the estate in the
Philippines of the late Adoracion C. Campos.
"WHEREFORE, the Last Will and Testament of the late Adoracion C. Campos is hereby admitted to and allowed probate in the Philippines, and Nenita Campos Paguia is hereby appointed
Administratrix of the estate of said decedent; let Letters of Administration with the Will annexed issue in favor of said Administratrix upon her filing of a bond in the amount of P5,000.00 conditioned
under the provisions of Section I, Rule 81 of the Rules of Court.
Another manifestation was filed by the petitioner on April 14, 1979, confirming the withdrawal of his opposition, acknowledging the same to be his voluntary act and deed.

On May 25, 1979, Hermogenes Campos filed a petition for relief, praying that the order allowing the will be set aside on the ground that the withdrawal of his opposition to the same was secured through fraudulent means.
According to him, the "Motion to Dismiss Opposition" was inserted among the papers which he signed in connection with two Deeds of Conditional Sales which he executed with the Construction and Development
Corporation of the Philippines (CDCP). He also alleged that the lawyer who filed the withdrawal of the opposition was not his counsel-of-record in the special proceedings case.
The petition for relief was set for hearing but the petitioner failed to appear. He made several motions for postponement until the hearing was set on May 29, 1980.
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. cdll
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 ex-parte hearing 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 filing of the contested motion, the petitioner at a later date, filed a manifestation wherein he confirmed that the Motion to Dismiss Opposition was his
voluntary act and deed. Moreover, at the time the motion was filed, the petitioner's former counsel, Atty. Jose P. Lagrosa had long withdrawn from the case and had been substituted by Atty. Franco Loyola who in turn filed
the motion. The present petitioner cannot, therefore, maintain that the old man's attorney of record was Atty. Lagrosa at the time of filing the motion. Since the withdrawal was in order, the respondent judge acted correctly
in hearing the probate of the will ex-parte, there being no other opposition to the same. LLpr
The third issue raised deals with the validity of the provisions of the will. As a general rule, the probate court's authority is limited only to the extrinsic validity of the will, the due execution thereof, the testatrix's testamentary
capacity and the compliance with the requisites or solemnities prescribed by law. The intrinsic validity of the will normally comes only after the court has declared that the will has been duly authenticated. However, where
practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated, the court should meet the issue. (Maninang v. Court of Appeals, 114 SCRA 478).
In the case at bar, the petitioner maintains that since the respondent judge allowed the reprobate of Adoracion's will, Hermogenes C. Campos was divested of his legitime which was reserved by the law for him.
This contention is without merit.
Although on its face, the will appeared to have preterited the petitioner and thus, the respondent judge should have denied its reprobate outright, the private respondents have sufficiently established that Adoracion was, at
the time of her death, an American citizen and a permanent resident of Philadelphia, Pennsylvania, U.S.A. Therefore, under Article 16 par. (2) and 1039 of the Civil Code which respectively provide:
Art. 16 par. (2).
xxx xxx xxx
"However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall
be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be
found."
Art. 1039.
"Capacity to succeed is governed by the law of the nation of the decedent."
the law which governs Adoracion Campo's will is the law of Pennsylvania, U.S.A., which is the national law of the decedent. Although the parties admit that the Pennsylvania law does not provide for legitimes and that
all the estate may be given away by the testatrix to a complete stranger, the petitioner argues that such law should not apply because it would be contrary to the sound and established public policy and would run
counter to the specific provisions of Philippine Law.
It is a settled rule that as regards the intrinsic validity of the provisions of the will, as provided for by Article 16 (2) and 1039 of the Civil Code, the national law of the decedent must apply. This was squarely applied in the
case of Bellis v. Bellis (20 SCRA 358) wherein we ruled:
"It is therefore evident that whatever public policy or good customs may be involved in our system of legitimes, Congress has not intended to extend the same to the succession of foreign nationals.
For it has specifically chosen to leave, inter alia, the amount of successional rights, to the decedent's national law. Specific provisions must prevail over general ones.
xxx xxx xxx
"The parties admit that the decedent, Amos G. Bellis, was a citizen of the State of Texas, U.S.A., and under the law of Texas, there are no forced heirs or legitimes. Accordingly, since the intrinsic
validity of the provision of the will and the amount of successional rights are to be determined under Texas law, the Philippine Law on legitimes cannot be applied to the testacy of Amos G. Bellis."
As regards the alleged absence of notice of hearing for the petition for relief, the records will bear the fact that what was repeatedly scheduled for hearing on separate dates until June 19, 1980 was the petitioner's petition
for relief and not his motion to vacate the order of January 10, 1979. There is no reason why the petitioner should have been led to believe otherwise. The court even admonished the petitioner's failing to adduce evidence
when his petition for relief was repeatedly set for hearing. There was no denial of due process. The fact that he 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. prcd
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 the Adoracion at the time of her death was
a citizen and permanent resident of Pennsylvania, United States of America an not a "usual resident of Cavite" as alleged by the petitioner. Moreover, petitioner is now estopped from questioning the jurisdiction of the
probate court in the petition for relief. It is a settled rule that a party cannot invoke the jurisdiction of a court to secure affirmative relief, against his opponent and after failing to obtain such relief, repudiate or question that
same jurisdiction. (See Saulog Transit, Inc. v. Hon. Manuel Lazaro, et al., G.R. No. 63284, April 4, 1984). LLphil
WHEREFORE, the petition for certiorari and prohibition is hereby dismissed for lack of merit.
SO ORDERED.
Melencio-Herrera, Plana, Relova and De la Fuente, JJ ., concur.
Teehankee, J ., took no part.
||| (Cayetano v. Leonidas, G.R. No. 54919, [May 30, 1984], 214 PHIL 460-470)
FRANCISCA ALSUA-BETTS, JOSEPH O. BETTS, JOSE MADARETA, ESTEBAN P. RAMIREZ, and THE REGISTER OF DEEDS FOR ALBAY PROVINCE, petitioners, vs. COURT OF APPEALS, AMPARO
ALSUA-BUENVIAJE, FERNANDO BUENVIAJE, FERNANDO ALSUA, represented by his guardian, CLOTILDE S. ALSUA and PABLO ALSUA, respondents.
Rafael Triumfante for petitioners.
Sabido-Sabido & Associates and Madrid Law Office for private respondents.
DECISION
GUERRERO, J p:
This is an appeal by certiorari from the decision of the Court of Appeals in CA-G.R. Nos. 54492-R and 54493-R which reversed the decision of the Court of First Instance of Albay allowing the probate of the will of Don
Jesus Alsua in Special Proceedings No. 699 and dismissing the complaint in Civil Case 3068 after declaring the two deeds of sale executed by Don Jesus Alsua legal and valid. The respondent court 1 denied the probate
of the will, declared null and void the two sales subject of the complaint and ordered the defendants, petitioners herein, to pay damages to the plaintiffs, now the private respondents, the sum of Five Thousand Pesos
(P5,000.00), to render an accounting of the properties in their possession and to reimburse the latter the net gain in the proportion that appertains to them in the properties from the date of the filing of the complaint up to
complete restoration plus Fifty Thousand Pesos (P50,000.00) as attorney's fees and costs. cdll
The antecedent events leading to the filing of these two consolidated actions are the following:
On November 25, 1949, Don Jesus Alsua and his wife, Doa Florentina Ralla, both of Ligao, Albay, together with all their living children, Francisca Alsua-Betts, Pablo Alsua, Fernando Alsua thru this judicial guardian
Clotilde Samson, and Amparo Alsua de Buenviaje, entered into a duly notarized agreement, Escritura de Particion Extrajudicial (Exhibit 8), over the then present and existing properties of the spouses Don Jesus and Doa
Florentina enumerated in a prepared inventory, Exhibit 8-A, the essential features of which are stated in private respondents' Brief, pp. 26-29, to wit:
"(1) Basis of the partition: Inventory (Annex A) of all the properties of the Alsua spouses, which inventory consists of 97 pages, all of them signed by the spouses and all the abovenamed
heirs in the left margin of every page (parafo primero).
(2) An acknowledgment of the spouses that all the properties described in the inventory (Annex A) are conjugal properties with the exception of five parcels of land identified with the figures
of 1 to 5 and 30 shares of San Miguel Brewery stock which are paraphernal properties of the late Doa Tinay (segundo parafo).
(3) An acknowledgment that during their marriage, they had nine children but five of them died minors, unmarried (parafo tercero y cuatro).
(4) An acknowledgment that on the basis of Article 1056 of the Civil Code (old) to avoid possible misunderstanding among their children concerning the inheritance they are entitled to in the
event of death of one of them they have decided to effectuate an extrajudicial partition of all the properties described in Annex "A" thereto under the following terms and conditions: (Parafo
quinto):
To Francisca Alsua, married to Joseph O. Betts were allotted or assigned all the real properties with the improvements thereon specifically described from pages 1 12 of said inventory or, 34
parcels of land with a total land area of 5,720,364 sq. meters, with a book or appraised value of P69,740.00.
To Pablo Alsua, married to Teresa Locsin were allotted or assigned all the real properties with the improvements thereon specifically described from pages 12 20 of said inventory or, 26 parcels
of land with a total land area of 5,679,262 sq. meters, with a book or appraised value of P55,940.00.
To Fernando Alsua, married to Clotilde Samson were allotted or assigned all the real properties with the improvements thereon specifically described from pages 20 33 of said inventory or, 47
parcels of land with a total land area of 6,639,810 sq. meters, with a book or appraised value of P89,300.00.
To Amparo Alsua, married to Fernando Buenviaje were allotted or assigned all the real properties with the improvements thereon specifically described from pages 33 47 of said inventory or, 47
parcels of land with a total land area of 5,630,715 sq. meters, with a book or appraised value of P58,830.00.
(a) Each and every one of the heirs named above acknowledge and admit that the totality of the properties allotted and adjudicated to the heirs as described in the preceding paragraph,
constitute one-half of the properties described in Annex "A", including any amount of cash deposited.
(b) That all the heirs acknowledge and admit that all the properties assigned to them as their hereditary portion represent one-half not only of the conjugal properties but includes the
paraphernal properties waiving now and forever any complaint or claim they have or they may have concerning the amount, value, extension and location of the properties that are allotted
to each and everyone. They also waive any claim they have or they may have over the remaining portion of the properties, which spouses reserved for themselves.
(c) That in case of death of one of the spouses, each and everyone of the heirs acknowledge that the properties which are left in the possession of the surviving spouse, including any amount
in cash, are even less than the one-half that should correspond in absolute ownership as his legitimate participation in the conjugal properties. In consequence they waive any claim that they
have or may have over said portion of said properties or any amount in cash during the lifetime of the surviving spouse, including any right or claim they have or they may have over the
paraphernal properties of Doa Tinay in the event the surviving spouse is Don Jesus.
(d) The spouses on their part in case of death of any one of them, the surviving spouse waives any claim he or she may have over the properties assigned or adjudicated to the heirs under
and by virtue of this deed. The properties which were reserved for them (the spouses) should be considered as his or her legitimate participation in the conjugal properties and the fair
compensation of his or her usufruct on the properties that the surviving spouse reserved for himself or herself which shall be distributed in equal shares among the heirs upon his or her death
unless said properties of some of them have been disposed of during the lifetime of the surviving spouse.
(e) Any heir who may dare question the validity and legitimacy of the provision contained herein shall be under obligation to pay to the other heirs, in the concept of damages and prejudice,
the sum of P5,000.00 plus attorney's fees.
(f) The provisions of this deed shall bind the successors of the herein heirs.
(g) In the event of death of one of the spouses, the properties assigned or adjudicated to each and everyone of the heirs shall be considered as his share or participation in the estate or as

his inheritance left by the deceased and each heir shall become the absolute owner of the properties adjudicated to him under this deed.
On January 5, 1955, Don Jesus and Doa Florentina, also known as Doa Tinay separately executed their respective holographic wills (Exhs. 6-B and 7-B), the provisions of which were in conformity and in implementation
of the extrajudicial partition of November 25, 1949. Their holographic wills similarly provided for the institution of the other to his or her share in the conjugal properties, the other half of the conjugal assets having been
partitioned to constitute their legitime among their four living children in the Extrajudicial Partition of 1949. The wills also declared that in the event of future acquisitions of other properties by either of them, one-half thereof
would belong to the other spouse, and the other half shall be divided equally among the four children. The holographic will of Doa Tinay written in Spanish reads, as translated:
"TESTAMENT
I, FLORENTINA R. DE ALSUA, 67 years old, Filipina, married to Don Jesus Alsua, resident of and with postal address in the Municipality of Ligao, Province of Albay, Philippines, being in the full
possession of my mental and physical faculties freely and spontaneously execute this my last will and testament in my handwriting and signed by me and expressed in the Spanish language which I
speak, write and understand, this 5th day of January, 1955 in the Municipality of Ligao, Province of Albay, and in which I ordain and provide:
"First: That in or about the year 1906 I was married to my husband Don Jesus Alsua and begot nine (9) children with him, four (4) of whom are still living and they are Francisca Alsua, Pablo Alsua,
Fernando Alsua and Amparo Alsua. The other five (5) died during their minority, single and without children.
"Second: That after my marriage to my husband Don Jesus Alsua and during our conjugal union, and as a result of our efforts and industry, we were able to acquire conjugal properties consisting of
abaca (abales) and cacao lands and urban lands registered in the office of the Registry of Property of the Province of Albay and in the City of Manila.
"Third: That I institute as my heirs with right to inherit the following: my spouse Don Jesus Alsua, one-half (1/2) of my properties, real and personal, and the other half, to my children Francisca
Alsua, married to Joseph O. Betts, Pablo Alsua, Fernando Alsua, married to Clotilde Samson, and Amparo Alsua, married to Fernando Buenviaje, in equal parts. It is to be understood, however, that
the other half that corresponds as legitime to my above named children have already been given to them, pursuant to a document dated November 25, 1949 and ratified on the same day. month
and year before Notary Public Segundo G. Flores (Reg. No. 525; Pag. 15; Lib. II; Series of 1949) enjoining each and everyone of them to respect and faithfully comply with each and every clause
contained in the said document.
"Fourth: That should I acquire new properties after the execution of this testament, the same shall be partitioned among my spouse and above named children or the children mentioned in above
par. 3 in the same proportion, that is, one-half (1 1/2) to my spouse; and the other half to my children in equal parts.
"Fifth: That I name as my executor my husband Don Jesus Alsua without having to post any bond.
IN VIRTUE WHEREOF, I hereby sign in my own handwriting this testament on this 5th day of January, 1955 in the Municipality of Ligao, Province of Albay, Philippines.
(SGD.) FLORENTINA R. DE ALSUA"
(Joint Record on Appeal, pp. 420-423, CA-G.R. No. 54492-R)
As previously stated, Don Jesus Alsua executed a separate but similar holographic will on the same day, Jan. 5, 1955 in exactly the same terms and conditions as the above will of his wife.
On May 21, 1956, the spouses Don Jesus and Doa Tinay filed before the Court of First Instance of Albay their respective petitions for the probate of their respective holographic wills which were docketed as Special
Proceedings No. 484 (Jesus Alsua, Petitioner) and Special Proceedings No. 485 (Doa Florentina Ralla de Alsua, Petitioner).
On August 14, 1956, the spouses Don Jesus and Doa Tinay executed their mutual and reciprocal codicils amending and supplementing their respective holographic wills. Again, the codicils similarly acknowledged and
provided that one-half of all the properties of the spouses, conjugal and paraphernal, had been disposed of, conveyed to and partitioned among their legitimate heirs in the "Escritura de Particion" of November 25, 1949,
but that they reserved for themselves (the spouses Don Jesus and Doa Tinay) the other half or those not disposed of to the said legitimate heirs under the above agreement of partition, and that they mutually and
reciprocally bequeathed unto each other their participation therein as well as in all properties which might be acquired subsequently. Each spouse also declared that should she or he be the surviving spouse, whatever
belongs to him or her or would pertain to him or her, would be divided equally among the four children. It was also declared in both codicils that upon the death of either of the spouses, the surviving spouse was designated
mutually and reciprocally as the executor or administrator of all the properties reserved for themselves. cdrep
The codicil executed by Doa Tinay written in Spanish reads, as translated:
"CODICIL
This codicil supplements and amends the preceding testament. That my spouse and I have agreed to divide the properties which we have acquired into 2 parts. The 1/2 that would correspond to
me covers all the properties that I have partitioned among my children in the Document of Partition dated November 25, 1949 before Notary Public Segundo G. Flores, Jr. (Doc. No. 525; Pag. No.
15; Lib. No. II; Series of 1949) (and) even as the properties which by reason of this testament I leave to my husband as his share and the other half that corresponds to my husband constitutes all
the properties that up to now have not been disposed of, particularly the urban lands situated in Legaspi, Albay, Ligao of the Province of Albay and in the City of Manila, with the exception of that
portion that I bequeath to my husband as his inheritance and his legitimate.
That I institute as my heirs with the right to inherit my husband Don Jesus Alsua and my children Francisca Alsua, Pablo Alsua, Fernando Alsua and Amparo Alsua. I leave to my aforecited children
all the properties described in the above mentioned Document of Partition dated November 25, 1949 which correspond to each one of them and in the profits (fruits) expressed in the same, and in
the event that the properties granted to one or any of my children should exceed in quantity or value those corresponding to another or others, I hereby declare that it is my will that the same be
divided among my children as their inheritance from the free portion of my property.
I leave to my spouse Don Jesus Alsua as his legitime and as his inheritance the part of the free portion of my property which have not been allocated in favor of my children in the Document of
Partition aforecited and that which should exceed 1/2 of the conjugal property of gains that pertains to him as above stated, including all those properties which we shall acquire after the execution
of this document.
In case it should be God's will that I survive my spouse, I hereby declare that it is my will that any and all kinds of property that pertain to me or would pertain to me, which have not been disposed of
pursuant to the partition, should be divided equally among my above-mentioned heirs after my death.
Ligao, Albay, Philippines, August 14, 1956.
(SGD.) FLORENTINA RALLA DE ALSUA"
(Joint Record on Appeal, pp. 423-425, CA-G.R. No. 54492-R)
And as stated previously, on the same day, August 14, 1956, Don Jesus executed also a separate but similar codicil in exactly the same terms and conditions as the above codicil of his wife. Also on the same day of August
14, 1956, the spouses Don Jesus and Doa Tinay both filed their respective supplemental petitions for the probate of their respective codicils in the probate proceedings earlier filed. On February 19, 1957, their respective
holographic wills and the codicils thereto were duly admitted to probate.
Upon the death of Doa Tinay on October 2, 1959, Don Jesus was named executor to serve without bond in an order issued by the probate court on October 13, 1959. Letters testamentary having been issued in favor of
Don Jesus, he took his oath of office and performed his duties as such until July 1, 1960.
Thereafter in the early part of November, 1959, Don Jesus cancelled his holographic will in the presence of his bookkeeper and secretary, Esteban P. Ramirez, whom he instructed to make a list of all his remaining
properties with their corresponding descriptions. His lawyer, Atty. Gregorio Imperial, Sr. was then instructed to draft a new will which was duly signed by Don Jesus and his attesting witnesses on November 14, 1959 at his
home in Ligao, Albay. This notarial will and testament (Exh. A) of Don Jesus executed on November 14, 1959 had three essential features: (a) it expressly cancelled, revoked and annulled all the provisions of Don Jesus'
holographic will of January 5, 1955 and his codicil of August 14, 1956; (b) it provided for the collation of all his properties donated to his four living children by virtue of the "Escritura de Particion Extrajudicial" of 1949, and
that such properties be taken into account in the partition of his estate among the children; and (c) it instituted his children as legatees/devisees of certain specific properties, and as to the rest of the properties and
whatever may be subsequently acquired in the future, before his death, were to be given to Francisca and Pablo, naming Francisca as executrix to serve without a bond. LLpr

After all debts, funeral charges and other expenses of the estate of Doa Tinay had been paid, all her heirs including Don Jesus, submitted to the probate court for approval a deed of partition executed on December 19,
1959 (Exh. 7-Q) and which essentially confirmed the provisions of the partition of 1949, the holographic will and codicil of Doa Tinay. On July 6, 1960, the court approved the partition of 1959 and on January 6, 1961
declared the termination of the proceedings on the estate of Doa Tinay.
On May 6, 1964, Don Jesus Alsua died.
On May 20, 1964, petitioner herein Francisca Alsua Betts, as the executrix named in the will of November 14, 1959, filed a petition for the probate of said new will of Don Jesus Alsua before the Court of First Instance of
Albay and was docketed as Special Proceedings No. 699. Oppositions thereto were filed by Pablo, Amparo and Fernando, thru his judicial guardian Clotilde Samson, on the following grounds: (a) that Don Jesus was not of
sound and disposing mind at the time of the execution of the alleged will; (b) that the will was executed under duress or influence of fear or threats; or it was procured by undue and improper pressure and influence on the
part of the main beneficiaries and of person or persons in collusion with them, or the signature of the testator was secured by or thru fraud; (c) that the will was not executed according to the formal requirements of the law;
and (d) that the alleged will subject of probate contravened the Extrajudicial Partition of 1949 agreed upon by him, his deceased spouse, Doa Tinay, and all his children, Francisca, Pablo, Amparo and Fernando thru his
judicial guardian Clotilde Samson, and also contravened Don Jesus' own probated holographic will and codicil of 1955 and 1956, respectively, essentially confirming and implementing the said partition of 1949 which had
already been partially executed by all the signatories thereto in the partition of the estate of Doa Tinay in December, 1959. LLphil
On the basis of Francisca's designation as executrix in the new will dated November 14, 1959, the Probate Court appointed her Administratrix of the estate of her late father, Don Jesus Alsua. She then filed with the
Probate Court an inventory of the properties of the estate which, according to the oppositors therein (the private respondents now) did not include some properties appearing in the agreement of November 25. 1949 or in
the inventory attached thereto as Annex "A" and in the "Escritura de Particion" of December 19, 1959 as belonging to or should pertain to Don Jesus. According to the oppositors, these properties consist of thirty-three (33)
premium agricultural lots with a total land area of 1,187,970 square meters, or approximately 119 hectares and with a total assessed value of P48,410.00 or a probable total market value of P238,000,00 at only P2,000.00
per hectare, and four (4) commercial urban lots ideally located in the business section of Legazpi City including the lot and the building presently occupied by the well-known "Mayon Hotel" with an assessed value of
approximately P117,260.00 or a probable market value at the time of P469,040.00. It appearing from the new will that these properties were bequeathed to Pablo Alsua and Francisca Alsua-Betts, specifically, 3 parcels of
the 33 agricultural lands to Pablo and the rest to Francisca, the oppositors also raised in issue the non-inclusion of said properties in the inventory of the estate of their late father. In answer, Francisca claimed ownership
over the same, alleging that she bought the properties from their father and presenting the two Deeds of Sale now being assailed, one dated August 26, 1961 purporting to show the sale of the 33 parcels of agricultural
land to Francisca by their father for the price of P70,000.00 and the other dated November 26, 1962 evidencing the sale of the four urban lots for the sum of P80,000.00. Claiming fraud in the sales, the oppositors filed Civil
Case No. 3068, seeking the annulment of the aforesaid two deeds of sale, with damages, which upon agreement of the parties was then jointly heard and tried with Special Proceedings No. 699 for probate of the Last Will
and Testament of Don Jesus executed on November 14, 1959.
After a joint hearing of the merits of these two cases, the Court of First Instance of Albay promulgated a decision on January 15, 1973, the dispositive portion of which states:
"WHEREFORE, in view of all the foregoing, judgment is hereby rendered, to wit:
1. In Special Proceedings 699, the Court hereby APPROVES and ALLOWS the Will executed by Don Jesus Alsua at Ligao, Albay, on November 14, 1959, which had been marked as Exhibit
A, consisting of nine (9) pages, and orders that the same be made the basis for division and distribution of the estate of said testator;
2. In Civil Case 3068, the Court hereby dismisses the complaint and holds that the sale on August 26, 1961 (Exh. U) and the sale on November 26, 1962 (Exh. W), are lawful and valid sales
and accordingly conveyed title to the VENDEE thereof. The Plaintiffs in Civil Case 3068, are ordered jointly and severally to pay to the defendant, Francisca Alsua Betts Fifty Thousand Pesos
(P50,000 00) as damages and Fifty Thousand (P50,000.00) Pesos for attorney's fees or a total of One Hundred Thousand Pesos (P100,000.00) and to pay the costs."
On appeal by herein respondents to the Court of Appeals, the court reversed the appealed decision in a judgment rendered on April 4, 1977, the dispositive portion of which states, as translated, thus
"IN VIEW OF THE FOREGOING, this Tribunal finds itself constrained to set aside as it hereby sets aside the decision appealed from in the following manner: (1) in Special Proceedings 699, the
probate of the will, Exh. A, is hereby denied; (2) in Civil Case No. 3068, Exhs. U and W and the titles issued on the basis thereof are hereby declared null and void, ordering the appellees Francisca
Alsua and Joseph Betts to pay to the plaintiffs in the concept of fixed damages, the sum of P5,000.00 and to render an accounting of properties in their possession and to reimburse the plaintiffs the
net gain, in the proportion that appertains to them in the properties subject of litigation in Civil Case No. 3068 from the date of the filing of this complaint, up to the complete restoration of the
properties pertaining to (plaintiffs) pursuant to Article 2208 of the New Civil Code, paragraph 11, ordering them in addition to pay to the plaintiffs and oppositors the sum of P50,000.00 as attorney's
fees, and the costs."
Hence, the petition at bar assailing the respondent court's decision on four assigned errors, to wit:
I. The respondent Court of Appeals erred in not affirming the findings of the probate court (Special Proceedings No. 699) that private respondents, oppositors to the probate of the will, are in estoppel to question the
competence of testator Don Jesus Alsua.
II. The respondent Court of Appeals grossly erred in holding that testator Don Jesus Alsua cannot revoke his previous will.
III. The respondent court's finding is grounded entirely on speculation, surmises or conjectures resulting in a gross misapprehension of facts.
IV. The respondent court grossly erred in annulling the sales of August 26, 1961 (Exh. U), and of November 26, 1962 (Exh. W).
On the first issue of estoppel raised in the assignment of errors, We hold that the same is of no moment. The controversy as to the competency or incompetency of Don Jesus Alsua to execute his will cannot be determined
by acts of the herein private respondents as oppositors to the will in formally agreeing in writing jointly with the petitioner Francisca Alsua de Betts that their father, Don Jesus Alsua, be appointed by the court executor of
the will of their mother in Special Proceedings No. 485, Testate Estate of Doa Florentina Ralla de Alsua and in subsequently petitioning the court not to require Don Jesus Alsua to file any accounting as executor in the
proceedings, which petitioners claim and was upheld by the trial court as constituting estoppel on the part of the private respondents from questioning the competence of Don Jesus Alsua.
The principle of estoppel is not applicable in probate proceedings, a ruling laid down in the case of Testate Estate of the Late Procopia Apostol. Benedicta Obispo, et al vs. Remedios Obispo, 50 O.G. 614, penned by
Justice J.B.L. Reyes, an eminent and recognized authority on Civil Law when he was still in the Court of Appeals, and We quote:
"Finally, probate proceedings involve public interest, and the application therein of the rule of estoppel, when it will block the ascertainment of the truth as to the circumstances surrounding the
execution of a testament, would seem inimical to public policy. Over and above the interest of private parties is that of the state to see that testamentary dispositions be carried out if, and only if,
executed conformably to law.
The Supreme Court of New York aptly said in Re Canfield's Will, 300 N.Y.S., 502:
"The primary purpose of the proceeding is not to establish the existence of the right of any living person, but to determine whether or not the decedent has performed the acts
specified by the pertinent statutes, which are the essential prerequisites to personal direction of the mode of devolution of his property on death. There is no legal but merely a moral duty
resting upon a proponent to attempt to validate the wishes of the departed, and he may and frequently does receive no personal benefit from the performance of the act.
One of the most fundamental conceptions of probate law, is that it is the duty of the court to effectuate, in so far as may be compatible with the public interest, the devolutionary
wishes of a deceased person (Matter of Watson's Will, 262 N.Y., 284, 294, 186, N.E., 787; Matter of Marriman's Estate, 124 Misc. 320, 325, 208, N.Y.S., 672; Foley, S., affirmed 217 app.
Div., 733, 216 N.Y.S., 126, Henderson, S., Matter of Draske's Estate, 160 Misc. 587, 593, 290, N.Y.S., 581). To that end, the court is, in effect, an additional party to every litigation
affecting the disposal of the assets of the deceased. Matter of Van Valkenburgh's Estate, 164 Misc. 295, 298, N.Y.S., 219.'"
The next issue that commands Our attention is whether the respondent court erred in not allowing the probate of the last will and testament of Don Jesus Alsua. Petitioners claim that the disallowance was based on
speculations, surmises or conjectures, disregarding the facts as found by the trial court. The Civil Court is very clear and explicit in providing the cases where a will may be disallowed under Article 839 which provides as
follows:
"Art. 839. The will shall be disallowed in any of the following cases:

(1) If the formalities required by law have not been complied with;
(2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution;
(3) If it was executed through force or under duress, or the influence of fear, or threats;
(4) If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person;
(5) If the signature of the testator was procured by fraud;
(6) If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto."
The issue under consideration appears to Us to have been answered by the respondent court itself when it accepted the findings of the trial court on the due execution of the questioned will and testament of Don Jesus,
declaring:
". . . and going back to the previous question, whether the questioned will and testament of November 14, 1959, Exh. A. was executed in accordance with Arts. 805-809 of the New Civil Code,
this Tribunal from the very beginning accepts the findings of the inferior court concerning the question,
On October 2, 1959, Doa Florentina died at Ligao, Albay. About 2 weeks after said death of his wife, Don Jesus Alsua decided to make a new will, thereby revoking and
cancelling his previous holographic will which he made on January 5, 1955 and also its codicil dated August 14, 1956. In the presence of his bookkeeper and secretary, Esteban P.
Ramirez, he crossed out in ink each and every page of said page he wrote on each page the word "cancelado", and affixed his signature thereon (Exh. V-5, V-6, consecutively up to and
including Exh. V-14). He then instructed Ramirez to make a list of all his properties with their corresponding descriptions.
Meanwhile, Don Jesus Alsua sent for his lawyer, Don Gregorio Imperial, Sr. and the latter came accompanied by his son, Atty. Jorge S. Imperial, who, incidentally, is now a
judge of the Court of First Instance of Naga City, Camarines Sur. Don Jesus informed his lawyers that he wanted to make a new will, and accordingly gave more detailed instructions as
to how he wanted to divide his properties among his four children. He handed to them a list and on the left he indicated the name of the child to whom the listed properties shall pertain.
Atty. Jorge Imperial took notes of the instructions of Don Jesus Alsua. To Don Jesus, Spanish is his major language, as in fact his conversations with Don Gregorio are always in Spanish.
A few days before November 14, 1959, Atty. Jorge S. Imperial showed to Don Jesus the semi-final draft of the will and after reading it Don Jesus said that it was as directed by him, and
after making a few minor corrections, he instructed Atty. Jorge S. Imperial to put the will in final form. He further told Atty. Jorge Imperial that the signing of the will should be at his home in
Ligao, in the morning of November 14 1959, and that the witnesses should be Mr. Ramon Balana, the then Register of Deeds of Albay; Mr. Jose Madarieta who is a friend of the family;
and Mr. Jose Gaya who is a sort of employee of Don Jesus.
Thus in the morning of November 14, 1959, Don Gregorio and Atty. Jorge S. Imperial, riding in a sedan, stopped at the Legaspi residence of Mr. Ramon Balana, and informed
the latter that Don Jesus was requesting him to be one of the attesting witnesses to his will. Mr. Balana, having a very high regard for Don Jesus, considered it an honor to be so asked,
and gladly went with the Imperials. They arrived at the residence of Don Jesus at Ligao; Albay, almost ten o'clock of that morning, and they were ushered in by Mr. Jose Gaya and the
latter requested them to be seated at the usual receiving room on the ground floor while he announced their arrival to Don Jesus who was on the second floor. Soon Don Jesus came
down, carrying with him the will to be signed placed inside a cartolina folder. He greeted Don Gregorio, Mr. Balan, and Atty. Imperial and immediately joined them in conversation. Mr.
Gaya called for Mr. Jose Madarieta, whose residence is just across the road from the house of Don Jesus. Mr. Madarieta was already informed by Don Jesus himself about the fact of
signing the will that morning, and so, on being advised by Mr. Gaya that the Imperials had already arrived, Madarieta proceeded to the residence of Don Jesus, without much delay. With
the coming of Madarieta and the coming back of Gaya, there were now six people gathered in the living room, namely: Don Jesus Alsua, Don Gregorio Imperial, Atty. Jorge S. Imperial,
Mr. Ramon Balana, Mr. Jose Madarieta, and Mr. Jose Gaya. All the witnesses who testified for the petitioner declared that Don Jesus was in bright and lively conversation which ran from
problems of farming and the merits of French-made wines. At 11:00 o'clock, Don Gregorio made a remark that it is about time to do what they were there for, and this was followed by a
more or less statement from Jesus, who said:
'Precisamente es por lo que he llamado a ustedes que esten presentes para ser testigos de mi ultimo voluntad y testamento que ha sido preparado por el
abogado Sr. Gregorio Imperial segun mis instrucciones cuyo documento tengo aqui conmigo y encuentro que, despues de lo he leido, esta satisfactoriamente hecho
segun mis instrucciones, Como saben ustedes tengo cuatro (4) hijos todos ellos.' (pp. 43-44, t.s.n., hearing of December 7, 1967, Sarte'.
On request of Don Jesus, all of them moved to the big round table on another part of the same sala for convenience in signing because there were chairs all around this table.
The will which consisted of nine pages, with a duplicate, and triplicate was laid on the round table and the signing began, with Atty. Jorge S. Imperial assisting each person signing by
indicating the proper place where the signature shall be written. Don Jesus, as testator, signed first. After signing the original and the two other sets, the three sets were then passed to
Mr. Ramon Balana who signed as attesting witness. After Mr. Balana, Mr. Jose Madarieta signed next as another attesting witness, and when Mr. Madarieta finished signing all the three
sets, the same were passed to Mr. Jose Gaya who also signed as the third attesting witness. On each of the three sets, Don Jesus signed ten times, one on the margin of each of the
nine pages, and at the end of the instrument proper. Each of the three attesting witnesses (Balana, Madarieta and Gaya) signed eleven times on each set, one on the margin of each
of the nine pages, one at the end of the instrument proper and one below the attestation clause. The original will was marked as Exh. A (or set A); the duplicate as Exh. K (or set K) and
the triplicate of Don Jesus, Mr. Balana, Mr. Madarieta, and Mr. Gaya were identified by Mr. Balana, Mr. Madarieta and Atty. (now Judge) Imperial. It was also clearly established that when
Don Jesus signed the will, Mr. Balana, Mr. Madarieta, and Mr. Gaya were present and witnessed said signing, and that when each of these three witnesses was signing, Don Jesus and
the two other attesting witnesses were present and witnessing said signing. The signing by the testator and the attesting witnesses having been completed, Atty. Jorge S. Imperial, as
Notary Public with commission for the entire province of Albay, notarized the will, and sealed it with his notarial seal, which seal he brought along that morning. After all the three sets
were notarized, they were all given back to Don Jesus who placed them inside the same folder. At that moment, it was already about 12:30 P.M. and Don Jesus invited all of them to
lunch, which invitation was gladly accepted by all of them. (pp. 474-480, Joint Record on Appeal in CA-G.R. No. 54492-R).
which findings are supported by the evidence, it is quite difficult to conclude that the same had not complied with the requirements of Arts. 804-806 of the New Civil Code. . . ." (CA
Decision, pp. 13-16, as translated).
This cited portion of the appealed decision accepts as a fact that the findings of the lower court declaring the contested will as having been executed with all the formal requirements of a valid will, are supported by the
evidence. This finding is conclusive upon this Tribunal and We cannot alter, review or revise the same. Hence, there is no further need for Us to dwell on the matter as both the lower court and the respondent appellate
court have declared that these are the facts and such facts are fully borne and supported by the records. We find no error in the conclusion arrived at that the contested will was duly executed in accordance with law. We
rule that the questioned last will and testament of Don Jesus Alsua fully complied with the formal requirements of the law. LLphil
Respondent court, however, denied probate of the will after "noting certain details which were a little bit difficult to reconcile with the ordinary course of things and of life." First was the fact that the spouses Don Jesus and
Doa Tinay together with their four children Francisca, Pablo, Amparo and Fernando had executed the Extrajudicial Partition of November 25, 1949 (Exh. A) which divided the conjugal properties of the spouses between
the spouses themselves and the children under the terms and conditions and dispositions hereinbefore stated and to implement its provisions, Don Jesus and Doa Tinay subsequently executed separately their respective
holographic wills both dated January 5, 1955 and codicils dated August 14, 1956 with the same terms and conditions as reproduced herein earlier. Both holographic wills and codicils having been probated thereafter and
upon the death of Doa Tinay, Don Jesus was appointed executor of the will and in due time the partition of the properties or estate of Doa Tinay was approved by the probate court on July 6, 1960. llcd
The respondent court ruled that the Extrajudicial Partition of November 25, 1949 was an enforceable contract which was binding on Don Jesus Alsua as the surviving spouse, barring him from violating said partition
agreement, barring him from revoking his holographic will of January 5, 1955 and his codicil of August 14, 1956, and further barring him from executing his new will and testament of November 14, 1959, now the subject of
the probate proceedings elevated to this Court.

We do not agree with this ruling of the Court of Appeals. We hold that the Extrajudicial Partition of November 25, 1949 is null and void under Article 1056 in relation to Article 1271 of the old Civil Code which are applicable
hereto. These Articles provide as follows:
"Art 1056. If the testator should make a partition of his property by an act inter vivos, or by will, such partition shall stand in so far as it does not prejudice the legitime of the forced heirs. . . ."
"Art. 1271. All things, even future ones, which are not excluded from the commerce of man, may be the subject-matter of contracts.
Nevertheless, no contract may be entered into with respect to future inheritances, except those the object of which is to make a division inter vivos of an estate, in accordance with Article 1056.
All services not contrary to law or to good morals may also be the subject-matter of contract."
Article 1056 specifically uses the word "testator" from which the clear intent of the law may be deduced that the privilege of partitioning one's estate by acts inter vivos is restricted only to one who has made a prior will or
testament. In other words, Article 1056 being an exception cannot be given a wider scope as to include in the exception any person whether he has made a will or not.
Respondent court citing the same Article concluded that under both the old and new Civil Code, a person who executes a will is permitted at the same time or a little thereafter or even before as long as he mentions this
fact in the will, to partition his properties pursuant to the provisions of Article 1056 of the old Civil Code. The court further added that jurisprudence is to the effect that the partition presupposes the execution of the will that it
ratifies or effectuates, citing the case of Legasto vs. Verzosa, 54 Phil. 776. Finally, respondent court held the opinion that the extrajudicial partition of November 14, 1949 was ratified in the holographic will executed by Don
Jesus on Jan. 5, 1955 and in the codicil of August 14, 1956.
Again, We do not agree with this ruling of the respondent court. In Legasto vs. Verzosa, supra, the Supreme Court categorically declared the necessity of a prior will before the testator can partition his properties among his
heirs, and We quote the pertinent portions of the decision:
"The first question to decide in the instant appeal is whether the partition made by Sabina Almadin of her property among her nieces the defendants and appellants herein, was valid and
enforceable.
Article 1056 of the Civil Code provides:
'Art. 1056. If the testator should make a partition of his property by an act inter vivos, or by will, such partition shall stand in so far as it does not prejudice the legitime of the forced heirs.
The Supreme Court of Spain, in a decision rendered on June 13, 1903, laid down the following doctrine:
'Considering that the language of article 1056 cannot be interpreted to mean that a person may, by acts inter vivos, partition his property referred to in the section wherein said article is found,
without the authority of a testament containing an expression of his last will, or the authority of law, for, otherwise, a partition thus made would be tantamount to making a will in a manner not
provided for, authorized, nor included in the chapter referring to testaments, and especially, to the forms thereof, which is entirely different from the legal consequences of a free disposition made by
parents during their lifetime, whereby they give to their children the whole or a part of their property;
'Considering that, inasmuch as the second paragraph of article 1271 makes reference to the aforesaid article, in providing that no contracts may be entered into with respect to future inheritances
except those the object of which is to make a division inter vivos of the estate in accordance with article 1056, it is evident that said difference likewise leads to the conclusion that a partition thus
made should be on the basis of a testamentary or legal succession and should be made in conformity with the fundamental rules thereof and the order of the heirs entitled to the estate, because
neither of the two provisions could be given a wider meaning or scope than that they simply provide for the division of the estate during the lifetime of the owner, which, otherwise, would have to be
done upon the death of the testator in order to carry into effect the partition of the estate among the persons interested.'
Manresa comments on the same article as follows:
'A distinction must be made between the disposition of property and its division; and the provision of article 1056 authorizing the testator to dispose of his property by acts inter vivos or by last will,
must be understood in accordance with this distinction. The idea is to divide the estate among the heirs designated by the testator. This designation constitutes the disposition of the properties to
take effect after his death, and said act must necessarily appear in the testament because it is the expression of the testator's last will and must be surrounded by appropriate formalities. Then
comes the second part, to wit, the division in conformity with that disposition, and the testator may make this division in the same will or in another will, or by an act inter vivos. With these words, the
law, in article 1056 as well as in article 1057, which we shall hereafter examine, makes allusion to the forms or manner of making the partition and not to the effects thereof, which means that, for
purposes of partition the formal solemnities which must accompany every testament or last will are not necessary. Neither is it necessary to observe the special formalities required in case of
donations, because it is not a matter of disposing gratuitously of properties, but of dividing those which already have been legally disposed of.'
It is thus seen that both the Spanish Supreme Court and the learned and authoritative commentator, Manresa, are of opinion that a testator may, by an act inter vivos, partition his property, but he
must first make a will with all the formalities provided for by law. And it could not be otherwise, for without a will there can be no testator; when the law, therefore, speaks of the partition inter vivos
made by a testator of his property, it necessarily refers to that property which he has devised to his heirs. A person who disposes of his property gratis inter vivos is not called a testator, but a donor.
In employing the word "testator," the law evidently desired to distinguish between one who freely donates his property in life and one who disposes of it by will to take effect after his death."
We are not in conformity with the holding of the respondent court that the extrajudicial partition of November 25, 1949 which under the old Civil Code was expressly prohibited as against public policy had been validly
ratified by the holographic will of Don Jesus executed on January 5, 1955 and his codicil of August 14, 1956. Such a holding of the appellate court that a person who executes a will is permitted to partition his properties
pursuant to the provisions of Article 1056 of the old Civil Code even before executing his will as long as he mentions this fact in the will, is not warranted under the ruling of Legasto vs. Verzosa, supra and the commentary
of Manresa as quoted above. We rule, therefore, that the respondent court erred in denying probate to the will of Don Jesus dated November 14, 1959; it erred in holding that Don Jesus being a party to the extrajudicial
partition of 1949 was contractually bound by the provisions thereof and hence could not revoke his participation therein by the simple expedience of making a new will with contrary provisions or dispositions. It is an error
because the so-called extrajudicial partition of 1949 is void and inoperative as a partition; neither is it a valid or enforceable contract because it involved future inheritance; it may only be given effect as a donation inter
vivos of specific properties to the heirs made by the parents. cdll
Considering that the document, the extrajudicial partition of November 25, 1949, contained specific designation of properties allotted to each child, We rule that there was substantial compliance with the rules on donations
inter vivos under the old Civil Code (Article 633). On the other hand, there could have been no valid donation to the children of the other half reserved as the free portion of Don Jesus and Doa Tinay which, as stated in
the deed, was to be divided equally among the children for the simple reason that the property or properties were not specifically described in the public instrument, an essential requirement under Article 633 which
provides as follows:
"Art. 633. In order that a donation or real property be valid it must be made by public instrument in which the property donated must be specifically described and in the amount of the
encumbrances to be assumed by the donee expressed.
The acceptance must be made in the deed of gift or in a separate public writing; but it shall produce no effect if not made during the lifetime of the donor.
If the acceptance is made by separate public instrument, authentic notice thereof shall be given the donor, and this proceeding shall be noted in both instruments.
This other half, therefore, remained as the disposable free portion of the spouses which may be disposed of in such manner that either of the spouses would like in regards to his or her share in such portion,
unencumbered by the provision enjoining the last surviving spouse to give equally to the children what belongs or would pertain to him or her. The end result, therefore, is that Don Jesus and Doa Tinay, in the Deed of
1949, made to their children valid donations of only one-half of their combined properties which must be charged against their legitime and cannot anymore be revoked unless inofficious; the other half remained entirely at
the free disposal of the spouses with regards to their respective shares.
Upon the death of Doa Tinay on October 2, 1959, her share in the free portion was distributed in accordance with her holographic will dated January 25, 1955 and her codicil dated August 14, 1956. It must be stressed
here that the distribution of her properties was subject to her holographic will and codicil, independently of the holographic will and codicil of Don Jesus executed by him on the same date. This is fundamental because
otherwise, to consider both wills and codicils jointly would be to circumvent the prohibition of the Civil Code on joint wills (Art. 818) and secondly because upon the death of Doa Tinay, only her estate was being settled,
and not that of Don Jesus.

We have carefully examined the provisions of the holographic will and codicil of Doa Tinay and We find no indication whatsoever that Doa Tinay expressly or impliedly instituted both the husband and her children as heirs
to her free portion of her share in the conjugal assets. In her holographic will, mention of her children as heirs was made in the fourth clause but it only provided that, to wit:
"Cuatro. Que si yo adquieriese nuevase propiedades despues de otorgado ests mi testamento seran las mismas repartados entre mi esposo o hijos arriba mencionada en el parrafo tercero
su la misma proporcion o sea: la mitad (1/2) para mis esposa; y la otra mitad (1/2) para mis hijos en partes iguales."
For purposes of clarity and convenience, this fourth clause provided that "Should I acquire new properties after the execution of this testament, the same shall be partitioned among my spouse and above named children or
the children mentioned in above par. 3 in the same proportion, that is, one-half (1/2) to my spouse; and the other half to my children in equal parts." From the above-quoted provision, the children would only inherit together
with Don Jesus whatever new properties Doa Tinay would acquire after the execution of her will. LLpr
Likewise, the codicil of Doa Tinay instituted her husband as sole heir to her share in the free portion of the conjugal assets, and We quote that part of the codicil:
"Dejo a mi esposo Jesus Alsua como su legitima y como herencia que se sacara de mi cuenta de libre disposicion todos aquellos bienes de los que no he dispuesto aun en favor de mis hijos en la
escritura de reparticion precitada y que excedieran de la mitad de gananciales que le corresponde tal como arriba declaro, incluyendo todos aquellos bienes que se adquiriesen por nosotros
despues de otorgado por mi este testamento.
"Para el caso de que Dios dispusiera que yo sobreviviera a mi esposo declaro que es mi voluntad que todas las propiedades de todo genero que me pertenecen y me pudieran pertenecer, no
dispuestas aun en la reparticion, se dividan por igual entre mis herederos mencionados despues de mi muerte."
Again for purposes of clarity and convenience, the above portion states:
"I leave to my spouse Don Jesus Alsua as his legitime and as his inheritance the part of the free portion of my property which have not been allocated in favor of my children in the Document of
Partition aforecited and that which should exceed 1/2 of the conjugal property of gains that pertains to him as above stated, including all those properties which we shall acquire after the execution
of this document.
In case it should be God's will that I survive my spouse, I hereby declare that it is my will that any and all kinds of property that pertains to me or would pertain to me which have not been disposed
of pursuant to the partition, should be divided equally among my above-mentioned heirs after my death."
The children, therefore, would only receive equal shares in the remaining estate of Doa Tinay in the event that she should be the surviving spouse. To stress the point, Doa Tinay did not oblige her husband to give
equally to the children, upon his death, all such properties she was bequeathing him.
Considering now the efficacy of Don Jesus' last will and testament executed on November 14, 1959 in view of Our holding that Doa Tinay's will and codicil did not stipulate that Don Jesus will bestow the properties equally
to the children, it follows that all the properties of Doa Tinay bequeathed to Don Jesus under her holographic will and codicil became part of Don Jesus' estate unburdened by any condition, obligation or proviso.
Respondents insist that Don Jesus was bound by the extrajudicial partition of November 25, 1949 and had in fact conformed to said partition by making a holographic will and codicil with exactly the same provisions as
those of Doa Tinay, which respondent court sustained. We rule, however, that Don Jesus was not forever bound thereby for his previous holographic will and codicil as such, would remain revokable at his discretion. Art.
828 of the new Civil Code is clear: "A will may be revoked by the testator at any time before his death. Any waiver or restriction of this right is void." There can be no restriction that may be made on his absolute freedom to
revoke his holographic will and codicil previously made. This would still hold true even if such previous will had as in the case at bar already been probated. (Palacios v. Palacios, 106 Phil. 739). For in the first place,
probate only authenticates the will and does not pass upon the efficacy of the dispositions therein. And secondly, the rights to the succession are transmitted only from the moment of the death of the decedent (Article 777,
New Civil Code). In fine, Don Jesus retained the liberty of disposing of his property before his death to whomsoever he chose, provided the legitime of the forced heirs are not prejudiced, which is not herein claimed for it is
undisputed that only the free portion of the whole Alsua estate is being contested. prcd
After clearly establishing that only Don Jesus was named as sole heir instituted to the remaining estate of Doa Tinay in her holographic will and codicil resulting in all such properties becoming the properties of Don Jesus
alone, and after clearly pointing out that Don Jesus can, in law, revoke his previous holographic will and codicil, by making another will expressly cancelling and revoking the former, the next issue for the Court's resolution
is the validity of the provisions of the contested will. Though the law and jurisprudence are clear that only questions about the extrinsic validity of the will may be entertained by the probate court, the Court had, on more
than one occasion, passed upon the intrinsic validity of a will even before it had been authenticated. Thus We declared in Nuguid v. Nuguid, 17 SCRA 499:
"The parties shunted aside the question of whether or not the will should be allowed to probate. For them, the meat of the case is the intrinsic validity of the will. Normally this comes only after the
court has declared that the will has been duly authenticated. . . .
". . . If the case were to be remanded for probate of the will, nothing will be gained. On the contrary, this litigation will be protracted and for ought that appears in the record, in the event of probate or
if the court rejects the will, probability exists that the case will come up once again before us on the same issue of the intrinsic validity or nullity of the will. Result: waste of time, effort, expense, plus
added anxiety. These are the practical considerations that induce us to a belief that we might as well meet head-on the issue of the validity of the provisions of the will in question. . . ."
The last Will and Testament of Don Jesus executed on November 14, 1959 contained an express revocation of his holographic will of January 5, 1955 and the codicil of August 14, 1956; a statement requiring that all of his
properties donated to his children in the Deed of 1949 be collated and taken into account in the partition of his estate; the institution of all his children as devisees and legatees to certain specific properties; a statement
bequeathing the rest of his properties and all that may be acquired in the future, before his death, to Pablo and Francisca; and a statement naming Francisca as executrix without bond.
Considering these testamentary provisions, a close scrutiny of the properties distributed to the children under the Deed of 1949 and those distributed under the contested will of Don Jesus does not show that the former
had in fact been included in the latter. This being so, it must be presumed that the intention of Don Jesus in his last will was not to revoke the donations already made in the Deed of 1949 but only to redistribute his
remaining estate, or that portion of the conjugal assets totally left to his free disposal and that which he received as his inheritance from Doa Tinay. The legitimes of the forced heirs were left unimpaired, as in fact, not one
of said forced heirs claimed or intimated otherwise. The properties that were disposed of in the contested will belonged wholly to Don Jesus Alsua's free portion and may be disposed of by him to whomsoever he may
choose. LLpr
If he now favored Francisca more, as claimed by private respondents, or Pablo as in fact he was, We cannot and may not sit in judgment upon the motives and sentiments of Don Jesus in doing so. We have clearly laid
down this rule in Bustamante v. Arevalo, 73 Phil. 635, to wit:
". . . nevertheless it would be venturesome for the court to advance its own idea of a just distribution of the property in the face of a different mode of disposition so clearly expressed by the
testatrix in the latter will. . . .
It would be a dangerous precedent to strain the interpretation of a will in order to effect what the court believes to be an equitable division of the estate of a deceased person. The only
functions of the courts in these cases is to carry out the intention of the deceased as manifested in the will. Once that intention has been determined through a careful reading of the will or
wills, and provided the law on legitimes has not been violated, it is beyond the place of judicial cognizance to inquire into the fairness or unfairness of any devise or bequest. The court
should not sit in judgment upon the motives and sentiments of the testatrix, first, because as already stated, nothing in the law restrained her from disposing of her property in any manner
she desired, and secondly, because there are no adequate means of ascertaining the inward process of her conscience. She was the sole judge of her own attitude toward those who
expected her bounty. . . ."
Respondent court, in trying to rationalize the will of Don Jesus which allegedly benefited and favored the petitioner to the prejudice of the other heirs who would have been entitled to an equal share under the extrajudicial
partition of 1949, faced two alternatives-one, to consider Don Jesus as a man of culture and honor and would not allow himself to violate the previous agreement, and the other as one whose mental faculties or his
possession of the same had been diminished considering that when the will was executed, he was already 84 years of age and in view of his weakness and advanced age, the actual administration of his properties had
been left to his assistant Madarieta who, for his part received instructions from Francisca and her husband, Joseph Betts. According to the court, the better explanation is the latter, which is not legally tenable. Under Article
799 of the New Civil Code which provides as follows:
"Art. 799. To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by

disease, injury or other cause.

It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of, the proper objects of his bounty, and the character of the testamentary
act,"
The test of testamentary capacity is at the time of the making of the will. Mere weakness of mind or partial imbecility from disease of body or from age does not render a person incapable of making a will.
"Between the highest degree of soundness of mind and memory which unquestionably carries with it full testamentary capacity, and that degrees of mental aberration generally known as insanity or
idiocy, there are numberless degrees of mental capacity or incapacity and while on one hand it has been held that mere weakness of mind, or partial imbecility from disease of body, or from age, will
not render a person incapable of making a will; a weak or feebleminded person may make a valid will, provided he has understanding and memory sufficient to enable him to know what he is about
to do and how or to whom he is disposing of his property. To constitute a sound and disposing mind, it is not necessary that the mind be unbroken or unimpaired or unshattered by disease or
otherwise. It has been held that testamentary incapacity does not necessarily require that a person shall actually be insane or of unsound mind." (Bugnao vs. Ubag, 14 Phil. 163)
The Civil Code itself provides under Article 798 that in order to make a will, it is essential that the testator be of sound mind at the time of its execution, and under Article 800, the law presumes that every person is of sound
mind in the absence of proof to the contrary. In the case at bar, the acceptance by the respondent court of the findings of fact of the trial court on the due execution of the last will and testament of Don Jesus has foreclosed
any and all claim to the contrary that the will was not executed in accordance with the requirements of the law. But more than that, gleaned from the quoted portions of the appealed decision, the described behavior of Don
Jesus is not that of a mentally incapacitated person nor one suffering from "senile dementia" as claimed by private respondents. From these accepted facts, We find that: (a) it was Don Jesus himself who gave detailed
instructions to his lawyer as to how he wanted to divide his properties among his children by means of a list of his properties should pertain; (b) the semi-final draft of the contested will prepared by his lawyer was even
corrected by Don Jesus; (c) on the day of the signing of the will at his house in Ligao, "Don Jesus was in bright and lively spirits . . ., leading in the conversation which ran from problems of farming and the merits of Frenchmade wines"; (d) the signing of the will by Don Jesus and his attesting witnesses was made after a statement from Don Jesus of the purpose of their meeting or gathering, to wit:
"Precisamente es por lo que he llamado a ustedes que esten presentes para ser testigos de mi ultima voluntad y testamento que ha sido preparado por el abogado Sr. Gregorio Imperial
segun mis instrucciones cuyo documento tengo aqui con migo y encuentro que, despues de lo he leido, esta satisfactoriamente hecho segun mis instrucciones, Como saben ustedes tengo
cuatro (4) hijos todos ellos."
Clearly then, Don Jesus knew exactly what his actions were and the full implications thereof.
In rejecting probate of the will, respondent court further pointed out other details which, in the words of the decision "are a little bit difficult to reconcile with the ordinary course of things and of life" such as the fact that Don
Jesus had sought the probate of his will of January 5, 1955 and his codicil of August 14, 1956 during his lifetime but insofar as the will of November 14, 1959 is concerned, he had no intention of seeking the probate thereof
during his lifetime, the alleged redundant and unnecessary proceedings undertaken by Don Jesus in selling the properties under question to petitioner Francisca Alsua-Betts when the same properties had already been
bequeathed to her in the will of November 14, 1959 and that "nothing, absolutely nothing, could be made the basis for finding that Don Jesus Alsua had regarded his other children with less favor, and that he was more
sympathetic to Francisca so as to disregard or forget the former depriving them of benefits already given to them and rewarding the latter with disproportionate advantages or benefits, to such an extreme as to violate his
previous disposition consecrated in the previous extrajudicial partition, Exh. 8."
We agree with the petitioner that these details which respondent court found difficult to reconcile with the ordinary course of things and of life are mere conjectures, surmises or speculations which, however, do not warrant
or justify disallowance of the probate of the will of Don Jesus. The fact that Don Jesus did not cause his will to be probated during his lifetime while his previous holographic will and codicil were duly probated when he was
still alive is a mere speculation which depends entirely on the discretion of Don Jesus as the testator. The law does not require that a will be probated during the lifetime of the testator and for not doing so there cannot arise
any favorable or unfavorable consequence therefrom. The parties cannot correctly guess or surmise the motives of the testator and neither can the courts. Such surmise, speculation or conjecture is no valid and legal
ground to reject allowance or disallowance of the will. The same thing can be said as to whatever reason Don Jesus had for selling the properties to his daughter Francisca when he had already assigned the same
properties to her in his will. While We can speculate that Don Jesus desired to have possession of the properties transferred to Francisca after the sale instead of waiting for his death may be a reasonable explanation or
speculation for the act of the testator and yet there is no certainty that such was actually the reason. This is as good a conjecture as the respondents may offer or as difficult to accept which respondent court believes. A
conjecture is always a conjecture; it can never be admitted as evidence. LLpr
Now, the annulment case. The only issue raised anent the civil case for annulment of the two Deeds of Sale executed by and between Don Jesus and petitioner Francisca is their validity or nullity. Private respondents
mainly contend that the sales were fictitious or simulated, there having been no actual consideration paid. They further insist that the issue raised is a question of fact and, therefore, not reviewable in a certiorari proceeding
before the Supreme Court. On the other hand, petitioners herein maintain that it was error for the respondent court to set aside on appeal the factual findings of the trial court that the two sales were valid.
It is true that the jurisprudence of this Court in cases brought to Us from the Court of Appeals is limited to reviewing and revising the errors of law imputed to it, its findings of fact being conclusive; and this same principle
applies even if the Court of Appeals was in disagreement with the lower court as to the weight of evidence with a consequent reversal of its findings of fact. But what should not be ignored by lawyers and litigants alike is
the more basic principle that the "findings of fact" described as "final" or "conclusive" are those borne out by the record or those which are based upon substantial evidence. The general rule laid down by the Supreme
Court does not declare the absolute correctness of all the findings of fact made by the Court of Appeals. These are exceptions to the general rule, where We have reviewed and revised the findings of fact of the Court of
Appeals. Among the exceptions to the rule that findings of fact by the Court of Appeals cannot be reviewed on appeals by certiorari are:
1. When the conclusion is a finding grounded entirely on speculation, surmises or conjectures (Joaquin vs. Navarro, 93 Phil. 257);
2. When the inference made is manifestly mistaken, absurd or impossible (Luna vs. Linatok, 74 Phil. 15);
3. Where there is a grave abuse of discretion (Buyco vs. People, 51 OG 2927);
4. When the judgment is based on a misapprehension of facts (Cruz vs. Sosing, L-4875, Nov. 27, 1953);
5. When the findings of fact are conflicting (Casica vs. Villaseca, L-9590, April 30, 1957); and
6. When the Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee (Evangelista vs. Alto Surety & Ins. Co., L-11139,
April 23, 1958; Ramos vs. Pepsi Cola, L-22533, Feb. 9, 1967, 19 SCRA 289).
In the case at bar, We find and so declare that the respondent court's conclusion as to the nullity of the contested sales was not supported by the evidence on record and adduced during the trial.
Evident from the records are the following documentary evidence: (1) Exhibit U, a deed of sale over agricultural lands executed on August 26, 1961 by Don Jesus in favor of Francisca for the consideration of Seventy
Thousand Pesos (P70,000.00), which document bears the signature of Don Jesus, not assailed as a forgery, and the signature of Pablo Alsua as an instrumental witness, again not assailed as a forgery nor alleged as
done thru fraud, force or threat. (2) Exhibit "W", a deed of sale over urban lots executed on November 26, 1962 for the consideration of Eighty Thousand Pesos (P80,000.00), which document also bears the signature of
Don Jesus, also admittedly not a forgery. (3) Exhibit "F", a document dated August 26, 1961 and signed by Don Jesus and Pablo Alsua as witness, acknowledging receipt of a Bank of Philippine Island Check No. 0252 in
the amount of Seventy Thousand Pesos (P70,000.00) for the sale of 33 parcels of agricultural land to Francisca under the same date; again, Pablo did not deny the genuineness of his signature. (4) Exhibit "X", a Bank of
the Philippine Islands Check No. D-6979 dated November 26, 1962, in the amount of P32,644.71, drawn and signed by Francisca, payable to Don Jesus. (5) Exhibit "X-1", a second Bank of Philippine Islands Check (No.
D-6980) also dated November 26, 1962 in the amount of P47,355.29, drawn by Francisca and payable to Don Jesus. (6) Exhibit "X-3 " and "X-5", endorsements on the back of the last two checks by Don Jesus, again, his
signatures thereon were not assailed. (7) Exhibit "A" (in the annulment case), a Bureau of Internal Revenue Receipt (No. 2347260) dated November 29, 1962 with a notation acknowledging the receipt of BPI Check No. D6980 in the amount of P47,355.29 from Don Jesus Alsua in payment of Balance of Transfer of Tax Ass. No. EA-35415-19 plus interest. We are convinced and satisfied from this array of documentary evidence that in fact,
Don Jesus sold the subject properties to his daughter, Francisca for the total consideration of P150,000.00. prcd
The claim of the private respondents that the sales were fictitious and void for being without cause or consideration is as weak and flimsy as the ground upon which the respondent court upheld said claim on the basis that
there was no need for funds in Don Jesus' old age aside from the speculation that there was nothing in the evidence that showed what motivated Don Jesus to change his mind as to favor Francisca and discriminate
against the other children. The two contracts of sale executed by Don Jesus in favor of Francisca are evidenced by Exhibits "U" and "W", the genuineness of which were not at all assailed at any time during this long

drawn-out litigation of 15 years standing. That the consideration stated in the contracts were paid is also sufficiently proved as the receipts thereof by Don Jesus were even signed by one of the private respondents, Pablo
Alsua, as a witness. The latter cannot now deny the payment of the consideration. And even if he now allege that in fact no transfer of money was involved, We find his allegation belied by Exhibits "X-3" and "X-5", which
show that the checks of Francisca made payable to Don Jesus were in fact given to Don Jesus as he endorsed them on the back thereof, and most specifically Exhibit "A" in the annulment case, which proved that Don
Jesus actually used Exhibit "X-1" to complete payment on the estate and inheritance tax on the estate of his wife to the Bureau of Internal Revenue. Cdpr
Private respondents further insist that the sales were fraudulent because of the inadequacy of the given price. Inadequacy of consideration does not vitiate a contract unless it is proven, which in the case at bar was not,
that there was fraud, mistake or undue influence. (Article 1355, New Civil Code). We do not find the stipulated price as so inadequate to shock the court's conscience, considering that the price paid was much higher than
the assessed value of the subject properties and considering that the sales were effected by a father to her daughter in which case filial love must be taken into account.
WHEREFORE, IN VIEW OF THE FOREGOING, the decision appealed from is hereby set aside. The decision of the Court of First Instance of Albay in Special Proceedings No. 699 and Civil Case No. 3068 is hereby
reinstated, with costs against respondents.
SO ORDERED.
Teehankee (Chairman), Makasiar and Fernandez, JJ., concur.
Melencio Herrera, J., concurs in the result.
De Castro, J., took no part.
||| (Alsua-Betts v. Court of Appeals, G.R. Nos. L-46430-31, [July 30, 1979], 180 PHIL 737-771)
RIZALINA GABRIEL GONZALES, petitioner, vs. HONORABLE COURT OF APPEALS and LUTGARDA SANTIAGO, respondents.
Francisco D. Rilloraza, Jr. for petitioners.
Angel A. Sison for private respondent.
SYNOPSIS
Isabel Gabriel executed a 5-page will two months prior to her death. The signatures of the deceased appear at the end of the will and at the left margin of all the pages. The signatures of the three attesting witnesses
appear at the bottom of the attestation clause and on the left margin of all the other pages. The will named private respondent as universal heir and executor, and gave legacies in specified amounts to certain persons
including the petitioner herein. The petition for the probate of the will filed by private respondent was opposed by petitioner. The trial court disallowed the will on the grounds that the will of the deceased was not executed
and attested as required by law and that the document presented for probate is not the purported will allegedly dictated by the deceased, executed and signed by her, and attested by the three attesting witnesses.
Respondent appealed. The Court of Appeals, upon consideration of the evidence, reversed the trial court's decision and allowed the probate of the will.
In this petition for review, petitioner assigned ten errors which are substantially factual in character and content. Affirming the decision of the Court of Appeals, the Supreme Court held that the factual finding of the Court of
Appeals are not reviewable and are binding upon the Supreme Court.
SYLLABUS
1. APPEAL; FACTUAL FINDINGS OF THE COURT OF APPEALS ARE NOT REVIEWABLE. The factual findings of the Court of Appeals are not reviewable the same being binding and conclusive on the
Supreme Court, particularly where the premises are borne by the record or based upon substantial evidence. Assignments of errors involving factual issues cannot be ventilated in a review of the decision of the
Court of Appeals because only legal question may be raised.
2. WILLS; ATTESTING WITNESSES; QUALIFICATIONS. Under the law, there is no mandatory requirement that the witnesses testify initially at any time during the trial as to his good standing in the community,
his reputation for trustworthiness and reliability, his honesty and uprightness in order that his testimony may be believed and accepted by the trial court. It is enough that the qualifications enumerated in Article 820 of
the Civil Code are complied with, such that the soundness of his mind can be shown by or deduced from his answers to the questions propounded to him, that his age (18 years or more) is shown from his
appearance, testimony, or competently proved otherwise, as well as the fact that he is not blind, deaf or dumb and that he is able to read and write to the satisfaction of the court, and that he has none of the
disqualifications under Article 821 of the Civil Code.
3. ID.; ATTESTING WITNESSES ARE NOT CHARACTER WITNESSES. The instrumental witnesses are not character witnesses for they merely attest the execution of a will or testament and affirm the formalities
attendant to said execution. The rulings concerning character witnesses in naturalization proceedings are not applicable to instrumental witnesses to wills executed under the Civil Code.
4. ID.; ID.; CREDIBLE WITNESSES MEAN COMPETENT WITNESSES. "Credible witnesses" mean competent witnesses and not those who testify to facts from or upon hearsay. In the strict sense, the
competency of a person to be an instrumental witness to a will is determined by the statute, that is Art. 820 and 821, Civil Code, whereas his credibility depends on the appreciation of his testimony and arises from
the belief and conclusion of the court that said witness is telling the truth. It is not necessary to introduce prior and independent proof of the fact that the witnesses are "credible witnesses", that is, that they have a
good standing in the community and reputed to be trustworthy and reliable.
5. ID.; NOTARIAL WILLS, NATURE OF. A notarial will duly acknowledged by the testatrix and the witnesses before a notary public is a public document executed and attested through the intervention of the notary
public and as such public document is evidence of the facts in clear, unequivocal manner therein expressed. It has in its favor the presumption of regularity. To contradict all these, there must be evidence that is
clear, convincing the more than merely preponderant.
6. ID.; ATTESTATION CLAUSE. The attestation clause which the attesting witness signed is the best evidence as to date of signing because it preserves in permanent form a recital of all the material facts
attending the execution of the will. This is the very purpose of the attestation clause which is made for the purpose of preserving in permanent form, a record of the facts attending the execution of the will, so that in
case of failure in the memory of the subscribing witnesses, or other casualty they may still be proved.
7. ID.; EVIDENCE; WITNESSES; PHOTOGRAPHER NOT REQUIRED FOR EXECUTION OF WILL. The law does not require a photographer for the execution and attestation of the will. The fact that an attesting
witness mistakenly identified the photographer scarcely detracts from her testimony that she was present when the will was signed because what matters here is not the photographer but the photograph taken which
clearly portrays the attesting witnesses and her co-witnesses.
8. ID.; ID.; MINOR INCONSISTENCIES. The discrepancy in the description of the typewriter used by the notary which he described as "elate" which to him meant big letters which are of the type in which the will
was typewritten but which was identified by an experts as "pica", and the mistake by the instrumental witness in mentioning the name of the photographer-these are unimportant details which could have been
affected by the lapse of time and the treachery of human memory such as by themselves would not alter the probative value of the testimonies of the witnesses on the true execution of the will, for it cannot be
expected that the testimony of every person will be identical and coinciding with each other with regard to details in an incident and that witnesses are not expected to remember all details.
9. APPEAL; FINDING OF FACT OF TRIAL COURT. The right of the Court of Appeals to review, alter and reverse the findings of the trial court where the appellate court, in reviewing the evidence has found that
facts and circumstances of weight and influence have been ignored and overlooked and the significance of which have been misinterpreted by the trial court, cannot be disputed. Find of facts made by the trial court,
particularly when they are based on conflicting evidence whose evaluation hinges on questions of credibility of contending witnesses lies particularly within the province of trial courts and generally, the appellate
court should not interfere with the same, unless the trial court has overlooked and misinterpreted the facts and circumstances established in the record.
10. ID.; ID.; EXCEPTION TO THE RULE THAT JUDGMENT OF COURT OF APPEALS IS CONCLUSIVE AS TO FACTS. Among the exceptions to the rule that the judgment of the Court of Appeals is conclusive
as to the facts and cannot be reviewed by the Supreme Court are: (1) when the conclusion as a finding grounded entirely on speculations, surmises or conjectures; (2) when the inference is manifestly mistaken,
absurd or impossible; (3) when there is a grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the findings of facts are conflicting; (6) when the Court of Appeals, in
making its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee.
11. WILLS; DUE EXECUTION. Where the tree instrumental witnesses, who constitute the best evidence of the will-making, as well as the lawyer who prepared it and who thereafter notarized it have testified in
favor of the will, and where all of them are disinterested witnesses who stand to received no benefit from the testament, and the signatures of the witnesses and the testatrix have been identified on the will and there
is no claim whatsoever and by any one, much less the petitioner that they are not genuine, the decision holding that the will was executed in accordance with the formalities required by law should be affirmed.

DECISION
GUERRERO, J p:
This is a petition for review of the decision of the Court of Appeals, First Division, 1 promulgated on May 4, 1973 in CA-G. R. No. 36523-R which reversed the decision of the Court of First Instance of Rizal dated December
15, 1964 and allowed the probate of the last will and testament of the deceased Isabel Gabriel.
It appears that on June 24, 1961, herein private respondent Lutgarda Santiago filed a petition with the Court of First Instance of Rizal docketed as Special Proceedings No. 3617, for the probate of a will alleged to have
been executed by the deceased Isabel Gabriel and designating therein petitioner as the principal beneficiary and executrix.
There is no dispute in the records that the late Isabel Andres Gabriel died as a widow and without issue in the municipality of Navotas, province of Rizal her place of residence, on June 7, 1961 at the age of eighty-five (85),
having been born in 1876. It is likewise not controverted that herein private respondent Lutgarda Santiago and petitioner Rizalina Gabriel Gonzales are nieces of the deceased, and that private respondent, with her
husband and children, lived with the deceased at the latter's residence prior and up to the time of her death.
The will submitted for probate, Exhibit "F", which is typewritten and in Tagalog, appears to have been executed in Manila on the 15th day of April, 1961, or barely two (2) months prior to the death of Isabel Gabriel. It
consists of five (5) pages, including the pages whereon the attestation clause and the acknowledgment of the notary public were written. The signatures of the deceased Isabel Gabriel appear at the end of the will on page
four and at the left margin of all the pages. The attestation clause, which is found on page four, reads as follows:
"PATUNAY NG MGA SAKSI
"Kaming mga nakalagdang mga saksi o testigo na ang aming mga tinitirahan ay nakasulat sa gawing kanan at kahilira ng aming mga pangalan sa ibaba nito, ay pagpapatutuo na ipinakilala,
ipinaalam at ipinahayag sa amin ni Isabel Gabriel na ang kasulatang ito na binubuo ng Limang Dahon (Five Pages) pati na ang dahong ito, na siya niyang TESTAMENTO AT HULING HABILIN,
ngayong ika 15 ng Abril, 1961, ay nilagdaan ng nasabing testadora na si Isabel Gabriel ang nasabing testamento sa ibaba o ilalim ng kasulatan na nasa ika apat na dahon (page four) at nasa itaas
ng patunay naming ito, at sa kaliwang panig ng lahat at bawat dahon (and on the left hand margin of each and every page), sa harap ng lahat at bawat isa sa amin, at kami namang mga saksi ay
lumagda sa harap ng nasabing testadora, at sa harap ng lahat at bawat isa sa amin, sa ilalim ng patunay ng mga saksi at sa kaliwang panig ng lahat at bawa't dahon ng testamentong ito."
At the bottom thereof, under the heading "Pangalan", are written the signatures of Matilde D. Orobia, Celso D. Gimpaya and Maria R. Gimpaya, and opposite the same, under the heading "Tirahan", are their
respective places of residence, 961 Highway 54, Philamlife, for Miss Orobia, and 12 Dagala St., Navotas, Rizal, for the two Gimpayas. Their signatures also appear on the left margin of all the other pages. The will is
paged by typewritten words as follows: "Unang Dahon" and underneath "(Page One)", "Ikalawang Dahon" and underneath "(Page Two)", etc., appearing at the top of each page. prLL
The will itself provides that the testatrix desired to be buried in the Catholic Cemetery of Navotas, Rizal in accordance with the rites of the Roman Catholic Church, all expenses to be paid from her estate; that all her
obligations, if any, be paid; that legacies in specified amounts be given to her sister, Praxides Gabriel Vda. de Santiago, her brother Santiago Gabriel, and her nephews and nieces, Benjamin, Salud, Rizalina (herein
petitioner), Victoria, Ester, Andres, all surnamed Gabriel, and Evangelina, Rudyardo, Rosa, Andrea, Marcial, Numancia, Verena, all surnamed Santiago. The herein private respondent Lutgarda Santiago, who was
described in the will by the testatrix as "aking mahal na pamangkin na aking pinalaki, inalagaan at minahal na katulad ng isang tunay na anak" and named as universal heir and executor, were bequeathed all properties
and estate, real or personal, already acquired, or to be acquired, in her (testatrix's) name, after satisfying the expenses, debts and legacies as aforementioned.
The petition was opposed by Rizalina Gabriel Gonzales, herein petitioner, assailing the document purporting to be the will of the deceased on the following grounds:
1. that the same is not genuine; and in the alternative
2. that the same was not executed and attested as required by law;
3. that, at the time of the alleged execution of the purported will, the decedent lacked testamentary capacity due to old age and sickness; and in the second alternative
4. that the purported will was procured through undue and improper pressure and influence on the part of the principal beneficiary, and/or of some other person for her benefit.
Lutgarda Santiago filed her Answer to the Opposition on February 1, 1962. After trial the court a quo rendered judgment, the summary and dispositive portions of which read:
"Passing in summary upon the grounds advanced by the oppositor, this Court finds:
"1. That there is no iota of evidence to support the contention that the purported will of the deceased was procured through undue and improper pressure and influence on the part of the
petitioner, or of some other person for her benefit;
"2. That there is insufficient evidence to sustain the contention that at the time of the alleged execution of the purported will, the deceased lacked testamentary capacity due to old age and
sickness;
"3. That sufficient and abundant evidence warrants conclusively the fact that the purported will of the deceased was not executed and attested as required by law;
"4. That the evidence is likewise conclusive that the document presented for probate, Exhibit 'F' is not the purported will allegedly dictated by the deceased, executed and signed by her, and
attested by her three attesting witnesses on April 15, 1961.
"WHEREFORE, Exhibit 'F', the document presented for probate as the last will and testament of the deceased Isabel Gabriel, is hereby DISALLOWED."
From this judgment of disallowance, Lutgarda Santiago appealed to respondent Court, hence, the only issue decided on appeal was whether or not the will in question was executed and attested as required by law. The
Court of Appeals, upon consideration of the evidence adduced by both parties, rendered the decision now under review, holing that the will in question was signed and executed by the deceased Isabel Gabriel on April 15,
1961 in the presence of the three attesting witnesses, Matilde Orobia, Celso Gimpaya and Maria Gimpaya, signing and witnessing the document in the presence of the deceased and of each other as required by law, 2
hence allowed probate.
Oppositor Rizalina Gabriel Gonzales moved for reconsideration 3 of the aforesaid decision and such motion was opposed 4 by petitioner-appellant Lutgarda Santiago. Thereafter, parties submitted their respective
Memoranda, 5 and on August 28, 1973, respondent Court, Former Special First Division, by Resolution 6 denied the motion for reconsideration stating that:
"The oppositor-appellee contends that the preponderance of evidence shows that the supposed last will and testament of Isabel Gabriel was not executed in accordance with law because the same
was signed on several occasions, that the testatrix did not sign the will in the presence of all the instrumental witnesses did not sign the will in the presence of each other.
"The resolution of the factual issue raised in the motion for reconsideration hinges on the appreciation of the evidence. We have carefully re-examined the oral and documentary evidence of record.
There is no reason to alter the findings of fact in the decision of this Court sought to be set aside. 7
In her petition before this Court, oppositor Rizalina Gabriel Gonzales contends that respondent Court abused its discretion and/or acted without or in excess of its jurisdiction in reversing the findings of fact and conclusions
of the trial court. The Court, after deliberating on the petition but without giving due course resolved, in the Resolution dated Oct. 11, 1973 to require the respondents to comment thereon, which comment was filed on Nov.
14, 1973. Upon consideration of the allegations, the issues raised and the arguments adduced in the petition, as well as the Comment 8 of private respondent thereon, We denied the petition by Resolution on November
26, 1973, 9 the question raised being factual and for insufficient showing that the findings of fact by respondent Court were unsupported by substantial evidence.
Subsequently, or on December 17, 1973, petitioner Rizalina Gabriel Gonzales filed a Motion for Reconsideration 10 which private respondent answered by way of her Comment or Opposition 11 filed on January 15, 1974.
A Reply and Rejoinder to Reply followed. Finally, on March 27, 1974, We resolved to give due course to the petition.
The petitioner in her brief makes the following assignment of errors:
I. The respondent Court of Appeals erred in holding that the document, Exhibit "F" was executed and attested as required by law when there was absolutely no proof that the three instrumental witnesses were
credible witnesses.
II. The Court of Appeals erred in reversing the finding of the lower court that the preparation and execution of the will Exhibit "F", was unexpected and coincidental.
III. The Court of Appeals erred in finding that Atty. Paraiso was not previously furnished with the names and residence certificates of the witnesses as to enable him to type such data into the document Exhibit "F".
IV. The Court of Appeals erred in holding that the fact that the three typewritten lines under the typewritten words "Pangalan" and "Tinitirahan" were left blank shows beyond cavil that the three attesting witnesses

were all present in the same occasion.

V. The Court of Appeals erred in reversing the trial court's finding that it was incredible that Isabel Gabriel could have dictated the will, Exhibit "F", without any note or document, to Atty. Paraiso.
VI. The Court of Appeals erred in reversing the finding of the trial court that Matilde Orubia was not physically present when the will, Exhibit "F" was allegedly signed on April 15, 1961 by the deceased Isabel Gabriel
and the other witnesses Celso Gimpaya and Maria Gimpaya.
VII. The Court of Appeals erred in holding that the trial court gave undue importance to the picture takings as proof that the will was improperly executed.
VIII. The Court of Appeals erred in holding that the grave contradictions, evasions, and misrepresentations of witnesses (subscribing and notary) presented by the petitioner had been explained away, and that the
trial court erred in rejecting said testimonies.
IX. The Court of Appeals acted in excess of its appellate jurisdiction or has so far departed from the accepted and usual course of judicial proceedings, as to call for an exercise of the power of supervision.
X. The Court of Appeals erred in reversing the decision of the trial court and admitting to probate Exhibit "F", the alleged last will and testament of the deceased Isabel Gabriel.
It will be noted from the above assignments of errors that the same are substantially factual in character and content. Hence, at the very outset, We must again state the oft-repeated and well-established rule that in this
jurisdiction, the factual findings of the Court of Appeals are not reviewable, the same being binding and conclusive on this Court. This rule has been stated and reiterated in a long line of cases enumerated in Chan vs. CA
(L-27488, June 30, 1970, 33 SCRA 737, 743) 12 and Tapas vs. CA (L-22202, February 27; 1976, 69 SCRA 393), 13 and in the more recent cases of Baptista vs. Carillo and CA (L-32192, July 30, 1976, 72 SCRA 214, 217)
and Vda. de Catindig vs. Heirs of Catalina Roque (L-25777, November 26, 1976, 74 SCRA 83, 88). In the case of Chan vs. CA, this Court said: LibLex
". . . from Guico v. Mayuga, a 1936 decision, the opinion being penned by the then Justice Recto, it has been well-settled that the jurisdiction of this Court in cases brought to us from the Court of
Appeals is limited to reviewing and revising the errors of law imputed to it, its findings of fact being conclusive. More specifically, in a decision exactly a month later, this Court, speaking through the
then Justice Laurel it was held that the same principle is applicable, even if the Court of Appeals was in disagreement with the lower court as to the weight of the evidence with a consequent
reversal of its findings of fact. . . .
Stated otherwise, findings of facts by the Court of Appeals, when supported by substantive evidence are not reviewable on appeal by certiorari. Said findings of the appellate court are final and cannot be disturbed by Us
particularly because its premises are borne out by the record or based upon substantial evidence and what is more, when such findings are correct. Assignments of errors involving factual issues cannot be ventilated in a
review of the decision of the Court of Appeals because only legal questions may be raised. The Supreme Court is not at liberty to alter or modify the facts as set forth in the decision of the Court of Appeals sought to be
reversed. Where the findings of the Court of Appeals are contrary to that of the trial court, a minute scrutiny by the Supreme Court is in order, and resort to duly-proven evidence becomes necessary. The general rule We
have thus stated above is not without some recognized exceptions.
Having laid down the above legal precepts as Our foundation, We now proceed to consider petitioner's assignments of errors.
Petitioner, in her first assignment, contends that the respondent Court of Appeals erred in holding that the document, Exhibit "F", was executed and attested as required by law when there was absolutely no proof that the
three instrumental witnesses were credible witnesses. She argues that the requirement in Article 806, Civil Code, that the witnesses must be credible is an absolute requirement which must be complied with before an
alleged last will and testament may be admitted to probate and that to be a credible witness, there must be evidence on record that the witness has a good standing in his community, or that he is honest and upright, or
reputed to be trustworthy and reliable. According to petitioner, unless the qualifications of the witness are first established, his testimony may not be favorably considered. Petitioner contends that the term "credible" is not
synonymous with "competent" for a witness may be competent under Article 820 and 821 of the Civil Code and still not be credible as required by Article 805 of the same Code. It is further urged that the term "credible" as
used in the Civil Code should receive the same settled and well-known meaning it has under the Naturalization Law, the latter being a kindred legislation with the Civil Code provisions on wills with respect to the
qualifications of witnesses.
We find no merit to petitioner's first assignment of error. Article 820 of the Civil Code provides the qualifications of a witness to the execution of wills while Article 821 sets forth the disqualification from being a witness to a
will. These Articles state:
"Art. 820. Any person of sound mind and of the age of eighteen years or more, and not blind, deaf or dumb, and able to read and write, may be a witness to the execution of a will mentioned
in article 805 of this Code.
"Art. 821. The following are disqualified from being witnesses to a will:
(1) Any person not domiciled in the Philippines,
(2) Those who have been convicted of falsification of a document, perjury or false testimony.
Under the law, there is no mandatory requirement that the witness testify initially or at any time during the trial as to his good standing in the community, his reputation for trustworthiness and reliableness, his honesty and
uprightness in order that his testimony may be believed and accepted by the trial court. It is enough that the qualifications enumerated in Article 820 of the Civil Code are complied with, such that the soundness of his mind
can be shown by or deduced from his answers to the questions propounded to him, that his age (18 years or more) is shown from his appearance, testimony, or competently proved otherwise, as well as the fact that he is
not blind, deaf or dumb and that he is able to read and write to the satisfaction of the Court, and that he has none of the disqualifications under Article 821 of the Civil Code. We reject petitioner's contention that it must first
be established in the record the good standing of the witness in the community, his reputation for trustworthiness and reliableness, his honesty and uprightness, because such attributes are presumed of the witness unless
the contrary is proved otherwise by the opposing party.
We also reject as without merit petitioner's contention that the term "credible" as used in the Civil Code should be given the same meaning it has under the Naturalization Law where the law is mandatory that the petition for
naturalization must be supported by two character witnesses who must prove their good standing in the community, reputation for trustworthiness and reliableness, their honesty and uprightness. The two witnesses in a
petition for naturalization are character witnesses in that being citizens of the Philippines, they personally know the petitioner to be a resident of the Philippines for the period of time required by the Act and a person of good
repute and morally irreproachable and that said petitioner has in their opinion all the qualifications necessary to become a citizen of the Philippines and is not in any way disqualified under the provisions of the
Naturalization Law (Section 7, Commonwealth Act No. 473 as amended).
In probate proceedings, the instrumental witnesses are not character witnesses for they merely attest the execution of a will or testament and affirm the formalities attendant to said execution. And We agree with the
respondent that the rulings laid down in the cases cited by petitioner concerning character witnesses in naturalization proceedings are not applicable to instrumental witnesses to wills executed under the Civil Code of the
Philippines.
In the case at bar, the finding that each and everyone of the three instrumental witnesses, namely, Matilde Orobia, Celso Gimpaya and Maria Gimpaya, are competent and credible is satisfactorily supported by the
evidence as found by the respondent Court of Appeals, which findings of fact this Tribunal is bound to accept and rely upon. Moreover, petitioner has not pointed to any disqualification of any of the said witnesses, much
less has it been shown that anyone of them is below 18 years of age, of unsound mind, deaf or dumb, or cannot read or write.
It is true that under Article 805 of the New Civil Code, every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his
presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. While the petitioner submits that Article 820 and 821 of the New
Civil Code speak of the competency of a witness due to his qualifications under the first Article and none of the disqualifications under the second Article, whereas Article 805 requires the attestation of three or more
credible witnesses, petitioner concludes that the term credible requires something more than just being competent and, therefore, a witness in addition to being competent under Articles 820 and 821 must also be a
credible witness under Article 805.
Petitioner cites American authorities that competency and credibility of a witness are not synonymous terms and one may be a competent witness and yet not a credible one. She exacerbates that there is no evidence on
record to show that the instrumental witnesses are credible in themselves, that is, that they are of good standing in the community since one was a family driver by profession and the second the wife of the driver, a
housekeeper. It is true that Celso Gimpaya was the driver of the testatrix and his wife Maria Gimpaya, merely a housekeeper, and that Matilde Orobia was a piano teacher to a grandchild of the testatrix. But the relation of
employer and employee much less the humble social or financial position of a person do not disqualify him to be a competent testamentary witness. (Molo-Pekson and Perez-Nable vs. Tanchuco, et al., 100 Phil. 344;

Testate Estate of Raymundo, Off. Gaz., March 18, 1941, p. 788). llcd
Private respondent maintains that the qualifications of the three or more credible witnesses mentioned in Article 805 of the Civil Code are those mentioned in Article 820 of the same Code, this being obvious from that
portion of Article 820 which says "may be a witness to the execution of a will mentioned in Article 805 of this Code," and cites authorities that the word "credible" insofar as witnesses to a will are concerned simply means
"competent." Thus, in the case of Suntay vs. Suntay, 95 Phil. 500, the Supreme Court held that "Granting that a will was duly executed and that it was in existence at the time of, and not revoked before, the death of the
testator, still the provisions of the lost will must be clearly and distinctly proved by at least two credible witnesses. 'Credible witnesses' mean competent witnesses and not those who testify to facts from or upon hearsay."
(emphasis supplied).
In Molo Pekson and Perez-Nable vs. Tanchuco, et al., 100 Phil. 344, the Supreme Court held that "Section 620 of the same Code of Civil Procedure provides that any person of sound mind, and of the age of eighteen
years or more, and not blind, deaf, or dumb and able to read and write, may be a witness to the execution of a will. This same provision is reproduced in our New Civil Code of 1950, under Art. 820. The relation of employer
and employee, or being a relative to the beneficiary in a will, does not disqualify one to be a witness to a will. The main qualification of a witness in the attestation of wills, if other qualifications as to age, mental capacity and
literacy are present, is that said witness must be credible, that is to say, his testimony may be entitled to credence. There is a long line of authorities on this point, a few of which we may cite:
"A 'credible witness' is one who is not disqualified to testify by mental incapacity, crime, or other cause. Historical Soc. of Dauphin County vs. Kelker, 74 A. 619, 226 Pa. 16, 134 Am. St. Rep. 1010."
(Words and Phrases, Vol. 10, p. 340).
"As construed by the common law, a 'credible witness' to a will means a 'competent witness.' Appeal of Clark, 95 A. 517, 114 Me. 105, Ann. Cas. 1917A, 837." (Ibid, p. 341).
"Expression 'credible witness' in relation to attestation of wills means 'competent witness'; that is, one competent under the law to testify to fact of execution of will. Vernon's Ann. Civ. St. art. 8283.
Moos vs. First State Bank of Uvalde, Tex. Civ. App. 60 S. W. 2nd 888, 889." (Ibid, p. 342)
"The term 'credible', used in the statute of wills requiring that a will shall be attested by two credible witnesses means competent; witnesses who, at the time of attesting the will, are legally
competent to testify, in a court of justice, to the facts attested by subscribing the will, the competency being determined as of the date of the execution of the will and not of the time it is offered for
probate. Smith vs. Goodell, 101 N.E. 255, 266, 258 Ill. 145." (Ibid.)
"'Credible witnesses', as used in the statute relating to wills, means competent witnesses that is, such persons as are not legally disqualified from testifying in courts of justice, by reason of
mental incapacity, interest, or the commission of crimes, or other cause excluding them from testifying generally, or rendering them incompetent in respect of the particular subject matter or in the
particular suit. Hill vs. Chicago Title & Trust co., 152 N.E. 545, 546, 322 Ill. 42." (Ibid. p. 343)
In the strict sense, the competency of a person to be an instrumental witness to a will is determined by the statute, that is Art. 820 and 821, Civil Code, whereas his credibility depends on the appreciation of his testimony
and arises from the belief and conclusion of the Court that said witness is telling the truth. Thus, in the case of Vda. de Aroyo v. El Beaterio del Santissimo Rosario de Molo, No. L-22005, May 3, 1968, the Supreme Court
held and ruled that: "Competency as a witness is one thing, and it is another to be a credible witness, so credible that the Court must accept what he says. Trial courts may allow a person to testify as a witness upon a
given matter because he is competent, but may thereafter decide whether to believe or not to believe his testimony."
In fine, We state the rule that the instrumental witnesses in order to be competent must be shown to have the qualifications under Article 820 of the Civil Code and none of the disqualifications under Article 821 and for their
testimony to be credible, that is worthy of belief and entitled to credence, it is not mandatory that evidence be first established on record that the witnesses have a good standing in the community or that they are honest
and upright or reputed to be trustworthy and reliable, for a person is presumed to be such unless the contrary is established otherwise. In other words, the instrumental witnesses must be competent and their testimonies
must be credible before the court allows the probate of the will they have attested. We, therefore, reject petitioner's position that it was fatal for respondent not to have introduced prior and independent proof of the fact that
the witnesses were "credible witnesses", that is, that they have a good standing in the community and reputed to be trustworthy and reliable.
Under the second, third, fourth, fifth, sixth, seventh and eighth assignments of errors, petitioner disputes the findings of fact of the respondent court in finding that the preparation and execution of the will was expected and
not coincidental, in finding that Atty. Paraiso was not previously furnished with the names and residence certificates of the witnesses as to enable him to type such data into the document Exhibit "F", in holding that the fact
that the three typewritten lines under the typewritten words "pangalan" and "tinitirahan" were left blank shows beyond cavil that the three attesting witnesses were all present in the same occasion, in holding credible that
Isabel Gabriel could have dictated the will without note or document to Atty. Paraiso, in holding that Matilde Orobia was physically present when the will was signed on April 15, 1961 by the deceased Isabel Gabriel and the
other witnesses Celso Gimpaya and Maria Gimpaya, in holding that the trial court gave undue importance to the picture takings as proof that the will was improperly executed, and in holding that the grave contradictions,
evasions and misrepresentations of the witnesses (subscribing and notary) presented by the petitioner had been explained away.
Since the above errors are factual, We must repeat what We have previously laid down that the findings of fact of the appellate court are binding and controlling which We cannot review, subject to certain exceptions which
We will consider and discuss hereinafter. We are convinced that the appellate court's findings are sufficiently justified and supported by the evidence on record. Thus, the alleged unnaturalness characterizing the trip of the
testatrix to the office of Atty. Paraiso and bringing all the witnesses without previous appointment for the preparation and execution of the will and that it was coincidental that Atty. Paraiso was available at the moment
impugns the finding of the Court of Appeals that although Atty. Paraiso admitted the visit of Isabel Gabriel and of her companions to his office on April 15, 1961 was unexpected as there was no prior appointment with him,
but he explained that he was available for any business transaction on that day and that Isabel Gabriel had earlier requested him to help her prepare her will. The finding of the appellate court is amply based on the
testimony of Celso Gimpaya that he was not only informed on the morning of the day that he witnessed the will but that it was the third time when Isabel Gabriel told him that he was going to witness the making of her will,
as well as the testimony of Maria Gimpaya that she was called by her husband Celso Gimpaya to proceed to Isabel Gabriel's house which was nearby and from said house, they left in a car to the lawyer's office, which
testimonies are recited in the respondent Court's decision.
The respondent Court further found the following facts: that Celso Gimpaya and his wife Maria Gimpaya obtained residence certificates a few days before Exhibit "F" was executed. Celso Gimpaya's residence certificate
No. A-5114942 was issued at Navotas, Rizal on April 13, 1961 while Maria Gimpaya's residence certificate No. A-5114974 was issued also at Navotas, Rizal on April 14, 1961. The respondent Court correctly observed that
there was nothing surprising in these facts and that the securing of these residence certificates two days and one day, respectively, before the execution of the will on April 15, 1961, far from showing an amazing
coincidence, reveals that the spouses were earlier notified that they would be witnesses to the execution of Isabel Gabriel's will. LLphil
We also agree with the respondent Court's conclusion that the excursion to the office of Atty. Paraiso was planned by the deceased, which conclusion was correctly drawn from the testimony of the Gimpaya spouses that
they started from the Navotas residence of the deceased with a photographer and Isabel Gabriel herself, then they proceeded by car to Matilde Orobia's house in Philamlife, Quezon City to fetch her and from there, all the
three witnesses (the Gimpayas and Orobia) passed by a place where Isabel Gabriel stayed for about ten to fifteen minutes at the clinic of Dr. Chikiamco before they proceeded to Atty. Cipriano Paraiso's office.
It is also evident from the records, as testified to by Atty. Paraiso, that previous to the day that the will was executed on April 15, 1961, Isabel Gabriel had requested him to help her in the execution of her will and that he
told her that if she really wanted to execute her will, she should bring with her at least the Mayor of Navotas, Rizal and a Councilor to be her witnesses and that he (Atty. Paraiso) wanted a medical certificate from a
physician notwithstanding the fact that he believed her to be of sound and disposition mind. From this evidence, the appellate court rightly concluded, thus: "It is, therefore, clear that the presence of Isabel Gabriel and her
witnesses Matilde Orobia, Celso Gimpaya and Maria Gimpaya including the photographer in the law office of Atty. Paraiso was not coincidental as their gathering was pre-arranged by Isabel Gabriel herself."
As to the appellate court's finding that Atty. Paraiso was not previously furnished with the names and residence certificates of the witnesses as to enable him to type such data into the document Exhibit "F", which the
petitioner assails as contradictory and irreconcilable with the statement of the Court that Atty. Paraiso was handed a list (containing the names of the witnesses and their respective residence certificates) immediately upon
their arrival in the law office by Isabel Gabriel and this was corroborated by Atty. Paraiso himself who testified that it was only on said occasion that he received such list from Isabel Gabriel, We cannot agree with
petitioner's contention. We find no contradiction for the respondent Court held that on the occasion of the will-making on April 15, 1961, the list was given immediately to Atty. Paraiso and that no such list was given the
lawyer in any previous occasion or date prior to April 15, 1961.
But whether Atty. Paraiso was previously furnished with the names and residence certificates of the witnesses on a prior occasion or on the very occasion and date in April 15, 1961 when the will was executed, is of no
moment for such data appear in the notarial acknowledgment of Notary Public Cipriano Paraiso, subscribed and sworn to by the witnesses on April 15, 1961 following the attestation clause duly executed and signed on the
same occasion, April 15, 1961. And since Exhibit "F" is a notarial will duly acknowledged by the testatrix and the witnesses before a notary public, the same is a public document executed and attested through the

intervention of the notary public and as such public document is evidence of the facts in clear, unequivocal manner therein expressed. It has in its favor the presumption of regularity. To contradict all these, there must be
evidence that is clear, convincing and more than merely preponderant. (Yturalde vs. Azurin, 28 SCRA 407). We find no such evidence pointed by petitioner in the case at bar.
Likewise, the conclusion of the Court of Appeals in holding that the fact that the three typewritten lines under the typewritten words "pangalan" and "tinitirahan" were left blank shows beyond cavil that the three attesting
witnesses were all present in the same occasion merits Our approval because this conclusion is supported and borne out by the evidence found by the appellate court, thus: "On page 5 of Exhibit "F", beneath the
typewritten words "names", "Res. Tax Cert.", "date issued" and "place issued" the only name of Isabel Gabriel with Residence Tax Certificate No. A-5113274 issued on February 24, 1961 at Navotas, Rizal appears to be in
typewritten form while the names, residence tax certificate numbers, dates and places of issuance of said certificates pertaining to the three (3) witnesses were personally handwritten by Atty. Paraiso. Again, this coincides
with Atty. Paraiso's even the sale must be made to close relatives; and the seventh was the appointment of the appellant Santiago as executrix of the will without bond. The technical description of the properties in
paragraph 5 of Exhibit F was not given and the numbers of the certificates of title were only supplied by Atty. Paraiso."
It is true that in one disposition, the numbers of the Torrens titles of the properties disposed and the docket number of a special proceeding are indicated which Atty. Paraiso candidly admitted were supplied by him,
whereupon petitioner contends that it was incredible that Isabel Gabriel could have dictated the will Exhibit "F" without any note or document to Atty. Paraiso, considering that Isabel Gabriel was an old and sickly woman
more than eighty-one years old and had been suffering from a brain injury caused by two severe blows at her head and died of terminal cancer a few weeks after the execution of Exhibit "F". While we can rule that this is a
finding of fact which is within the competency of the respondent appellate court in determining the testamentary capacity of the testatrix and is, therefore, beyond Our power to revise and review, We nevertheless hold that
the conclusion reached by the Court of Appeals that the testatrix dictated her will without any note or memorandum appears to be fully supported by the following facts or evidence appearing on record. Thus, Isabel
Gabriel, despite her age, was particularly active in her business affairs as she actively managed the affairs of the movie business Isabelita Theater, paying the aparatistas herself until June 4, 1961, 3 days before her death.
She was the widow of the late Eligio Naval, former Governor of Rizal Province and acted as co-administratrix in the Intestate Estate of her deceased husband Eligio Naval. The text of the will was in Tagalog, a dialect
known and understood by her and in the light of all the circumstances, We agree with the respondent Court that the testatrix dictated her will without any note or memorandum, a fact unanimously testified to by the three
attesting witnesses and the notary public himself.
Petitioner's sixth assignment of error is also benefit of merit. The evidence, both testimonial and documentary is, according to the respondent court, overwhelming that Matilde Orobia was physically present when the will
was signed on April 15, 1961 by the testatrix and the other two witnesses, Celso Gimpaya and Maria Gimpaya. Such factual finding of the appellate court is very clear, thus: "On the contrary, the record is replete with proof
that Matilde Orobia was physically present when the will was signed by Isabel Gabriel on April 15, 1961 along with her co-witnesses Celso Gimpaya and Maria Gimpaya. The trial court's conclusion that Orobia's admission
that she gave piano lessons to the child of the appellant on Wednesdays and Saturdays and that April 15, 1961 happened to be a Saturday for which reason Orobia could not have been present to witness the will on that
day is purely conjectural. Witness Orobia did not admit having given piano lessons to the appellant's child every Wednesday and Saturday without fail. It is highly probable that even if April 15, 1961 were a Saturday, she
gave no piano lessons on that day for which reason she could have witnessed the execution of the will. Orobia spoke of occasions when she missed giving piano lessons and had to make up for the same. Anyway, her
presence at the law office of Atty. Paraiso was in the morning of April 15, 1961 and there was nothing to preclude her from giving piano lessons on the afternoon of the same day in Navotas, Rizal."
In addition to the testimony of Matilde Orobia, Celso Gimpaya and Maria Gimpaya that Matilde was present on April 15, 1961 and that she signed the attestation clause to the will and on the left-hand margin of each of the
pages of the will, the documentary evidence which is the will itself, the attestation clause and the notarial acknowledgment overwhelmingly and convincingly prove such fact that Matilde Orobia was present on that day of
April 15, 1961 and that she witnessed the will by signing her name thereon and acknowledged the same before the notary public, Atty. Cipriano P. Paraiso. The attestation clause which Matilde Orobia signed is the best
evidence as to the date of signing because it preserves in permanent form a recital of all the material facts attending the execution of the will. This is the very purpose of the attestation clause which is made for the purpose
of preserving in permanent form, a record of the facts attending the execution of the will, so that in case of failure in the memory of the subscribing witnesses, or other casualty they may still be proved.(Thompson on Wills,
2nd ed., Sec. 132; Leynez vs. Leynez, 68 Phil. 745). LLpr
As to the seventh error assigned by petitioner faulting the Court of Appeals in holding that the trial court gave undue importance to the picture-takings as proof that the will was improperly executed, We agree with the
reasoning of the respondent court that: "Matilde Orobia's identification of the photographer as "Cesar Mendoza", contrary to what the other two witnesses (Celso and Maria Gimpaya) and Atty. Paraiso said that the
photographer was Benjamin Cifra, Jr., is at worst a minor mistake attributable to lapse of time. The law does not require a photographer for the execution and attestation of the will. The fact that Miss Orobia mistakenly
identified the photographer as Cesar Mendoza scarcely detracts from her testimony that she was present when the will was signed because what matters here is not the photographer but the photograph taken which
clearly portrays Matilde Orobia herself, her co-witnesses Celso Gimpaya." Further, the respondent Court correctly held: "The trial court gave undue importance to the picture-takings, jumping therefrom to the conclusion
that the will was improperly executed. The evidence however, heavily points to only one occasion of the execution of the will on April 15, 1961 which was witnessed by Matilde Orobia, Celso Gimpaya and Maria Gimpaya.
These witnesses were quite emphatic and positive when they spoke of this occasion. Hence, their identification of some photographs wherein they all appeared along with Isabel Gabriel and Atty. Paraiso was superfluous."
Continuing, the respondent Court declared: "It is true that the second picture-taking was disclosed at the cross examination of Celso Gimpaya. But this was explained by Atty. Paraiso as a reenactment of the first incident
upon the insistence of Isabel Gabriel. Such reenactment where Matilde Orobia was admittedly no longer present was wholly unnecessary if not pointless. What was important was that the will was duly executed and
witnessed on the first occasion on April 15, 1961," and We agree with the Court's rationalization in conformity with logic, law and jurisprudence which do not require picture-taking as one of the legal requisites for the
execution or probate of a will.
Petitioner points to alleged grave contradictions, evasions and misrepresentations of witnesses in their respective testimonies before the trial court. On the other hand, the respondent Court of Appeals held that said
contradictions, evasions and misrepresentations had been explained away. Such discrepancies as in the description of the typewriter used by Atty. Paraiso which he described as "elite" which to him meant big letters which
are of the type in which the will was typewritten but which was identified by witness Jolly Bugarin of the N.B.I as "pica", the mistake in mentioning the name of the photographer by Matilde Orobia to be Cesar Mendoza
when actually it was Benjamin Cifra, Jr. these are indeed unimportant details which could have been affected by the lapse of time and the treachery of human memory such that by themselves would not alter the
probative value of their testimonies on the true execution of the will, (Pascual vs. dela Cruz, 28 SCRA 421, 424) for it cannot be expected that the testimony of every person will be identical and coinciding with each other
with regard to details of an incident and that witnesses are not expected to remember all details. Human experience teach us "that contradictions of witnesses generally occur in the details of certain incidents, after a long
series of questionings, and far from being an evidence of falsehood constitute a demonstration of good faith. Inasmuch as not all those who witness an incident are impressed in like manner, it is but natural that in relating
their impressions, they should not agree in the minor details; hence the contradiction in their testimony." (Lopez vs. Liboro, 81 Phil. 429).
It is urged of Us by the petitioner that the findings of the trial court should not have been disturbed by the respondent appellate court because the trial court was in a better position to weigh and evaluate the evidence
presented in the course of the trial. As a general rule, petitioner is correct but it is subject to well-established exceptions. The right of the Court of Appeals to review, alter and reverse the findings of the trial court where the
appellate court, in reviewing the evidence has found that facts and circumstances of weight and influence have been ignored and overlooked and the significance of which have been misinterpreted by the trial court, cannot
be disputed. Findings of facts made by trial courts particularly when they are based on conflicting evidence whose evaluation hinges on questions of credibility of contending witnesses lies peculiarly within the province of
trial courts and generally, the appellate court should not interfere with the same. In the instant case, however, the Court of Appeals found that the trial court had overlooked and misinterpreted the facts and circumstances
established in the record. Whereas the appellate court said that "Nothing in the record supports the trial court's unbelief that Isabel Gabriel dictated her will without any note or document to Atty. Paraiso;" that the trial court's
conclusion that Matilde Orobia could not have witnessed anybody signing the alleged will or that she could not have witnessed Celso Gimpaya and Maria Gimpaya sign the same or that she witnessed only the deceased
signing it, is a conclusion based not on facts but on inferences; that the trial court gave undue importance to the picture-takings, jumping therefrom to the conclusion that the will was improperly executed and that there is
nothing in the entire record to support the conclusion of the court a quo that the will-signing occasion was a mere coincidence and that Isabel Gabriel made an appointment only with Matilde Orobia to witness the signing of
her will, then it becomes the duty of the appellate court to reverse findings of fact of the trial court in the exercise of its appellate jurisdiction over the lower courts. LLpr
Still the petitioner insists that the case at bar is an exception to the rule that the judgment of the Court of Appeals is conclusive as to the facts and cannot be reviewed by the Supreme Court. Again We agree with the
petitioner that among the exceptions are: (1) when the conclusion is a finding grounded entirely on speculations, surmises or conjectures; (2) when the inference is manifestly mistaken, absurd or impossible; (3) when there
is a grave abuse of discretion; (4) when the presence of each other as required by law. " Specifically, We affirm that on April 15, 1961 the testatrix Isabel Gabriel, together with Matilde Orobia, Celso Gimpaya and his wife

Maria Gimpaya, and a photographer proceeded in a car to the office of Atty. Cipriano Paraiso at the Bank of P.I. Building, Manila in the morning of that day; that on the way, Isabel Gabriel obtained a medical certificate from
one Dr. Chikiamko which she gave to Atty. Paraiso upon arriving at the latter's office and told the lawyer that she wanted her will to be made; that Atty. Paraiso asked Isabel Gabriel to dictate what she wanted to be written
in the will and the attorney wrote down the dictation of Isabel Gabriel in Tagalog, a language known to and spoken by her; that Atty. Paraiso read back to her what he wrote as dictated and she affirmed their correctness; the
lawyer then typed the will and after finishing the document, he read it to her and she told him that it was alright; that thereafter, Isabel Gabriel signed her name at the end of the will in the presence of the three witnesses
Matilde Orobia, Celso Gimpaya and Maria Gimpaya and also at the left-hand margin of each and every page of the document in the presence also of the said three witnesses; that thereafter Matilde Orobia attested the will
by signing her name at the end of the attestation clause and at the left-hand margin of pages 1, 2, 3 and 5 of the document in the presence of Isabel Gabriel and the other two witnesses, Celso Gimpaya and Maria
Gimpaya; then, Celso Gimpaya signed also the will at the bottom of the attestation clause and at the left-hand margin of the other pages of the document in the presence of Isabel Gabriel, Matilde Orobia and Maria
Gimpaya; that Maria Gimpaya followed suit, signing her name at the foot of the attestation clause and at the left-hand margin of every page in the presence of Isabel Gabriel, Matilde Orobia and Celso Gimpaya; that
thereafter, Atty. Paraiso notarized the will as Page No. 94, Book No. IV, Series of 1961, in his Notarial Register. On the occasion of the execution and attestation of the will, a photographer took pictures, one Exhibit "G",
depicting Matilde Orobia, the testatrix Isabel Gabriel, Celso Gimpaya, Maria Gimpaya and Atty. Paraiso, taken on said occasion of the signing of the will, and another, Exhibit "H", showing Matilde Orobia signing testimony
that he had earlier advised Isabel Gabriel to bring with her at least the Mayor and a Councilor of Navotas, Rizal to be her witnesses for he did not know beforehand the identities of the three attesting witnesses until the
latter showed up at his law office with Isabel Gabriel on April 15, 1961. Atty. Paraiso's claim-which was not controverted that he wrote down in his own hand the date appearing on page 5 of Exhibit "F" dissipates any
lingering doubt that he prepared and ratified the will on the date in question."
It is also a factual finding of the Court of Appeals in holding that it was credible that Isabel Gabriel could have dictated the will, Exhibit "F", without any note or document to Atty. Paraiso as against the contention of petitioner
that it was incredible. This ruling of the respondent court is fully supported by the evidence on record as stated in the decision under review, thus: "Nothing in the record supports the trial court's unbelief that Isabel Gabriel
dictated her will without any note or document to Atty. Paraiso. On the contrary, all the three attesting witnesses uniformly testified that Isabel Gabriel dictated her will to Atty. Paraiso and that other than the piece of paper
that she handed to said lawyer she had no note or document. This fact jibes with the evidence which the trial court itself believed was unshaken that Isabel Gabriel was of sound disposing memory when she executed
her will.
Exhibit "F" reveals only seven (7) dispositions which are not complicated but quite simple. The first was Isabel Gabriel's wish to be interred according to Catholic rites; the second was a general directive to pay her debts if
any; the third provided for P1,000.00 for her sister Praxides Gabriel Vda. de Santiago and P2,000.00 for her brother Santiago Gabriel; the fourth was a listing of her 13 nephews and nieces including oppositor-appellee
Rizalina Gabriel and the amount for each legatee; the fifth was the institution of the petitioner-appellant, Lutgarda Santiago as the principal heir mentioning in general terms seven (7) types of properties; the sixth disposed
of the remainder of her estate which she willed in favor of appellant Lutgarda Santiago but prohibiting the sale of such properties to anyone except in extreme situations in which judgment is based on a misapprehension of
facts; (5) when the findings of fact are conflicting; (6) when the Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee.
(Roque vs. Buan, et al., G.R. No. L-22459, Oct. 31, 1967; Ramos vs. Pepsi Cola Bottling Co., G.R. No. L-22533, Feb. 9, 1967; Hilario, Jr. vs. City of Manila, G.R. No. L-19570; Sept. 14, 1967).
Petitioner's insistence is without merit. We hold that the case at bar does not fall within any of the exceptions enumerated above. We likewise hold that the findings of fact of the respondent appellate court are fully
supported by the evidence on record. The conclusions are fully sustained by substantial evidence. We find no abuse of discretion and We discern no misapprehension of facts. The respondent Court's findings of fact are
not conflicting. Hence, the well-established rule that the decision of the Court of Appeals and its findings of fact are binding and conclusive and should not be disturbed by this Tribunal and it must be applied in the case at
bar in its full force and effect, without qualification or reservation. The above holding simply synthesizes the resolutions we have heretofore made in respect to petitioner's previous assignments of error and to which We
have disagreed and, therefore, rejected.
The last assignments of error of petitioner must necessarily be rejected by Us as We find the respondent Court acted properly and correctly and has not departed from the accepted and usual course of judicial proceedings
as to call for the exercise of the power of supervision by the Supreme Court, and as We find that the Court of Appeals did not err in reversing the decision of the trial court and admitting to probate Exhibit "F", the last will
and testament of the deceased Isabel Gabriel.
We rule that the respondent Court's factual findings upon its summation and evaluation of the evidence on record is unassailable that: "From the welter of evidence presented, we are convinced that the will in question was
executed on April 15, 1961 in the presence of Matilde Orobia, Celso Gimpaya and Maria Gimpaya signing and witnessing the same in the will on a table with Isabel Gabriel, Celso Gimpaya and Maria Gimpaya sitting
around the table. Atty. Paraiso, after finishing the notarial act, then delivered the original to Isabel Gabriel and retained the other copies for his file and notarial register. A few days following the signing of the will, Isabel
Gabriel, Celso Gimpaya and another photographer arrived at the office of Atty. Paraiso and told the lawyer that she wanted another picture taken because the first picture did not turn out good. The lawyer told her that this
cannot be done because the will was already signed but Isabel Gabriel insisted that a picture be taken, so a simulated signing was performed during which incident Matilde Orobia was not present." Cdpr
Petitioner's exacerbation centers on the supposed incredibility of the testimonies of the witnesses for the proponent of the will, their alleged evasions, inconsistencies and contradictions. But in the case at bar, the three
instrumental witnesses who constitute the best evidence of the will-making have testified in favor of the probate of the will. So has the lawyer who prepared it, one learned in the law and long in the practice thereof, who
thereafter notarized it. All of them are disinterested witnesses who stand to receive no benefit from the testament. The signatures of the witnesses and the testatrix have been identified on the will and there is no claim
whatsoever and by anyone, much less the petitioner, that they were not genuine. In the last and final analysis, the herein conflict is factual and we go back to the rule that the Supreme Court cannot review and revise the
findings of facts of the respondent Court of Appeals.
WHEREFORE, IN VIEW OF THE FOREGOING, the judgment appealed from is hereby AFFIRMED, with costs against the petitioner.
SO ORDERED.
Teehankee, Makasiar, De Castro and Herrera, JJ., concur.
||| (Gonzales v. Court of Appeals, G.R. No. L-37453, [May 25, 1979], 179 PHIL 149-177)
TESTATE ESTATE OF THE LATE ADRIANA MALOTO, ALDINA MALOTO CASIANO, CONSTANCIO MALOTO, PURIFICACION MIRAFLOR, ROMAN CATHOLIC CHURCH OF MOLO, AND ASILO DE
MOLO, petitioners, vs. COURT OF APPEALS, PANFILO MALOTO AND FELINO MALOTO, respondents.
SYLLABUS
1. CIVIL LAW; SUCCESSION; WILLS; REVOCATION THEREOF; PHYSICAL ACT OF DESTRUCTION; ANIMUS REVOCANDI, A NECESSARY ELEMENT. The physical act of destruction of a will, like burning in
this case, does not per se constitute an effective revocation, unless the destruction is coupled with animus revocandi on the part of the testator. It is not imperative that the physical destruction be done by the testator
himself. It may be performed by another person but under the express direction and in the presence of the testator. Of course, it goes without saying that the document destroyed must be the will itself. In this case,
while animus revocandi, or the intention to revoke, may be conceded, for that is a state of mind, yet that requisite alone would not suffice. "Animus revocandi is only one of the necessary elements for the effective
revocation of a last will and testament. The intention to revoke must be accompanied by the overt physical act of burning, tearing, obliterating, or cancelling the will carried out by the testator or by another person in
his presence and under his express direction.
2. REMEDIAL LAW; CIVIL ACTIONS; RES JUDICATA; ELEMENTS. For a judgment to be a bar to a subsequent case, the following requisites must concur: (1) the presence of a final former judgment; (2) the
former judgment was rendered by a court having jurisdiction over the subject matter and the parties; (3) the former judgment is a judgment on the merits; and (4) there is, between the first and the second action,
identity of parties, of subject matter, and of cause of action. We do not find here the presence of all the enumerated requisites.
3. ID.; ID.; ID.; DOCTRINE NOT APPLICABLE IN CASE AT BAR. There is yet, strictly speaking, no final judgment rendered insofar as the probate of Adriana Maloto's will is concerned. The decision of the trial
court in Special Proceeding No. 1736, although final, involved only the intestate settlement of the estate of Adriana. As such, that judgment could not in any manner be construed to be final with respect to the
probate of the subsequently discovered will of the decedent. Neither is it a judgment on the merits of the action for probate. This is understandably so because the trial court, in the intestate proceeding, was without
jurisdiction to rule on the probate of the contested will. After all, an action for probate, as it implies, is founded on the presence of a will and with the objective of proving its due execution and validity, something which
can not be properly done in an intestate settlement of estate proceeding which is predicated on the assumption that the decedent left no will. Thus, there is likewise no identity between the cause of action in intestate
proceeding and that in an action for probate. Be that as it may, it would be remembered that it was precisely because of our ruling in G.R. No. L-30479 that the petitioners instituted this separate action for the

probate of the late Adriana Maloto's will. Hence, on these grounds alone, the position of the private respondents on this score can not be sustained.
DECISION
SARMIENTO, J p:
This is not the first time that the parties to this case come to us. In fact, two other cases directly related to the present one and involving the same parties had already been decided by us in the past. In G.R. No. L-30479, 1
which was a petition for certiorari and mandamus instituted by the petitioners herein, we dismissed the petition ruling that the more appropriate remedy of the petitioners is a separate proceeding for the probate of the will in
question. Pursuant to the said ruling, the petitioners commenced in the then Court of First Instance of Iloilo, Special Proceeding No. 2176, for the probate of the disputed will, which was opposed by the private respondents
presently, Panfilo and Felino, both surnamed Maloto. The trial court dismissed the petition on April 30, 1970. Complaining against the dismissal, again, the petitioners came to this Court on a petition for review by certiorari.
2 Acting on the said petition, we set aside the trial court's order and directed it to proceed to hear the case on the merits. The trial court, after hearing, found the will to have already been revoked by the testatrix. Adriana
Maloto, and thus, denied the petition. The petitioners appealed the trial court's decision to the Intermediate Appellate Court which, on June 7, 1985, affirmed the order. The petitioners' motion for reconsideration of the
adverse decision proved to be of no avail, hence, this petition.
For a better understanding of the controversy, a factual account would be a great help.
On October 20, 1963, Adriana Maloto died leaving as heirs her niece and nephews, the petitioners Aldina Maloto-Casiano and Constancio Maloto, and the private respondents Panfilo Maloto and Felino Maloto. Believing
that the deceased did not leave behind a last will and testament, these four heirs commenced on November 4, 1963 an intestate proceeding for the settlement of their aunt's estate. The case was instituted in the then Court
of First Instance of Iloilo and was docketed as Special Proceeding No. 1736. However, while the case was still in progress, or to be exact on February 1, 1964, the parties Aldina, Constancio, Panfilo, and Felino
executed an agreement of extrajudicial settlement of Adriana's estate. The agreement provided for the division of the estate into four equal parts among the parties. The Malotos then presented the extrajudicial settlement
agreement to the trial court for approval which the court did on March 21, 1964. That should have signalled the end of the controversy, but, unfortunately, it had not.
Three years later, or sometime in March 1967, Atty. Sulpicio Palma, a former associate of Adriana's counsel, the late Atty. Eliseo Hervas, discovered a document entitled "KATAPUSAN NGA PAGBULUT-AN (Testamento),"
dated January 3, 1940, and purporting to be the last will and testament of Adriana. Atty. Palma claimed to have found the testament, the original copy, while he was going through some materials inside the cabinet drawer
formerly used by Atty. Hervas. The document was submitted to the office of the clerk of the Court of First Instance of Iloilo on April 1, 1967. Incidentally, while Panfilo and Felino are still named as heirs in the said will, Aldina
and Constancio are bequeathed much bigger and more valuable shares in the estate of Adriana than what they received by virtue of the agreement of extrajudicial settlement they had earlier signed. The will likewise gives
devises and legacies to other parties, among them being the petitioners Asilo de Molo, the Roman Catholic Church of Molo, and Purificacion Miraflor.
Thus, on May 24, 1967, Aldina and Constancio, joined by the other devisees and legatees named in the will, filed in Special Proceeding No. 1736 a motion for reconsideration and annulment of the proceedings therein and
for the allowance of the will. When the trial court denied their motion, the petitioner came to us by way of a petition for certiorari and mandamus assailing the orders of the trial court. 3 As we stated earlier, we dismissed that
petition and advised that a separate proceeding for the probate of the alleged will would be the appropriate vehicle to thresh out the matters raised by the petitioners.
Significantly, the appellate court while finding as inconclusive the matter on whether or not the document or papers allegedly burned by the househelp of Adriana, Guadalupe Maloto Vda. de Coral, upon instructions of the
testatrix, was indeed the will, contradicted itself and found that the will had been revoked. The respondent court stated that the presence of animus revocandi in the destruction of the will had, nevertheless, been sufficiently
proven. The appellate court based its finding on the facts that the document was not in the two safes in Adriana's residence, by the testatrix going to the residence of Atty. Hervas to retrieve a copy of the will left in the
latter's possession, and, her seeking the services of Atty. Palma in order to have a new will drawn up. For reasons shortly to be explained, we do not view such facts, even considered collectively, as sufficient bases for the
conclusion that Adriana Maloto's will had been effectively revoked.
There is no doubt as to the testamentary capacity of the testatrix and the due execution of the will. The heart of the case lies on the issue as to whether or not the will was revoked by Adriana.
The provisions of the new Civil Code pertinent to the issue can be found in Article 830.
Art. 830. No will shall be revoked except in the following cases:
(1) By implication of law; or
(2) By some will, codicil, or other writing executed as provided in case of wills: or
(3) By burning, tearing, cancelling, or obliterating the will with the intention of revoking it, by the testator himself, or by some other person in his presence, and by his express direction. If
burned, torn, cancelled, or obliterated by some other person, without the express direction of the testator, the will may still be established, and the estate distributed in accordance therewith,
if its contents, and due execution, and the fact of its unauthorized destruction, cancellation, or obliteration are established according to the Rules of Court. (Emphasis Supplied.)
It is clear that the physical act of destruction of a will, like burning in this case, does not per se constitute an effective revocation, unless the destruction is coupled with animus revocandi on the part of the testator. It is not
imperative that the physical destruction be done by the testator himself. It may be performed by another person but under the express direction and in the presence of the testator. Of course, it goes without saying that the
document destroyed must be the will itself.
In this case, while animus revocandi, or the intention to revoke, may be conceded, for that is a state of mind, yet that requisite alone would not suffice. "Animus revocandi is only one of the necessary elements for the
effective revocation of a last will and testament. The intention to revoke must be accompanied by the overt physical act of burning, tearing, obliterating, or cancelling the will carried out by the testator or by another person
in his presence and under his express direction. There is paucity of evidence to show compliance with these requirements. For one, the document or papers burned by Adriana's maid, Guadalupe, was not satisfactorily
established to be a will at all, much less the will of Adriana Maloto. For another, the burning was not proven to have been done under the express direction of Adriana. And then, the burning was not in her presence. Both
witnesses, Guadalupe and Eladio, were one in stating that they were the only ones present at the place where the stove (presumably in the kitchen) was located in which the papers proffered as a will were burned.
The respondent appellate court in assessing the evidence presented by the private respondents as oppositors in the trial court, concluded that the testimony of the two witnesses who testified in favor of the will's revocation
appear "inconclusive." We share the same view. Nowhere in the records before us does it appear that the two witnesses, Guadalupe Vda. de Corral and Eladio Itchon, both illiterates, were unequivocably positive that the
document burned was indeed Adriana's will. Guadalupe, we think, believed that the papers she destroyed was the will only because, according to her, Adriana told her so. Eladio, on the other hand, obtained his information
that the burned document was the will because Guadalupe told him so, thus, his testimony on this point is double hearsay.
At this juncture, we reiterate that "(it) is an important matter of public interest that a purported will is not denied legalization on dubious grounds. Otherwise, the very institution of testamentary succession will be shaken to
its very foundations . . . " 4
The private respondents in their bid for the dismissal of the present action for probate instituted by the petitioners argue that the same is already barred by res adjudicata. They claim that this bar was brought about by the
petitioners' failure to appeal timely from the order dated November 16, 1968 of the trial court in the intestate proceeding (Special Proceeding No. 1736) denying their (petitioners') motion to reopen the case, and their prayer
to annul the previous proceedings therein and to allow the last will and testament of the late Adriana Maloto. This is untenable.
The doctrine of res adjudicata finds no application in the present controversy. For a judgment to be a bar to a subsequent case, the following requisites must concur: (1) the presence of a final former judgment; (2) the
former judgment was rendered by a court having jurisdiction over the subject matter and the parties; (3) the former judgment is a judgment on the merits; and (4) there is, between the first and the second action, identity of
parties, of subject matter, and of cause of action. 5 We do not find here the presence of all the enumerated requisites.
For one, there is yet, strictly speaking, no final judgment rendered insofar as the probate of Adriana Maloto's will is concerned. The decision of the trial court in Special Proceeding No. 1736, although final, involved only the
intestate settlement of the estate of Adriana. As such, that judgment could not in any manner be construed to be final with respect to the probate of the subsequently discovered will of the decedent. Neither is it a judgment
on the merits of the action for probate. This is understandably so because the trial court, in the intestate proceeding, was without jurisdiction to rule on the probate of the contested will. 6 After all, an action for probate, as it
implies, is founded on the presence of a will and with the objective of proving its due execution and validity, something which can not be properly done in an intestate settlement of estate proceeding which is predicated on
the assumption that the decedent left no will. Thus, there is likewise no identity between the cause of action in intestate proceeding and that in an action for probate. Be that as it may, it would be remembered that it was
precisely because of our ruling in G.R. No. L-30479 that the petitioners instituted this separate action for the probate of the late Adriana Maloto's will. Hence, on these grounds alone, the position of the private respondents

on this score can not be sustained.

One last note. The private respondents point out that revocation could be inferred from the fact that "(a) major and substantial bulk of the properties mentioned in the will had been disposed of; while an insignificant portion
of the properties remained at the time of death (of the testatrix); and, furthermore, more valuable properties have been acquired after the execution of the will on January 3, 1940." 7 Suffice it to state here that as these
additional matters raised by the private respondents are extraneous to this special proceeding, they could only be appropriately taken up after the will has been duly probated and a certificate of its allowance issued.
WHEREFORE, judgment is hereby rendered REVERSING and SETTING ASIDE the Decision dated June 7, 1985 and the Resolution dated October 22, 1986, of the respondent Court of Appeals, and a new one
ENTERED for the allowance of Adriana Maloto's last will and testament. Costs against the private respondents.
This Decision is IMMEDIATELY EXECUTORY.
SO ORDERED.
Yap, Melencio-Herrera and Paras JJ., concur.
Padilla, J., took no part in the deliberation.
||| (Testate Estate of Maloto v. Court of Appeals, G.R. No. 76464, [February 29, 1988], 242 PHIL 179-187)
TESTATE ESTATE OF FELICIDAD ESGUERRA ALTO-YAP deceased. FAUSTO E. GAN, petitioner-appellant, vs. ILDEFONSO YAP, oppositor-appellee.
Benedicto C. Balderrama, Crispn D. Baizas and Roberto H. Benitez for appellant.
Arturo M. Tolentino for appellee.
SYLLABUS
1. HOLOGRAPHIC WILLS; PROBATE OF; EXECUTION AND CONTENTS OF WILL, HOW PROVED. The execution and the contents of a lost or destroyed holographic will may not be proved by
the bare testimony of witnesses who have seen and/or read such will. The will itself must be presented; otherwise, it shall produce no effect. The law regards the document itself as material proof of authenticity.
DECISION
BENGZON, J p:
On November 20, 1951, Felicidad Esguerra Alto Yap died of heart failure in the University of Santo Tomas Hospital, leaving properties in Pulilan, Bulacan, and in the City of Manila.
On March 17, 1952, Fausto E. Gan initiated these proceedings in the Manila court of first instance with a petition for the probate of a holographic will allegedly executed by the deceased, substantially in
these words:
"Nobyembre 5, 1951
Ako, si Felicidad E. Alto-Yap, may asawa, at ganap na pagiisip, ay nagsasalaysay na ang aking kayamanan sa bayan ng Pulilan, Bulacan ay aking ipinamamana sa aking mga
kamaganakang sumusunod:
Vicente Esguerra, Sr. 5 Bahagi
Fausto E. Gan 2 Bahagi
Rosario E. Gan 2 Bahagi
Filomena Alto 1 Bahagi
Beatriz Alto 1 Bahagi
'At ang aking lahat ng ibang kayamanan sa Maynila at iba pang lugar ay aking ipinamamana sa aking asawang si Ildefonso D. Yap sa kondisyong siya'y magpapagawa ng isang Health
Center na nagkakahalaga ng di kukulangin sa halagang P60,000.00 sa bayan ng Pulilan, Bulacan, na nakaukit ang aking pagalang Felicidad Esguerra-Alto. At kung ito ay may kakulagan man ay
bahala na ang aking asawa ang magpuno upang matupad ang aking kagustuhan.'
(Lagda) Felicidad E. Alto-Yap"
Opposing the petition, her surviving husband Ildefonso Yap asserted that the deceased had not left any will, nor executed any testament during her lifetime.
After hearing the parties and considering their evidence, the Hon. Ramon R. San Jose, Judge, 1 refused to probate the alleged will. A seventy-page motion for reconsideration failed. Hence this appeal.
The will itself was not presented. Petitioner tried to establish its contents and due execution by the statements in open court of Felina Esguerra, Primitivo Reyes, Socorro Olarte and Rosario Gan Jimenez,
whose testimonies may be summarized as follows:
Sometime in 1950 after her last trip abroad, Felicidad Esguerra mentioned to her first cousin, Vicente Esguerra, her desire to make a will. She confided however that it would be useless if her husband
discovered or knew about it. Vicente consulted with Fausto E. Gan, nephew of Felicidad, who was then preparing for the bar examinations. The latter replied it could be done without any witness, provided the
document was entirely in her handwriting, signed and dated by her. Vicente Esguerra lost no time in transmitting the information, and on the strength of it, in the morning of November 5, 1951, in her residence at Juan
Luna Street, Manila, Felicidad wrote, signed and dated a holographic will substantially of the tenor above transcribed, in the presence of her niece, Felina Esguerra (daughter of Vicente), who was invited to read it. In
the afternoon of that day, Felicidad was visited by a distant relative, Primitivo Reyes, and she allowed him to read the will in the presence of Felina Esguerra, who again read it.
Nine days later, he had other visitors: Socorro Olarte a cousin, and Rosario Gan Jimenez, a niece. To these she showed the will, again in the presence of Felina Esguerra, who read it for the third time.
When on November 19, 1951, Felicidad was confined at the U.S.T. Hospital for her last illness, she entrusted the said will, which was contained in a purse, to Felina Esguerra. But a few hours later,
Ildefonso Yap, her husband, asked Felina for the purse; and being afraid of him by reason of his well-known violent temper, she- delivered it to him. Thereafter, in the same day, Ildefonso Yap returned the purse to
Felina, only to demand it the next day shortly before the death of Felicidad. Again, Felina handed it to him but not before she had taken the purse to the toilet, opened it and read the will for the last time. 2
From the oppositor's proof it appears that Felicidad Esguerra had been suffering from heart disease for several years before her death; that she had been treated by prominent physicians, Dr. Agerico
Sison, Dr. Agustin Liboro and others; that in May 1950 husband and wife journeyed to the United States wherein for several weeks she was treated for the disease; that thereafter she felt well and after visiting
interesting places, the couple returned to this country in August 1950. However, her ailment recurred, she suffered several attacks, the most serious of which happened in the early morning of the first Monday of
November 1951 (Nov. 5). The whole household was surprised and alarmed, even the teachers of the Harvardian Colleges occupying the lower floors and owned by the Yap spouses. Physician's help was hurriedly
called, and Dr. Tanjuaquio arrived at about 8:00 a.m., found the patient hardly breathing, lying in bed, her head held high by her husband. Injections and oxygen were administered. Following the doctor's advice the
patient stayed in bed, and did nothing the whole day, her husband and her personal attendant, Mrs. Bantique, constantly at her side. These two persons swore that Mrs. Felicidad Esguerra Yap made no will, and
could have made no will on that day.
The trial judge refused to credit the petitioner's evidence for several reasons, the most important of which were these: (a) if according to his evidence, the decedent wanted to keep her will a secret, so that
her husband would not know it, it is strange she executed it in the presence of Felina Esguerra, knowing as she did that witnesses were unnecessary; (b) in the absence of a showing that Felina was a confidant of the
decedent it is hard to believe that the latter would have allowed the former to see and read the will several times; (c) it is improbable that the decedent would have permitted Primitivo Reyes, Rosario Gan Jimenez and
Socorro Olarte to read her will, when she precisely wanted its contents to remain a secret during her lifetime; (d) it is also improbable that her purpose being to conceal the will from her husband she would carry it
around, even to the hospital, in her purse which could for one reason or another be opened by her husband; (e) if it is true that the husband demanded the purse from Felina in the U.S.T. Hospital and that the will was
there, it is hard to believe that he returned it without destroying the will, the theory of the petitioner being precisely that the will was executed behind his back for fear he will destroy it.
In the face of these improbabilities, the trial judge had to accept the oppositor's evidence that Felicidad did not and could not have executed such holographic will.
In this appeal, the major portion of appellant's brief discussed the testimony of the oppositor and of his witnesses in a vigorous effort to discredit them. It appears that the same arguments, or most of them,
were presented in the motion to reconsider; but they failed to induce the court a quo to change its mind. The oppositor's brief, on the other hand, aptly answers the criticisms. We deem it unnecessary to go over the
same matters, because in our opinion the case should be decided not on the weakness of the opposition but on the strength of the evidence of the petitioner, who has the burden of proof.

The Spanish Civil Code permited the execution of holographic wills along with other forms. The Code of Civil Procedure (Act 190) approved August 7, 1901, adopted only one form, thereby repealing the
other forms, including holographic wills.
The New Civil Code effective in 1950 revived holographic wills in its arts. 810-814. "A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator
himself. It is subject to no other form and may be made in or out of the Philippines, and need not be witnessed."
This is indeed a radical departure from the form and solemnities provided for wills under Act 190, which for fifty years (from 1901 to 1950) required wills to be subscribed by the testator and three credible
witnesses in each and every page; such witnesses to attest to the number of sheets used and to the fact that the testator signed in their presence and that they signed in the presence of the testator and of each other.
The object of such requirements it has been said, is to close the door against bad faith and fraud, to prevent substitution of wills, to guarantee their truth and authenticity (Abangan vs. Abangan, 40 Phil.,
476) and to avoid that those who have no right to succeed the testator would succeed him and be benefited with the probate of same. (Mendoza vs. Pilapil, 40 off. Gaz., 1855). However, formal imperfections may be
brushed aside when authenticity of the instrument is duly proved. (Rodriguez vs. Yap, 40 Off. Gaz. Ist Supp. No. 3 p. 194.).
Authenticity and due execution is the dominant requirement to be fulfilled when such will is submitted to the courts for allowance. For that purpose the testimony of one of the subscribing witnesses would
be sufficient, if there is no opposition (Sec. 5, Rule 77). If there is, the three must testify, if available. (Cabang vs. Delfinado 34 Phil., 291; Tolentino vs. Francisco, 57 Phil., 742). From the testimony of such witnesses
(and of other additional witnesses) the court may form its opinion as to the genuineness and authenticity of the testament, and the circumstances of its due execution.
Now, in the matter of holographic wills, no such guaranties of truth and veracity are demanded, since as stated, they need no witnesses; provided however, that they are "entirely written, dated, and signed
by the hand of the testator himself." The law, it is reasonable to suppose, regards the document itself as material proof of authenticity, and as its own safeguard, since it could at any time, be demonstrated to be or
not to be in the hands of the testator himself. "In the probate of a holographic will" says the New Civil Code, "it shall be necessary that at least one witness who knows the handwriting and signature of the testator
explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three such witnesses shall be required. In the absence of any such witnesses, (familiar with
decedent's handwriting) and if the court deem it necessary, expert testimony may be resorted to."
The witnesses so presented do not need to have seen the execution of the holographic will. They may be mistaken in their opinion of the handwriting, or they may deliberately lie in affirming it is in the
testator's hand. However, the oppositor may present other witnesses who also know the testator's handwriting, or some expert witnesses, who after comparing the will with other writings or letters of the deceased,
have come to the conclusion that such will has not been written by the hand of the deceased. (Sec. 50, Rule 123). And the court, in view of such contradictory testimony may use its own visual sense, and decide in
the face of the document, whether the will submitted to it has indeed been written by the testator.
Obviously, when the will itself is not submitted, these means of opposition, and of assessing the evidence are not available. And then the only guaranty of authenticity 3 the testator's handwriting has
disappeared.
Therefore, the question presents itself, may a holographic will be probated upon the testimony of witnesses who have allegedly seen it and who declare that it was in the handwriting of the testator? How
can the oppositor prove that such document was not in the testator's handwriting? His witnesses who know testator's handwriting have not examined it. His experts can not testify, because there is no way to compare
the alleged testament with other documents admittedly, or proven to be, in the testator's hand. The oppositor will, therefore, be caught between the upper millstone of his lack of knowledge of the will or the form
thereof, and the nether millstone of his inability to prove its falsity. Again the proponent's witnesses may be honest and truthful; but they may have been shown a faked document, and having no interest to check the
authenticity thereof have taken no pains to examine and compare. Or they may be perjurers boldly testifying, in the knowledge that none could convict them of perjury, because no one could prove that they have not
"been shown" a document which they believed was in the handwriting of the deceased. Of course, the competency of such perjured witnesses to testify as to the handwriting could be tested by exhibiting to them other
writings sufficiently similar to those written by the deceased; but what witness or lawyer would not foresee such a move and prepare for it? His knowledge of the handwriting established, the witness (or witnesses)
could simply stick to his statement: he has seen and read a document which he believed was in the deceased's handwriting. And the court and the oppositor would practically be at the mercy of such witness (or
witnesses) not only as to the execution, but also as to the contents of the will. Does the law permit such a situation?
The Rules of Court, (Rule 77) approved in 1940, allow proof (and probate) of a lost or destroyed will by secondary evidence the testimony of witnesses, in lieu of the original document. Yet such Rules
could not have contemplated holographic wills which could not then be validly made here. (See also Sec. 46, Rule 123; Art. 830-New Civil Code.).
Could Rule 77 be extended, by analogy, to holographic wills?
Spanish commentators agree that one of the greatest objections to the holographic will is that it may be lost or stolen 4 an implied admission that such loss or theft renders it useless.
This must be so, because the Civil Code requires it to be protocoled and presented to the judge, (Art. 689) who shall subscribe it and require its identity to be established by the three witnesses who depose
that they have no reasonable doubt that the will was written by the testator (Art. 691). And if the judge considers that the identity of the will has been proven he shall order that it be filed (Art. 693). All these, imply
presentation of the will itself. Art. 692 bears the same implication, to a greater degree. It requires that the surviving spouse and the legitimate ascendants and descendants be summoned so that they may make "any
statement they may desire to submit with respect to the authenticity of the will." As it is universally admitted that the holographic will is usually done by the testator and by himself alone, to prevent others from knowing
either its execution or its contents, the above article 692 could not have the idea of simply permitting such relatives to state whether they know of the will, but whether in the face of the document itself they think the
testator wrote it. Obviously, this they can't do unless the will itself is presented to the Court and to them.
Undoubtedly, the intention of the law is to give the near relatives the choice of either complying with the will if they think it authentic, or to oppose it, if they think it spurious. 5 Such purpose is frustrated
when the document is not presented for their examination. If it be argued that such choice is not essential, because anyway the relatives may oppose, the answer is that their opposition will be at a distinct
disadvantage, and they have the right and privilege to comply with the will, if genuine, a right which they should not be denied by withholding inspection thereof from them.
We find confirmation of these ideas about exhibition of the document itself in the decision of the Supreme Court of Spain of June 5, 1925, which denied protocolization or probate to a document
containing testamentary dispositions in the handwriting of the deceased, but apparently mutilated, the signature and some words having been torn from it. Even in the face of allegations and testimonial evidence
(which was controverted), ascribing the mutilation to the opponents of the will. The aforesaid tribunal declared that, in accordance with the provision of the Civil Code (Spanish) the will itself, whole and unmutilated,
must be presented; otherwise, it shall produce no effect.
"Considerando que sentado lo anterior, y estableciendose en el parrafo segundo del articulo 688 del Codigo civil, que para que sea valido el testamento olografo debera estar escrito
todo el y firmado por testador, con expression del ao, mes y dia en que se otorque, resulta evidente que para la validez y eficacia de esos testamentos, no basta la demostracion mas o menos
cumplida de que cuando se otorgaron se llenaron todos esos requisitos, sino que de la expresada redaccion el precepto legal, y por el tiempo en que el verbo se emplea, se desprende la
necesidad de que el documento se encuentre en dichas condiciones en el momento de ser presentado a la Autoridad competente, para su adveracion y protocolizacion; y como consecuencia
ineludible de ello, forzoso es affirmar que el de autos carece de validez y aficacia, por no estar firmado por el testador, cualquiera que sea la causa de la falta de firma, y sin perjuicio de las
acciones que puedan ejercitar los perjudicados, bien para pedir indemnizacion por el perjuicio a la persona culpable, si la hubiere, o su castigo en via criminal si procediere, por constituir dicha
omision un defecto insubsanable . . . ."
This holding aligns with the ideas on holographic wills in the Fuero Juzgo, admittedly the basis of the Spanish Civil Code provisions on the matter. 6
"PRECEDENTES LEGALES Fuero Juzgo, libro segundo, titulo V, ley 15 E depues que los herederos e sus fijos ovieren esta manda, fasta . . . annos muestrenla al obispo de la
tierra, o al juez fasta Vl meses y el obispo o el juez tomen otros tales tres escritos, que fuesen fechos por su mano daquel que fizo la manda; e por aquellos escriptos, si semjara la letra de la
manda, sea confirmada la manda. E depues que todo esto fuere connoscido, el obispo o el juez, o otras testimonios confirmen el escripto de la manda otra vez, y en esta manera vala la manda."
(Art. 689, Scaevola - Codigo Civil.)
(According to the Fuero above, the will itself must be compared with specimens of the testators handwriting.)
All of which can only mean: the courts will not distribute the property of the deceased in accordance with his holographic will, unless they are shown his handwriting and signature. 7

Parenthetically, it may be added that even the French Civil Law considers the loss of the holographic will to be fatal. (Planiol y Ripert, Derecho Civil Frances, traduccion por Diaz Cruz, 1946, Tomo V, page
555).
Taking all the above circumstances together, we reach the conclusion that the execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who
have seen and/or read such will. 8
Under the provisions of Art. 838 of the New Civil Code, we are empowered to adopt this opinion as a Rule of Court for the allowance of such holographic wills. We hesitate, however, to make this Rule
decisive of this controversy, simultaneously with its promulgation. Anyway, decision of the appeal may rest on the sufficiency, rather the insufficiency, of the evidence presented by petitioner Fausto E. Gan.
At this point, before proceeding further, it might be convenient to explain why, unlike holographic wills, ordinary wills may be proved by testimonial evidence when lost or destroyed. The difference lies in the
nature of the wills. In the first, the only guarantee of authenticity is the handwriting itself; in the second, the testimony of the subscribing or instrumental witnesses (and of the notary, now). The loss of the holographic
will entails the loss of the only medium of proof; if the ordinary will is lost, the subscribing witnesses are available to authenticate.
In the case of ordinary wills, it is quite hard to convince three witnesses (four with the notary) deliberately to lie. And then their lies could be checked and exposed, their whereabouts and acts on the
particular day, the likelihood that they would be called by the testator, their intimacy with the testator, etc. And if they were intimates or trusted friends of the testator they are not likely to lend themselves to any
fraudulent scheme to distort his wishes. Last but not least, they can not receive anything on account of the will.
Whereas in the case of holographic wills, if oral testimony were admissible 9 only one man could engineer the whole fraud this way: after making a clever or passable imitation of the handwriting and
signature of the deceased, he may contrive to let three honest and credible witnesses see and read the forgery; and the latter, having no interest, could easily fall for it, and in court they would in all good faith affirm its
genuineness and authenticity. The will having been lost the forger may have purposely destroyed it in an "accident" the oppositors have no way to expose the trick and the error, because the document itself is
not at hand. And considering that the holographic will may consist of two or three pages, and only one of them need be signed, the substitution of the unsigned pages, which may be the most important ones, may go
undetected.
If testimonial evidence of holographic wills be permitted, one more objectionable feature feasibility of forgery would be added to the several objections to this kind of wills listed by Castan, Sanchez
Roman and Valverde and other well-known Spanish Commentators and teachers of Civil Law. 10
One more fundamental difference: in the case of a lost will, the three subscribing witnesses would be testifying to a fact which they saw, namely the act of the testator of subscribing the will; whereas in the
case of a lost holographic will, the witnesses would testify as to their opinion of the handwriting which they allegedly saw, an opinion which can not be tested in court, nor directly contradicted by the oppositors,
because the handwriting itself is not at hand.
Turning now to the evidence presented by the petitioner, we find ourselves sharing the trial judge's disbelief. In addition to the dubious circumstances described in the appealed decision, we find it hard to
believe that the deceased should show her will precisely to relatives who had received nothing from it: Socorro Olarte and Primitivo Reyes. These could pester her into amending her will to give them a share, or
threaten to reveal its execution to her husband Ildefonso Yap. And this leads to another point: if she wanted so much to conceal the will from her husband, why did she not entrust it to her beneficiaries? Opportunity to
do so was not lacking: for instance, her husband's trip to Davao, a few days after the alleged execution of the will.
In fine, even if oral testimony were admissible to establish and probate a lost holographic will, we think the evidence submitted by herein petitioner is so tainted with improbabilities and inconsistencies that it
fails to measure up to that "clear and distinct" proof required by Rule 77, sec. 6. 11
Wherefore, the rejection of the alleged will must be sustained.
Judgment affirmed, with costs against petitioner.
Paras, C.J., Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion, Reyes, J.B.L., Endencia and Felix, JJ., concur.
||| (Gan v. Yap, G.R. No. L-12190, [August 30, 1958], 104 PHIL 509-522)
IN THE MATTER OF THE PETITION TO APPROVE THE WILL OF RICARDO B. BONILLA, deceased, MARCELA RODELAS, petitioner-appellant, vs. AMPARO ARANZA, ET AL., oppositors-appellees,
ATTY. LORENZO SUMULONG, intervenor.
Luciano A. Joson for petitioner-appellant.
Cesar C. Paralejo for oppositor-appellee.
SYNOPSIS
The probate court ordered the dismissal of appellant's petition for the allowance of the holographic will of deceased Ricardo B. Bonilla on the ground that the alleged photostatic copy of the will
which was presented for probate, cannot stand in lieu of the lost original, for the law regards the document itself as the material proof of the authenticity of the said will, citing the case of Gan vs. Yap, 104 Phil.
509, 522. On appeal, the only question is whether a holographic will which was lost or cannot be found can be proved by means of a photostatic copy.
The Supreme Court, in setting aside the lower court's order of dismissal, held that a photostatic or xerox copy of a lost or destroyed holographic will may be admitted because the authenticity of the
handwriting of the deceased can he determined by the probate court, as comparison can be made with the standard writings of the testator.
Assailed order of dismissal, set aside.
SYLLABUS
1. CIVIL LAW; SUCCESSION; HOLOGRAPHIC WILLS; PROBATE THEREOF; DEFINITION. Pursuant to Article 811 of the Civil Code, probate of holographic wills is the allowance of the will by the Court after its
due execution has been proved.
2. ID.; ID.; ID.; ID.; NUMBER OF WITNESSES REQUIRED. The probate of holographic wills may be uncontested or not. If uncontested, at least one identifying witness is required and, if no witness is available,
experts may be resorted to. If contested, at least three identifying witnesses are required.
3. ID.; ID.; ID.; ID.; NOT POSSIBLE WHERE ORIGINAL WILL HAS BEEN LOST OR DESTROYED AND NO OTHER COPY IS AVAILABLE; REASON. If the holographic will has been lost or destroyed and no
other copy is available, the will cannot be probated because the best and only evidence is the handwriting of the testator in said will. It is necessary that there be a comparison between sample handwritten
statements of the testator and the handwritten will.
4. ID.; ID.; ID.; ID.; ID.; PHOTOSTATIC COPY OR XEROX COPY MAY BE ALLOWED; CASE AT BAR. A photostatic copy or xerox copy of the holographic will may be allowed because comparison can be made
with the standard writings of the testator. In the case of Gan vs. Yap, 104 Phil. 509, the Court ruled that "the execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony
of witnesses who have seen and/or read such will. The will itself must be presented; otherwise, it shall produce no effect. The law regards the document itself as material proof of authenticity." But, in Footnote 8 of
said decision, it says that "Perhaps it may be proved by a photographic or photostatic copy. Even a mimeographed or carbon copy; or by other similar means, if any, whereby the authenticity of the handwriting of the
deceased may be exhibited and tested before the probate court." Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be admitted because then the authenticity of the handwriting of
the deceased can be determined by the probate court.
DECISION
RELOVA, J p:
This case was certified to this Tribunal by the Court of Appeals for final determination pursuant to Section 3, Rule 50 of the Rules of Court.
As found by the Court of Appeals:
". . . On January 11, 1977, appellant filed a petition with the Court of First Instance of Rizal for the probate of the holographic will of Ricardo B. Bonilla and the issuance of letters
testamentary in her favor. The petition, docketed as Sp. Proc. No. 8432, was opposed by the appellees Amparo Aranza Bonilla, Wilferine Bonilla Treyes, Expedita Bonilla Frias and Ephraim

Bonilla on the following grounds:

"(1) Appellant was estopped from claiming that the deceased left a will by failing to produce the will within twenty days of the death of the testator as required by Rule 75,
section 2 of the Rules of Court:
"(2) The alleged copy of the alleged holographic will did not contain a disposition of property after death and was not intended to take effect after death, and therefore it
was not a will;
"(3) The alleged holographic will itself, and not an alleged copy thereof, must be produced, otherwise it would produce no effect, as held in Gan v. Yap, 104 Phil. 509; and
"(4) The deceased did not leave any will, holographic or otherwise, executed and attested as required by law.
"The appellees likewise moved for the consolidation of the case with another case (Sp. Proc. No. 8275). Their motion was granted by the court in an order dated April 4, 1977.
"On November 13, 1978, following the consolidation of the cases, the appellees moved again to dismiss the petition for the probate of the will. They argued that:
"(1) The alleged holographic was not a last will but merely an instruction as to the management and improvement of the schools and colleges founded by decedent
Ricardo B. Bonilla; and
"(2) Lost or destroyed holographic wills cannot be proved by secondary evidence unlike ordinary wills.
"Upon opposition of the appellant, the motion to dismiss was denied by the court in its order of February 23, 1979.
"The appellees then filed a motion for reconsideration on the ground that the order was contrary to law and settled pronouncements and rulings of the Supreme Court, to which
the appellant in turn filed an opposition. On July 23, 1979, the court set aside its order of February 23, 1979 and dismissed the petition for the probate of the will of Ricardo B. Bonilla. The
court said:
'. . . It is our considered opinion that once the original copy of the holographic will is lost, a copy thereof cannot stand in lieu of the original.
'In the case of Gan vs. Yap, 104 Phil. 509, 522, the Supreme Court held that 'in the matter of holographic wills the law, it is reasonable to suppose, regards the
document itself as the material proof of authenticity of said wills.
'MOREOVER, this Court notes that the alleged holographic will was executed on January 25, 1962 while Ricardo B. Bonilla died on May 13, 1976. In view of the lapse
of more than 14 years from the time of the execution of the will to the death of the decedent, the fact that the original of the will could not be located shows to our mind that the
decedent had discarded before his death his allegedly missing Holographic Will.
Appellant's motion for reconsideration was denied. Hence, an appeal to the Court of Appeals in which it is contended that the dismissal of appellant's petition is contrary to law and well-settled
jurisprudence.
On July 7, 1980, appellees moved to forward the case to this Court on the ground that the appeal does not involve question of fact and alleged that the trial court committed the following assigned
errors:
"I. THE LOWER COURT ERRED IN HOLDING THAT A LOST HOLOGRAPHIC WILL MAY NOT BE PROVED BY A COPY THEREOF;
"II. THE LOWER COURT ERRED IN HOLDING THAT THE DECEDENT HAS DISCARDED BEFORE HIS DEATH THE MISSING HOLOGRAPHIC WILL;
"III. THE LOWER COURT ERRED IN DISMISSING APPELLANT'S WILL."
The only question here is whether a holographic will which was lost or can not be found can be proved by means of a photostatic copy. Pursuant to Article 811 of the Civil Code, probate of
holographic wills is the allowance of the will by the court after its due execution has been proved. The probate may be uncontested or not. If uncontested, at least one identifying witness is required and, if no
witness is available, experts may be resorted to. If contested, at least three identifying witnesses are required. However, if the holographic will has been lost or destroyed and no other copy is available, the will
can not be probated because the best and only evidence is the handwriting of the testator in said will. It is necessary that there be a comparison between sample handwritten statements of the testator and the
handwritten will. But, a photostatic copy or xerox copy of the holographic will may be allowed because comparison can be made with the standard writings of the testator. In the case of Gan vs. Yap, 104 Phil.
509, the Court ruled that "the execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will. The will itself must
be presented; otherwise, it shall produce no effect. The law regards the document itself as material proof of authenticity." But, in Footnote 8 of said decision, it says that "Perhaps it may be proved by a
photographic or photostatic copy. Even a mimeographed or carbon copy; or by other similar means, if any, whereby the authenticity of the handwriting of the deceased may be exhibited and tested before the
probate court." Evidently, the photostatic or xerox copy of the lost or destroyed holographic will may be admitted because then the authenticity of the handwriting of the deceased can be determined by the
probate court.
WHEREFORE, the order of the lower court dated October 3, 1979, denying appellant's motion for reconsideration dated August 9, 1979, of the Order dated July 23, 1979, dismissing her petition to
approve the will of the late Ricardo B. Bonilla, is hereby SET ASIDE.
SO ORDERED.
Teehankee, Actg. C.J., Melencio-Herrera, Plana, Vasquez and Gutierrez, Jr., JJ., concur.
||| (In Re: Bonilla v. Aranza, G.R. No. L-58509, [December 7, 1982], 204 PHIL 402-407)
Estate of Miguel Mamuyac, deceased. FRANCISCO GAGO, petitioner-appellant, vs. CORNELIO MAMUYAC, AMBROSIO LARIOSA, FELICIANA BAUZON, and CATALINA MAMUYAC, opponentsappellees.
Nicanor Tavora for appellant.
Jose Rivera for appellees.
SYLLABUS
1. WILLS, CANCELLATION OF; PRESUMPTION. The law does not require any evidence of the revocation or cancellation of the will to be preserved. It therefore becomes difficult at times to prove
the cancellation or revocation of wills. The fact that such cancellation or revocation has taken place must either remain unproved or be inferred from evidence showing that after due search the original will
cannot be found. Where a will which cannot be found is shown to have been in the possession of the testator, when last seen, the presumption is in the absence of other competent evidence, that the same was
cancelled or destroyed. The same presumption arises where it is shown that the testator had ready access to the will and it cannot be found after his death. It will not be presumed that such will has been
destroyed by any other person without the knowledge or authority of the testator.
DECISION
JOHNSON, J p:
The purpose of this action was to obtain the probation of a last will and testament of Miguel Mamuyac, who died on the 2d day of January, 1922, in the municipality of Agoo of the Province of La Union. It
appears from the record that on or about the 27th day of July, 1918, the said Miguel Mamuyac executed a last will and testament (Exhibit A). In the month of January, 1922, the said Francisco Gago presented a
petition in the Court of First Instance of the Province of La Union for the probation of that will. The probation of the same was opposed by Cornelio Mamuyac, Ambrosio Lariosa, Feliciana Bauzon, and Catalina
Mamuyac (civil cause No. 1144, Province of La Union). After hearing all of the parties the petition for the probation of said will was denied by the Honorable C. M. Villareal on the 2d day of November, 1923, upon the
ground that the deceased had on the 16th day of April, 1919, executed a new will and testament.
On the 21st day of February, 1925, the present action was commenced. Its purpose was to secure the probation of the said will of the 16th day of April, 1919 (Exhibit 1). To said petition Cornelio Mamuyac,
Ambrosio Lariosa, Feliciana Bauzon, and Catalina Mamuyac presented their oppositions, alleging (a) that the said will is a copy of the second will and testament executed by the said Miguel Mamuyac; (b) that the

same had been cancelled and revoked during the lifetime of Miguel Mamuyac and (c) that the said will was not the last will and testament of the deceased Miguel Mamuyac.
Upon the issue thus presented, the Honorable Anastasio R. Teodoro, judge, after hearing the respective parties, denied the probation of said will of April 16, 1919, upon the ground that the same had been
cancelled and revoked in the year 1920. Judge Teodoro, after examining the evidence adduced, found that the following facts had been satisfactorily proved:
"That Exhibit A is a mere carbon copy of its original which remained in the possession of the deceased testator Miguel Mamuyac, who revoked it before his death as per testimony of
witnesses Jose Fenoy, who typed the will of the testator on April 16, 1919, and Carlos Bejar, who saw on December 30, 1920, the original of Exhibit A (will of 1919) actually cancelled by the testator
Miguel Mamuyac, who assured Carlos Bejar that inasmuch as he had sold him a house and the land where the house was built, he had to cancel it the will of 1919), executing thereby a new
testament. Narcisa Gago in a way corroborates the testimony of Jose Fenoy, admitting that the will executed by the deceased (Miguel Mamuyac) in 1919 was found in the possession of father
Miguel Mamuyac. The opponents have successfully established the fact that father Miguel Mamuyac had executed in 1920 another will. The same Narcisa Gago, the sister of the deceased, who
was living in the house with him, when cross-examined by attorney for the opponents, testified that the original of Exhibit A could not be found. For the foregoing consideration and for the reason
that the original of Exhibit A has been cancelled by the deceased father Miguel Mamuyac, the court disallows the probate of Exhibit A for the applicant." From that order the petitioner appealed.
The appellant contends that the lower court committed an error in not finding from the evidence that the will in question had been executed with all the formalities required by the law; that the same had
been revoked and cancelled in 1920 before his death; that the said will was a mere carbon copy and that the oppositors were not estopped from alleging that fact.
With reference to the said cancellation, it may be stated that there is positive proof, not denied, which was accepted by the lower court, that the will in question had been cancelled in 1920. The law does not
require any evidence of the revocation or cancellation of a will to. be preserved. It therefore becomes difficult at times to prove the revocation or cancellation of wills. The fact that such cancellation or revocation has
taken place must either remain unproved or be inferred from evidence showing that after due search the original will cannot be found. Where a will which cannot be found is shown to have been in the possession of
the testator, when last seen, the presumption is, in the absence of other competent evidence, that the same was cancelled or destroyed. The same presumption arises where it is shown that the testator had ready
access to the will and it cannot be found after his death. It will not be presumed that such will has been destroyed by any other person without the knowledge or authority of the testator. The force of the presumption of
cancellation or revocation by the testator, while varying greatly, being weak or strong according to the circumstances, is never conclusive, but may be overcome by proof that the will was not destroyed by the testator
with intent to revoke it.
In view of the fact that the original will of 1919 could not be found after the death of the testator Miguel Mamuyac and in view of the positive proof that the same had been cancelled, we are forced to the
conclusion that the conclusions of the lower court are in accordance with the weight of the evidence. In a proceeding to probate a will the burden of proof is upon the proponent clearly to establish not only its
execution but its existence. Having proved its execution by the proponents, the burden is on the contestant to show that it has been revoked. In a great majority of instances in which wills are destroyed for the purpose
of revoking them there is no witness to the act of cancellation or destruction and all evidence of its cancellation perishes with the testator. Copies of wills should be admitted by the courts with great caution. When it is
proven, however, by proper testimony that a will was executed in duplicate and each copy was executed with all the formalities and requirements of the law, the duplicate may be admitted in evidence when it is made
to appear that the original has been lost and was not cancelled or destroyed by the testator. (Borromeo vs. Casquijo, G.R. No. 26063.) 1
After a careful examination of the entire record, we are fully persuaded that the will presented for probate had been cancelled by the testator in 1920. Therefore the judgment appealed from is hereby
affirmed. And without any finding as to costs, it is so ordered.
Street, Malcolm, Villamor, Ostrand, Romualdez and Villa-Real, JJ., concur.
Footnotes
||| (Gago v. Mamuyac, G.R. No. 26317, [January 29, 1927], 49 PHIL 902-905)
ROMULO LOPEZ, ET AL., plaintiffs-appellants, vs. LUIS GONZAGA, ET AL., defendants. LUIS GONZAGA and ASUNCION GONZAGA, defendants-appellants.
Lakandola G. Lopez and Romulo Lopez for plaintiffs-appellants.
Amalia K. del Rosario for defendants-appellants.
SYLLABUS
1. WILLS; PROBATE; ORDER OF ADJUDICATION BY COURT DISTINGUISHED FROM TESTAMENTARY INSTITUTION OF HEIR; CASE AT BAR. The order of adjudication is the judicial recognition that in
appointing a person as her only heir the testatrix did not contravene the law, and that the heir was in no way disqualified to inherit; just as a final order admitting a will to probate concludes all and sundry from
thereafter contending that statutory formal requirements have not been observed in executing the testament. In the case at bar, instead of contradicting the testamentary institution of heir, the order of adjudication
confirms it.
2. ID.; ID.; NOTICE TO INTERESTED PARTIES; RECORDING OF JUDICIAL ORDER SUFFICIENT. The failure of the defendant heir, in the case at bar, to file with the Register of Deeds a certified copy of his
letters of administration and the will, as provided in Sec. 90 of Act 496, and to record the attested copies of the will and of the allowance thereof by the court under Section 624 of Act 190, does not negate the validity
of the judgment or decree of probate nor the rights of the devises under the will, because said Section 90 refers to the dealings with registered lands by an administrator, and defendant heir in the case at bar sought
and obtained the change in the certificates of title in his own behalf and capacity, and the recording of the judicial orders sufficed as notice to interested parties, and was a substantial compliance with the required
recording of the will itself.
3. ID.; ID.; ADMINISTRATOR AS TRUSTEE; TERMINATION OF TRUSTS; BY APPROVAL OF FINAL ACCOUNT AND BY TRANSFER OF TITLE TO FORMER TRUSTEE THRU REPUDIATION AND
PRESCRIPTION. The contention that defendant-appellee in the case at bar, having been appointed administrator, must be deemed a trustee up to the present is infantile, because first, no administration could
continue to exist after the order of the court had approved the final account, adjudicated the property to the only heir, cancelled the bond of the administrator, and ordered the case " archivado el mismo por
terminado," and no proof exists that the proceedings were ever reopened; and secondly, the transfer of the certificates of title to the defendant's own name in 1936 would constitute an open and clear repudiation of
any trust, and the lapse of more than twenty years' open and adverse possession as owner would certainly suffice to vest title by prescription in the defendant-appellee, since appellants, who knew of the death of the
testatrix in 1935, never made any move to require the defendant to reconvey the property.
4. ID.; ID.; DUE PROCESS; DAY IN COURT NOT DENIED TO PARTIES REPRESENTED BY COUNSEL. Where the authority of their counsel to appear for them was never questioned by appellants until the
adverse decision was rendered by the court below, their contention that they were denied their day in court is incredible, and appears to be but a last minute attempt to escape the adverse effect of the appealed
decision.
DECISION
REYES, J.B.L., J p:
Joint and direct appeal by both parties-plaintiffs and parties-defendants from the decision of the Court of First Instance of Negros Occidental (in its Civil Case No. 5033) to this Supreme Court, because the properties
involved are valued at more than P200,000.00. The appealed decision dismissed the petition of plaintiffs (appellants) for partition and cancellation of titles of registered lands, and ordered them to pay defendants
(appellees) P1,000.00. by way of attorney's fees, but refused to award moral damages in favor of the defendants.
The original petition was filed with the court a quo on 6 October 1958, alleging among other things, that one Soledad Gonzaga Vda. de Ferrer died intestate on 11 April 1935 without any issue and leaving real and personal
properties worth P400,000.00; that she was survived by the plaintiffs, who are her nearest of kin, being her brothers, sisters, nephews, and nieces; that during the lifetime of the deceased, she expressed the wish that as
long as her brother, Luis Gonzaga, the principal defendant, was engaged in his coconut oil experimentation he could use the products and rentals of her properties in furtherance of his experiments; that the said scientific
venture by the said defendant was discontinued when be became totally blind in October, 1955, in view of which the plaintiffs now ask a partition of the estate and the cancellation of titles of lands allegedly fraudulently
transferred by, and in the name of, the defendant.
The defendant filed a motion to dismiss on the grounds of res judicata and non-inclusion of indispensable parties. The plaintiffs amended their petition to include the omitted parties. After hearing on the motion to dismiss,
the court denied the said motion. Thereupon, the defendants filed their answer repleading a denial as to the intestacy of the deceased, and alleging, among others, that a will of Soledad Gonzaga Vda. de Ferrer instituted

Luis Gonzaga as the sole heir to her entire estate, and that the will was duly allowed and probated.
After trial, the court a quo rendered judgment, and both parties appealed, as aforesaid.
The genuineness of the following documents, and the jurisdiction of the court, with respect to them, are not disputed:
"REPUBLIC OF THE PHILIPPINES
COURT OF FIRST INSTANCE OF ILOILO
11th Judicial District
December 11, 1958.
TO WHOM IT MAY CONCERN:
This is to certify that according to the records of this office there is no Expediente No. 2163 entitled Estate of Doa Soledad Gonzaga Vda. de Ferrer, as all pre-war records were burned, lost or
destroyed during the World War II.
(Sgd) CIPRIANO CABALUNA
Clerk of Court"
"UNITED STATES OF AMERICA
COMMONWEALTH OF THE PHILIPPINES
COURT OF FIRST INSTANCE
OF OCCIDENTAL NEGROS
18th Judicial District.
G.L.R.O. CAD. RECORD No. 214
LOTS NOS. 414 and 424
CAD. SURVEY OF MANAPLA
PETITION
Luis Gonzaga y Jesena through the undersigned attorney, to the Honorable Court respectfully follows:
That Soledad Gonzaga Vda. de Ferrer is the registered owner of Lots Nos. 414 and 424, Cadastral Survey of Manapla, which parcel of land are described in Transfer Certificate of Title Nos. 11460
and 13855, respectively.
That Soledad Gonzaga Vda. de Ferrer died on April 11, 1935, and she left all her properties in favor of Luis Gonzaga y Jesena in her will, which will was probated on May 17, 1935, in the Court of
First Instance of Iloilo (Exp. No. 2163, Iloilo).
That the project of partition dated February 3, 1936, (Exp. No. 2163, Iloilo) a copy of which is hereto attached in which the petitioner Luis Gonzaga y Jesena is the only heir, was approved by the
Honorable Court of Iloilo in its order dated February 8, 1936, a copy of the said order is hereto attached.
WHEREFORE, in view of the foregoing, the petitioner respectfully prays the Honorable Court to order the cancellation of Transfer Certificate of Title Nos. 11460 and 13855, Office of the Register of
Deeds of Occidental Negros, wherein Lots Nos. 414 and 424 are described, and in lieu thereof to issue Transfer Certificate of Titles for Lots 414 and 424, Cadastral Survey of Manapla, Occidental
Negros, in favor of Luis Gonzaga y Jesena, single, of legal age, Filipino and a resident of Manila, P. I.
Iloilo, Iloilo, for Bacolod, Occ. Neg. P. I. March 11, 1936.
(Sgd.) FRANCISCO S. HORTILLAS
Attorney for the petitioner
2 General Luna, Iloilo.
I, Francisco S. Hortillas, of legal age, after having been duly sworn, depose and say: That I am the attorney for the petitioner in the above case, and that all the allegations contained in the foregoing
petition are true to the best of my information and belief.
(Sgd) FRANCISCO HORTILLAS
Subscribed and Sworn to before me this 11th day of March 1936. He exhibited to me his cedula No. E-1250120, issued at Jaro, Iloilo, P.I., on January 16, 1936.
(Sgd) ILLEGIBLE
NOTARY PUBLIC
Until Dec. 31, 1937
Doc. No. 49
Page No. 60
Book No. 1
Series of 1936
The Register of Deeds
Bacolod City, Occ. Negros
Sir:
Please take notice that on Saturday, March 21, 1936, at 8:00 a.m. or soon thereafter as the undersigned may be heard, he will submit the foregoing petition to this Honorable Court for approval.
(Sgd) FRANCISCO S. HORTILLAS
I hereby certify that I have sent a copy of the foregoing petition to the Register of Deeds of Occidental Negros evidenced by the registry receipt hereto attached.
(Sgd) FRANCISCO S. HORTILLAS
"UNITED STATES OF AMERICA
COMMONWEALTH OF THE PHILIPPINES
COURT OF FIRST INSTANCE OF ILOILO
17th Judicial District
TESTATE PROCEEDINGS OF
THE DECEASED SOLEDAD
GONZAGA VDA. DE FERRER, CIVIL CASE NO. 2163.
LUIS GONZAGA Y JESENA,
Petitioner.
PETITION FOR ADJUDICATION
The undersigned administrator to the Honorable Court respectfully states:

That the undersigned administrator, Luis Gonzaga y Jesena is the only heir mentioned in the probated will of the late Sra. Soledad G. Vda. de Ferrer.
TOWN TITLE NO. PROVINCE VALUE
Manapla Trans. Cert. 8433 Occ. Neg. P25,230.00
Manapla Trans. Cert. 11460 Occ. Neg. 5,210.00
Manapla Trans. Cert. 13855 Occ. Neg. 7,310.00
Jaro Trans. Cert. 13051 Iloilo 510.00
Jaro Trans. Cert. 13054 Iloilo 500.00

P38,760.00
ACCOUNTS COLLECTIBLE AND CASH
Roman Sopena P1,100.00
Juan Sornito 330.00
Quintin Mejorada and others 2,800.00
Maria Ledesma and others 600.00
and Cash 1,018.54.
That there is a pending civil complaint against the administrator by Consolacion G. de Lopez, et al., Civil Case No. 10321, Court of First Instance of Iloilo, demanding payment of the sum of
P833.40. The undersigned administrator is willing to file a cash bond for the sum object of the complaint in case this expediente will be closed before the trial of the Civil Case No. 10321, Iloilo.
Iloilo, P.I., February 3, 1936.
(Sgd.) FRANCISCO S. HORTILLAS
Attorney for the Administrator
2 General Luna, Iloilo
The Clerk of Court
Iloilo, Iloilo
Sir:
Please include the foregoing petition for adjudication in the calendar for Saturday, February 8, 1936.
(Sgd.) FRANCISCO S. HORTILLAS
A TRUE COPY:
(Sgd) TELESFORO GEDANG
Deputy Clerk of Court
17th Judicial District
Iloilo, P. I."
"ESTADOS UNIDOS DE AMERICA
COMMONWEALTH DE FILIPINAS
JUZGADO DE PRIMERA INSTANCIA DE
ILOILO
17.0 Distrito Judicial
TESTAMENTARIA GONZAGA
Expediente No. 2163.
AUTO
Previa prestacion por Luis Gonzaga y Jesena de una fianza por valor de P1,000.00 que tendra por objecto responder al resultado de la causa civil No. 10321 de este Juzgado, titulada 'Consolacion
G. de Lopez, et al., demandantes, contra Luis Gonzaga', se aprueba la cuenta final de fecha enero 29, 1936, asi como el proyecto de particion de fecha 3 del actual. Queda cancelada la fianza
prestada por el administrador en este expediente, y archivado el mismo por terminado.
Asi se ordena.
Iloilo, Iloilo, febrero 8, 1936.
M. BUYSON LAMPA
Juez.
A TRUE COPY:
(Sgd) TELESFORO GEDANG
Deputy Clerk of Court
17th Judicial District
Iloilo, P. I."
"ESTADOS UNIDOS DE AMERICA
MANCOMUNIDAD DE FILIPINAS
JUZGADO DE PRIMERA INSTANCIA DE
NEGROS OCCIDENTAL
18.0 Distrito Judicial
Expediente Cadastral No. 26 G.L.R.O. Cad. Rec.
ELGOBIERNO DE LAS ISLAS No. 214
FILIPINAS Lotes Nos. 414 y 424
Solicitante. CATASTRO DE MANAPLA
AUTO
Vista la peticion del solicitante Sr. Luis Gonzaga y Jesena, de fecha 11 de marzo de 1936, el Juzgado, hallando de misma bien fundada;
Por el presente, ordena la cancelacion de los certificados de transferencia de titulo Nos. 11460 y 13855, sobre los lotes Nos. 414 y 424, respectivamente, del Catastro de Manapla, Negros

Occidental, y la expedicion de otros a favor de Luis Gozaga y Jesena, filipino, mayor de edad, soltero y vecino de la ciudad de Manila, I. F, haciendose constar en los certificados que se han de
expedir todos los gravamenes que existen el los certificados de transferencia Nos. 11460 y 13855.
Asi se ordena.
Bacolod, Occ. Negros, 21 de marzo, 1936,
(FDO.) BRAULIO BAJASA
Juez.
"ESTADOS UNIDOS DE AMERICA
MANCOMUNIDAD DE FILIPINAS
JUZGADO DE PRIMERA INSTANCIA
DE NEGROS OCCIDENTAL
18.0 Distrito Judicial
EL GOBIERNO DE LAS Exp. de Reg. No. 72
ISLAS FILIPINAS, G.L.R.O. Rec, No. 10822
Solicitante Lote No, 313
LUIS GONZAGA Y JESENA, MANAPLA
Mocionante.
AUTO
Vista y considerada la mocion del solicitante Luis Gozaga y Jesena, de Fecha 11 de marzo de 1936, el Juzgado, hallando la misma bien fundada;
Por el presente, ordena la cancelacion del certificado de transferencia de titulo No, 8422 sobre el Lote No. 313 del catastro de Manapla, Negros Occidental, y la expedicion de otro a favor de Luis
Gonzaga y Jesena, filipino, mayor de edad; soltero y vecino de la ciudad de Manila, I.F., haciendose constar en la certificado que se ha de expedir todos los gravamente que existen en el
certificado de transferencia candelado, se tuviere alguno.
Asi se ordena.
Bacolod, Occidental Negros, 21 de marzo, 1936.
(Sgd.) BRAULIO BEJASA
Juez.
BB/spm.
Received the foregoing document at 9:00 A.M. on May 7, 1936, and registered under Act 496 as follows:
Day Book, Vol. 6, Entry No. 49684.
Inscribed on page 101 of Book Vol. 87 of Transfer Certificate of Title as Certificate No. 21151.
Bacolod, Occ. Negros, May 7, 1936.
(Sgd.) MARIANO COREOVA
Register of Deeds"
"ESTADOS UNIDOS DE AMERICA
MANCOMUNIDAD DE FILIPINAS
JUZGADO DE PRIMERA INSTANCIA DE
ILOILO
17.0 Distrito Judicial
G.L.R.O. RECORD NO. 9959
ZOTES NOS. 1129-B y 1129-C
SITUADO EN EL MUNICIPIO DE
JARO
AUTO
Vista la peticion de Luis Gonzaga y Jesena cancelacion de los Certificados de Transferencia de titulo numeros 10051 y 13054, por las razones expuestas en la misma, y encontrando el Juzgado la
misma bien fundada, por la presente ordena el Registrado de Titulos de la Provincial del Iloilo cancela los Certificados de Transferencia de Titulos numeros 10051 y 13054 y expiden otros en su
lugar a nombre de Luis Gonzaga y Jesena, soltero, mayor de edad, filipino y vecino de Manila, P.I.
Asi se ordena.
Iloilo, Iloilo, Marzo 25, 1936. M. BUYSON LAMPA
Juez
As a witness, the defendant's counsel, Atty. Amelia K. del Rosario, testified that the aforequoted records of the probate court of Iloilo were discovered by her among the records of the cadastral court in Negros Occidental.
Due to the destruction of the court and property records of Iloilo as a result of the last war, as attested by the Clerk of Court, no will or probate order was produced, and neither were attested copies registered with the
Office of the Register of Deeds other than those previously copied in this opinion; but the testimony of appellee and the copies of judicial pleadings and orders obtained by him from the Registry of Deeds of Negros
Occidental leave little room for doubt that Doa Soledad Gonzaga died leaving a will instituting her nephew, the appellee Luis Gonzaga y Jesena, as her sole testamentary heir, in default of forced heirs; that said will was
duly probated in 1935 or 1936 by the Court of First Instance of Iloilo in its Special Proceeding No. 2163; that the net residue of the estate was adjudicated by the court to said appellee, subject only to a claim of Consolacion
G. de Lopez for P1,000.00 (Exh. 2); and that, thereafter, upon sworn petition of appellee, through his counsel, Francisco S. Hortillas, the Courts of First Instance of Iloilo (Exhibit 12) and Occidental Negros (Exhibit 3)
ordered the respective Provincial Registers of Deeds to cancel the Certificates of Title standing then in the name of the deceased Soledad Gonzaga, and in lieu thereof to issue new certificates in the name of appellee Luis
Gonzaga y Jesena, as admittedly was done. In the course of the years prior to the institution of this case in 1958, appellee held the properties and dealt with them as sole owner, leasing, encumbering, and selling some of
them.
We can not fail to be impressed by the statements of attorney Francisco Hortillas, averring under oath in clear and unmistakable terms, not only once but twice, before the Courts of First Instance of Iloilo and Negros
(Exhibits 1 and 9), that the deceased Doa Soledad, in her probated will, made Luis Gonzaga y Jesena the sole heir to her properties. These manifestations are nigh conclusive, for the reason that attorney Hortillas was
himself married to Monserrat Gonzaga, a sister of Soledad, who would have been one of the latter's heirs intestate had it not been for the testament in favor of the appellee. It taxes credulity beyond all reason to imply (as
appellants do) that attorney Hortillas, violating family ties and affection, conspired with appellee to deprive his own wife and children (now some of present appellants) of their lawful share by intestacy in the properties left
by Doa Soledad, if it were untrue that the latter had duly and properly bequeathed all her estate to appellee Luis Gonzaga. The authenticity of the sworn petitions of the late attorney Hortillas (Exhibits a and 1) are not
impugned, and they were actually acted upon and granted by the two courts of first instance to which he addressed his petitions.
Coupled with his undoubted possession as owner and with his own dominical acts exercised over the former properties of Doa Soledad Gonzaga for twenty-two years (1936-1958), the exhibits aforementioned constitute

practically conclusive proof of the truth of appellee's defenses, as found by the court below, despite the destruction of the original will and decree of probate.
Plaintiffs-appellants, however, assail the trial court's admission of the said court records on the ground that defendant-appellee failed to lay proper basis, or predicate, for their admission. Granting that the original will was
destroyed with the court records in the last war, it is averred that appellee was duty-bound to produce the copy that, according to appellee's deposition, was in the custody of Encarnacion Gonzaga, as well as that left with
attorney Hortillas. The argument is misleading. There is no proof that copies of the will ever existed other than the one burned while in appellee's possession (Dep. p. 23), Page 24 of the appellee's deposition is to the effect
that
"My sister Encarnacion had the custody of the will because she was the one who was at the bedside of my sister (referring to the testatrix Doa Soledad);
but by "the will" was obviously meant the one signed by the testatrix and the witnesses, not a copy.
Similarly, the witness was asked,
"When you filed this petition through your lawyer for the probate of the will, am I correct that you also presented a copy of the will?"
to which question the witness answered.
"The original was the one submitted".
From this answer, it certainly can not be inferred that Attorney Hortillas kept a copy of the original submitted to the court.
Neither do we see that appellee was bound to call, or account, for the witnesses to the testament. He was not trying to show that the will complied with the statutory requirements, but that the will had been admitted to
probate; and of course, the probate decree conclusively established the due execution.
Appellants contend that if it were true that the will constituted Luis Gonzaga as sole heir, he had no need to ask the court for an order of adjudication. There is no merit to this contention. The order of adjudication is the
judicial recognition that in appointing Luis as her only heir the testatrix did not contravene the law, and that the heir was in no way disqualified to inherit; just as a final order admitting a will to probate concludes all and
sundry from thereafter contending that statutory formal requirements have not been observed in executing the testament. Instead of contradicting the testamentary institution of heir, the order of adjudication confirms it in
this case. It may well be noted, in passing, that the order of February 8, 1936 (Exhibit 1 or B) speaks of approval of a "project of partition", while the petition of January 29, 1936 referred to therein spoke of an order of
adjudication to a single heir. Since the order made evident reference to the petition of January 29, we agree with the court below that the difference in terminology was an inadvertent mistake. Anyway, appellants do not
claim under the will or the partition; their theory is that Doa Soledad Gonzaga died intestate.
The failure of the defendant, Luis Gonzaga, to file with the Register of Deeds a certified copy of his letters of administration and the will, as provided in Section 90 of Act 496, and to record the attested copies of the will and
of the allowance thereof by the court under Section 624 of Act 190, does not negate the validity of the judgment or decree of probate nor the rights of the devisee under the will. Section 90 of Act 496 refers to the dealings
with registered lands by an executor or administrator; and while Luis Gonzaga was an administrator, this is beside the point, because his dealings with the lands, if any, during his tenure as an administrator are not here in
question. That the defendant sought judicial orders to effect the transfers to his name of the certificates of title after the will was probated, and succeeded in having them so transferred, are not "dealings" with the property
as administrator under section 90 of the Registration Act. The defendant sought and obtained the change in title in his own behalf and capacity. Although the step taken is not exactly what Section 624 of Act 190 directs, the
same purpose was achieved that of notice to all strangers of the cause and nature of the transfers; and it does not appear that anyone was prejudiced by the defect in registration complained of. At any rate, the
recording of the judicial orders sufficed as notice to interested parties, and was substantial compliance with the required recording of the will itself. No one faced by the recorded documents could ignore the reference
therein to the probated testament; and the rule is that knowledge of what might have been revealed by proper inquiry is imputable to the inquirer (cf. Emas vs. De Zuzuarregui, 53 Phil. 197, 204).
As to the fact that Luis Gonzaga paid the inheritance taxes as "executor or administrator", the same is of no importance. It is usual for an Administrator to pay these taxes, since by law no delivery of properties can be made
to the heirs until and unless the inheritance taxes are paid [Internal Revenue Code, Section 95(c)].
The contention that defendant-appellee, having been appointed Administrator, must be deemed a trustee up to the present is infantile. In the first place, no administration could continue to exist after the order of February 8,
1936 had approved the final account, adjudicated the property to the only heir, cancelled the bond of the administrator, and ordered the case "archivado el mismo por terminado". No proof exists that the proceedings were
ever reopened. Secondly, the transfer of the certificates of title to Luis Gonzaga's own name in 1936 would constitute an open and clear repudiation of any trust, and the lapse of more than twenty years' open and adverse
possession as owner would certainly suffice to vest title by prescription in the appellee, since appellants, who knew of the death of Doa Soledad in 1935, never made any move to require Luis to reconvey the property, or
any part thereof. The lame explanation that Doa Soledad Gonzaga had expressed the wish that all the income should go to Luis while he conducted experimental studies on coconut products is wholly unconvincing as an
excuse for the laches; his right to the income could not have blocked a partition of the capital assets among appellants, if they had been at all entitled to them.
That some of the plaintiffs were denied their day in court is incredible, since all the plaintiffs were represented by counsel Vicente Delfin, who claimed, and is presumed, to have been authorized to appear in their behalf,
and who did appear for them from the inception of the case until after the lower court's decision was rendered. The authority of said counsel was never questioned until the adverse decision was rendered by the court
below; and the complainant's failure to appear by themselves, or by other counsel, prior to the judgment is mute but eloquent proof that their allegation that Delfin was not their attorney is but a last minute attempt to escape
the adverse effect of the appealed decision, a maneuver that deserves no consideration.
Coming to the defendants' appeal: It is grounded on the disallowance of attorney's fees, expenses, and moral damages. The lower court granted only P1,000.00 for attorney's fees, but the defendants urge that the amount
should be P41,000.00, based on an agreement of P1,000.00 plus 10% of the value of the properties if the case is decided in their favor. The other expenses refer to transportation, board and lodging, stenographic notes,
photostatic copies of exhibits, securing documents, and taking of deposition in the sum of P1,205.00. Moral damages asked is P100,000.00.
The award of attorney's fees against the adverse party is essentially discretionary with the trial court (Francisco vs. GSIS, L-18287, 30 March 1963), and, in the absence of an abuse of discretion, the same should not be
disturbed. The other expenses, unless recoverable as judicial costs, cannot be allowed because the complaint, although unmeritorious, is not clearly unfounded; moral damages, likewise, are not allowable because the suit
is not a malicious prosecution under No. 8 of Article 2219 of the Civil Code. The issue is one primarily addressed to the discretion of the court below, which we are not inclined to disturb.
FOR THE FOREGOING REASONS, the appealed decision is hereby affirmed, with costs against the plaintiffs-appellants.
Bengzon, C . J ., Padilla, Bautista Angelo, Labrador, Concepcion, Barrera, Paredes, Dizon, Regala and Makalintal, JJ ., concur.
||| (Lopez v. Gonzaga, G.R. No. L-18788, [January 31, 1964], 119 PHIL 424-439)
The Incompetent, CARMEN CAIZA, represented by her legal guardian, AMPARO EVANGELISTA, petitioner, vs. COURT OF APPEALS (SPECIAL FIRST DIVISION), PEDRO ESTRADA and his wife,
LEONORA ESTRADA, respondents.
Priscilla A. Villacorta for petitioner.
Montilla Law Office for private respondents.
SYLLABUS
1. REMEDIAL LAW; JURISDICTION; DETERMINED BY THE ALLEGATIONS IN THE COMPLAINT. It is axiomatic that what determines the nature of an action as well as which court has jurisdiction over it, are the
allegations of the complaint and the character of the relief sought. An inquiry into the averments of the amended complaint in the Court of origin is thus in order.
2. ID.; PROVISIONAL REMEDIES; ACTION FOR UNLAWFUL DETAINER; IT IS SUFFICIENT TO ALLEGE THAT THE DEFENDANT IS UNLAWFULLY WITHHOLDING POSSESSION FROM THE PLAINTIFF. It is
settled that in an action for unlawful detainer, to allege that the defendant is unlawfully withholding possession from the plaintiff is deemed sufficient, and a complaint for unlawful detainer is sufficient if it alleges that the
withholding of possession or the refusal to vacate is unlawful without necessarily employing the terminology of the law.
3. ID.; ID.; ID.; PROPER WHEN A PERSON WHO OCCUPIES, OUT OF GENEROSITY, THE LAND OF ANOTHER AND FAILS TO VACATE THE SAME UPON DEMAND BY THE OWNER; CASE AT BAR. More than
once has this Court adjudged that a person who occupies the land of another at the latter's tolerance or permission without any contract between them is necessarily bound by an implied promise that he will vacate upon
demand, failing which a summary action for ejectment is the proper remedy against him, The situation is not much different from that of a tenant whose lease expires but who continues in occupancy by tolerance of the

owner, in which case there is deemed to be an unlawful deprivation or withholding of possession as of the date of the demand to vacate. In other words, one whose stay is merely tolerated becomes a deforciant illegally
occupying the land or property the moment he is required to leave. Thus, in Asset Privatization Trust vs. Court of Appeals, 229 SCRA 627, 636 [1994] where a company, having lawfully obtained possession of a plant upon
its undertaking to buy the same, refused to return it after failing to fulfill its promise of payment despite demands this Court held that "(a)fter demand and its repudiation, . . . (its) continuing possession . . . became illegal
and the complaint for unlawful detainer filed by the . . . (plant's owner) was its proper remedy." It may not be amiss to point out in this connection that where there had been more than one demand to vacate, the one-year
period for filing the complaint for unlawful detainer must be reckoned from the date of the last demand the reason being that the lessor has the option to waive his right of action based on previous demands and let the
lessee remain meanwhile in the premises.
4. CIVIL LAW; SUCCESSION; A WILL HAS NO EFFECT WHATEVER AND NO RIGHT CAN BE CLAIMED THEREUNDER UNTIL IT IS ADMITTED TO PROBATE. A will is essentially ambulatory; at any time prior to the
testator's death, it may be changed or revoked; and until admitted to probate, it has no effect whatever and no right can be claimed thereunder, the law being quite explicit: "No will shall pass either real or personal property
unless it is proved and allowed in accordance with the Rules of Court" (ART. 838, CIVIL CODE). An owner's intention to confer title on the future to persons possessing property by his tolerance, is not inconsistent with the
former's taking back possession in the meantime for any reason deemed sufficient. And that in this case there was sufficient cause for the owner's resumption of possession is apparent: she needed to generate income
from the house on account of the physical infirmities afflicting her, arising from her extreme age.
5. REMEDIAL LAW; SPECIAL PROCEEDINGS; GUARDIANSHIP; DUTIES OF THE GUARDIAN; CASE AT BAR. Amparo Evangelista was appointed by a competent court the general guardian of both the person and
the estate of her aunt, Carmen Caiza. Her Letters of Guardianship dated December 19, 1989 clearly installed her as the "guardian over the person and properties of the incompetent CARMEN CAIZA with full authority to
take possession of the property of said incompetent in any province or provinces in which it may be situated and to perform all other acts necessary for the management of her properties . . ." By that appointment, it
became Evangelista's duty to care for her aunt's person, to attend to her physical and spiritual needs, to assure her well-being, with right to custody of her person in preference to relatives and friends. It also became her
right and duty to get possession of, and exercise control over, Caiza's property, both real and personal, it being recognized principle that the ward has no right to possession or control of his property during his
incompetency. That right to manage the ward's estate carried with it right to take possession thereof and recover it from anyone who retains it and bring and defend such actions as may be needful for this purpose. Actually,
in bringing the action of desahucio, Evangelista was merely discharging the duty to attend to "the comfortable and suitable maintenance of the ward" explicitly imposed on her by Section 4, Rule 96 of the Rules of Court.
6. ID.; PROVISIONAL REMEDIES; EJECTMENT CASE; EFFECT OF THE DEATH OF A PARTY; CASE AT BAR. While it is indeed well-established rule that the relationship of guardian and ward is necessarily
terminated by the death of either the guardian or the ward, the rule affords no advantage to the Estradas. Amparo Evangelista, as niece of Carmen Caiza, is one of the latter's only two (2) surviving heirs, the other being
Caiza's nephew, Ramon C. Nevado. On their motion and by resolution of this Court of June 20, 1994, they were in fact substituted as parties in the appeal at bar in place of the deceased, in accordance with Section 17,
Rule 3 of the Rules of Court. To be sure, an EJECTMENT case survives the death of a party. Caiza's demise did not extinguish the desahucio suit instituted by her through her guardian. That action, not being a purely
personal one, survived her death; her heirs have taken her place and now represent her interests in the appeal at bar.
DECISION
NARVASA, C .J p:
On November 20, 1989, being then ninety-four (94) years of age, Carmen Caiza, a spinster, a retired pharmacist, and former professor of the College of Chemistry and Pharmacy of the University of the Philippines, was
declared incompetent by judgment 1 of the Regional Trial Court of Quezon City, Branch 107, 2 in a guardianship proceeding instituted by her niece, Amparo A. Evangelista. 3 She was so adjudged because of her advanced
age and physical infirmities which included cataracts in both eyes and senile dementia. Amparo A. Evangelista was appointed legal guardian of her person and estate.
Caiza was the owner of a house and lot at No. 61 Tobias St., Quezon City. On September 17, 1990, her guardian Amparo Evangelista commenced a suit in the Metropolitan Trial Court (MetroTC) of Quezon City (Branch
35) to eject the spouses Pedro and Leonora Estrada from said premises. 4 The complaint was later amended to identify the incompetent Caiza as plaintiff, suing through her legal guardian, Amparo Evangelista.
The amended Complaint 5 pertinently alleged that plaintiff Caiza was the absolute owner of the property in question, covered by TCT No. 27147; that out of kindness, she had allowed the Estrada Spouses, their children,
grandchildren and sons-in-law to temporarily reside in her house, rent-free; that Caiza already had urgent need of the house on account of her advanced age and failing health, "so funds could be raised to meet her
expenses for support, maintenance and medical treatment.;" that through her guardian, Caiza had asked the Estradas verbally and in writing to vacate the house but they had refused to do so; and that "by the defendants'
act of unlawfully depriving plaintiff of the possession of the house in question, they . . . (were) enriching themselves at the expense of the incompetent, because, while they . . . (were) saving money by not paying any rent
for the house, the incompetent . . . (was) losing much money as her house could not be rented by others." Also alleged was that the complaint was "filed within one (1) year from the date of first letter of demand dated
February 3, 1990."
In their Answer with Counterclaim, the defendants declared that they had been living in Caiza's house since the 1960's; that in consideration of their faithful service they had been considered by Caiza as her own family,
and the latter had in fact executed a holographic will on September 4, 1988 by which she "bequeathed" to the Estradas the house and lot in question.
Judgment was rendered by the MetroTC on April 13, 1992 in Caiza's favor, 6 the Estradas being ordered to vacate the premises and pay Caiza P5,000.00 by way of attorney's fees.
But on appeal, 7 the decision was reversed by the Quezon City Regional Trial Court, Branch 96. 8 By judgment rendered on October 21, 1992, 9 the RTC held that the "action by which the issue of defendants' possession
should be resolved is accion publiciana, the obtaining factual and legal situation . . . demanding adjudication by such plenary action for recovery of possession cognizable in the first instance by the Regional Trial Court."
cdphil
Caiza sought to have the Court of Appeals reverse the decision of October 21, 1992, but failed in that attempt. In a decision 10 promulgated on June 2, 1993, the Appellate Court 11 affirmed the RTC's judgment in toto . It
ruled that (a) the proper remedy for Caiza was indeed an accion publiciana in the RTC, not an accion interdictal in the MetroTC, since the "defendants have not been in the subject premises as mere tenants or occupants
by tolerance, they have been there as a sort of adopted family of Carmen Caiza," as evidenced by what purports to be the holographic will of the plaintiff; and (b) while "said will, unless and until it has passed probate by
the proper court, could not be the basis of defendants' claim to the property, . . . it is indicative of intent and desire on the part of Carmen Caiza that defendants are to remain and are to continue in their occupancy and
possession, so much so that Caiza's supervening incompetency can not be said to have vested in her guardian the right or authority to drive the defendants out." 12
Through her guardian, Caiza came to this Court praying for reversal of the Appellate Court's judgment. She contends in the main that the latter erred in (a) holding that she should have pursued an accion publiciana, and
not an accion interdictal; and in (b) giving much weight to "a xerox copy of an alleged holographic will, which is irrelevant to this case." 13
In the responsive pleading filed by them on this Court's requirement, 14 the Estradas insist that the case against them was really not one of unlawful detainer; they argue that since possession of the house had not been
obtained by them by any "contract, express or implied," as contemplated by Section 1, Rule 70 of the Rules of Court, their occupancy of the premises could not be deemed one "terminable upon mere demand (and hence
never became unlawful) within the context of the law." Neither could the suit against them be deemed one of forcible entry, they add, because they had been occupying the property with the prior consent of the "real
owner," Carmen Caiza, which "occupancy can even ripen into full ownership once the holographic will of petitioner Carmen Caiza is admitted to probate." They conclude, on those postulates, that it is beyond the power
of Caiza's legal guardian to oust them from the disputed premises.
Carmen Caiza died on March 19, 1994, 15 and her heirs the aforementioned guardian, Amparo Evangelista, and Ramon C. Nevado, her niece and nephew, respectively were by this Court's leave, substituted for
her. 16
Three issues have to be resolved: (a) whether or not an ejectment action is the appropriate judicial remedy for recovery of possession of the property in dispute; (b) assuming desahucio to be proper, whether or not
Evangelista, as Caiza's legal guardian had authority to bring said action; and (c) assuming an affirmative answer to both questions, whether or not Evangelista may continue to represent Caiza after the latter's death.
I
It is axiomatic that what determines the nature of an action as well as which court has jurisdiction over it, are the allegations of the complaint and the character of the relief sought. 17 An inquiry into the averments of the
amended complaint in the Court of origin is thus in order. 18
The amended Complaint alleges:19
"6. That the plaintiff, Carmen Caiza, is the sole and absolute owner of a house and lot at No. 61 Scout Tobias, Quezon City, which property is now the subject of this complaint;

xxx xxx xxx

9. That the defendants, their children, grandchildren and sons-in-law, were allowed to live temporarily in the house of plaintiff, Carmen Caiza, for free, out of her kindness;
10. That the plaintiff, through her legal guardian, has duly notified the defendants, for them to vacate the said house, but the two (2) letters of demand were ignored and the defendants refused to
vacate the same. . .
11. That the plaintiff, represented by her legal guardian, Amparo Evangelista, made another demand on the defendants for them to vacate the premises, before Barangay Captain Angelina A. Diaz
of Barangay Laging Handa, Quezon City, but after two (2) conferences, the result was negative and no settlement was reached. A photocopy of the Certification to File Action dated July 4, 1990;
issued by said Barangay Captain is attached, marked Annex "D" and made an integral part hereof;
12. That the plaintiff has given the defendants more than thirty (30) days to vacate the house, but they still refused to vacate the premises, and they are up to this time residing in the said place;
13. That this complaint is filed within one (1) year from the date of first letter of demand dated February 3, 1990 (Annex "B") sent by the plaintiff to the defendants, by her legal guardian Amparo
Evangelista;
14. By the defendants' act of unlawfully depriving the plaintiff of the possession of the house in question, they are enriching themselves at the expense of the incompetent plaintiff, because, while
they are saving money by not paying any rent for the house, the plaintiff is losing much money as her house could not be rented by others;
15. That the plaintiff's health is failing and she needs the house urgently, so that funds could be raised to meet her expenses for her support, maintenance and medical treatment;
16. That because of defendants' refusal to vacate the house at No. 61 Scout Tobias, Quezon City, the plaintiff, through her legal guardian, was compelled to go to court for justice, and she has to
spend P10,000.00 as attorney's fees."
Its prayer 20 is quoted below:
"WHEREFORE, in the interest of justice and the rule of law, plaintiff, Carmen Caiza, represented by her legal guardian. Amparo Evangelista, respectfully prays to this Honorable Court, to render
judgment in favor of plaintiff and against the defendants as follows:
1. To order the defendants, their children, grandchildren, sons-in-law and other persons claiming under them, to vacate the house and premises at No. 61 Scout Tobias, Quezon City, so that its
possession can be restored to the plaintiff, Carmen Caiza: and
2. To pay attorney's fees in the amount of P10,000.00;
3. To pay the costs of the suit."
In essence, the amended complaint states:
1) that the Estradas were occupying Caiza's house by tolerance having been "allowed to live temporarily . . . (therein) for free, out of . . . (Caiza's) kindness;"
2) that Caiza needed the house "urgently" because her "health . . . (was) failing and she . . . (needed) funds . . . to meet her expenses for her support, maintenance and medical treatment;"
3) that through her general guardian, Caiza requested the Estradas several times, orally and in writing, to give back possession of the house;
4) that the Estradas refused and continue to refuse to give back the house to Caiza, to her continuing prejudice; and
5) that the action was filed within one (1) year from the last demand to vacate.
Undoubtedly, a cause of action for desahucio has been adequately set out. It is settled that in an action for unlawful detainer, it suffices to allege that the defendant is unlawfully withholding possession from the plaintiff is
deemed sufficient, 21 and a complaint for unlawful detainer is sufficient if it alleges that the withholding of possession or the refusal to vacate is unlawful without necessarily employing the terminology of the law. 22
The Estradas' first proffered defense derives from a literal construction of Section 1, Rule 70 of the Rules of Court which inter alia authorizes the institution of an unlawful detainer suit when "the possession of any land or
building is unlawfully withheld after the expiration or termination of the right to hold possession, by virtue of any contract, express or implied." They contend that since they did not acquire possession of the property in
question "by virtue of any contract, express or implied" they having been, to repeat, "allowed to live temporarily . . . (therein) for free, out of . . . (Caiza's) kindness" in no sense could there be an "expiration or
termination of . . . (their) right to hold possession, by virtue of any contract, express or implied." Nor would an action for forcible entry lie against them, since there is no claim that they had "deprived (Caiza) of the
possession of . . . (her property) by force, intimidation, threat, strategy, or stealth."
The argument is arrant sophistry. Caiza's act of allowing the Estradas to occupy her house, rent-free, did not create a permanent and indefeasible right of possession in the latter's favor. Common sense, and the most
rudimentary sense of fairness clearly require that act of liberality be implicitly, but no less certainly, accompanied by the necessary burden on the Estradas of returning the house to Caiza upon her demand. More than
once has this Court adjudged that a person who occupies the land of another at the latter's tolerance or permission without any contract between them is necessarily bound by an implied promise that he will vacate upon
demand, failing which a summary action for ejectment is the proper remedy against him. 23 The situation is not much different from that of a tenant whose lease expires but who continues in occupancy by tolerance of the
owner, in which case there is deemed to be an unlawful deprivation or withholding of possession as of the date of the demand to vacate. 24 In other words, one whose stay is merely tolerated becomes a deforciant illegally
occupying the land or property the moment he is required to leave. 25 Thus, in Asset Privatization Trust vs. Court of Appeals, 26 where a company, having lawfully obtained possession of a plant upon its undertaking to buy
the same, refused to return it after failing to fulfill its promise of payment despite demands, this Court held that "(a)fter demand and its repudiation, . . . (its) continuing possession . . . became illegal and the complaint for
unlawful detainer filed by the . . . (plant's owner) was its proper remedy."
It may not be amiss to point out in this connection that where there had been more than one demand to vacate, the one-year period for filing the complaint for unlawful detainer must be reckoned from the date of the last
demand, 27 the reason being that the lessor has the option to waive his right of action based on previous demands and let the lessee remain meanwhile in the premises. 28 Now, the complaint filed by Caiza's guardian
alleges that the same was "filed within one (1) year from the date of the first letter of demand dated February 3, 1990." Although this averment is not in accord with law because there is in fact a second letter of demand to
vacate, dated February 27, 1990, the mistake is inconsequential, since the complaint was actually filed on September 17, 1990, well within one year from the second (last) written demand to vacate.
The Estradas' possession of the house stemmed from the owner's express permission. That permission was subsequently withdrawn by the owner, as was her right; and it is immaterial that the withdrawal was made
through her judicial guardian, the latter being indisputably clothed with authority to do so. Nor is it of any consequence that Carmen Caiza had executed a will bequeathing the disputed property to the Estradas; that
circumstance did not give them the right to stay in the premises after demand to vacate on the theory that they might in future become owners thereof, that right of ownership being at best inchoate, no transfer of ownership
being possible unless and until the will is duly probated.
Thus, at the time of the institution of the action of desahucio, the Estradas had no legal right to the property, whether as possessors by tolerance or sufferance, or as owners. They could not claim the right of possession by
sufferance, that had been legally ended. They could not assert any right of possession flowing from their ownership of the house; their status as owners is dependent on the probate of the holographic will by which the
property had allegedly been bequeathed to them an event which still has to take place; in other words; prior to the probate of the will, any assertion of possession by them would be premature and inefficacious.
In any case, the only issue that could legitimately be raised under the circumstances was that involving the Estradas' possession by tolerance, i.e., possession de facto, not de jure. It is therefore incorrect to postulate that
the proper remedy for Caiza is not ejectment but accion publiciana, a plenary action in the RTC or an action that is one for recovery of the right to possession de jure.
II
The Estradas insist that the devise of the house to them by Caiza clearly denotes her intention that they remain in possession thereof, and legally incapacitated her judicial guardian, Amparo Evangelista, from evicting
them therefrom, since their ouster would be inconsistent with the ward's will.
A will is essentially ambulatory; at any time prior to the testator's death, it may be changed or revoked; 29 and until admitted to probate, it has no effect whatever and no right can be claimed thereunder, the law being quite
explicit: "No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court" (ART. 838, Id.). 30 An owner's intention to confer title in the future to persons possessing
property by his tolerance, is not inconsistent with the former's taking back possession in the meantime for any reason deemed sufficient. And that in this case there was sufficient cause for the owner's resumption of
possession is apparent: she needed to generate income from the house on account of the physical infirmities afflicting her, arising from her extreme age.

Amparo Evangelista was appointed by a competent court the general guardian of both the person and the estate of her aunt, Carmen Caiza. Her Letters of Guardianship 31 dated December 19, 1989 clearly installed her
as the "guardian over the person and properties of the incompetent CARMEN CAIZA with full authority to take possession of the property of said incompetent in any province or provinces in which it may be situated and
to perform all other acts necessary for the management of her properties . . ." 32 By that appointment, it became Evangelista's duty to care for her aunt's person, to attend to her physical and spiritual needs, to assure her
well-being, with right to custody of her person in preference to relatives and friends. 33 It also became her right and duty to get possession of, and exercise control over, Caiza's property, both real and personal, it being
recognized principle that the ward has no right to possession or control of his property during her incompetency. 34 That right to manage the ward's estate carries with it the right to take possession thereof and recover it
from anyone who retains it, 35 and bring and defend such actions as may be needful for this purpose. 36
Actually, in bringing the action of desahucio, Evangelista was merely discharging the duty to attend to "the comfortable and suitable maintenance of the ward" explicitly imposed on her by Section 4, Rule 96 of the Rules of
Court, viz.:
"SEC. 4. Estate to be managed frugally, and proceeds applied to maintenance of ward. A guardian must manage the estate of his ward frugally and without waste, and apply the income and
profits thereof, so far as maybe necessary, to the comfortable and suitable maintenance of the ward and his family, if there be any; and if such income and profits be insufficient for that purpose, the
guardian may sell or encumber the real estate, upon being authorized by order to do so, and apply to such of the proceeds as may be necessary to such maintenance."
Finally, it may be pointed out in relation to the Estradas' defenses in the ejectment action, that as the law now stands, even when, in forcible entry and unlawful detainer cases, the defendant raises the question of
ownership in his pleadings and the question of possession cannot be resolved without deciding the issue of ownership, the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts nevertheless
have the undoubted competence to resolve. "the issue of ownership . . . only to determine the issue of possession." 37
III
As already stated, Carmen Caiza passed away during the pendency of this appeal. The Estradas thereupon moved to dismiss the petition, arguing that Caiza's death automatically terminated the guardianship, Amparo
Evangelista lost all authority as her judicial guardian, and ceased to have legal personality to represent her in the present appeal. The motion is without merit.
While it is indeed well-established rule that the relationship of guardian and ward is necessarily terminated by the death of either the guardian or the ward, 38 the rule affords no advantage to the Estradas. Amparo
Evangelista, as niece of Carmen Caiza, is one of the latter's only two (2) surviving heirs, the other being Caiza's nephew, Ramon C. Nevado. On their motion and by Resolution of this Court 39 of June 20, 1994, they
were in fact substituted as parties in the appeal at bar in place of the deceased, in accordance with Section 17, Rule 3 of the Rules of Court, viz.: 40
"SEC. 17. Death of a party. After a party dies and the claim is not thereby extinguished, the court shall order, upon proper notice, the legal representative of the deceased to appear and be
substituted for the deceased within a period of thirty (30) days, or within such time as may be granted. If the legal representative fails to appear within said time, the court may order the opposing
party to procure the appointment of a legal representative of the deceased within a time to be specified by the court, and the representative shall immediately appear for and on behalf of the interest
of the deceased. The court charges involved in procuring such appointment, if defrayed by the opposing party, may be recovered as costs. The heirs of the deceased may be allowed to be
substituted for the deceased, without requiring the appointment of an executor or administrator and the court may appoint guardian ad litem for the minor heirs.
To be sure, an ejectment case survives the death of a party. Caiza's demise did not extinguish the desahucio suit instituted by her through her guardian. 41 That action, not being a purely personal one, survived her death;
her heirs have taken her place and now represent her interests in the appeal at bar.
WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals promulgated on June 2, 1993 affirming the Regional Trial Court's judgment and dismissing petitioner's petition for certiorari is
REVERSED and SET ASIDE, and the Decision dated April 13, 1992 of the Metropolitan Trial Court of Quezon City, Branch 35, in Civil Case No. 3410 is REINSTATED and AFFIRMED. Costs against private respondents.
cda
SO ORDERED.
Davide, Jr., Melo, Francisco and Panganiban, JJ., concur.
||| (Caiza v. Court of Appeals, G.R. No. 110427, [February 24, 1997], 335 PHIL 1107-1121)
SPOUSES RICARDO PASCUAL and CONSOLACION SIOSON, petitioners, vs. COURT OF APPEALS and REMEDIOS S. EUGENIO-GINO, respondents.
Delos Santos Delos Santos & Delos Santos for petitioners.
Virgilio C. Manguera & Associates for private respondent.
SYNOPSIS
Petitioner Consolacion Sioson and respondent Remedios S. Eugenio-Gino are the niece and granddaughter, respectively, of the late Canuto Sioson. Canuto and 11 other individuals, including his sister Catalina Sioson and
his brother Victoriano Sioson, were co-owners of a parcel of land in Tanza, Navotas, Metro Manila known as Lot 2 of Plan Psu 13245, which had an area of 9,347 square meters and was covered by Original Certificate of
Title No. 4207 issued by the Register of Deeds of Rizal. Catalina, Canuto, and Victoriano each owned an aliquot 10/70 share or 1,335 square meters of Lot 2. On September 26, 1956, Canuto and Consolacion allegedly
executed a Kasulatan ng Bilihang Tuluyan wherein Canuto sold his 10/70 share in Lot 2 in favor of Consolacion. Consolacion immediately took possession of Lot Nos. 2-A and 2-E. She later declared the land for taxation
purposes and paid the corresponding real estate taxes. On February 4, 1988, respondent Remedios S. Eugenio-Gino filed a complaint against Consolacion and her spouse Ricardo Pascual in the Regional Trial Court of
Malabon, Branch 165, for "Annulment or Cancellation of Transfer Certificate of Title and Damages." Remedios claimed that she is the owner of Lot Nos. 2-A and 2-E because her aunt Catalina Sioson devised the lots to her
in her last will and testament. Consolation and her spouse sought to dismiss the complaint on the ground of prescription. Petitioners claimed that the basis of the action is fraud, and Remedios should have filed the action
within four years from the registration of Consolacion's title on 28 October 1968, and not some 19 years later on February 4, 1988. The trial court denied the motion to dismiss. Eventually, the trial court rendered judgment
dismissing the case. On appeal, the appellate court reversed the decision of the trial court. Petitioners filed a petition before the Court questioning the Court of Appeals' ruling.
The Supreme Court ruled in favor of petitioners and granted the petition. According to the Court, the prescriptive period to recover property obtained by fraud or mistake, giving rise to an implied trust under Article 1144.
Remedios' action is based on an implied trust under Article 1456 since she claims that the inclusion of the additional 1,335 square meters in TCT No. (232252) 1321 was without basis. In effect, she asserts that
Consolacion acquired the additional 1,335 square meters through mistake or fraud and thus Consolacion should be considered a trustee of an implied trust for the benefit of the rightful owner of the property. Clearly, the
applicable prescriptive period is ten years under Article 1144 and not four years under Articles 1389 and 1391. The ten-year prescriptive period begins to run from the date the adverse party repudiates the implied trust,
which repudiation takes place when the adverse party registers the land. Remedios filed her complaint on February 4, 1988 or more than 19 years after Consolacion registered her title over Lot Nos. 2-A and 2-E on 28
October 1968. Unquestionably, Remedios filed the complaint late warranting its dismissal.
SYLLABUS
1. CIVIL LAW; PRESCRIPTION OF ACTIONS; PRESENT ACTION IS BARRED BY PRESCRIPTION; THE PRESCRIPTIVE PERIOD TO RECOVER PROPERTY OBTAINED BY FRAUD OR MISTAKE GIVING RISE
TO AN IMPLIED TRUST UNDER ARTICLE 1456 OF THE CIVIL CODE IS TEN YEARS. REMEDIOS' action is based on an implied trust under Article 1456 since she claims that the inclusion of the additional
1,335 square meters in TCT No. (232252) 1321 was without basis. In effect, REMEDIOS asserts that CONSOLACION acquired the additional 1,335 square meters through mistake or fraud and thus
CONSOLACION should be considered a trustee of an implied trust for the benefit of the rightful owner of the property. Clearly, the applicable prescriptive period is ten years under Article 1144 and not four years
under Articles 1389 and 1391. It is now well-settled that the prescriptive period to recover property obtained by fraud or mistake, giving rise to an implied trust under Article 1456 of the Civil Code, is ten years
pursuant to Article 1144. This ten-year prescriptive period begins to run from the date the adverse party repudiates the implied trust, which repudiation takes place when the adverse party registers the land.
REMEDIOS filed her complaint on 4 February 1988 or more than 19 years after CONSOLACION registered her title over Lot Nos. 2-A and 2-E on 28 October 1968. Unquestionably, REMEDIOS filed the complaint
late thus warranting its dismissal. As the Court recently declared in Spouses Alfredo v. Spouses Borras, Following Caro, we have consistently held that an action for reconveyance based on an implied trust
prescribes in ten years. We went further by specifying the reference point of the ten-year prescriptive period as the date of the registration of the deed or the issuance of the title.
2. ID.; ID.; ID.; ID.; THE COURT'S RULING IN ADDILLE VS. COURT OF APPEALS WHICH IS ANCHORED ON FRAUD IS NOT APPLICABLE IN CASE AT BAR. In holding that the action filed by REMEDIOS
has not prescribed, the Court of Appeals invoked this Court's ruling in Adille v. Court of Appeals. In Adille, the Court reckoned the ten-year prescriptive period for enforcing implied trusts not from registration of the

adverse title but from actual notice of the adverse title by the cestui que trust. However, the. Court, in justifying its deviation from the general rule, explained: [W]hile actions to enforce a constructive trust prescribes
(sic) in ten years, reckoned from the date of the registration of the property, we . . . are not prepared to count the period from such date in this case. We note the petitioner's sub rosa efforts to get hold of the property
exclusively for himself beginning with his fraudulent misrepresentation in his unilateral affidavit of extrajudicial settlement that he is "the only heir and child of his mother Feliza["] with the consequence that he was
able to secure title in his name also. Such commission of specific fraudulent conduct is absent in the present case. Other than asserting that petitioners are guilty of fraud because they secured title to Lot Nos, 2-A
and 2-E with an area twice bigger than what CANUTO allegedly sold to CONSOLACION, REMEDIOS did not present any other proof of petitioners' fraudulent conduct akin to Adille. REMEDIOS does not assail the
KASULATAN or the JOINT AFFIDAVIT as fictitious or forged. REMEDIOS even admits the authenticity of Subdivision Plan Psd 34713 as certified by the Assistant Director of Lands. Moreover, REMEDIOS has not
contested petitioners' claim that CANUTO doubled his share in Lot 2 by acquiring VICTORIANO's share. Plainly, the increase in the area sold from 1,335 square meters. to 2,670 square meters is a glaring mistake.
There is, however, no proof whatsoever that this increase in area was the result of fraud. Allegations of fraud in actions to enforce implied trusts must be proved by clear and convincing evidence. Adille, which is
anchored on fraud, cannot apply to the present case.
3. ID.; ID.; ID.; ID.; ASSUMING THAT THE TEN-YEAR PRESCRIPTIVE PERIOD BEGINS TO RUN ONLY UPON ACTUAL NOTICE OF TILE ADVERSE TITLE APPLYING THE RULING IN ADILLE VS. COURT OF
APPEALS, STILL RESPONDENT'S RIGHT TO FILE THE SUIT IS BARRED BY PRESCRIPTION. Even if we apply Adille to this case, prescription still bars REMEDIOS' complaint. As executrix of CATALINA's
LAST WILL, REMEDIOS submitted to the then Court of First Instance of Caloocan in Special Proceedings Case No. C-208 the inventory of all the property comprising CATALINA's estate, which included Lot Nos. 2A and 2-E. In a motion dated 7 November 1977, CONSOLACION sought the exclusion of these lots from the inventory, invoking her title over them. REMEDIOS was served a copy of the motion on 8 November 1977
against which she filed an opposition. Nevertheless, the trial court overruled REMEDIOS' objection. In its order of 3 January 1978, the trial court granted CONSOLACION's motion and ordered the exclusion of Lot
Nos. 2-A and 2-E from the estate of CATALINA. REMEDIOS did not appeal from this ruling. REMEDIOS thus had actual notice of petitioners' adverse title on 8 November 1977. Even if, for the sake of argument, the
ten-year prescriptive period begins to run upon actual notice of the adverse title, still REMEDIOS' right to file this suit has prescribed. REMEDIOS had until 11 November 1987 within which to file her complaint. When
she did so on 4 February 1988, the prescriptive period had already lapsed.
4. REMEDIAL LAW; CIVIL PROCEDURE; PARTIES TO CIVIL ACTION; RESPONDENT IS NOT A REAL PARTY-IN-INTEREST. Not only does prescription bar REMEDIOS' complaint. REMEDIOS is also not a
real party-in-interest who can file the complaint, as the trial court correctly ruled. The 1997 Rules of Civil Procedure require that every action must be prosecuted or defended in the name of the real party-in-interest
who is the party who stands to benefit or suffer from the judgment in the suit. If one who is not a real party-in-interest brings the action, the suit is dismissible for lack of cause of action. REMEDIOS anchored her
claim over Lot Nos. 2-A and 2 E (or over its one-half portion on the devise of these lots to her under CATALINA's LAST WILL. However, the trial court found that the probate court did not issue any order admitting the
LAST WILL to probate. REMEDIOS does not contest this finding. Indeed, during the trial, REMEDIOS admitted that Special Proceedings Case No. C-208 is still pending. Article 838 of the Civil Code states that "[N]o
will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court." This Court has interpreted this provision to mean, "until admitted to probate, [a will] has no effect
whatever and no right can be claimed thereunder." REMEDIOS anchors her right in filing this suit on her being a devisee of CATALINA's LAST WILL. However, since the probate court has not admitted CATALINA's
LAST WILL, REMEDIOS has not acquired any right under the LAST WILL. REMEDIOS is thus without any cause of action either to seek reconveyance of Lot Nos. 2-A and 2-E or to enforce an implied trust over
these lots.
DECISION
CARPIO, J p:
The Case
This is a petition for review of the Decision 1 dated 31 January 1994 of the Court of Appeals ordering the Register of Deeds of Metro Manila, District III, to place TCT No. (232252) 1321 in the name of respondent Remedios
S. Eugenio-Gino. The Decision ordered the Register of Deeds to cancel the names of petitioners Ricardo Pascual and Consolacion Sioson ("petitioners") in TCT No. (232252) 1321. The Decision also directed petitioners to
pay respondent moral and exemplary damages and attorney's fees. HASTCa
The Facts
Petitioner Consolacion Sioson ("CONSOLACION") and respondent Remedios S. Eugenio-Gino ("REMEDIOS") are the niece and granddaughter, respectively, of the late Canuto Sioson ("CANUTO"). CANUTO and 11 other
individuals, including his sister Catalina Sioson ("CATALINA") and his brother Victoriano Sioson ("VICTORIANO"), were co-owners of a parcel of land in Tanza, Navotas, Metro Manila. The property, known as Lot 2 of Plan
Psu 13245, had an area of 9,347 square meters and was covered by Original Certificate of Title No. 4207 issued by the Register of Deeds of Rizal. CATALINA, CANUTO, and VICTORIANO each owned an aliquot 10/70
share or 1,335 square meters of Lot 2. 2
On 20 November 1951, CANUTO had Lot 2 surveyed and subdivided into eight lots (Lot Nos. 2-A to 2-H) through Subdivision Plan Psd 34713 which the Director of Lands approved on 30 May 1952. Lot No. 2-A, with an
area of 670 square meters, and Lot No. 2-E, with an area of 2,000 square meters, were placed under CANUTO's name. Three other individuals took the remaining lots. 3
On 26 September 1956, CANUTO and CONSOLACION executed a Kasulatan ng Bilihang Tuluyan 4 ("KASULATAN"). Under the KASULATAN, CANUTO sold his 10/70 share in Lot 2 in favor of CONSOLACION for
P2,250.00. The KASULATAN, notarized by Notary Public Jose T. de los Santos of Navotas, provides:
Na ako, CANUTO SIOSON, mamamayang Pilipino, may katampatang gulang, kasal kay Raymunda San Diego, at naninirahan sa Tanza, Navotas, Rizal, sa bisa at pamamagitan ng kasulatang ito
ay nagpapatunay at nagpapatibay:
1. Na ako ang lubos at tunay na may-ari ng 10/70 bahaging hindi hati (10/70 porcion pro-indiviso) ng isang lagay na lupa (Lote No. 2, Plano Psu-13245), na nasa sa nayon ng
Tanza, Municipio ng Navotas, Provincia ng Rizal, at ang descripcion o pagkakakilanlan ng nasabing lote ay nakasaad sa Certificado Original, de Titulo No. 4207 ng
Oficina ng Registrador de Titulos ng Rizal, gaya ng sumusunod:
xxx xxx xxx
2. Na dahil at alang-alang sa halagang Dalawang Libo Dalawang Daan at Limampung Piso (P2,250.00), salaping Pilipino, na sa akin ay ibinayad ni CONSOLACION SIOSON,
kasal kay Ricardo S. Pascual, may sapat na gulang, mamamayang Pilipino, at naninirahan sa Dampalit, Malabon, Rizal at ang pagkakatanggap ng nasabing halaga ay
aking inaamin at pinatutunayan, ay aking ipinagbili, inilipat at isinalin, sa pamamagitan ng bilihang tuluyan at walang pasubali a favor [sic] sa nasabing si
CONSOLACION SIOSON, sa kanyang tagapagmana at mapaglilipatan ang lahat ng akin titulo, karapatan at kaparti na binubuo ng 10/70 bahaging hindi hati (10/70
porcion pro-indiviso) ng loteng descrito or tinutukoy sa itaas nito. (Italics supplied)
CONSOLACION immediately took possession of Lot Nos. 2-A and 2-E. She later declared the land for taxation purposes and paid the corresponding real estate taxes. 5
On 23 October 1968, the surviving children of CANUTO, namely, Felicidad and Beatriz, executed a joint affidavit 6 ("JOINT AFFIDAVIT") affirming the KASULATAN in favor of CONSOLACION. They also attested that the
lots their father had sold to CONSOLACION were Lot Nos. 2-A and 2-E of Subdivision Plan Psd 34713. The JOINT AFFIDAVIT reads:
KAMING sina FELICIDAD SIOSON at BEATRIZ SIOSON, pawang mga Pilipino, kapuwa may sapat na gulang at naninirahan, ang una sa Tanza, Navotas at ang ikalawa sa Concepcion, Malabon,
lalawigan ng Rizal, sa ilalim ng isang ganap na panunumpa alinsunod sa batas, ay malayang nagsasalaysay ng mga sumusunod:
Na kami ang mga buhay na anak na naiwan ni CANUTO SIOSON na nagmamay-ari ng 10/70 bahaging hindi hati (10/70 porcion pro-indiviso) ng isang lagay na lupa (Lote No. 2, plano Psu-13245),
na nasa Nayon ng Tanza, Navotas, Rizal, at ang mga palatandaan nito ay nasasaad sa Certificado Original de Titulo No. 4207 ng Tanggapan ng Registrador de Titulos ng Rizal;
Na sa lubos naming kaalaman, ay ipinagbili ng aming Ama na si Canuto Sioson ang kaniyang buong bahagi na 10/70 sa nasabing Lote No. 2, kay CONSOLACION SIOSON, may-bahay ni Ricardo
S. Pascual, na taga Dampalit, Malabon, Rizal, sa halagang P2,250.00, salaping pilipino, noong ika 16 [sic] ng Septiembre, 1956, sa pamamagitan ng isang KASULATAN NG BILIHANG TULUYAN
na pinagtibay sa harap ng Notario Publico Jose T. de los Santos nang pechang nabanggit, sa Navotas, Rizal, (Doc. No. 194, Page No. 84; Book No. IV; Series of 1956);
Na ang nasabing lupa na ipinagbili ng aming Ama kay Consolacion Sioson ni Pascual, ay nakikilala ngayong mga Lote No. 2-A at Lote 2-E ng Plano de Subdivision Psd-34713; na pinagtibay ng

Assistant Director of Lands noong Mayo 30, 1952;

Na aming ngayong pinatitibayan ang pagka-pagbili ng bahagi ng aming Ama kay Consolacion Sioson ni Pascual ng ngayo'y nakikilalang Lote No. 2-A at Lote No. 2-E ng Plano de Subdivision Psd34713. (Italics supplied)
On 28 October 1968, CONSOLACION registered the KASULATAN and the JOINT AFFIDAVIT with the Office of the Register of Deeds of Rizal ("Register of Deeds"). Based on these documents, the Register of Deeds
issued to CONSOLACION Transfer Certificate of Title No. (232252) 1321 covering Lot Nos. 2-A and 2-E of Subdivision Plan Psd 34713 with a total area of 2,670 square meters.
On 4 February 1988, REMEDIOS filed a complaint against CONSOLACION and her spouse Ricardo Pascual in the Regional Trial Court of Malabon, Branch 165, for "Annulment or Cancellation of Transfer Certificate [of
Title] and Damages." REMEDIOS claimed that she is the owner of Lot Nos. 2-A and 2-E because CATALINA devised these lots to her in CATALINA's last will and testament 7 ("LAST WILL") dated 29 May 1964.
REMEDIOS added that CONSOLACION obtained title to these lots through fraudulent means since the area covered by TCT (232252) 1321 is twice the size of CANUTO's share in Lot 2. REMEDIOS prayed for the
cancellation of CONSOLACION's title, the issuance of another title in her name, and the payment to her of damages.
Petitioners sought to dismiss the complaint on the ground of prescription. Petitioners claimed that the basis of the action is fraud, and REMEDIOS should have filed the action within four years from the registration of
CONSOLACION's title on 28 October 1968 and not some 19 years later on 4 February 1988. REMEDIOS opposed the motion, claiming that she became aware of CONSOLACION's adverse title only in February 1987.
CONSOLACION maintained that she had timely filed her complaint within the four-year prescriptive on 4 February 1988.
In its order of 28 April 1988, the trial court denied petitioners' motion to dismiss. The trial court held that the reckoning of the prescriptive period for filing REMEDIOS' complaint is evidentiary in nature and must await the
presentation of the parties' evidence during the trial. During the pre-trial stage, REMEDIOS clarified that she was claiming only CATALINA's 10/70 share in Lot 2, or 1,335 square meters, which constitute of the area of
Lot Nos. 2-A and 2-E. 8 The trial of the case then ensued.
The Ruling of the Trial Court
On 26 November 1990, the trial court rendered judgment dismissing the case and ordering REMEDIOS to pay petitioners P10,000 as attorney's fees and the cost of suit. The trial court held that the action filed by
REMEDIOS is based on fraud, covered by the four-year prescriptive period. The trial court also held that REMEDIOS knew of petitioners' adverse title on 19 November 1982 when REMEDIOS testified against petitioners in
an ejectment suit petitioners had filed against their tenants in Lot Nos. 2-A and 2-E. Thus, the complaint of REMEDIOS had already prescribed when she filed it on 4 February 1988.
The trial court further ruled that REMEDIOS has no right of action against petitioners because CATALINA's LAST WILL from which REMEDIOS claims to derive her title has not been admitted to probate. Under Article 838
of the Civil Code, no will passes real or personal property unless it is allowed in probate in accordance with the Rules of Court. The dispositive portion of the trial court's decision provides:
WHEREFORE, judgment is hereby rendered in favor of the defendants and against plaintiff, ordering:
1. The dismissal of this case;
2. The plaintiff to pay the defendants the sum of Ten Thousand (P10,000.00) Pesos as and for attorney's fees; and
3. The plaintiff to pay the costs of suit. 9
REMEDIOS appealed to the Court of Appeals.
The Ruling of the Court of Appeals
On 31 January 1994, the Court of Appeals rendered judgment reversing the decision of the trial court. The appellate court held that what REMEDIOS filed was a suit to enforce an implied trust allegedly created in her favor
when CONSOLACION fraudulently registered her title over Lot Nos. 2-A and 2-E. Consequently, the prescriptive period for filing the complaint is ten years, not four. The Court of Appeals counted this ten-year period from
19 November 1982. Thus, when REMEDIOS filed her complaint on 4 February 1988, the ten-year prescriptive period had not yet expired.
The appellate court held that CATALINA's unprobated LAST WILL does not preclude REMEDIOS from seeking reconveyance of Lot Nos. 2-A and 2-E as the LAST WILL may subsequently be admitted to probate. The
dispositive portion of the appellate court's ruling provides:
WHEREFORE, the decision appealed from is REVERSED and SET ASIDE. The Registry of Deeds of Rizal or Metro Manila, District III, is ordered to place Transfer Certificate of Title No. (232252)
1321 under the name of Remedios S. Eugenio-Gino as executor of the will of Catalina Sioson and cancel the names of the Spouses Ricardo Pascual and Consolacion Sioson inscribed over said
title as owners of the covered lot. Defendants-appellees spouses Ricardo Pascual and Consolacion Sioson are ordered to pay plaintiff-appellant Remedios S. Eugenio-Gino moral damages in the
amount of P50,000.00, exemplary damages of P20,000[.00] and attorney's fees of P20,000.00 and P500.00 per appearance. 10
Petitioners sought reconsideration of the ruling. However, the Court of Appeals denied their motion in its order dated 15 June 1994.
Hence, this petition.
The Issues
Petitioners allege the following assignment of errors:
I. THE COURT OF APPEALS ERRED IN HOLDING THAT PRIVATE RESPONDENT'S CAUSE OF ACTION IS NOT BARRED BY PRESCRIPTION WHICH FINDING IS MANIFESTLY
CONTRARY TO LAW AND THE APPLICABLE DECISIONS OF THIS HONORABLE COURT.
II. THE COURT OF APPEALS ERRED IN NOT HOLDING THAT PRIVATE RESPONDENT DOES NOT HAVE ANY TITLE AND HAS UTTERLY FAILED TO PROVE ANY TITLE TO THE
LOTS INVOLVED IN THIS CASE, AND IN ORDERING THE CANCELLATION OF THE CERTIFICATE OF TITLE OF PETITIONERS.
III. THE COURT OF APPEALS ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION AND IN GROSS VIOLATION OF THE RULES OF COURT IN
ORDERING THE ENTIRE PROPERTY COVERED BY TRANSFER CERTIFICATE OF TITLE NO. (232252) 1321 TO BE PLACED IN THE NAME OF PRIVATE RESPONDENT,
BECAUSE THE CLAIM OF PRIVATE RESPONDENT IS LIMITED ONLY TO ONE-HALF () PORTION OF THE PROPERTY, AND THE OTHER HALF THEREOF
UNQUESTIONABLY BELONGS TO PETITIONERS.
IV. THE COURT OF APPEALS ERRED IN HOLDING THAT PETITIONERS ACTED FRAUDULENTLY AND IN BAD FAITH IN SECURING THEIR CERTIFICATE OF TITLE TO THE
PROPERTY INVOLVED IN THIS CASE, AND IN ORDERING PETITIONERS TO PAY PRIVATE RESPONDENTS MORAL DAMAGES, EXEMPLARY DAMAGES AND
ATTORNEY'S FEES. 11
The pivotal questions are: (1) whether prescription bars the action filed by REMEDIOS, and (2) whether REMEDIOS is a real party-in-interest.
The Ruling of the Court
The petition has merit.
The Action is Barred by Prescription
The trial court held that the action filed by REMEDIOS is one based on fraud. REMEDIOS' action seeks to recover real property that petitioners allegedly acquired through fraud. Consequently, the trial court held that the
action prescribes in four years counted from REMEDIOS' actual discovery of petitioners' adverse title. The trial court concluded that REMEDIOS belatedly filed her suit on 4 February 1988 because she actually knew of
petitioners' adverse title since 19 November 1982.
On the other hand, the Court of Appeals held that what REMEDIOS filed was a suit to enforce an implied trust. REMEDIOS had ten years counted from actual notice of the breach of trust, that is, the assertion of adverse
title, within which to bring her action. The appellate court held that REMEDIOS seasonably filed her complaint on 4 February 1988 because she allegedly discovered petitioners' adverse title only on 19 November 1982.
What REMEDIOS filed was an action to enforce an implied trust but the same is already barred by prescription.
Prescriptive
Period
is
10
Years
Counted
From Registration of Adverse Title

The four-year prescriptive period relied upon by the trial court applies only if the fraud does not give rise to an implied trust, and the action is to annul a voidable contract under Article 1390 12 of the Civil Code. In such a
case, the four-year prescriptive period under Article 1391 13 begins to run from the time of discovery of the mistake, violence, intimidation, undue influence or fraud.
In the present case, REMEDIOS does not seek to annul the KASULATAN. REMEDIOS does not assail the KASULATAN as a voidable contract. In fact, REMEDIOS admits the validity of the sale of 1,335 square meters of
land under the KASULATAN. However, REMEDIOS alleges that the excess area of 1,335 meters is not part of the sale under the KASULATAN. REMEDIOS seeks the removal of this excess area from TCT No. (232252)
1321 that was issued to CONSOLACION. Consequently, REMEDIOS' action is for "Annulment or Cancellation of Transfer Certificate [of Title] and Damages." 14
REMEDIOS' action is based on an implied trust under Article 1456 since she claims that the inclusion of the additional 1,335 square meters in TCT No. (232252) 1321 was without basis. In effect, REMEDIOS asserts that
CONSOLACION acquired the additional 1,335 square meters through mistake or fraud and thus CONSOLACION should be considered a trustee of an implied trust for the benefit of the rightful owner of the property.
Clearly, the applicable prescriptive period is ten years under Article 1144 and not four years under Articles 1389 and 1391.
It is now well-settled that the prescriptive period to recover property obtained by fraud or mistake, giving rise to an implied trust under Article 1456 15 of the Civil Code, is ten years pursuant to Article 1144. 16 This ten-year
prescriptive period begins to run from the date the adverse party repudiates the implied trust, which repudiation takes place when the adverse party registers the land. 17
REMEDIOS filed her complaint on 4 February 1988 or more than 19 years after CONSOLACION registered her title over Lot Nos. 2-A and 2-E on 28 October 1968. Unquestionably, REMEDIOS filed the complaint late thus
warranting its dismissal. As the Court recently declared in Spouses Alfredo v. Spouses Borras, 18
Following Caro, 19 we have consistently held that an action for reconveyance based on an implied trust prescribes in ten years. We went further by specifying the reference point of the ten-year
prescriptive period as the date of the registration of the deed or the issuance of the title.
The
Court
of
Appeals'
Reckoning
of
Prescriptive
Period
from Actual Notice of Adverse Title Not Justified
In holding that the action filed by REMEDIOS has not prescribed, the Court of Appeals invoked this Court's ruling in Adille v. Court of Appeals. 20 In Adille, the Court reckoned the ten-year prescriptive period for enforcing
implied trusts not from registration of the adverse title but from actual notice of the adverse title by the cestui que trust. However, the Court, in justifying its deviation from the general rule, explained:
[W]hile actions to enforce a constructive trust prescribes (sic) in ten years, reckoned from the date of the registration of the property, we . . . are not prepared to count the period from such date in
this case. We note the petitioner's sub rosa efforts to get hold of the property exclusively for himself beginning with his fraudulent misrepresentation in his unilateral affidavit of extrajudicial
settlement that he is "the only heir and child of his mother Feliza["] with the consequence that he was able to secure title in his name also. (Italics supplied)
Such commission of specific fraudulent conduct is absent in the present case. Other than asserting that petitioners are guilty of fraud because they secured title to Lot Nos. 2-A and 2-E with an area twice bigger than what
CANUTO allegedly sold to CONSOLACION, REMEDIOS did not present any other proof of petitioners' fraudulent conduct akin to Adille.
CONSOLACION obtained title to Lot Nos. 2-A and 2-E through the KASULATAN executed by CANUTO and the JOINT AFFIDAVIT executed by his surviving children, one of whom, Felicidad, is the mother of REMEDIOS.
The KASULATAN referred to the sale of CANUTO's 10/70 share in Lot 2 without specifying the area of the lot sold. The JOINT AFFIDAVIT referred to the "Plano de Subdivision Psd-34713" without also specifying the area
of the lot sold. However, Subdivision Plan Psd 34713, as certified by the Assistant Director of Lands on 30 May 1952, showed an area of 2,670 square meters in the name of CANUTO. Based on these documents, the
Register of Deeds issued TCT No. (232252) 1321 to CONSOLACION covering an area of 2,670 square meters.
REMEDIOS does not assail the KASULATAN or the JOINT AFFIDAVIT as fictitious or forged. REMEDIOS even admits the authenticity of Subdivision Plan Psd 34713 as certified by the Assistant Director of Lands. 21
Moreover, REMEDIOS has not contested petitioners' claim that CANUTO doubled his share in Lot 2 by acquiring VICTORIANO's share. 22
Plainly, the increase in the area sold from 1,335 square meters to 2,670 square meters is a glaring mistake. There is, however, no proof whatsoever that this increase in area was the result of fraud. Allegations of fraud in
actions to enforce implied trusts must be proved by clear and convincing evidence. 23 Adille, which is anchored on fraud, 24 cannot apply to the present case.
At any rate, even if we apply Adille to this case, prescription still bars REMEDIOS' complaint. As executrix of CATALINA's LAST WILL, REMEDIOS submitted to the then Court of First Instance of Caloocan in Special
Proceedings Case No. C-208 the inventory of all the property comprising CATALINA's estate, which included Lot Nos. 2-A and 2-E. In a motion dated 7 November 1977, CONSOLACION sought the exclusion of these lots
from the inventory, invoking her title over them. REMEDIOS was served a copy of the motion on 8 November 1977 against which she filed an opposition. Nevertheless, the trial court overruled REMEDIOS' objection. In its
order of 3 January 1978, the trial court granted CONSOLACION's motion and ordered the exclusion of Lot Nos. 2-A and 2-E from the estate of CATALINA. REMEDIOS did not appeal from this ruling.
REMEDIOS thus had actual notice of petitioners' adverse title on 8 November 1977. Even if, for the sake of argument, the ten-year prescriptive period begins to run upon actual notice of the adverse title, still REMEDIOS'
right to file this suit has prescribed. REMEDIOS had until 11 November 1987 within which to file her complaint. When she did so on 4 February 1988, the prescriptive period had already lapsed.
Respondent is Not a Real Party-in-Interest
Not only does prescription bar REMEDIOS' complaint. REMEDIOS is also not a real party-in-interest who can file the complaint, as the trial court correctly ruled.
The 1997 Rules of Civil Procedure require that every action must be prosecuted or defended in the name of the real party-in-interest who is the party who stands to benefit or suffer from the judgment in the suit. 25 If one
who is not a real party-in-interest brings the action, the suit is dismissible for lack of cause of action. 26
REMEDIOS anchored her claim over Lot Nos. 2-A and 2-E (or over its one-half portion) on the devise of these lots to her under CATALINA's LAST WILL. However, the trial court found that the probate court did not issue
any order admitting the LAST WILL to probate. REMEDIOS does not contest this finding. Indeed, during the trial, REMEDIOS admitted that Special Proceedings Case No. C-208 is still pending. 27
Article 838 of the Civil Code states that "[N]o will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court." This Court has interpreted this provision to mean, "until
admitted to probate, [a will] has no effect whatever and no right can be claimed thereunder." 28 REMEDIOS anchors her right in filing this suit on her being a devisee of CATALINA's LAST WILL. However, since the probate
court has not admitted CATALINA's LAST WILL, REMEDIOS has not acquired any right under the LAST WILL. REMEDIOS is thus without any cause of action either to seek reconveyance of Lot Nos. 2-A and 2-E or to
enforce an implied trust over these lots.
The appellate court tried to go around this deficiency by ordering the reconveyance of Lot Nos. 2-A and 2-E to REMEDIOS in her capacity as executrix of CATALINA's LAST WILL. This is inappropriate because REMEDIOS
sued petitioners not in such capacity but as the alleged owner of the disputed lots. Thus, REMEDIOS alleged in her complaint:
3. The plaintiff is a niece and compulsory heir of the late CATALINA SIOSON who died single and without any child of her own and who, during her lifetime, was the owner of those two (2)
parcels of land located at Tanza, Navotas, Rizal (now Metro Manila), formerly covered by Original Certificate of Title No. 4207 of the Registry of Deeds for the Province of Rizal, . . .
4. The plaintiff, aside from being the compulsory heir of the deceased CATALINA SIOSON, has sole and exclusive claim of ownership over the above-mentioned two (2) parcels of land by
virtue of a will or "Huling Habilin at Pagpapasiya" executed by Catalina Sioson on May 19, 1964 before Notary Public Efren Y. Angeles at Navotas, Rizal, in which document the deceased
Catalina Sioson specifically and exclusively bequeathed to the plaintiff the above-mentioned Lots 2-A and 2-E of Psd-34713 approved by the Bureau of Lands on May 30, 1952. Copy of the
"Huling Habilin at Pagpapasiya" consisting of four (4) pages is hereto attached and forms an integral part hereof as Annex "A";
5. Sometime on or about February, 1987, plaintiff discovered that the above-mentioned Lots 2-A and 2-E of subdivision plan Psd-34713 are now registered or titled in the name of the
defendants under Transfer Certificate of Title No. (232252) 1321 of the Registry of Deeds of Rizal, now Metro-Manila District III. Copy of the title is hereto attached and forms an integral part
hereof as Annex "B";
6. Upon further inquiry and investigation, plaintiff discovered that the defendants were able to obtain title in their name of the said parcels of land by virtue of a " Kasulatan ng Bilihang Tuluyan"
allegedly executed by Canuto Sioson on September 26, 1956 before Notary Public Jose [T.] de los Santos of Navotas, Metro-Manila. Copy of the said document is hereto attached and forms
an integral part hereof as Annex "C";
7. The plaintiff also discovered that although . . . the original sale did not specify the parcels of land sold by Canuto Sioson, the defendants submitted an alleged Affidavit executed by
Felicidad Sioson and Beatriz Sioson identifying the lots sold by Canuto Sioson to the defendants as Lots 2-A and 2-E of subdivision plan Psd-34713. Copy of the Affidavit dated October 3,

1968 on the basis of which the present Transfer Certificate of Title No. (232252) 1321 was issued to the defendants is hereto attached and forms an integral part hereof as Annex "D";
8. The defendants are clearly guilty of fraud in presenting the aforementioned Affidavit (Annex "D") to the Register of Deeds as the basis of their claim to Lots 2-A and 2-E in view of the fact
that the parcels sold to them by Canuto Sioson, assuming there was such a sale, were different parcels of land, Lots 2-A and 2-E being the properties of the late Catalina Sioson who
bequeathed the same to the plaintiff.
xxx xxx xxx
12. Because of the defendants' fraudulent actuations on this matter, plaintiff suffered and continious [sic] to suffer moral damages arising from anxiety, shock and wounded feelings .
Defendants should also be assessed exemplary damages by way of a lesson to deter them from again committing the fraudulent acts, or acts of similar nature, by virtue of which they were
able to obtain title to the parcels of land involved in this case . . . 29 (Italics supplied)
Indeed, all throughout the proceedings below and even in her Comment to this petition, REMEDIOS continued to pursue her claim as the alleged owner of one-half of the disputed lots.
Other Matters Raised in the Petition
The Court deems it unnecessary to pass upon the other errors petitioners assigned concerning the award of damages and attorneys fees to REMEDIOS. Such award assumes that REMEDIOS is a real party-in-interest
and that she timely filed her complaint. As earlier shown, this is not the case.
WHEREFORE, we GRANT the petition. The Decision of the Court of Appeals dated 31 January 1994 and its Resolution dated 15 June 1994 are SET ASIDE. The complaint filed by respondent Remedios Eugenio-Gino,
dated 2 February 1988 is DISMISSED.
SO ORDERED.
Davide, Jr., C .J ., Vitug, Ynares-Santiago, and Azcuna, JJ ., concur.
Footnotes
||| (Spouses Pascual v. Court of Appeals, G.R. No. 115925, [August 15, 2003], 456 PHIL 308-327)
SPOUSES ALVARO PASTOR, JR. and MA. ELENA ACHAVAL DE PASTOR, petitioners, vs. THE COURT OF APPEALS, JUAN Y. REYES, JUDGE OF BRANCH I, COURT OF APPEALS, JUAN Y. REYES,
JUDGE OF BRANCH I, COURT OF FIRST INSTANCE OF CEBU and LEWELLYN BARLITO QUEMADA, respondents.
Pelaez, Pelaez, & Pelaez Law Office for petitioners.
Ceniza, Rama & Associates for private respondents.
SYLLABUS
1.REMEDIAL LAW; SPECIAL PROCEEDINGS; PROBATE OF WILL; ISSUE CONFINED TO THE EXTRINSIC VALIDITY OF WILLS. In a special proceeding for the probate of a will, the issue by and large is restricted to
the extrinsic validity of a will, i.e., whether the testator, being of sound mind, freely executed the will in accordance with the formalities prescribed by law (Rules of Court, Rule 75, Section 1; Rule 76, Section 9).
2.ID.; ID.; ID.; ID.; QUESTION OF OWNERSHIP NOT RESOLVED WITH FINALITY. As a rule, the question of ownership is an extraneous matter which the Probate Court can not resolve with finality. Thus, for the
purpose of determining whether a certain property should be included in the inventory of estate properties, the Probate Court may pass upon the title thereto, but such determination is provisional, not conclusive, and is
subject to the final decision in a separate action to resolve title (Valero Vda. de Rodriguez vs. Court of Appeals. 91 SCRA 540).
3.ID.; CIVIL ACTION; JUDGMENT; EXECUTION MUST CONFORM WITH THE DISPOSITIVE PART OF THE DECISION. The rule is that execution of judgment must conform to that decreed in the dispositive part of the
decision (Philippine-American Insurance Co. vs. Honorable Flores, 97 SCRA 811). However, in case of ambiguity or uncertainty, the body of the decision may be scanned for guidance in construing the judgment (Heirs of
Presto vs. Galang, 78 SCRA 534; Fabular vs. Court of Appeals. 119 SCRA 329, Robles vs. Timario, 107 Phil. 809).
4.ID.; SPECIAL CIVIL ACTIONS; CERTIORARI; REMEDY PROPER IN CASE OF GRAVE ABUSE OF DISCRETION IN THE ISSUANCE OF THE ORDER OF EXECUTION. Private respondent challenges the propriety
of certiorari as a means to assail the validity of the disputed Order of Execution. He contends that the error, if any, is one of judgment. not jurisdiction. and properly correctible only on appeal. not certiorari. Under the
circumstances of the case at bar, the challenge must be rejected. It is within a court's competence to order the execution of a final judgment; but to order the execution of a final order (which is not even meant to be
executed) by reading into it terms that are not there and in utter disregard of existing rules and law, is manifest grave abuse of discretion tantamount to lack of jurisdiction. Consequently, the rule that certiorari may not be
invoked to defeat the right of a prevailing party to the execution of a valid and final judgment. is inapplicable. For when an order of execution is issued with grave abuse of discretion or is at variance with the judgment
sought to be enforced (PVTA vs. Honorable Gonzales, 92 SCRA 172), certiorari will lie to abate the order of execution.
5.CIVIL LAW; WILLS AND SUCCESSION; LEGACY; ORDERED PAYMENT VIOLATIVE OF THE RULE REQUIRING PRIOR LIQUIDATION OF THE ESTATE. The ordered payment of legacy would be violative of the
rule requiring prior liquidation of the estate of the deceased, i.e., the determination of the assets of the estate and payment of all debts and expenses, before apportionment and distribution of the residue among the heirs
and legatees (Bernardo vs. Court of Appeals, 7 SCRA 367).
6.TAXATION; NATIONAL INTERNAL REVENUE CODE; ESTATE TAX; PAYMENT THEREOF REQUIRED BEFORE DELIVERY OF INHERITED PROPERTY. Neither has the estate tax been paid on the estate of Pastor,
Sr. Payment therefore of the legacy to Quemada would collide with the provision of the National Internal Revenue Code requiring payment of the estate tax before delivery to any beneficiary of his distributive share of the
estate (Section 107 [c]).
7.CIVIL LAW; WILLS AND SUCCESSION; LEGACY, NOT A DEBT. A legacy is not a debt of the estate; indeed, legatees are among those against whom execution is authorized to be issued.
DECISION
PLANA, J p:
I.FACTS:
This is a case of hereditary succession.
Alvaro Pastor, Sr. (PASTOR, SR.), a Spanish subject, died in Cebu City on June 5, 1966, survived by his Spanish wife Sofia Bossio (who also died on October 21, 1966), their two legitimate children Alvaro Pastor, Jr.
(PASTOR, JR.) and Sofia Pastor de Midgely (SOFIA), and an illegitimate child, not natural, by the name of Lewellyn Barlito Quemada (QUEMADA). PASTOR, JR. is a Philippine citizen, having been naturalized in 1936.
SOFIA is a Spanish subject. QUEMADA is a Filipino by his mother's citizenship.
On November 13, 1970, QUEMADA filed a petition for the probate and allowance of an alleged holographic will of PASTOR, SR. with the Court of First Instance of Cebu, Branch I (PROBATE COURT), docketed as SP No.
3128-R. The will contained only one testamentary disposition: a legacy in favor of QUEMADA consisting of 30% of PASTOR, SR.'s 42% share in the operation by Atlas Consolidated Mining and Development Corporation
(ATLAS) of some mining claims in Pia-Barot, Cebu.
On November 21, 1970, the PROBATE COURT, upon motion of QUEMADA and after an ex parte hearing, appointed him special administrator of the entire estate of PASTOR, SR., whether or not covered or affected by the
holographic will. He assumed office as such on December 4, 1970 after filing a bond of P5,000.00.
On December 7, 1970, QUEMADA as special administrator, instituted against PASTOR, JR. and his wife an action for reconveyance of alleged properties of the estate, which included the properties subject of the legacy
and which were in the names of the spouses PASTOR, JR. and his wife, Maria Elena Achaval de Pastor, who claimed to be the owners thereof in their own rights, and not by inheritance. The action, docketed as Civil Case
No. 274-R, was filed with the Court of First Instance of Cebu, Branch IX. LLjur
On February 2, 1971, PASTOR, JR. and his sister SOFIA filed their opposition to the petition for probate and the order appointing QUEMADA as special administrator.
On December 5, 1972, the PROBATE COURT issued an order allowing the will to probate. Appealed to the Court of Appeals in CA-G.R. No. 52961-R, the order was affirmed in a decision dated May 9, 1977. On petition for
review, the Supreme Court in G.R. No. L-46645 dismissed the petition in a minute resolution dated November 1, 1977 and remanded the same to the PROBATE COURT after denying reconsideration on January 11, 1978.
For two years after remand of the case to the PROBATE COURT, QUEMADA filed pleading after pleading asking for payment of his legacy and seizure of the properties subject of said legacy. PASTOR, JR. and SOFIA
opposed these pleadings on the ground of pendency of the reconveyance suit with another branch of the Cebu Court of First Instance. All pleadings remained unacted upon by the PROBATE COURT.

On March 5, 1980, the PROBATE COURT set the hearing on the intrinsic validity of the will for March 25, 1980, but upon objection of PASTOR, JR. and SOFIA on the same ground of pendency of the reconveyance suit, no
hearing was held on March 25. Instead, the PROBATE COURT required the parties to submit their respective position papers as to how much inheritance QUEMADA was entitled to receive under the will. Pursuant thereto,
PASTOR, JR. and SOFIA submitted their Memorandum of authorities dated April 10, which in effect showed that determination of how much QUEMADA should receive was still premature. QUEMADA submitted his
Position paper dated April 20, 1980. ATLAS, upon order of the Court, submitted a sworn statement of royalties paid to the Pastor Group of claimants from June 1966 (when Pastor, Sr. died) to February 1980. The statement
revealed that of the mining claims being operated by ATLAS, 60% pertained to the Pastor Group distributed as follows:
1.A. Pastor, Jr.40.5%
2.E. Pelaez, Sr.15.0%
3.B. Quemada4.5%
On August 20, 1980, while the reconveyance suit was still being litigated in Branch IX of the Court of First Instance of Cebu, the PROBATE COURT issued the now assailed Order of Execution and Garnishment, resolving
the question of ownership of the royalties payable by ATLAS and ruling in effect that the legacy to QUEMADA was not inofficious. [There was absolutely no statement or claim in the Order that the Probate Order of
December 5, 1972 had previously resolved the issue of ownership of the mining rights of royalties thereon, nor the intrinsic validity of the holographic will.]
The order of August 20, 1980 found that as per the holographic will and a written acknowledgment of PASTOR, JR. dated June 17, 1962, of the above 60% interest in the mining claims belonging to the Pastor Group, 42%
belonged to PASTOR, SR. and only 33% belonged to PASTOR, JR. The remaining 25% belonged to E. Pelaez, also of the Pastor Group. The PROBATE COURT thus directed ATLAS to remit directly to QUEMADA the
42% royalties due decedent's estate, of which QUEMADA was authorized to retain 75% for himself as legatee and to deposit 25% with a reputable banking institution for payment of the estate taxes and other obligations of
the estate. The 33% share of PASTOR, JR. and/or his assignees was ordered garnished to answer for the accumulated legacy of QUEMADA from the time of PASTOR, SR.'s death, which amounted to over two million
pesos. cdphil
The order being "immediately executory", QUEMADA succeeded in obtaining a Writ of Execution and Garnishment on September 4, 1980, and in serving the same on ATLAS on the same day. Notified of the Order on
September 6, 1980, the oppositors sought reconsideration thereof on the same date primarily on the ground that the PROBATE COURT gravely abused its discretion when it resolved the question of ownership of the
royalties and ordered the payment of QUEMADA's legacy after prematurely passing upon the intrinsic validity of the will. In the meantime, the PROBATE COURT ordered suspension of payment of all royalties due
PASTOR, JR. and/or his assignees until after resolution of oppositors' motion for reconsideration.
Before the Motion for Reconsideration could be resolved, however, PASTOR, JR., this time joined by his wife Ma. ELENA ACHAVAL DE PASTOR, filed with the Court of Appeals a Petition for Certiorari and Prohibition with
a prayer for writ of preliminary injunction (CA-G.R. No. SP-11373-R). They assailed the Order dated August 20, 1980 and the writ of execution and garnishment issued pursuant thereto. The petition was denied on
November 18, 1980 on the grounds (1) that its filing was premature because the Motion for Reconsideration of the questioned Order was still pending determination by the PROBATE COURT; and (2) that although "the rule
that a motion for reconsideration is prerequisite for an action for certiorari is never an absolute rule," the Order assailed is "legally valid."
On December 9, 1980, PASTOR, JR. and his wife moved for reconsideration of the Court of Appeal's decision of November 18, 1980, calling the attention of the appellate court to another order of the Probate Court dated
November 11, 1980 (i.e., while their petition for certiorari was pending decision in the appellate court), by which the oppositors' motion for reconsideration of the Probate Court's Order of August 20, 1980 was denied. [The
November 11 Order declared that the questions of intrinsic validity of the will and of ownership over the mining claims (not the royalties alone) had been finally adjudicated by the final and executory Order of December 5,
1972, as affirmed by the Court of Appeals and the Supreme Court, thereby rendering moot and academic the suit for reconveyance then pending in the Court of First Instance of Cebu, Branch IX. It clarified that only the
33% share of PASTOR, JR. in the royalties (less than 7.5% share which he had assigned to QUEMADA before PASTOR, SR. died) was to be garnished and that as regards PASTOR, SR.'s 42% share, what was ordered
was just the transfer of its possession to the custody of the PROBATE COURT through the special administrator. Further, the Order granted QUEMADA 6% interest on his unpaid legacy from August 1980 until fully paid.]
Nonetheless, the Court of Appeals denied reconsideration. prcd
Hence, this Petition for Review by certiorari with prayer for a writ of preliminary injunction, assailing the decision of the Court of Appeals dated November 18, 1980 as well as the orders of the Probate Court dated August
20, 1980, November 11, 1980 and December 17, 1980, filed by petitioners on March 26, 1981, followed by a Supplemental Petition with Urgent Prayer for Restraining Order.
In April 1981, the Court (First Division) issued a writ of preliminary injunction, the lifting of which was denied in the Resolution of the same Division dated October 18, 1982, although the bond of petitioners was increased
from P50.000.00 to P100,000.00.
Between December 21, 1981 and October 12, 1982, private respondent filed seven successive motions for early resolution. Five of these motions expressly prayed for the resolution of the question as to whether or not the
petition should be given due course.
On October 18, 1982, the Court (First Division) adopted a resolution stating that "the petition in fact and in effect was given due course when this case was heard on the merits on September 7, (should be October 21,
1981) and concise memoranda in amplification of their oral arguments on the merits of the case were filed by the parties pursuant to the resolution of October 21, 1981 . . ." and denied in a resolution dated December 13,
1982, private respondent's "Omnibus motion to set aside resolution dated October 18, 1982 and to submit the matter of due course to the present membership of the Division; and to reassign the case to another ponente."
Upon Motion for Reconsideration of the October 18, 1982 and December 13, 1982 Resolutions, the Court en banc resolved to CONFIRM the questioned resolutions insofar as they resolved that the petition in fact and in
effect had been given due course.
II.ISSUES:
Assailed by the petitioners in these proceedings is the validity of the Order of execution and garnishment dated August 20, 1980 as well as the Orders subsequently issued allegedly to implement the Probate Order of
December 5, 1972, to wit: the Order of November 11, 1980 declaring that the Probate Order of 1972 indeed resolved the issues of ownership and intrinsic validity of the will, and reiterating the Order of Execution dated
August 20, 1980; and the Order of December 17, 1980 reducing to P2,251,516.74 the amount payable to QUEMADA representing the royalties he should have received from the death of PASTOR, SR. in 1966 up to
February 1980. LLjur
The Probate Order itself, insofar as it merely allowed the holographic will in probate, is not questioned. But petitioners denounce the Probate Court for having acted beyond its jurisdiction or with grave abuse of discretion
when it issued the assailed Orders. Their argument runs this way: Before the provisions of the holographic will can be implemented, the questions of ownership of the mining properties and the intrinsic validity of the
holographic will must first be resolved with finality. Now, contrary to the position taken by the Probate Court in 1980 i.e., almost eight years after the probate of the will in 1972 the Probate Order did not resolve the two
said issues. Therefore, the Probate Order could not have resolved and actually did not decide QUEMADA's entitlement to the legacy. This being so, the Orders for the payment of the legacy in alleged implementation of the
Probate Order of 1972 are unwarranted for lack of basis.
Closely related to the foregoing is the issue raised by QUEMADA: The Probate Order of 1972 having become final and executory, how can its implementation (payment of legacy) be restrained? Of course, the question
assumes that QUEMADA's entitlement to the legacy was finally adjudged in the Probate Order.
On the merits, therefore, the basic issue is whether the Probate Order of December 5, 1972 resolved with finality the questions of ownership and intrinsic validity. A negative finding will necessarily render moot and
academic the other issues raised by the parties, such as the jurisdiction of the Probate Court to conclusively resolve title to property, and the constitutionality and repercussions of a ruling that the mining properties in
dispute, although in the name of PASTOR, JR. and his wife, really belonged to the decedent despite the latter's constitutional disqualification as an alien.
On the procedural aspect, placed in issue is the propriety of certiorari as a means to assail the validity of the order of execution and the implementing writ.
III.DISCUSSION:
1.Issue of Ownership
(a)In a special proceeding for the probate of a will, the issue by and large is restricted to the extrinsic validity of the will, i.e., whether the testator, being of sound mind, freely executed the will in accordance with the
formalities prescribed by law. (Rules of Court, Rule 75, Section 1; Rule 76, Section 9.) As a rule, the question of ownership is an extraneous matter which the Probate Court cannot resolve with finality. Thus, for the purpose
of determining whether a certain property should or should not be included in the inventory of estate properties, the Probate Court may pass upon the title thereto, but such determination is provisional, not conclusive, and

is subject to the final decision in a separate action to resolve title. [3 Moran, Comments on the Rules of Court (1980 ed.), p. 458; Valero Vda. de Rodriguez vs. Court of Appeals, 91 SCRA 540.] LLjur
(b)The rule is that execution of a judgment must conform to that decreed in the dispositive part of the decision. (Philippine-American Insurance Co. vs. Honorable Flores, 97 SCRA 811.) However, in case of ambiguity or
uncertainty, the body of the decision may be scanned for guidance in construing the judgment. (Heirs of Presto vs. Galang, 78 SCRA 534; Fabular vs. Court of Appeals, 119 SCRA 329; Robles vs. Timario, 107 Phil. 809.)
The Order sought to be executed by the assailed Order of execution is the Probate Order of December 5, 1972 which allegedly resolved the question of ownership of the disputed mining properties. The said Probate Order
enumerated the issues before the Probate Court, thus:
"Unmistakably, there are three aspects in these proceedings: (1) the probate of the holographic will; (2) the intestate estate aspect; and (3) the administration proceedings for the purported estate of
the decedent in the Philippines.
"In its broad and total perspective the whole proceedings are being impugned by the oppositors on jurisdictional grounds, i.e., that the fact of the decedent's residence and existence of properties in
the Philippines have not been established.
"Specifically placed in issue with respect to the probate proceedings are: (a) whether or not the holographic will (Exhibit "J") has lost its efficacy as the last will and testament upon the death of
Alvaro Pastor, Sr. on June 5, 1966, in Cebu City, Philippines; (b) Whether or not the said will has been executed with all the formalities required by law; and (c) Did the late presentation of the
holographic will affect the validity of the same?
"Issues In the Administration Proceedings are as follows: (1) Was the ex-parte appointment of the petitioner as special administrator valid and proper? (2) Is there any indispensable necessity for
the estate of the decedent to be placed under administration? (3) Whether or not petition is qualified to be a special administrator of the estate; and (4) Whether or not the properties listed in the
inventory (submitted by the special administrator but not approved by the Probate Court) are to be excluded."
Then came what purports to be the dispositive portion:
"Upon the foregoing premises, this Court rules on and resolves some of the problems and issues presented in these proceedings, as follows:
"(a)The Court has acquired jurisdiction over the probate proceedings As it hereby allows and approves the so-called holographic will of testator Alvaro Pastor, Sr., executed on
July 31, 1961 with respect to its extrinsic validity, the same having been duly authenticated pursuant to the requisites or solemnities prescribed by law. Let, therefore, a certificate of its
allowance be prepared by the Branch Clerk of this Court to be signed by this Presiding Judge, and attested by the seal of the Court, and thereafter attached to the will, and the will and
certificate filed and recorded by the clerk. Let attested copies of the will and of the certificate of allowance thereof be sent to Atlas Consolidated Mining & Development Corporation,
Goodrich Bldg., Cebu City, and the Register of Deeds of Cebu or of Toledo City, as the case may be, for recording.
"(b)There was a delay in the granting of the letters testamentary or of administration for as a matter of fact, no regular executor and/or administrator has been appointed up
to this time and the appointment of a special administrator was, and still is, justified under the circumstances to take possession and charge of the estate of the deceased in the
Philippines (particularly in Cebu) until the problems causing the delay are decided and the regular executor and/or administrator appointed.
"(c)There is a necessity and propriety of a special administrator and later on an executor and/or administrator in these proceedings, in spite of this Court's declaration that the
oppositors are the forced heirs and the petitioner is merely vested with the character of a voluntary heir to the extent of the bounty given to him (under) the will insofar as the same will not
prejudice the legitimes of the oppositors, for the following reasons:
1.To submit a complete inventory of the estate of the decedent-testator Alvaro Pastor, Sr.;
2.To administer and to continue to put to prolific utilization of the properties of the decedent;
3.To keep and maintain the houses and other structures and fences belonging to the estate, since the forced heirs are residing in Spain, and prepare them
for delivery to the heirs in good order after partition and when directed by the Court, but only after the payment of estate and inheritance taxes;
"(d)Subject to the outcome of the suit for reconveyance of ownership and possession of real and personal properties in Civil Case No. 274-T before Branch IX of the Court of
First Instance of Cebu, the intestate estate administration aspect must proceed, unless, however, it is duly proven by the oppositors that debts of the decedent have already been paid,
that there had been an extrajudicial partition or summary one between the forced heirs, that the legacy to be given and delivered to the petitioner does not exceed the free portion of the
estate of the testator, that the respective shares of the forced heirs have been fairly apportioned, distributed and delivered to the two forced heirs of Alvaro Pastor, Sr., after deducting the
property willed to the petitioner, and the estate and inheritance taxes have already been paid to the Government thru the Bureau of Internal Revenue.
"The suitability and propriety of allowing petitioner to remain as special administrator or administrator of the other properties of the estate of the decedent, which properties are not directly or
indirectly affected by the provisions of the holographic will (such as bank deposits, land in Mactan, etc.), will be resolved in another order as separate incident, considering that this order should
have been properly issued solely as a resolution on the issue of whether or not to allow and approve the aforestated will." (Emphasis supplied.)
Nowhere in the dispositive portion is there a declaration of ownership of specific properties. On the contrary, it is manifest therein that ownership was not resolved. For it confined itself to the question of extrinsic validity of
the will, and the need for and propriety of appointing a special administrator. Thus it allowed and approved the holographic will "with respect to its extrinsic validity, the same having been duly authenticated pursuant to the
requisites or solemnities prescribed by law." It declared that the intestate estate administration aspect must proceed "subject to the outcome of the suit for reconveyance of ownership and possession of reel and personal
properties in Civil Case 274-T before Branch IX of the CFI of Cebu." [Parenthetically, although the statement refers only to the "intestate" aspect, it defies understanding how ownership by the estate of some properties
could be deemed finally resolved for purposes of testate administration, but not so for intestate purposes. Can the estate be the owner of a property for testate but not for intestate purposes?] Then again, the Probate Order
(while indeed it does not direct the implementation of the legacy) conditionally stated that the intestate administration aspect must proceed "unless . . . it is proven . . . that the legacy to be given and delivered to the
petitioner does not exceed the free portion of the estate of the testator," which clearly implies that the issue of impairment of legitime (an aspect of intrinsic validity) was in fact not resolved. Finally, the Probate Order did not
rule on the propriety of allowing QUEMADA to remain as special administrator of estate properties not covered by the holographic will, "considering that this (Probate) Order should have been properly issued solely as a
resolution on the issue of whether or not to allow and approve the aforestated will." prLL
(c)That the Probate Order did not resolve the question of ownership of the properties listed in the estate inventory was appropriate, considering that the issue of ownership was the very subject of controversy in the
reconveyance suit that was still pending in Branch IX of the Court of First Instance of Cebu.
(d)What, therefore, the Court of Appeals and, in effect, the Supreme Court affirmed en toto when they reviewed the Probate Order were only the matters properly adjudged in the said Order.
(e)In an attempt to justify the issuance of the order of execution dated August 20, 1980, the Probate Court in its Order of November 11, 1980 explained that the basis for its conclusion that the question of ownership had
been formally resolved by the Probate Order of 1972 are the findings in the latter Order that (1) during the lifetime of the decedent, he was receiving royalties from ATLAS; (2) he had resided in the Philippines since pre-war
days and was engaged in the mine prospecting business since 1937 particularly in the City of Toledo; and (3) PASTOR, JR. was only acting as dummy for his father because the latter was a Spaniard.
Based on the premises laid, the conclusion is obviously farfetched.
(f)It was, therefore, error for the assailed implementing Orders to conclude that the Probate Order adjudged with finality the question of ownership of the mining properties and royalties, and that, premised on this
conclusion, the dispositive portion of the said Probate Order directed the special administrator to pay the legacy in dispute.
2.Issue of Intrinsic Validity of the Holographic Will
(a)When PASTOR, SR. died in 1966, he was survived by his wife, aside from his two legitimate children and one illegitimate son. There is therefore a need to liquidate the conjugal partnership and set apart the share of
PASTOR, SR.'s wife in the conjugal partnership preparatory to the administration and liquidation of the estate of PASTOR, SR. which will include, among others, the determination of the extent of the statutory usufructuary
right of his wife until her death. ** When the disputed Probate order was issued on December 5, 1972, there had been no liquidation of the community properties of PASTOR, SR. and his wife.
(b)So, also, as of the same date, there has been no prior definitive determination of the assets of the estate of PASTOR, SR. There was an inventory of his properties presumably prepared by the special administrator, but

it does not appear that it was ever the subject of a hearing or that it was judiciary approved. The reconveyance or recovery of properties allegedly owned but not in the name of PASTOR, SR. was still being litigated in
another court.
(c)There was no appropriate determination, much less payment, of the debts of the decedent and his estate. Indeed, it was only in the Probate Order of December 5, 1972 where the Probate Court ordered that
". . . a notice be issued and published pursuant to the provisions of Rule 86 of the Rules of Court, requiring all persons having money claims against the decedent to file them in the office of the
Branch Clerk of this Court."
(d)Nor had the estate tax been determined and paid, or at least provided for, as of December 5, 1972.
(e)The net assets of the estate not having been determined, the legitime of the forced heirs in concrete figures could not be ascertained.
(f)All the foregoing deficiencies considered, it was not possible to determine whether the legacy of QUEMADA a fixed share in a specific property rather than an aliquot part of the entire net estate of the deceased
would produce an impairment of the legitime of the compulsory heirs.
(g)Finally, there actually was no determination of the intrinsic validity of the will in other respects. It was obviously for this reason that as late as March 5, 1980 more than 7 years after the Probate Order was issued
the Probate Court scheduled on March 25, 1980 a hearing on the intrinsic validity of the will.
3.Propriety of Certiorari
Private respondent challenges the propriety of certiorari as a means to assail the validity of the disputed Order of execution. He contends that the error, if any, is one of judgment, not jurisdiction, and properly correctible
only by appeal, not certiorari. llcd
Under the circumstances of the case at bar, the challenge must be rejected. Grave abuse of discretion amounting to lack of jurisdiction is much too evident in the actuations of the probate court to be overlooked or
condoned.
(a)Without a final, authoritative adjudication of the issue as to what properties compose the estate of PASTOR, SR. in the face of conflicting claims made by heirs and a non-heir (MA. ELENA ACHAVAL DE PASTOR)
involving properties not in the name of the decedent, and in the absence of a resolution on the intrinsic validity of the will here in question, there was no basis for the Probate Court to hold in its Probate Order of 1972,
which it did not, that private respondent is entitled to the payment of the questioned legacy. Therefore, the Order of Execution of August 20, 1980 and the subsequent implementing orders for the payment of QUEMADA's
legacy, in alleged implementation of the dispositive part of the Probate Order of December 5, 1972, must fall for lack of basis.
(b)The ordered payment of legacy would be violative of the rule requiring prior liquidation of the estate of the deceased, i.e., the determination of the assets of the estate and payment of all debts and expenses, before
apportionment and distribution of the residue among the heirs and legatees. (Bernardo vs. Court of Appeals, 7 SCRA 367.)
(c)Neither has the estate tax been paid on the estate of PASTOR, SR. Payment therefore of the legacy to QUEMADA would collide with the provision of the National Internal Revenue Code requiring payment of estate tax
before delivery to any beneficiary of his distributive share of the estate (Section 107 [c]).
(d)The assailed order of execution was unauthorized, having been issued purportedly under Rule 88, Section 6 of the Rules of Court which reads:
"Sec. 6.Court to fix contributive shares where devisees, legatees, or heirs have been in possession. Where devisees, legatees, or heirs have entered into possession of portions of the estate
before the debts and expenses have been settled and paid and have become liable to contribute for the payment of such debts and expenses, the court having jurisdiction of the estate may, by
order for that purpose, after hearing, settle the amount of their several liabilities, and order how much and in what manner each person shall contribute, and may issue execution as circumstances
require."
The above provision clearly authorizes execution to enforce payment of debts of estate. A legacy is not a debt of the estate; indeed, legatees are among those against whom execution is authorized to be issued.
". . . there is merit in the petitioners' contention that the probate court generally cannot issue a writ of execution. It is not supposed to issue a writ of execution because its orders usually refer to the
adjudication of claims against the estate which the executor or administrator may satisfy without the necessity of resorting to a writ of execution. The probate court, as such, does not render any
judgment enforceable by execution.
"The circumstances that the Rules of Court expressly specifies that the probate court may issue execution (a) to satisfy (debts of the estate out of) the contributive shares of devisees, legatees and
heirs in possession of the decedent's assets (Sec. 6, Rule 88), (b) to enforce payment of the expenses of partition (Sec. 3, Rule 90), and (c) to satisfy the costs when a person is cited for
examination in probate proceedings (Sec. 13, Rule 142) may mean, under the rule of inclusio unius est exclusio alterius, that those are the only instances when it can issue a writ of execution. (Vda.
de Valera vs. Ofilada, 59 SCRA 96, 108.)
(d)It is within a court's competence to order the execution of a final judgment; but to order the execution of a final order (which is not even meant to be executed) by reading into it terms that are not there and in utter
disregard of existing rules and law, is manifest grave abuse of discretion tantamount to lack of jurisdiction. Consequently, the rule that certiorari may not be invoked to defeat the right of a prevailing party to the execution of
a valid and final judgment, is inapplicable. For when an order of execution is issued with grave abuse of discretion or is at variance with the judgment sought to be enforced (PVTA vs. Honorable Gonzales, 92 SCRA 172),
certiorari will lie to abate the order of execution.
(e)Aside from the propriety of resorting to certiorari to assail an order of execution which varies the terms of the judgment sought to be executed or does not find support in the dispositive part of the latter, there are
circumstances in the instant case which justify the remedy applied for.
Petitioner MA. ELENA ACHAVAL DE PASTOR, wife of PASTOR, JR., is the holder in her own right of three mining claims which are one of the objects of conflicting claims of ownership. She is not an heir of PASTOR, SR.
and was not a party to the probate proceedings. Therefore, she could not appeal from the Order of execution issued by the Probate Court. On the other hand, after the issuance of the execution order, the urgency of the
relief she and her co-petitioner husband seek in the petition for certiorari militates against requiring her to go through the cumbersome procedure of asking for leave to intervene in the probate proceedings to enable her, if
leave is granted, to appeal from the challenged order of execution which has ordered the immediate transfer and/or garnishment of the royalties derived from mineral properties of which she is the duly registered owner
and/or grantee together with her husband. She could not have intervened before the issuance of the assailed orders because she had no valid ground to intervene. The matter of ownership over the properties subject of
the execution was then still being litigated in another court in a reconveyance suit filed by the special administrator of the estate of PASTOR, SR. llcd
Likewise, at the time petitioner PASTOR, JR. filed the petition for certiorari with the Court of Appeals, appeal was not available to him since his motion for reconsideration of the execution order was still pending resolution
by the Probate Court. But in the face of actual garnishment of their major source of income, petitioners could no longer wait for the resolution of their motion for reconsideration. They needed prompt relief from the injurious
effects of the execution order. Under the circumstances, recourse to certiorari was the feasible remedy.
WHEREFORE, the decision of the Court of Appeals in CA-G.R. No. SP-11373-R is reversed. The Order of execution issued by the probate Court dated August 20, 1980, as well as all the Orders issued subsequent thereto
in alleged implementation of the Probate Order dated December 5, 1972, particularly the Orders dated November 11, 1980 and December 17, 1980, are hereby set aside; and this case is remanded to the appropriate
Regional Trial Court for proper proceedings, subject to the judgment to be rendered in Civil Case No. 274-R.
SO ORDERED.
Teehankee, Melencio-Herrera, Vasquez and Relova JJ., concur.
Gutierrez, J., took no part.
||| (Pastor, Jr. v. Court of Appeals, G.R. No. L-56340, [June 24, 1983], 207 PHIL 758-775)
In re: Testate Estate of the deceased JOSE B. SUNTAY. SILVINO SUNTAY, petitioner-appellant, vs. FEDERICO C. SUNTAY, administrator-appellee.
Claro M. Recto for appellant.
Sison & Aruego for appellee.
SYLLABUS

1. WILLS PROBATIVE OF WILLS; ASSIGNMENT OF INTEREST IN THE WILL ESTATE, NOT A BAR TO PROBATE OF A LOST OF FOREIGN WILL. In an intestate proceeding that had already
been instituted in the Philippines, the widow and child of the testator are not estopped from asking for the probate of a lost will or of a foreign will just because of a lost will or of a foreign will just because of the
transfer of assignment of their share, right, title and interest in the estate of the deceased, The validity and legality of such assignments can not be threshed out in the probate proceeding which is concerned
only with the probate of the will.
2. ID.; ID.; PROOF OF LOST WILL; PROVISION OF WILL MUST BE PROVED BY AT LEAST TWO CREDIBLE WITNESSES; WHO ARE CREDIBLE WITNESSES. Granting that a will was duly
executed and that it was in existence at the time of, and not revoked before, the death of the testator, still the provisions of the lost will must be clearly and distinctly p[roved by at least two credible witnesses.
"Credible witnesses" mean competent witnesses and not those who testify to facts from or upon hearsay.
3. ID.; PROBATE OF WILL IS A PROCEEDING IN REM; NOTICE TO ALL PARTIES ESSENTIAL FOR ITS VALIDITY. 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 same as those provided for in
our laws on the subject. It is a proceeding in re, and for the validity of such proceedings personal notice or by publication or both to all interested parties must be made.
4. ID.; ID.; PROCEEDINGS LIKENED TO A DEPOSITION OR TO A PERPETUATION OF TESTIMONY. The proceedings had in the municipal district court of Amoy, China, may be likened to a
deposition or to as perpetuation of testimony, and even if it were so, notice all interested parties was necessary for the validity of such proceedings.
5. ID.; WILLS PROVED IN A FOREIGN COUNTRY; PROBATE SHOULD BE IN ACCORDANCE WITH ACCEPTED BASIC AND FUNDAMENTAL CONCEPTS AND PRINCIPLES. Where it
appears that the proceedings in the court of a foreign country were held for the purpose of taking the testimony of two attesting witnesses to the will and the order of the probate court did not purport to allow the
will, the proceedings cannot be deemed to be for the probate of a will, as it was not done in accordance with the basic fundamental concepts and principles followed in the probate and allowance of wills.
Consequently, the will referred to therein cannot be allowed , filed and recorded by a competent court of this country.
6. WILL PROBATE OF; LACK OF OBJECTION TO PROBATE OF LOST OF WILL DOES EXECUTION. The lack of objection to the probate of a lost will does not relieve the proponent thereof or
the party interested in its probate from establishing its due execution and proving clearly and distinctly the provisions thereof by at least two credible witnesses, as provided for in section 6, Rule 77 of the Rules
of Court.
7. ID., APPEALS; JURISDICTION OF SUPREME COURT TO REVIEW FINDINGS OF FACT AND LEGAL PRONOUNCEMENTS IN CASES INVOLVING MORE THAN P50,000. In appeal from a
judgment of the probate court, the Supreme Court, in the exercise of its appellate jurisdiction, has the power to review and correct erroneous findings of fact and legal pronouncements of the probate court,
where the amount involved is more than P50,000.
DECISION
PADILLA, J p:
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 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 contents 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 cross-interrogatory, Id.); that Mrs. Suntay had the draft of the will (Exhibit B) translated into Chinese and he read the translation (answers to the 67th interrogatory, Id.); that he did not read
the will and did not compare it (check it up) with the draft (Exhibit B) (answers to X-6 and X-20 cross-interrogatories, Id.).
Ana Suntay testifies that sometime in September 1934 in the house of her brother Apolonio Suntay she learned that her father left a will "because of the arrival of my brother Manuel Suntay, who was
bringing along with him certain document and he told us or he was telling us that it was the will of our father Jose B. Suntay which was taken from Go Toh.." (p. 524, t. s. n., hearing of 24 February 1948); that she saw
her brother Apolonio Suntay read the document in her presence and of Manuel and learned of the adjudication made in the will by her father of his estate, to wit: one-third to his children, one-third to Silvino and his

mother and the other third to Silvino. Apolonio, Concepcion and Jose, Jr. (pp. 526-8, 530-1, 542, t. s. n. Id.); that "after Apolonio read that portion, then he turned over the document to Manuel, and he went away," (p.
528, t. s. n., Id.). On cross-examination, she testifies that she read the part of the will on adjudication to know what was the share of each heir (pp. 530, 544, t. s. n., Id.) and on redirect she testifies that she saw the
signature of her father, Go Toh, Manuel Lopez and Alberto Barretto (p. 546, t. s. n., Id.).
Anastacio Teodoro testifies that one day in November 1934 (p. 273, t. s. n., hearing of 19 January 1948), before the last postponement of the hearing granted by the Court, Go Toh arrived at his law office in
the De los Reyes Building and left an envelope wrapped in red handkerchief [Exhibit C] (p. 32, t. s. n., hearing of 13 October 1947); that he checked up the signatures on the envelope Exhibit A with those on the will
placed in the envelope (p. 33, t.s.n., Id.); that the will was exactly the same as the draft Exhibit B (pp. 32, 47, 50, t. s. n., Id.).
If the will was snatched after the delivery thereof by Go Toh to Anastacio Teodoro and returned by the latter to the former because they could not agree on the amount of fees, the former coming to the
latter's office straight from the boat (p. 315, t. s. n., hearing of 19 January 1948) that brought him to the Philippines from Amoy, and that delivery took place in November 1934 (p. 273, t. s. n., Id.), then the testimony of
Ana Suntay that she saw and heard her brother Apolonio Suntay read the will sometime in September 1934 (p. 524, t. s. n., hearing of 24 February 1948), must not be true.
Although Ana Suntay would be a good witness because she was testifying against her own interest, still the fact remains that she did not read the whole will but only the adjudication (pp. 526-8, 530- 1, 542,
t. s. n., Id.) and saw only the signature, of her father and of the witnesses Go Toh, Manuel Lopez and Alberto Barretto (p. 546, t. s. n., Id.). But her testimony on cross-examination that she read the part of the will on
adjudication is inconsistent with her testimony in chief that after Apolonio had read that part of the will he turned over or handed the document to Manuel who went away (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 of 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 of 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 wills 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 is 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 court, 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 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 to a deposition or to a perpetuation of testimony, and even if it were so it does not measure 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.
||| (Suntay v. Suntay, G.R. Nos. L-3087 & L-3088, [July 31, 1954], 95 PHIL 500-553)
DY YIENG SEANGIO, BARBARA D. SEANGIO and VIRGINIA D. SEANGIO, petitioners, vs. HON. AMOR A. REYES, in her capacity as Presiding Judge, Regional Trial Court, National Capital Judicial
Region, Branch 21, Manila, ALFREDO D. SEANGIO, ALBERTO D. SEANGIO, ELISA D. SEANGIO-SANTOS, VICTOR D. SEANGIO, ALFONSO D. SEANGIO, SHIRLEY D. SEANGIO-LIM, BETTY D.
SEANGIO-OBAS and JAMES D. SEANGIO, respondents.
DECISION
AZCUNA, J p:
This is a petition for certiorari 1 with application for the issuance of a writ of preliminary injunction and/or temporary restraining order seeking the nullification of the orders, dated August 10, 1999 and October 14, 1999, of
the Regional Trial Court of Manila, Branch 21 (the RTC), dismissing the petition for probate on the ground of preterition, in the consolidated cases, docketed as SP. Proc. No. 98-90870 and SP. Proc. No. 99-93396, and
entitled, "In the Matter of the Intestate Estate of Segundo C. Seangio v. Alfredo D. Seangio, et al." and "In the Matter of the Probate of the Will of Segundo C. Seangio v. Dy Yieng Seangio, Barbara D. Seangio and Virginia
Seangio."
The facts of the cases are as follows:
On September 21, 1988, private respondents filed a petition for the settlement of the intestate estate of the late Segundo Seangio, docketed as Sp. Proc. No. 98-90870 of the RTC, and praying for the appointment of
private respondent Elisa D. Seangio-Santos as special administrator and guardian ad litem of petitioner Dy Yieng Seangio.
Petitioners Dy Yieng, Barbara and Virginia, all surnamed Seangio, opposed the petition. They contended that: 1) Dy Yieng is still very healthy and in full command of her faculties; 2) the deceased Segundo executed a
general power of attorney in favor of Virginia giving her the power to manage and exercise control and supervision over his business in the Philippines; 3) Virginia is the most competent and qualified to serve as the
administrator of the estate of Segundo because she is a certified public accountant; and, 4) Segundo left a holographic will, dated September 20, 1995, disinheriting one of the private respondents, Alfredo Seangio, for
cause. In view of the purported holographic will, petitioners averred that in the event the decedent is found to have left a will, the intestate proceedings are to be automatically suspended and replaced by the proceedings
for the probate of the will.
On April 7, 1999, a petition for the probate of the holographic will of Segundo, docketed as SP. Proc. No. 99-93396, was filed by petitioners before the RTC. They likewise reiterated that the probate proceedings should take
precedence over SP. Proc. No. 98-90870 because testate proceedings take precedence and enjoy priority over intestate proceedings. 2
The document that petitioners refer to as Segundo's holographic will is quoted, as follows:
Kasulatan sa pag-aalis ng mana
Tantunin ng sinuman
Ako si Segundo Seangio Filipino may asawa naninirahan sa 465-A Flores St., Ermita, Manila at nagtatalay ng maiwanag na pag-iisip at disposisyon ay tahasan at hayagang inaalisan ko ng lahat at
anumang mana ang paganay kong anak na si Alfredo Seangio dahil siya ay naging lapastangan sa akin at isan beses siya ng sasalita ng masama harapan ko at mga kapatid niya na si Virginia
Seangio labis kong kinasama ng loob ko at sasabe rin ni Alfredo sa akin na ako nasa ibabaw gayon gunit daratin ang araw na ako nasa ilalim siya at siya nasa ibabaw. IaEScC
Labis kong ikinasama ng loob ko ang gamit ni Alfredo ng akin pagalan para makapagutang na kuarta siya at kanya asawa na si Merna de los Reyes sa China Bangking Corporation na millon pesos
at hindi ng babayad at hindi ng babayad ito ay nagdulot sa aking ng malaking kahihiya sa mga may-ari at stockholders ng China Banking.
At ikinagalit ko pa rin ang pagkuha ni Alfredo at ng kanyang asawa na mga custome[r] ng Travel Center of the Philippines na pinagasiwaan ko at ng anak ko si Virginia.
Dito ako nagalit din kaya gayon ayoko na bilanin si Alfredo ng anak ko at hayanan kong inaalisan ng lahat at anoman mana na si Alfredo at si Alfredo Seangio ay hindi ko siya anak at hindi siya
makoha mana.
Nila[g]daan ko ngayon ika 20 ng Setyembre 1995 sa longsod ng Manila sa harap ng tatlong saksi. 3
(signed)
Segundo Seangio
Nilagdaan sa harap namin
(signed)
Dy Yieng Seangio (signed)
Unang Saksi ikalawang saksi
(signed)
ikatlong saksi
On May 29, 1999, upon petitioners' motion, SP. Proc. No. 98-90870 and SP. Proc. No. 99-93396 were consolidated. 4
On July 1, 1999, private respondents moved for the dismissal of the probate proceedings 5 primarily on the ground that the document purporting to be the holographic will of Segundo does not contain any disposition of the
estate of the deceased and thus does not meet the definition of a will under Article 783 of the Civil Code. According to private respondents, the will only shows an alleged act of disinheritance by the decedent of his eldest
son, Alfredo, and nothing else; that all other compulsory heirs were not named nor instituted as heir, devisee or legatee, hence, there is preterition which would result to intestacy. Such being the case, private respondents
maintained that while procedurally the court is called upon to rule only on the extrinsic validity of the will, it is not barred from delving into the intrinsic validity of the same, and ordering the dismissal of the petition for
probate when on the face of the will it is clear that it contains no testamentary disposition of the property of the decedent.
Petitioners filed their opposition to the motion to dismiss contending that: 1) generally, the authority of the probate court is limited only to a determination of the extrinsic validity of the will; 2) private respondents question the
intrinsic and not the extrinsic validity of the will; 3) disinheritance constitutes a disposition of the estate of a decedent; and, 4) the rule on preterition does not apply because Segundo's will does not constitute a universal
heir or heirs to the exclusion of one or more compulsory heirs. 6
On August 10, 1999, the RTC issued its assailed order, dismissing the petition for probate proceedings:
A perusal of the document termed as "will" by oppositors/petitioners Dy Yieng Seangio, et al., clearly shows that there is preterition, as the only heirs mentioned thereat are Alfredo and Virginia.

[T]he other heirs being omitted, Article 854 of the New Civil Code thus applies. However, insofar as the widow Dy Yieng Seangio is concerned, Article 854 does not apply, she not being a
compulsory heir in the direct line.
As such, this Court is bound to dismiss this petition, for to do otherwise would amount to an abuse of discretion. The Supreme Court in the case of Acain v. Intermediate Appellate Court [155 SCRA
100 (1987)] has made its position clear: "for . . . respondents to have tolerated the probate of the will and allowed the case to progress when, on its face, the will appears to be intrinsically void . . .
would have been an exercise in futility. It would have meant a waste of time, effort, expense, plus added futility. The trial court could have denied its probate outright or could have passed upon the
intrinsic validity of the testamentary provisions before the extrinsic validity of the will was resolved (underscoring supplied).
WHEREFORE, premises considered, the Motion to Suspend Proceedings is hereby DENIED for lack of merit. Special Proceedings No. 99-93396 is hereby DISMISSED without pronouncement as
to costs. aDHCEA
SO ORDERED. 7
Petitioners' motion for reconsideration was denied by the RTC in its order dated October 14, 1999.
Petitioners contend that:
THE RESPONDENT JUDGE ACTED IN EXCESS OF HER JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION AND DECIDED
A QUESTION OF LAW NOT IN ACCORD WITH LAW AND JURISPRUDENCE IN ISSUING THE QUESTIONED ORDERS, DATED 10 AUGUST 1999 AND 14 OCTOBER 1999 (ATTACHMENTS
"A" AND "B" HEREOF) CONSIDERING THAT:
I
THE RESPONDENT JUDGE, WITHOUT EVEN COMPLYING WITH SECTIONS 3 AND 4 OF RULE 76 OF THE RULES OF COURT ON THE PROPER PROCEDURE FOR SETTING THE CASE
FOR INITIAL HEARING FOR THE ESTABLISHMENT OF THE JURISDICTIONAL FACTS, DISMISSED THE TESTATE CASE ON THE ALLEGED GROUND THAT THE TESTATOR'S WILL IS VOID
ALLEGEDLY BECAUSE OF THE EXISTENCE OF PRETERITION, WHICH GOES INTO THE INTRINSIC VALIDITY OF THE WILL, DESPITE THE FACT THAT IT IS A SETTLED RULE THAT THE
AUTHORITY OF PROBATE COURTS IS LIMITED ONLY TO A DETERMINATION OF THE EXTRINSIC VALIDITY OF THE WILL, I.E., THE DUE EXECUTION THEREOF, THE TESTATOR'S
TESTAMENTARY CAPACITY AND THE COMPLIANCE WITH THE REQUISITES OR SOLEMNITIES PRESCRIBED BY LAW;
II
EVEN ASSUMING ARGUENDO THAT THE RESPONDENT JUDGE HAS THE AUTHORITY TO RULE UPON THE INTRINSIC VALIDITY OF THE WILL OF THE TESTATOR, IT IS INDUBITABLE
FROM THE FACE OF THE TESTATOR'S WILL THAT NO PRETERITON EXISTS AND THAT THE WILL IS BOTH INTRINSICALLY AND EXTRINSICALLY VALID; AND,
III
RESPONDENT JUDGE WAS DUTY BOUND TO SUSPEND THE PROCEEDINGS IN THE INTESTATE CASE CONSIDERING THAT IT IS A SETTLED RULE THAT TESTATE PROCEEDINGS
TAKE PRECEDENCE OVER INTESTATE PROCEEDINGS.
Petitioners argue, as follows:
First, respondent judge did not comply with Sections 3 and 4 of Rule 76 of the Rules of Court which respectively mandate the court to: a) fix the time and place for proving the will when all concerned may appear to contest
the allowance thereof, and cause notice of such time and place to be published three weeks successively previous to the appointed time in a newspaper of general circulation; and, b) cause the mailing of said notice to the
heirs, legatees and devisees of the testator Segundo;
Second, the holographic will does not contain any institution of an heir, but rather, as its title clearly states, Kasulatan ng Pag-Aalis ng Mana, simply contains a disinheritance of a compulsory heir. Thus, there is no
preterition in the decedent's will and the holographic will on its face is not intrinsically void;
Third, the testator intended all his compulsory heirs, petitioners and private respondents alike, with the sole exception of Alfredo, to inherit his estate. None of the compulsory heirs in the direct line of Segundo were
preterited in the holographic will since there was no institution of an heir;
Fourth, inasmuch as it clearly appears from the face of the holographic will that it is both intrinsically and extrinsically valid, respondent judge was mandated to proceed with the hearing of the testate case; and,
Lastly, the continuation of the proceedings in the intestate case will work injustice to petitioners, and will render nugatory the disinheritance of Alfredo. CDAHaE
The purported holographic will of Segundo that was presented by petitioners was dated, signed and written by him in his own handwriting. Except on the ground of preterition, private respondents did not raise any issue as
regards the authenticity of the document.
The document, entitled Kasulatan ng Pag-Aalis ng Mana, unmistakably showed Segundo's intention of excluding his eldest son, Alfredo, as an heir to his estate for the reasons that he cited therein. In effect, Alfredo was
disinherited by Segundo.
For disinheritance to be valid, Article 916 of the Civil Code requires that the same must be effected through a will wherein the legal cause therefor shall be specified. With regard to the reasons for the disinheritance that
were stated by Segundo in his document, the Court believes that the incidents, taken as a whole, can be considered a form of maltreatment of Segundo by his son, Alfredo, and that the matter presents a sufficient cause
for the disinheritance of a child or descendant under Article 919 of the Civil Code:
Article 919. The following shall be sufficient causes for the disinheritance of children and descendants, legitimate as well as illegitimate:
(1) When a child or descendant has been found guilty of an attempt against the life of the testator, his or her spouse, descendants, or ascendants;
(2) When a child or descendant has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found groundless;
(3) When a child or descendant has been convicted of adultery or concubinage with the spouse of the testator;
(4) When a child or descendant by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made;
(5) A refusal without justifiable cause to support the parents or ascendant who disinherit such child or descendant;
(6) Maltreatment of the testator by word or deed, by the child or descendant; 8
(7) When a child or descendant leads a dishonorable or disgraceful life;
(8) Conviction of a crime which carries with it the penalty of civil interdiction.
Now, the critical issue to be determined is whether the document executed by Segundo can be considered as a holographic will.
A holographic will, as provided under Article 810 of the Civil Code, must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines,
and need not be witnessed.
Segundo's document, although it may initially come across as a mere disinheritance instrument, conforms to the formalities of a holographic will prescribed by law. It is written, dated and signed by the hand of Segundo
himself. An intent to dispose mortis causa 9 can be clearly deduced from the terms of the instrument, and while it does not make an affirmative disposition of the latter's property, the disinheritance of Alfredo, nonetheless,
is an act of disposition in itself. In other words, the disinheritance results in the disposition of the property of the testator Segundo in favor of those who would succeed in the absence of Alfredo. 10
Moreover, it is a fundamental principle that the intent or the will of the testator, expressed in the form and within the limits prescribed by law, must be recognized as the supreme law in succession. All rules of construction
are designed to ascertain and give effect to that intention. It is only when the intention of the testator is contrary to law, morals, or public policy that it cannot be given effect. 11
Holographic wills, therefore, being usually prepared by one who is not learned in the law, as illustrated in the present case, should be construed more liberally than the ones drawn by an expert, taking into account the
circumstances surrounding the execution of the instrument and the intention of the testator. 12 In this regard, the Court is convinced that the document, even if captioned as Kasulatan ng Pag-Aalis ng Mana, was intended
by Segundo to be his last testamentary act and was executed by him in accordance with law in the form of a holographic will. Unless the will is probated, 13 the disinheritance cannot be given effect. 14

With regard to the issue on preterition, 15 the Court believes that the compulsory heirs in the direct line were not preterited in the will. It was, in the Court's opinion, Segundo's last expression to bequeath his estate to all his
compulsory heirs, with the sole exception of Alfredo. Also, Segundo did not institute an heir 16 to the exclusion of his other compulsory heirs. The mere mention of the name of one of the petitioners, Virginia, in the
document did not operate to institute her as the universal heir. Her name was included plainly as a witness to the altercation between Segundo and his son, Alfredo. HSEIAT
Considering that the questioned document is Segundo's holographic will, and that the law favors testacy over intestacy, the probate of the will cannot be dispensed with. Article 838 of the Civil Code provides that no will
shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court. Thus, unless the will is probated, the right of a person to dispose of his property may be rendered nugatory.
17
In view of the foregoing, the trial court, therefore, should have allowed the holographic will to be probated. It is settled that testate proceedings for the settlement of the estate of the decedent take precedence over intestate
proceedings for the same purpose. 18
WHEREFORE, the petition is GRANTED. The Orders of the Regional Trial Court of Manila, Branch 21, dated August 10, 1999 and October 14, 1999, are set aside. Respondent judge is directed to reinstate and hear SP
Proc. No. 99-93396 for the allowance of the holographic will of Segundo Seangio. The intestate case or SP. Proc. No. 98-90870 is hereby suspended until the termination of the aforesaid testate proceedings.
No costs.
SO ORDERED.
Puno, Sandoval-Gutierrez, Corona and Garcia, JJ., concur.
||| (Dy Yieng Seangio v. Reyes, G.R. Nos. 140371-72, [November 27, 2006], 538 PHIL 40-52)
ERNESTO M. GUEVARA, petitioner-appellant, vs. ROSARIO GUEVARA and her husband PEDRO BUISON, respondents-appellees.
Primicias, Abad, Mencias & Castillo for appellant.
Pedro C. Quinto for appellees.
SYLLABUS
1. WILLS; PRESENTATION OF WILL FOR PROBATE IS MANDATORY; SETTLEMENT OF ESTATE ON BASIS OF INTESTACY WHEN DECEDENT LEFT A WILL, AGAINST THE LAW. We hold
that under section 1 of Rule 74, in relation to Rule 76, if the decedent left a will and no debts and the heirs and legatees desire to make an extrajudicial partition of the estate, they must first present that will to
the court for probate and divide the estate in accordance with the will. They may not disregard the provisions of the will unless those provisions are contrary to law. Neither may they do away with the
presentation of the will to the court for probate, because such suppression of the will is contrary to law and public policy. The law enjoins the probate of the will and public policy requires it, because unless the
will is probated and notice thereof given to the whole world, the right of a person to dispose of his property by will may be rendered nugatory, as is attempted to be done in the instant case. Absent legatees and
devisees, or such of them as may have no knowledge of the will, could be cheated of their inheritance thru the collusion of some of the heirs who might agree to the partition of the estate among themselves to
the exclusion of others.
2. ID.; ID.; ID. Even if the decedent left no debts and nobody raises any question as to the authenticity and due execution of the will, none of the heirs may sue for the partition of the estate in
accordance with that will without first securing its allowance or probate of the court: first, because the law expressly provides that "no will shall pass either real or personal estate unless it is proved and allowed
in the proper court"; and, second, because the probate of a will, which is a proceeding in rem, cannot be dispensed with and substituted by any other proceeding, judicial or extrajudicial, without offending
against public policy designed to effectuate the testator's right to dispose of his property by will in accordance with law and to protect the rights of the heirs and legatees under the will thru the means provided
by law, among which are the publication and the personal notices to each and all of said heirs and legatees. Nor may the court approve and allow the will presented in evidence in such an action for partition,
which is one in personam, any more than it could decree the registration under the Torrens system of the land involved in an ordinary action for reivindicacion or partition.
3. TORRENS REGISTRATION; REGISTRATION DOES NOT AFFECT RIGHTS OF PARTITION BETWEEN LEGATEES. It results that the interested parties consented to the registration of the
land in question in the name of E. M. G. alone subject to the implied trust on account of which he is under obligation to deliver and convey to them their corresponding shares after all the debts of the original
owner of said land had been paid. Such finding does not constitute a reversal of the decision and decree of registration, which merely confirmed the petitioner's title; and in the absence of any intervening
innocent third party, the petitioner may be compelled to fulfill the promise by virtue of which he acquired his title. That is authorized by section 70 of the Land Registration Act, cited by the Court of Appeals, and
by the decision of this Court in Severino vs. Severino, 44 Phil., 343, and the cases therein cited.
DECISION
OZAETA, J p:
Ernesto M. Guevara and Rosario Guevara, legitimate son and natural daughter, respectively, of the deceased Victorino L. Guevara, are litigating here over their inheritance from the latter. The action was
commenced on November 12, 1937, by Rosario Guevara to recover from Ernesto Guevara what she claims to be her strict ligitime as an acknowledged natural daughter of the deceased to wit, a portion of 423,492
square meters of a large parcel of land described in original certificate of title No. 51691 of the province of Pangasinan, issued in the name of Ernesto M. Guevara and to order the latter to pay her P6,000 plus
P2,000 a year as damages for withholding such legitime from her. The defendant answered the complaint contending that whatever right or rights the plaintiff might have had, had been barred by the operation of law.
It appears that on August 26, 1931, Victorino L. Guevara executed a will (exhibit A), apparently with all the formalities of the law, wherein he made the following bequests: To his stepdaughter Candida
Guevara, a pair of earrings worth P150 and a gold chain worth P40; to his son Ernesto M. Guevara, a gold ring worth P180 and all the furniture, pictures, statues, and other religious objects found in the residence of
the testator in Poblacion Sur, Bayambang, Pangasinan; "a mi hija Rosario Guevara," a pair of earrings worth P120; to his stepson Pio Guevara, a ring worth P120; and to his wife by second marriage, Angustia
Posadas, various pieces of jewelry worth P1,020.
He also made the following devises: "A mis hijos Rosario Guevara y Ernesto M. Guevara y a mis hijastros, Vivencio, Eduviges, Dionisia, Candida y Pio, apellidados Guevara," a residential lot with its
improvements situate in the town of Bayambang, Pangasinan, having an area of 960 square meters and assessed at P540; to his wife Angustia Posadas he confirmed the donation propter nuptias theretofore made
by him to her of a portion of 25 hectares of the large parcel of land of 259-odd hectares described in plan Psu-66618. He also devised to her a portion of 5 hectares of the same parcel of land by way of complete
settlement of her usufructuary right.
He set aside 100 hectares of the same parcel of land to be disposed of either by him during his lifetime or by his attorney-in-fact Ernesto M. Guevara in order to pay all his pending debts and to defray his
expenses and those of his family up to the time of his death.
The remander of said parcel of land he disposed of in the following manner:
"(d). Toda la porcion restante de mi terreno arriba descrito, de la extension superficial aproximada de ciento veintinueve (129) hectareas setenta (70) areas, y veinticinco (25)
centiareas, con todas sus mejoras existentes en la misma, dejo y distribuyo, pro-indiviso, a mis siguientes herederos como sigue:
"A mi hijo legitimo, Ernesto M. Guevara, ciento ocho (108) hectareas, ocho (8) areas y cincuenta y cuatro (54) centiareas, hacia la parte que colinda al Oeste de las cien (100) hectareas
referidas en el inciso (a) de este parrafo del testamento, como su propiedad absoluta y exclusiva, en la cual extension superficial estan incluidas cuarenta y tres (43) hectareas, veintitres (23) areas
y cuarenta y dos (42) centiareas que le doy en concepto de mejora.
"A mi hija natural reconocida, Rosario Guevara, veintiun (21) hectareas, sesenta y un (61) areas y setenta y un (71) centiareas, que es la parte restante.
"Duodecimo. Nombro por la presente como Albacea Testamentario a mi hijo Ernesto M. Guevara, con relevacion de fianza. Y una vez legalizado este testamento, y en cuanto sea
posible, es mi deseo, que los herederos y legatarios aqui nombrados se repartan extrajudicialmente mis bienes de conformidad con mis disposiciones arriba consignadas."
Subsequently, and on July 12, 1933, Victorino L. Guevara executed a deed of sale (exhibit 2) in favor of Ernesto M. Guevara whereby he conveyed to him the southern half of the large parcel of land of
which he had theretofore disposed by the will above mentioned, in consideration of the sum of P1 and other valuable considerations, among which were the payment of all his debts and obligations amounting to not
less than P16,500, his maintenance up to his death, and the expenses of his last illness and funeral expenses. As to the northern half of the same parcel of land, he declared: "Hago constar tambien que reconozco a

mi referido hijo Ernesto M. Guevara como dueo de la mitad norte de la totalidad y conjunto de los referidos terrenos por haberlos comprado de su propio peculio del Sr. Rafael T. Puzon a quien habia vendido con
anterioridad."
On September 27, 1933, final decree of registration was issued in land registration case No. 15174 of the Court of First Instance of Pangasinan, and pursuant thereto original certificate of title No. 51691 of
the same province was issued on October 12 of the same year in favor of Ernesto M. Guevara over the whole parcel of land described in the deed of sale above referred to. The registration proceeding had been
commenced on November 1, 1932, by Victorino L. Guevara and Ernesto M. Guevara as applicants, with Rosario, among others, as oppositor; but before the trial of the case Victorino L. Guevara withdrew as applicant
and Rosario Guevara and her co-oppositors also withdrew their opposition, thereby facilitating the issuance of the title in the name of Ernesto M. Guevara alone.
On September 27, 1933, Victorino L. Guevara died. His last will and testament, however, was never presented to the court for probate, nor has any administration proceeding ever been instituted for the
settlement of his estate. Whether the various legatees mentioned in the will have received their respective legacies or have even been given due notice of the execution of said will and of the dispositions therein made
in their favor, does not affirmatively appear from the record of this case. Ever since the death of Victorino L. Guevara, his only legitimate son Ernesto M. Guevara appears to have possessed the land adjudicated to
him in the registration proceeding and to have disposed of various portions thereof for the purpose of paying the debts left by his father.
In the meantime Rosario Guevara, who appears to have had her father's last will and testament in her custody, did nothing judicially to invoke the testamentary dispositions made therein in her favor,
whereby the testator acknowledged her as his natural daughter and, aside from certain legacies and bequests, devised to her a portion of 21.6171 hectares of the large parcel of land described in the will. But a little
over four years after the testator's demise, she (assisted by her husband) commenced the present action against Ernesto M. Guevara alone for the purpose hereinbefore indicated; and it was only during the trial of
this case that she presented the will to the court, not for the purpose of having it probated but only to prove that the deceased Victorino L. Guevara had acknowledged her as his natural daughter. Upon that proof of
acknowledgment she claimed her share of the inheritance from him, but on the theory or assumption that he died intestate, because the will had not been probated, for which reason, she asserted, the betterment
therein made by the testator in favor of his legitimate son Ernesto M. Guevara should be disregarded. Both the trial court and the Court of Appeals sustained that theory.
Two principal questions are before us for determination: (1) the legality of the procedure adopted by the plaintiff (respondent herein) Rosario Guevara; and (2) the efficacy of the deed of sale exhibit 2 and
the effect of the certificate of title issued to the defendant (petitioner herein) Ernesto M. Guevara.
I
We cannot sanction the procedure adopted by the respondent Rosario Guevara, it being in our opinion in violation of procedural law and an attempt to circumvent and disregard the last will and testament of
the decedent. The Code of Civil Procedure, which was in force up to the time this case was decided by the trial court, contains the following pertinent provisions:
"Sec. 625. Allowance Necessary, and Conclusive as to Execution. No will shall pass either the real or personal estate, unless it is proved and allowed in the Court of First
Instance, or by appeal to the Supreme Court; and the allowance by the court of a will of real and personal estate shall be conclusive as to its due execution.
"Sec. 626. Custodian of Will to Deliver. The person who has the custody of a will shall, within thirty days after he knows of the death of the testator, deliver the will into the court
which has jurisdiction, or to the executor named in the will.
"Sec. 627. Executor to Present Will and Accept or Refuse Trust. A person named as executor in a will, shall within thirty days after he knows of the death of the testator, or within
thirty days after he knows that he is named executor, if he obtained such knowledge after knowing of the death of the testator, present such will to the court which has jurisdiction, unless the
will has been otherwise returned to said court, and shall, within such period, signify to the court his acceptance of the trust, or make known in writing his refusal to accept it.
"Sec. 628. Penalty. A person who neglects any of the duties required in the two preceding sections, unless he gives a satisfactory excuse to the court, shall be subject to a fine
not exceeding one thousand dollars.
"Sec. 629. Person Retaining Will may be Committed. If a person having custody of a will after the death of the testator neglects without reasonable cause to deliver the same to
the court having jurisdiction, after notice by the court so to do, he may be committed to the prison of the province by a warrant issued by the court, and there kept in close confinement until he
delivers the will."
The foregoing provisions are now embodied in Rule 76 of the new Rules of Court, which took effect on July 1, 1940.
The proceeding for the probate of a will is one in rem, with notice by publication to the whole world and with personal notice to each of the known heirs, legatees, and devisees of the testator (section 630,
C. C. P., and sections 3 and 4, Rule 77). Altho not contested (section 5, Rule 77), the due execution of the will and the fact that the testator at the time of its execution was of sound and disposing mind and not acting
under duress, menace, and undue influence or fraud, must be proved to the satisfaction of the court, and only then may the will be legalized and given effect by means of a certificate of its allowance, signed by the
judge and attested by the seal of the court; and when the will devises real property, attested copies thereof and of the certificate of allowance must be recorded in the register of deeds of the province in which the land
lies. (Section 12, Rule 77, and section 624, C. C. P.)
It will readily be seen from the above provisions of the law that the presentation of a will to the court for probate is mandatory and its allowance by the court is essential and indispensable to its efficacy. To
assure and compel the probate of a will, the law punishes a person who neglects his duty to present it to the court with a fine not exceeding P2,000, and if he should persist in not presenting it, he may be committed to
prison and kept there until he delivers the will.
The Court of Appeals took express notice of these requirements of the law and held that a will, unless probated, is ineffective. Nevertheless it sanctioned the procedure adopted by the respondent for the
following reasons:
"The majority of the Court is of the opinion that if this case is dismissed ordering the filing of testate proceedings, it would cause injustice, inconvenience, delay, and much expense to the
parties, and that therefore, it is preferable to leave them in the very status which they themselves have chosen, and to decide their controversy once and for all, since, in a similar case, the Supreme
Court applied that same criterion ( Leao vs. Leao, supra), which is now sanctioned by section 1 of Rule 74 of the Rules of Court. Besides, section 6 of Rule 124 provides that, if the procedure
which the court ought to follow in the exercise of its jurisdiction is not specifically pointed out by the Rules of Court, any suitable process or mode of procedure may be adopted which appears most
consistent to the spirit of the said Rules. Hence, we declare the action instituted by the plaintiff to be in accordance with law."
Let us look into the validity of these considerations. Section 1 of Rule 74 provides as follows:
"Section 1. Extrajudicial settlement by agreement between heirs. If the decedent left no debts and the heirs and legatees are all of age, or the minors are represented by their
judicial guardians, the parties may, without securing letters of administration, divide the estate among themselves as they see fit by means of a public instrument filed in the office of the
register of deeds, and should they disagree, they may do so in an ordinary action of partition. If there is only one heir or one legatee, he may adjudicate to himself the entire estate by means
of an affidavit filed in the office of the register of deeds. It shall be presumed that the decedent left no debts if no creditor files a petition for letters of administration within two years after the
death of the decedent."
That is a modification of section 596 of the Code of Civil Procedure, which reads as follows:
"Sec. 596. Settlement of Certain Intestates Without Legal Proceedings. Whenever all the heirs of a person who died intestate are of lawful age and legal capacity and there are
no debts due from the estate, or all the debts have been paid the heirs may, by agreement duly executed in writing by all of them, and not otherwise, apportion and divide the estate among
themselves, as they may see fit, without proceedings in court."
The implication is that by the omission of the word "intestate" and the use of the word "legatees" in section 1 of Rule 74, a summary extrajudicial settlement of a deceased person's estate, whether he died
testate or intestate, may be made under the conditions specified. Even if we give retroactive effect to section 1 of Rule 74 and apply it here, as the Court of Appeals did, we do not believe it sanctions the
nonpresentation of a will for probate and much less the nullification of such will thru the failure of its custodian to present it to the court for probate; for such a result is precisely what Rule 76 sedulously provides
against. Section 1 of Rule 74 merely authorizes the extrajudicial or judicial partition of the estate of a decedent "without securing letters of administration." It does not say that in case the decedent left a will the heirs

and legatees may divide the estate among themselves without the necessity of presenting the will to the court for probate. The petition to probate a will and the petition to issue letters of administration are two different
things, altho both may be made in the same case. The allowance of a will precedes the issuance of letters testamentary or of administration (section 4, Rule 78). One can have a will probated without necessarily
securing letters testamentary or of administration. We hold that under section 1 of Rule 74, in relation to Rule 76, if the decedent left a will and no debts and the heirs and legatees desire to make an extrajudicial
partition of the estate, they must first present that will to the court for probate and divide the estate in accordance with the will. They may not disregard the provisions of the will unless those provisions are contrary to
law. Neither may they do away with the presentation of the will to the court for probate, because such suppression of the will is contrary to law and public policy. The law enjoins the probate of the will and public policy
requires it, because unless the will is probated and notice thereof given to the whole world, the right of a person to dispose of his property by will may be rendered nugatory, as is attempted to be done in the instant
case. Absent legatees and devisees, or such of them as may have no knowledge of the will, could be cheated of their inheritance thru the collusion of some of the heirs who might agree to the partition of the estate
among themselves to the exclusion of others.
In the instant case there is no showing that the various legatees other than the present litigants had received their respective legacies or that they had knowledge of the existence and of the provisions of
the will. Their right under the will cannot be disregarded, nor may those rights be obliterated on account of the failure or refusal of the custodian of the will to present it to the court for probate.
Even if the decedent left no debts and nobody raises any question as to the authenticity and due execution of the will, none of the heirs may sue for the partition of the estate in accordance with that will
without first securing its allowance or probate by the court, first, because the law expressly provides that "no will shall pass either real or personal estate unless it is proved and allowed in the proper court"; and,
second, because the probate of a will, which is a proceeding in rem, cannot be dispensed with and substituted by any other proceeding, judicial or extrajudicial, without offending against public policy designed to
effectuate the testator's right to dispose of his property by will in accordance with law and to protect the rights of the heirs and legatees under the will thru the means provided by law, among which are the publication
and the personal notices to each and all of said heirs and legatees. Nor may the court approve and allow the will presented in evidence in such an action for partition, which is one in personam, any more than it could
decree the registration under the Torrens system of the land involved in an ordinary action for reivindicacion or partition.
We therefore believe and so hold that section 1 of Rule 74, relied upon by the Court of Appeals, does not sanction the procedure adopted by the respondent.
The case of Leao vs. Leao (25 Phil., 180), cited by the Court of Appeals, like section 1 of Rule 74, sanctions the extrajudicial partition by the heirs of the properties left by a decedent, but not the
nonpresentation of a will for probate. In that case one Paulina Ver executed a will on October 11, 1902, and died on November 1, 1902. Her will was presented for probate on November 10, 1902, and was approved
and allowed by the Court on August 16, 1904. In the meantime, and on November 10, 1902, the heirs went ahead and divided the properties among themselves and some of them subsequently sold and disposed of
their shares to third persons. It does not affirmatively appear in the decision in that case that the partition made by the heirs was not in accordance with the will or that they in any way disregarded the will. In closing
the case by its order dated September 1, 1911, the trial court validated the partition, and one of the heirs, Cunegunda Leao, appealed. In deciding the appeal this Court said:
"The principal assignment of error is that the lower court committed an error in deciding that the heirs and legatees of the estate of Da. Paulina Ver had voluntarily divided the estate
among themselves."
In resolving that question this Court said:
"In view of the positive finding of the judge of the lower court that there had been a voluntary partition of the estate among the heirs and legatees, and in the absence of positive proof to
the contrary, we must conclude that the lower court had some evidence to support its conclusion."
Thus it will be seen that as a matter of fact no question of law was raised and decided in that case. That decision cannot be relied upon as an authority for the unprecedented and unheard of procedure
adopted by the respondent whereby she seeks to prove her status as an acknowledged natural child of the decedent by his will and attempts to nullify and circumvent the testamentary dispositions made by him by not
presenting the will to the court for probate and by claiming her legitime as an acknowledged natural child on the basis of intestacy; and that in the face of express mandatory provisions of the law requiring her to
present the will to the court for probate.
In the subsequent case of Riosa vs. Rocha (1926), 48 Phil. 737, this Court departed from the procedure sanctioned by the trial court and impliedly approved by this Court in the Leao case, by holding that
an extrajudicial partition is not proper in testate succession. In the Riosa case the Court, speaking thru Chief Justice Avancea, held:
"1. EXTRAJUDICIAL PARTITION; NOT PROPER IN TESTATE SUCCESSION. Section 596 of the Code of Civil Procedure, authorizing the heirs of a person who died intestate
to make extrajudicial partition of the property of the deceased, without going into any court of justice, makes express reference to intestate succession, and therefore excludes testate
succession.
"2. ID.; EFFECTS OF; TESTATE SUCCESSION. In the instant case, which is a testate succession, the heirs made an extrajudicial partition of the estate and at the same time
instituted proceeding for the probate of the will and the administration of the estate. When the time came for making the partition, they submitted to the court the extrajudicial partition
previously made by them, which the court approved. Held: That for the purposes of the reservation and the rights and obligations created thereby, in connection with the relatives benefited,
the property must not be deemed transmitted to the heirs from the time the extrajudicial partition was made, but from the time said partition was approved by the court." (Syllabus.)
The Court of Appeals also cites section 6 of Rule 124, which provides that if the procedure which the court ought to follow in the exercise of its jurisdiction is not specifically pointed out by the Rules of Court,
any suitable process or mode of proceeding may be adopted which appears most conformable to the spirit of the said Rules. That provision is not applicable here for the simple reason that the procedure which the
court ought to follow in the exercise of its jurisdiction is specifically pointed out and prescribed in detail by Rules 74, 76, and 77 of the Rules of Court.
The Court of Appeals also said "that if this case is dismissed, ordering the filing of testate proceedings, it would cause injustice, inconvenience, delay, and much expense to the parties." We see no injustice
in requiring the plaintiff not to violate but to comply with the law. On the contrary, an injustice might be committed against the other heirs and legatees mentioned in the will if the attempt of the plaintiff to nullify said will
by not presenting it to the court for probate should be sanctioned. As to the inconvenience, delay, and expense, the plaintiff herself is to blame because she was the custodian of the will and she violated the duty
imposed upon her by sections 2, 4, and 5 of Rule 76, which command her to deliver said will to the court on pain of a fine not exceeding P2,000 and of imprisonment for contempt of court. As for the defendant, he is
not complaining of inconvenience, delay, and expense, but on the contrary he is insisting that the procedure prescribed by law be followed by the plaintiff.
Our conclusion is that the Court of Appeals erred in declaring the action instituted by the plaintiff to be in accordance with law. It also erred in awarding relief to the plaintiff in this action on the basis of
intestacy of the decedent notwithstanding the proven existence of a will left by him and solely because said will has not been probated due to the failure of the plaintiff as custodian thereof to comply with the duty
imposed upon her by the law.
It is apparent that the defendant Ernesto M. Guevara, who was named executor in said will, did not take any step to have it presented to the court for probate and did not signify his acceptance of the trust
or refusal to accept it as required by section 3 of Rule 76 (formerly section 627 of the Code of Civil Procedure), because his contention is that said will, insofar as the large parcel of land in litigation is concerned, has
been superseded by the deed of sale exhibit 2 and by the subsequent issuance of the Torrens certificate of title in his favor.
II
This brings us to the consideration of the second question, referring to the efficacy of the deed of sale exhibit 2 and the effect of the certificate of title issued to the defendant Ernesto M. Guevara. So that
the parties may not have litigated here in vain insofar as that question is concerned, we deem it proper to decide it now and obviate the necessity of a new action.
The deed of sale exhibit 2 executed by and between Victorino L. Guevara and Ernesto M. Guevara before a notary public on July 12, 1933, may be divided into two parts: (a) insofar as it disposes of and
conveys to Ernesto M. Guevara the southern half of Victorino L. Guevara's hacienda of 259-odd hectares in consideration of P1 and other valuable considerations therein mentioned; and (b) insofar as it declares that
Ernesto M. Guevara became the owner of the northern half of the same hacienda by repurchasing it with his own money from Rafael T. Puzon.
A. As to the conveyance of the southern half of the hacienda to Ernesto M. Guevara in consideration of the latter's assumption of the obligation to pay all the debts of the deceased, the Court of Appeals
found it to be valid and efficacious because: "(a) it has not been proven that the charges imposed as a condition is [are] less than the value of the property; and (b) neither has it been proven that the defendant did not
comply with the conditions imposed upon him in the deed of transfer." As a matter of fact the Court of Appeals found: "It appears that the defendant has been paying the debts left by his father. To accomplish this, he

had to alienate considerable portions of the above-mentioned land. And we cannot brand such alienation as anomalous unless it is proven that they have exceeded the value of what he has acquired by virtue of the
deed of July 12, 1933, and that of his corresponding share in the inheritance." The finding of the Court of Appeals on this aspect of the case is final and conclusive upon the respondent, who did not appeal therefrom.
B. With regard to the northern half of the hacienda, the findings of fact and of law made by the Court of Appeals are as follows:
"The defendant has tried to prove that with his own money, he bought from Rafael Puzon one-half of the land in question, but the Court a quo, after considering the evidence, found it not
proven; we hold that such conclusion is well founded. The acknowledgment by the deceased, Victorino L. Guevara, of the said transactions, which was inserted incidentally in the document of July
12, 1933, is clearly belied by the fact that the money paid to Rafael Puzon came from Silvestre P. Coquia, to whom Victorino L. Guevara had sold a parcel of land with the right of repurchase. The
defendant, acting for his father, received the money and delivered it to Rafael Puzon to redeem the land in question, and instead of executing a deed of redemption in favor of Victorino L. Guevara,
the latter executed a deed of sale in favor of the defendant.
"The plaintiff avers that she withdrew her opposition to the registration of the land in the name of the defendant, because of the latter's promise that after paying all the debts of their
father, he would deliver to her and to the widow their corresponding shares. As their father then was still alive, there was no reason to require the delivery of her share and that was why she did not
insist on her opposition, trusting on the reliability and sincerity of her brother's promise. The evidence shows that such promise was really made. The registration of land under the Torrens system
does not have the effect of altering the laws of succession, or the rights of partition between coparceners, joint tenants, and other cotenants nor does it change or affect in any other way any other
rights and liabilities created by law and applicable to unregistered land (sec. 70, Land Registration Law). The plaintiff is not, then, in estoppel, nor can the doctrine of res judicata be invoked against
her claim. Under these circumstances, she has the right to compel the defendant to deliver her corresponding share in the estate left by the deceased, Victorino L. Guevara."
In his tenth to fourteenth assignments of error the petitioner assails the foregoing findings of the Court of Appeals. But the findings of fact made by said court are final and not reviewable by us on certiorari.
The Court of Appeals found that the money with which the petitioner repurchased the northern half of the land in question from Rafael Puzon was not his own but his father's, it being the proceeds of the sale of a
parcel of land made by the latter to Silvestre P. Coquia. Said court also found that the respondent withdrew her opposition to the registration of the land in the name of the petitioner upon the latter's promise that after
paying all the debts of their father he would deliver to her and to the widow their corresponding shares. From these facts, it results that the interested parties consented to the registration of the land in question in the
name of Ernesto M. Guevara alone subject to the implied trust on account of which he is under obligation to deliver and convey to them their corresponding shares after all the debts of the original owner of said land
had been paid. Such finding does not constitute a reversal of the decision and decree of registration, which merely confirmed the petitioner's title; and in the absence of any intervening innocent third party, the
petitioner may be compelled to fulfill the promise by virtue of which he acquired his title. That is authorized by section 70 of the Land Registration Act, cited by the Court of Appeals, and by the decision of this Court in
Severino vs. Severino, 44 Phil., 343, and the cases therein cited.
Upon this phase of the litigation, we affirm the finding of the Court of Appeals that the northern half of the land described in the will exhibit A and in original certificate of title No. 51691 still belongs to the
estate of the deceased Victorino L. Guevara. In the event the petitioner Ernesto M. Guevara has alienated any portion thereof, he is under obligation to compensate the estate with an equivalent portion from the
southern half of said land that has not yet been sold. In other words, to the estate of Victorino L. Guevara still belongs one half of the total area of the land described in said original certificate of title, to be taken from
such portions as have not yet been sold by the petitioner, the other half having been lawfully acquired by the latter in consideration of his assuming the obligation to pay all the debts of the deceased.
Wherefore, that part of the decision of the Court of Appeals which declares in effect that notwithstanding exhibit 2 and the issuance of original certificate of title No. 51691 in the name of Ernesto M.
Guevara, one half of the land described in said certificate of title belongs to the estate of Victorino L. Guevara and the other half to Ernesto M. Guevara in consideration of the latter's assumption of the obligation to
pay all the debts of the deceased, is hereby affirmed; but the judgment of said court insofar as it awards any relief to the respondent Rosario Guevara in this action is hereby reversed and set aside, and the parties
herein are hereby ordered to present the document exhibit A to the proper court for probate in accordance with law, without prejudice to such action as the provincial fiscal of Pangasinan may take against the
responsible party or parties under section 4 of Rule 76. After the said document is approved and allowed by the court as the last will and testament of the deceased Victorino L. Guevara, the heirs and legatees therein
named may take such action, judicial or extrajudicial, as may be necessary to partition the estate of the testator, taking into consideration the pronouncements made in part II of this opinion. No finding as to costs in
any of the three instances.
Yulo, C.J., and Hontiveros, 1 J., concur.
||| (Guevara v. Guevara, G.R. No. 48840, [December 29, 1943], 74 PHIL 479-512)
OCTAVIO S. MALOLES II, petitioner, vs. PACITA DE LOS REYES PHILLIPS, respondent.
[G.R. No. 133359. January 31, 2000.]
OCTAVIO S. MALOLES II, petitioner, vs. COURT OF APPEALS, HON. FERNANDO V. GOROSPE, JR., in his Official Capacity as Presiding Judge of RTC-Makati, Branch 61, and PACITA
PHILLIPS as the alleged executrix of the alleged will of the late Dr. Arturo de Santos, respondents.
Dollete Blanco Ejercito and Associates for petitioner.
Rodrigo Berenguer & Guno for private respondent.
SYNOPSIS
Dr. Arturo de Santos, Filipino, and a resident of Makati City, filed a petition for probate of his will in the Regional Trial Court, Branch 61, Makati, docketed as Sp. Proc. No. M-4223. Dr. De Santos alleged that he had no
compulsory heirs; that he had named in his will as sole legatee and devisee the Arturo de Santos Foundation, Inc.; that he had disposed by his will his properties with an approximate value of not less than P2,000,000.00;
and that copies of said will were in the custody of the named executrix, private respondent Pacita delos Reyes Phillips of RTC-Makati, issued an order granting the petition and allowing the will. Petitioner Octavio S.
Maloles II filed a motion for intervention claiming that as the only child of Alicia de Santos (testator's sister) and Octavio L. Maloles, Sr., he was the sole full bloodied nephew and nearest of kin of Dr. De Santos. He also
prayed for reconsideration of the order allowing the will and for the issuance of letters of administration in his name. Private respondent refiled a petition for the issuance of letters testamentary with the Regional Trial Court,
Makati, Branch 65, docketed as Sp. Proc. No. M-4343. Upon private respondent's motion, Branch 65 issued an order appointing her as special administrator of Dr. De Santos' estate. Petitioner sought to intervene in Sp.
Proc. No. M-4343 and to set aside the appointment of private respondent as special administrator. Branch 65 ordered the transfer of Sp. Proc. No. M-4343 to Branch 61 on the ground that it is related to the case before
said Branch 61 and later issued another order returning the records of the case of Sp. Proc. No. M-4343 on the ground that there was a pending case involving the Estate of decedent Arturo de Santos before said court.
Branch 65 eventually granted petitioner's motion for intervention. On petition for certiorari by private respondent, the Court of Appeals rendered a decision setting aside the order of Branch 65 on the ground that petitioner
had not shown any right or interest to intervene in Sp. Proc. No. M-4343. Hence, the present petition. Petitioner contended that the probate proceedings in Branch 61 did not terminate upon the issuance of the order
allowing the will of Dr. De Santos. He argued that the proceedings must continue until the estate is fully distributed pursuant to Section l, Rule 73, Rules of Court, and for such reason Branch 65 could not lawfully act upon
private respondent's petition for issuance of letters testamentary; that as the next of kin and creditor of the testator, he has the right to intervene in the probate proceedings. Petitioner also contended that private respondent
committed forum shopping when she filed the petition for issuance of letters testamentary, while the probate proceedings were still pending.
The Supreme Court ruled that Branch 65 had jurisdiction over Sp. Proc. No. M-4343 and there was no basis for the ruling of Branch 65 that the probate proceedings did not cease upon the allowance or disallowance of a
will but continues up to such time that the entire estate of the testator had been partitioned and distributed. The Court also ruled that even if petitioner is the next of kin of Dr. De Santos, he cannot be considered as an "heir"
because Dr. De Santos has no compulsory or forced heirs so he may legally dispose his entire estate by will. Petitioner's contention that private respondent committed forum shopping was also found by the Court
unmeritorious. There was no identity between the two petitions nor was the petition for probate filed during the pendency of the petition for issuance of letters testamentary. The petition for probate filed by Dr. De Santos,
the testator, was solely for the purpose of authenticating his will and upon allowance thereof, the proceeding was considered terminated. However, the petition for issuance of letters testamentary was filed by private
respondent for the purpose of securing authority from the court to administer the estate and put into effect the will of the testator. Said proceeding, on the other hand, terminated upon the distribution and delivery of the
legacies and devises named in the will.
SYLLABUS

1. REMEDIAL LAW; SPECIAL PROCEEDINGS; SETTLEMENT OF ESTATES OF DECEASED PERSONS; VENUE; INSOFAR AS THE VENUE OF PETITIONS FOR PROBATE OF WILLS IS CONCERNED, IT DOES
NOT BAR OTHER BRANCHES OF THE SAME COURT FROM TAKING COGNIZANCE OF THE SETTLEMENT OF THE ESTATE OF THE TESTATOR AFTER HIS DEATH. The jurisdiction over probate proceedings
and settlement of estates with approximate value of over P100,000.00 (outside Metro Manila) or P200,000.00 (in Metro Manila) belongs to the regional trial courts under B.P. Blg. 129, as amended. The different branches
comprising each court in one judicial region do not possess jurisdictions independent of and incompatible with each other. It is noteworthy that, although Rule 73, 1 applies insofar as the venue of the petition for probate of
the will of Dr. De Santos is concerned, it does not bar other branches of the same court from taking cognizance of the settlement of the estate of the testator after his death. As held in the leading case of Bacalso v.
Ramolote: The various branches of the Court of First Instance of Cebu under the Fourteenth Judicial District, are a coordinate and co-equal courts, and the totality of which is only one Court of First Instance. The
jurisdiction is vested in the court, not in the judges. And when a case is filed in one branch, jurisdiction over the case does not attach to the branch or judge alone, to the exclusion of the other branches. Trial may be held or
proceedings continue by and before another branch or judge. It is for this reason that Section 57 of the Judiciary Act expressly grants to the Secretary of Justice, the administrative right or power to apportion the cases
among the different branches, both for the convenience of the parties and for the coordination of the work by the different branches of the same court. The apportionment and distribution of cases does not involve a grant or
limitation of jurisdiction, the jurisdiction attaches and continues to be vested in the Court of First Instance of the province, and the trials may be held by any branch or judge of the court. Necessarily, therefore, Branch 65 of
the RTC of Makati City has jurisdiction over Sp. Proc. No. M-4343.
2. ID.; ID.; PETITIONER HAS NO RIGHT TO INTERVENE AND OPPOSE PETITION FOR ISSUANCE OF LETTERS TESTAMENTARY BASED ON HIS ALLEGATION THAT HE IS A CREDITOR OF DECEASED, SINCE
TESTATOR INSTITUTED OR NAMED AN EXECUTOR IN HIS WILL AND IT IS INCUMBENT UPON COURT TO RESPECT DESIRES OF TESTATOR. Under Rule 79, Section 1, it has been held that an "interested
person" is one who would be benefited by the estate, such as an heir, or one who has a claim against the estate, such as a creditor, and whose interest is material and direct, not merely incidental or contingent. Even if
petitioner is the nearest next of kin of Dr. De Santos, he cannot be considered an "heir" of the testator. It is a fundamental rule of testamentary succession that one who has no compulsory or forced heirs may dispose of his
entire estate by will. Thus, Art. 842 of the Civil Code provides: One who has no compulsory heirs may dispose by will of all his estate or any part of it in favor of any person having capacity to succeed. One who has
compulsory heirs may dispose of his estate provided he does not contravene the provisions of this Code with regard to the legitimate of said heirs. Compulsory heirs are limited to the testator's (1) Legitimate children
and descendants, with respect to their legitimate parents and ascendants; (2) In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants; (3) The widow or
widower; (4) Acknowledged natural children, and natural children by legal fiction; (5) Other illegitimate children referred to in Article 287 of the Civil Code. Petitioner, as nephew of the testator, is not a compulsory heir who
may have been preterited in the testator's will. Nor does he have any right to intervene in the settlement proceedings based on his allegation that he is a creditor of the deceased. Since the testator instituted or named an
executor in his will, it is incumbent upon the Court to respect the desires of the testator. As we stated in Ozaeta v. Pecson: The choice of his executor is a precious prerogative of a testator, a necessary concomitant of his
right to dispose of his property in the manner he wishes. It is natural that the testator should desire to appoint one of his confidence, one who can be trusted to carry out his wishes in the disposal of his estate. The
curtailment of this right may be considered a curtailment of the right to dispose. Only if the appointed executor is incompetent, refuses the trust, or fails to give bond may the court appoint other persons to administer the
estate. None of these circumstances is present in this case. HaSEcA
3. ID.; CIVIL PROCEDURE; FORUM SHOPPING; NOT COMMITTED BY PRIVATE RESPONDENT'S ACT OF FILING THE PETITION FOR THE ISSUANCE OF LETTERS TESTAMENTARY WHILE THE PROBATE
PROCEEDINGS WERE STILL PENDING IN ANOTHER COURT; THERE IS NO IDENTITY BETWEEN THE TWO PETITIONS, NOR WAS THE LATTER FILED DURING THE PENDENCY OF THE FORMER. Petitioner
contends that private respondent is guilty of forum shopping when she filed the petition for issuance of letters testamentary (Sp. Proc. No. M-4343) while the probate proceedings (Sp. Proc. No. M-4223) were still pending.
According to petitioner, there is identity of parties, rights asserted, and reliefs prayed for in the two actions which are founded on the same facts, and a judgment in either will result in res judicata in the other. This
contention has no merit. As stated earlier, the petition for probate was filed by Dr. De Santos, the testator, solely for the purpose of authenticating his will. Upon the allowance of his will, the proceedings were terminated. On
the other hand, the petition for issuance of letters testamentary was filed by private respondent, as executor of the estate of Dr. De Santos, for the purpose of securing authority from the Court to administer the estate and
put into effect the will of the testator. The estate settlement proceedings commenced by the filing of the petition terminates upon the distribution and delivery of the legacies and devises to the persons named in the will.
Clearly, there is no identity between the two petitions, nor was the latter filed during the pendency of the former. There was, consequently, no forum shopping.
DECISION
MENDOZA, J p:
These are petitions for review on certiorari of the decisions of the Thirteenth and the Special Eight Divisions of the Court of Appeals which ruled that petitioner has no right to intervene in the settlement of the estate of Dr.
Arturo de Santos. The cases were consolidated considering that they involve the same parties and some of the issues raised are the same. LibLex
The facts which gave rise to these two petitions are as follows:
On July 20, 1995, Dr. Arturo de Santos, Filipino and a resident of Makati City, filed a petition for probate of his will 1 in the Regional Trial Court, Branch 61, Makati, docketed as Sp. Proc. No. M-4223. In his petition, Dr. De
Santos alleged that he had no compulsory heirs; that he had named in his will as sole legatee and devisee the Arturo de Santos Foundation, Inc.; that he disposed by his will his properties with an approximate value of not
less than P2,000,000.00; and that copies of said will were in the custody of the named executrix, private respondent Pacita de los Reyes Phillips. A copy of the will 2 was annexed to the petition for probate.
On February 16, 1996, Judge Fernando V. Gorospe, Jr. of RTC-Makati, Branch 61 issued an order granting the petition and allowing the will. The order reads:
On 03 August 1995, the Court issued an Order setting the hearing of the petition on 12 September 1995, at 8:30 o'clock in the morning, copies of which were served to Arturo de Santos Foundation,
Inc. and Ms. Pacita de los Reyes Phillips (Officer's Return, dated 04 September 1995 attached to the records). When the case was called for hearing on the date set, no oppositor appeared nor any
written opposition was ever filed and on motion of petitioner, he was allowed to adduce his evidence in support of the petition.
Petitioner personally appeared before this Court and was placed on the witness stand and was directly examined by the Court through "free wheeling" questions and answers to give this Court a
basis to determine the state of mind of the petitioner when he executed the subject will. After the examination, the Court is convinced that petitioner is of sound and disposing mind and not acting on
duress, menace and undue influence or fraud, and that petitioner signed his Last Will and Testament on his own free and voluntary will and that he was neither forced nor influenced by any other
person in signing it.
Furthermore, it appears from the petition and the evidence adduced that petitioner in his lifetime, executed his Last Will and Testament (Exhs. "A", "A-1", "A-2", "A-4", "A-5") at his residence situated
at 9 Bauhinia corner Intsia Streets, Forbes Park, Makati City; said Last Will and Testament was signed in the presence of his three (3) witnesses, namely, to wit: Dr. Elpidio Valencia (Exhs. "A-6", "A7", "A-8", "A-16", "A-16-A"), Atty. Edward J. Berenguer (Exhs. "A-3", "A-3-A", "A-9", "A-10", & "A-11"), and Atty. Victoria C. delos Reyes (Exhs. "A-12", "A-13", "A-14", "A-17", & "A-18"), who in turn, in
the presence of the testator and in the presence of each and all of the witnesses signed the said Last Will and Testament and duly notarized before Notary Public Anna Melissa L. Rosario (Exh. "A15"); on the actual execution of the Last Will and Testament, pictures were taken (Exhs. "B" to "B-3").
Petitioner has no compulsory heirs and Arturo de Santos Foundation, Inc., with address at No. 9 Bauhinia corner Intsia Streets, Forbes Park, Makati City has been named as sole legatee and
devisee of petitioner's properties, real and personal, approximately valued at not less than P2 million, Ms. Pacita de los Reyes Phillips was designated as executor and to serve as such without a
bond.
From the foregoing facts, the Court finds that the petitioner has substantially established the material allegations contained in his petition. The Last Will and Testament having been executed and
attested as required by law; that testator at the time of the execution of the will was of sane mind and/or not mentally incapable to make a Will; nor was it executed under duress or under the
influence of fear or threats; that it was in writing and executed in the language known and understood by the testator duly subscribed thereof and attested and subscribed by three (3) credible
witnesses in the presence of the testator and of another; that the testator and all the attesting witnesses signed the Last Will and Testament freely and voluntarily and that the testator has intended
that the instrument should be his Will at the time of affixing his signature thereto.
WHEREFORE, as prayed for by the petitioner (testator himself) the petition for the allowance of the Last Will and Testament of Arturo de Santos is hereby APPROVED and ALLOWED.
Shortly after the probate of his will, Dr. De Santos died on February 26, 1996.

On April 3, 1996, petitioner Octavio S. Maloles II filed a motion for intervention claiming that, as the only child of Alicia de Santos (testator's sister) and Octavio L. Maloles, Sr., he was the sole full-blooded nephew and
nearest of kin of Dr. De Santos. He likewise alleged that he was a creditor of the testator. Petitioner thus prayed for the reconsideration of the order allowing the will and the issuance of letters of administration in his name.
On the other hand, private respondent Pacita de los Reyes Phillips, the designated executrix of the will, filed a motion for the issuance of letters testamentary with Branch 61. Later, however, private respondent moved to
withdraw her motion. This was granted, while petitioner was required to file a memorandum of authorities in support of his claim that said court (Branch 61) still had jurisdiction to allow his intervention. 3
Petitioner filed his memorandum of authorities on May 13, 1996. On the other hand, private respondent, who earlier withdrew her motion for the issuance of letters testamentary in Branch 61, refiled a petition for the same
purpose with the Regional Trial Court, Makati, which was docketed as Sp. Proc. No. M-4343 and assigned to Branch 65.
Upon private respondent's motion, Judge Salvador Abad Santos of Branch 65 issued an order, dated June 28, 1996, appointing her as special administrator of Dr. De Santos's estate. cda
On July 29, 1996, petitioner sought to intervene in Sp. Proc. No. M-4343 and to set aside the appointment of private respondent as special administrator. He reiterated that he was the sole and full-blooded nephew and
nearest of kin of the testator; that he came to know of the existence of Sp. Proc. No. M-4343 only by accident; that the probate proceedings in Sp. Proc. No. M-4223 before Branch 61 of the same court was still pending;
that private respondent misdeclared the true worth of the testator's estate; that private respondent was not fit to be the special administrator of the estate; and that petitioner should be given letters of administration for the
estate of Dr. De Santos.
On August 28, 1996, Judge Abad Santos ordered the transfer of Sp. Proc. No. M-4343 to Branch 61, on the ground that "[it] is related to the case before Judge Gorospe of RTC Branch 61 . . ."
It appears, however, that in Sp. Proc. No. M-4223, Judge Gorospe had denied on August 26, 1996 petitioner's motion for intervention. Petitioner brought this matter to the Court of Appeals which, in a decision 4
promulgated on February 13, 1998, upheld the denial of petitioner's motion for intervention.
Meanwhile, Judge Gorospe issued an order, dated September 4, 1996, returning the records of Sp. Proc. No. M-4343 to Branch 65 on the ground that there was a pending case involving the Estate of Decedent Arturo de
Santos pending before said court. The order reads:
Acting on the ORDER dated 28 August 1996 of Branch 65, this Court, transferring this case to this Branch 61 on the ground that this case is related with a case before this Court, let this case be
returned to Branch 65 with the information that there is no related case involving the ESTATE OF DECEDENT ARTURO DE SANTOS pending before this Branch.
There is, however, a case filed by ARTURO DE SANTOS, as petitioner under Rule 76 of the Rules of Court for the Allowance of his will during his lifetime docketed as SP. PROC. NO. M-4223 which
was already decided on 16 February 1996 and has become final.
It is noted on records of Case No. M-4223 that after it became final, herein Petitioner Pacita de los Reyes Phillips filed a MOTION FOR THE ISSUANCE OF LETTERS TESTAMENTARY, which was
subsequently withdrawn after this Court, during the hearing, already ruled that the motion could not be admitted as the subject matter involves a separate case under Rule 78 of the Rules of Court,
and movant withdrew her motion and filed this case (No. 4343).
Octavio de Santos Maloles [II] filed a MOTION FOR INTERVENTION before Case No. M-4223 and this motion was already DENIED in the order (Branch 61) of 26 August 1996 likewise for the
same grounds that the matter is for a separate case to be filed under Rule 78 of the Rules of Court and cannot be included in this case filed under Rule 76 of the Rules of Court.
It is further noted that it is a matter of policy that consolidation of cases must be approved by the Presiding Judges of the affected Branches.
Initially, in his decision dated September 23, 1996, 5 Judge Abad Santos appeared firm in his position that " . . . it would be improper for (Branch 65) to hear and resolve the petition (Sp. Proc. No. M-4343)," considering that
the probate proceedings were commenced with Branch 61. He thus ordered the transfer of the records back to the latter branch. However, he later recalled his decision and took cognizance of the case "to expedite the
proceedings." Thus, in his Order, dated October 21, 1996, he stated:
Considering the refusal of the Hon. Fernando V. Gorospe Jr. of Branch 61 to continue hearing this case notwithstanding the fact that said branch began the probate proceedings of the estate of the
deceased and must therefore continue to exercise its jurisdiction to the exclusion of all others, until the entire estate of the testator had been partitioned and distributed as per Order dated 23
September 1996, this branch (Regional Trial Court Branch 65) shall take cognizance of the petition if only to expedite the proceedings, and under the concept that the Regional Trial Court of Makati
City is but one court.
Furnish a copy of this order to the Office of the Chief justice and the Office of the Court Administrator, of the Supreme Court; the Hon. Fernando V. Gorospe, Jr.; Pacita De Los Reyes Phillips,
Petitioner; and Octavio de Santos Maloles, Intervenor.
On November 4, 1996, Judge Abad Santos granted petitioner's motion for intervention. Private respondent moved for a reconsideration but her motion was denied by the trial court. She then filed a petition for certiorari in
the Court of Appeals which, on February 26, 1997, rendered a decision 6 setting aside the trial court's order on the ground that petitioner had not shown any right or interest to intervene in Sp. Proc. No. M-4343.
Hence, these petitions which raise the following issues:
1. Whether or not the Honorable Regional Trial Court Makati, Branch 61 has lost jurisdiction to proceed with the probate proceedings upon its issuance of an order allowing the will of Dr. Arturo
de Santos.
2. Whether or not the Honorable (Regional Trial Court Makati, Branch 65) acquired jurisdiction over the petition for issuance of letters testamentary filed by (private) respondent.
3. Whether or not the petitioner, being a creditor of the late Dr. Arturo de Santos, has a right to intervene and oppose the petition for issuance of letters testamentary filed by the respondent.
4. Whether or not (private) respondent is guilty of forum shopping in filing her petition for issuance of letters testamentary with the Regional Trial Court Makati, Branch 65 knowing fully well that
the probate proceedings involving the same testate estate of the decedent is still pending with the Regional Trial Court Makati, Branch 61. prLL
First. Petitioner contends that the probate proceedings in Branch 61 of RTC-Makati did not terminate upon the issuance of the order allowing the will of Dr. De Santos. Citing the cases of Santiesteban v. Santiesteban 7 and
Tagle v. Manalo, 8 he argues that the proceedings must continue until the estate is fully distributed to the lawful heirs, devisees, and legatees of the testator, pursuant to Rule 73, 1 of the Rules of Court. Consequently,
petitioner contends that Branch 65 could not lawfully act upon private respondent's petition for issuance of letters testamentary.
The contention has no merit.
In cases for the probate of wills, it is well-settled that the authority of the court is limited to ascertaining the extrinsic validity of the will, i.e., whether the testator, being of sound mind, freely executed the will in accordance
with the formalities prescribed by law. 9
Ordinarily, probate proceedings are instituted only after the death of the testator, so much so that, after approving and allowing the will, the court proceeds to issue letters testamentary and settle the estate of the testator.
The cases cited by petitioner are of such nature. In fact, in most jurisdictions, courts cannot entertain a petition for probate of the will of a living testator under the principle of ambulatory nature of wills. 10
However, Art. 838 of the Civil Code authorizes the filing of a petition for probate of the will filed by the testator himself. It provides:
CIVIL CODE, ART. 838. No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court.
The testator himself may, during his lifetime, petition the court having jurisdiction for the allowance of his will. In such case, the pertinent provisions of the Rules of Court for the allowance of wills
after the testator's death shall govern.
The Supreme Court shall formulate such additional Rules of Court as may be necessary for the allowance of wills on petition of the testator.
Subject to the right of appeal, the allowance of the will, either during the lifetime of the testator or after his death, shall be conclusive as to its due execution.
Rule 76, 1 likewise provides:
SEC. 1. Who may petition for the allowance of will. Any executor, devisee, or legatee named in a will, or any other person interested in the estate, may, at any time after the death of the testator,
petition the court having jurisdiction to have the will allowed, whether the same be in his possession or not, or is lost or destroyed.
The testator himself may, during his lifetime, petition in the court for the allowance of his will.
The rationale for allowing the probate of wills during the lifetime of testator has been explained by the Code Commission thus:

Most of the cases that reach the courts involve either the testamentary capacity of the testator or the formalities adopted in the execution of wills. There are relatively few cases concerning the
intrinsic validity of testamentary dispositions. It is far easier for the courts to determine the mental condition of a testator during his lifetime than after his death. Fraud, intimidation and undue
influence are minimized. Furthermore, if a will does not comply with the requirements prescribed by law, the same may be corrected at once. The probate during the testator's life, therefore, will
lessen the number of contest upon wills. Once a will is probated during the lifetime of the testator, the only questions that may remain for the courts to decide after the testator's death will refer to the
intrinsic validity of the testamentary dispositions. It is possible, of course, that even when the testator himself asks for the allowance of the will, he may be acting under duress or undue influence,
but these are rare cases.
After a will has been probated during the lifetime of the testator, it does not necessarily mean that he cannot alter or revoke the same before his death. Should he make a new will, it would also be
allowable on his petition, and if he should die before he has had a chance to present such petition, the ordinary probate proceeding after the testator's death would be in order. 11
Thus, after the allowance of the will of Dr. De Santos on February 16, 1996, there was nothing else for Branch 61 to do except to issue a certificate of allowance of the will pursuant to Rule 73, 12 of the Rules of Court.
There is, therefore, no basis for the ruling of Judge Abad Santos of Branch 65 of RTC-Makati that
Branch 61 of the Regional Trial Court of Makati having begun the probate proceedings of the estate of the deceased, it continues and shall continue to exercise said jurisdiction to the exclusion of
all others. It should be noted that probate proceedings do not cease upon the allowance or disallowance of a will but continues up to such time that the entire estate of the testator had been
partitioned and distributed.
The fact that the will was allowed during the lifetime of the testator meant merely that the partition and distribution of the estate was to be suspended until the latter's death. In other words, the
petitioner, instead of filing a new petition for the issuance of letters testamentary, should have simply filed a manifestation for the same purpose in the probate court. 12
Petitioner, who defends the order of Branch 65 allowing him to intervene, cites Rule 73, 1 which states: llcd
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 resides 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.
The above rule, however, actually provides for the venue of actions for the settlement of the estate of deceased persons. In Garcia Fule v. Court of Appeals, it was held: 13
The aforequoted Section 1, Rule 73 (formerly Rule 75, Section 1), specifically the clause "so far as it depends on the place of residence of the decedent, or of the location of the state," is in reality a
matter of venue, as the caption of the Rule indicates: "Settlement of Estate of Deceased Persons. Venue and Processes." It could not have been intended to define the jurisdiction over the subject
matter, because such legal provision is contained in a law of procedure dealing merely with procedural matters. Procedure is one thing, jurisdiction over the subject matter is another. The power or
authority of the court over the subject matter "existed was fixed before procedure in a given cause began." That power or authority is not altered or changed by procedure, which simply directs the
manner in which the power or authority shall be fully and justly exercised. There are cases though that if the power is not exercised conformably with the provisions of the procedural law, purely, the
court attempting to exercise it loses the power to exercise it legally. However, this does not amount to a loss of jurisdiction over the subject matter. Rather, it means that the court may thereby lose
jurisdiction over the person or that the judgment may thereby be rendered defective for lack of something essential to sustain it. The appearance of this provision in the procedural law at once raises
a strong presumption that it has nothing to do with the jurisdiction of the court over the subject matter. In plain words, it is just a matter of method, of convenience to the parties.
Indeed, the jurisdiction over probate proceedings and settlement of estates with approximate value of over P100,000.00 (outside Metro Manila) or P200,000.00 (in Metro Manila) belongs to the regional trial courts under
B.P. Blg. 129, as amended. The different branches comprising each court in one judicial region do not possess jurisdictions independent of and incompatible with each other. 14
It is noteworthy that, although Rule 73, 1 applies insofar as the venue of the petition for probate of the will of Dr. De Santos is concerned, it does not bar other branches of the same court from taking cognizance of the
settlement of the estate of the testator after his death. As held in the leading case of Bacalso v. Ramolote: 15
The various branches of the Court of First Instance of Cebu under the Fourteenth Judicial District, are a coordinate and co-equal courts, and the totality of which is only one Court of First Instance.
The jurisdiction is vested in the court, not in the judges. And when a case is filed in one branch, jurisdiction over the case does not attach to the branch or judge alone, to the exclusion of the other
branches. Trial may be held or proceedings continue by and before another branch or judge. It is for this reason that Section 57 of the Judiciary Act expressly grants to the Secretary of Justice, the
administrative right or power to apportion the cases among the different branches, both for the convenience of the parties and for the coordination of the work by the different branches of the same
court. The apportionment and distribution of cases does not involve a grant or limitation of jurisdiction, the jurisdiction attaches and continues to be vested in the Court of First Instance of the
province, and the trials may be held by any branch or judge of the court.
Necessarily, therefore, Branch 65 of the RTC of Makati City has jurisdiction over Sp. Proc. No. M-4343.
Second. Petitioner claims the right to intervene in and oppose the petition for issuance of letters testamentary filed by private respondent. He argues that, as the nearest next of kin and creditor of the testator, his interest in
the matter is material and direct. In ruling that petitioner has no right to intervene in the proceedings before Branch 65 of RTC-Makati City, the Court of Appeals held:
The private respondent herein is not an heir or legatee under the will of the decedent Arturo de Santos. Neither is he a compulsory heir of the latter. As the only and nearest collateral relative of the
decedent, he can inherit from the latter only in case of intestacy. Since the decedent has left a will which has already been probated and disposes of all his properties the private respondent can
inherit only if the said will is annulled. His interest in the decedent's estate is, therefore, not direct or immediate.
His claim to being a creditor of the estate is a belated one, having been raised for the first time only in his reply to the opposition to his motion to intervene, and, as far as the records show, not
supported by evidence.
. . . [T]he opposition must come from one with a direct interest in the estate or the will, and the private respondent has none. Moreover, the ground cited in the private respondent's opposition, that
the petitioner has deliberately misdeclared the truth worth and value of the estate, is not relevant to the question of her competency to act as executor. Section 2, Rule 76 of the Rules of Court
requires only an allegation of the probable value and character of the property of the estate. The true value can be determined later on in the course of the settlement of the estate. 16
Rule 79, 1 provides:
Opposition to issuance of letters testamentary. Simultaneous petition for administration. Any person interested in a will may state in writing the grounds why letters testamentary should not issue
to the persons named therein as executors, or any of them, and the court, after hearing upon notice, shall pass upon the sufficiency of such grounds. A petition may, at the same time, be filed for
letters of administration with the will annexed. LibLex
Under this provision, it has been held that an "interested person" is one who would be benefited by the estate, such as an heir, or one who has a claim against the estate, such as a creditor, and whose interest is material
and direct, not merely incidental or contingent. 17
Even if petitioner is the nearest next of kin of Dr. De Santos, he cannot be considered an "heir" of the testator. It is a fundamental rule of testamentary succession that one who has no compulsory or forced heirs may
dispose of his entire estate by will. Thus, Art. 842 of the Civil Code provides:
One who has no compulsory heirs may dispose by will of all his estate or any part of it in favor of any person having capacity to succeed.
One who has compulsory heirs may dispose of his estate provided he does not contravene the provisions of this Code with regard to the legitimate of said heirs.
Compulsory heirs are limited to the testator's
(1) Legitimate children and descendants, with respect to their legitimate parents and ascendants;

(2) In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants;
(3) The widow or widower;
(4) Acknowledged natural children, and natural children by legal fiction;
(5) Other illegitimate children referred to in Article 287 of the Civil Code. 18
Petitioner, as nephew of the testator, is not a compulsory heir who may have been preterited in the testator's will.
Nor does he have any right to intervene in the settlement proceedings based on his allegation that he is a creditor of the deceased. Since the testator instituted or named an executor in his will, it is incumbent upon the
Court to respect the desires of the testator. As we stated in Ozaeta v. Pecson: 19
The choice of his executor is a precious prerogative of a testator, a necessary concomitant of his right to dispose of his property in the manner he wishes. It is natural that the testator should desire
to appoint one of his confidence, one who can be trusted to carry out his wishes in the disposal of his estate. The curtailment of this right may be considered a curtailment of the right to dispose.
Only if the appointed executor is incompetent, refuses the trust, or fails to give bond may the court appoint other persons to administer the estate. 20 None of these circumstances is present in this case.
Third. Petitioner contends that private respondent is guilty of forum shopping when she filed the petition for issuance of letters testamentary (Sp. Proc. No. M-4343) while the probate proceedings (Sp. Proc. No. M-4223)
were still pending. According to petitioner, there is identity of parties, rights asserted, and reliefs prayed for in the two actions which are founded on the same facts, and a judgment in either will result in res judicata in the
other.
This contention has no merit. As stated earlier, the petition for probate was filed by Dr. De Santos, the testator, solely for the purpose of authenticating his will. Upon the allowance of his will, the proceedings were
terminated.
On the other hand, the petition for issuance of letters testamentary was filed by private respondent, as executor of the estate of Dr. De Santos, for the purpose of securing authority from the Court to administer the estate
and put into effect the will of the testator. The estate settlement proceedings commenced by the filing of the petition terminates upon the distribution and delivery of the legacies and devises to the persons named in the will.
Clearly, there is no identity between the two petitions, nor was the latter filed during the pendency of the former. There was, consequently, no forum shopping.
WHEREFORE, the petition is DENIED and the decisions of the Court of Appeals are hereby AFFIRMED. llcd
SO ORDERED.
Bellosillo, Quisumbing, Buena and De Leon, Jr., JJ., concur.
||| (Maloles II v. Pacita de Los Reyes Phillips, G.R. No. 129505, 133359, [January 31, 2000], 381 PHIL 179-197)
SPOUSES ROBERTO AND THELMA AJERO, petitioners, vs. THE COURT OF APPEALS AND CLEMENTE SAND, respondents.
DECISION
PUNO, J p:
This is an appeal by certiorari from the Decision of the Court of Appeals 1 in CA-G.R. CV No. 22840, dated March 30, 1992, the dispositive portion of which reads:
"PREMISES CONSIDERED, the questioned decision of November 19, 1988 of the trial court is hereby REVERSED and SET ASIDE, and the petition for probate is hereby DISMISSED. No costs."
The earlier Decision was rendered by the RTC of Quezon City, Branch 94, 2 in Sp. Proc. No. Q-37171, and the instrument submitted for probate is the holographic will of the late Annie Sand, who died on November
25, 1982.
In the will, decedent named as devisees, the following: petitioners Roberto and Thelma Ajero, private respondent Clemente Sand, Meriam S. Arong, Leah Sand, Lilia Sand, Edgar Sand, Fe Sand, Lisa S. Sand, and Dr.
Jose Ajero, Sr., and their children. prLL
On January 20, 1983, petitioners instituted Sp. Proc. No. Q-37171, for allowance of decedent's holographic will. They alleged that at the time of its execution, she was of sound and disposing mind, not acting under duress,
fraud or undue influence, and was in every respect capacitated to dispose of her estate by will.
Private respondent opposed the petition on the grounds that: neither the testament's body nor the signature therein was in decedent's handwriting; it contained alterations and corrections which were not duly signed by
decedent; and, the will was procured by petitioners through improper pressure and undue influence. The petition was likewise opposed by Dr. Jose Ajero. He contested the disposition in the will of a house and lot located in
Cabadbaran, Agusan Del Norte. He claimed that said property could not be conveyed by decedent in its entirety, as she was not its sole owner.
Notwithstanding the oppositions, the trial court admitted the decedent's holographic will to probate. It found, inter alia:
"Considering then that the probate proceedings herein must decide only the question of identity of the will, its due execution and the testamentary capacity of the testatrix, this probate court finds no
reason at all for the disallowance of the will for its failure to comply with the formalities prescribed by law nor for lack of testamentary capacity of the testatrix.
"For one, no evidence was presented to show that the will in question is different from the will actually executed by the testatrix. The only objections raised by the oppositors . . . are that the will was
not written in the handwriting of the testatrix which properly refers to the question of its due execution, and not to the question of identity of will. No other will was alleged to have been executed by
the testatrix other than the will herein presented. Hence, in the light of the evidence adduced, the identity of the will presented for probate must be accepted, i.e., the will submitted in Court must be
deemed to be the will actually executed by the testatrix.
"xxx xxx xxx
"While the fact that it was entirely written, dated and signed in the handwriting of the testatrix has been disputed, the petitioners, however, have satisfactorily shown in Court that the holographic will
in question was indeed written entirely, dated and signed in the handwriting of the testatrix. Three (3) witnesses who have convincingly shown knowledge of the handwriting of the testatrix have
been presented and have explicitly and categorically identified the handwriting with which the holographic will in question was written to be the genuine handwriting and signature of the testatrix.
Given then the aforesaid evidence, the requirement of the law that the holographic will be entirely written, dated and signed in the handwriting of the testatrix has been complied with.
"xxx xxx xxx
"As to the question of the testamentary capacity of the testatrix, (private respondent) Clemente Sand himself has testified in Court that the testatrix was completely in her sound mind when he
visited her during her birthday celebration in 1981, at or around which time the holographic will in question was executed by the testatrix. To be of sound mind, it is sufficient that the testatrix, at the
time of making the will, knew the value of the estate to be disposed of, the proper object of her bounty, and the character of the testamentary act . . . The will itself shows that the testatrix even had
detailed knowledge of the nature of her estate. She even identified the lot number and square meters of the lots she had conveyed by will. The objects of her bounty were likewise identified
explicitly. And considering that she had even written a nursing book which contained the law and jurisprudence on will and succession, there is more than sufficient showing that she knows the
character of the testamentary act.
"In this wise, the question of identity of the will, its due execution and the testamentary capacity of the testatrix has to be resolved in favor of the allowance of probate of the will submitted herein.
"Likewise, no evidence was presented to show sufficient reason for the disallowance of herein holographic will. While it was alleged that the said will was procured by undue and improper pressure
and influence on the part of the beneficiary or of some other person, the evidence adduced have not shown any instance where improper pressure or influence was exerted on the testatrix. (Private
respondent) Clemente Sand has testified that the testatrix was still alert at the time of the execution of the will, i.e., at or around the time of her birth anniversary celebration in 1981. It was also
established that she is a very intelligent person and has a mind of her own. Her independence of character and to some extent, her sense of superiority, which has been testified to in Court, all show
the unlikelihood of her being unduly influenced or improperly pressured to make the aforesaid will. It must be noted that the undue influence or improper pressure in question herein only refer to the
making of a will and not as to the specific testamentary provisions therein which is the proper subject of another proceeding. Hence, under the circumstances, this Court cannot find convincing
reason for the disallowance of the will herein.
"Considering then that it is a well-established doctrine in the law on succession that in case of doubt, testate succession should be preferred over intestate succession, and the fact that no

convincing grounds were presented and proven for the disallowance of the holographic will of the late Annie Sand, the aforesaid will submitted herein must be admitted to probate." 3 (Emphasis
omitted.)
On appeal, said Decision was reversed, and the petition for probate of decedent's will was dismissed. The Court of Appeals found that, "the holographic will fails to meet the requirements for its validity." 4 It held that the
decedent did not comply with Articles 813 and 814 of the New Civil Code, which read, as follows:
"Article 813: When a number of dispositions appearing in a holographic will are signed without being dated, and the last disposition has a signature and date, such date validates the dispositions
preceding it, whatever be the time of prior dispositions."
"Article 814: In case of insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the same by his full signature."
It alluded to certain dispositions in the will which were either unsigned and undated, or signed but not dated. It also found that the erasures, alterations and cancellations made thereon had not been authenticated by
decedent. llcd
Thus, this appeal which is impressed with merit.
Section 9, Rule 76 of the Rules of Court provides that wills shall be disallowed in any of the following cases:
"(a) If not executed and attested as required by law;
(b) If the testator was insane, or otherwise mentally incapable to make a will, at the time of its execution;
(c) If it was executed under duress, or the influence of fear, or threats;
(d) If it was procured by undue and improper pressure and influence, on the part of the beneficiary, or of some other person for his benefit;
(e) If the signature of the testator was procured by fraud or trick, and he did not intend that the instrument should be his will at the time of fixing his signature thereto."
In the same vein, Article 839 of the New Civil Code reads:
"Article 839: The will shall be disallowed in any of the following cases:
(1) If the formalities required by law have not been complied with;
(2 If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution;
(3) If it was executed through force or under duress, or the influence of fear, or threats;
(4) If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person;
(5) If the signature of the testator was procured by fraud;
(6) If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto."
These lists are exclusive; no other grounds can serve to disallow a will. 5 Thus, in a petition to admit a holographic will to probate, the only issues to be resolved are: (1) whether the instrument submitted is, indeed, the
decedent's last will and testament; (2) whether said will was executed in accordance with the formalities prescribed by law; (3) whether the decedent had the necessary testamentary capacity at the time the will was
executed; and, (4) whether the execution of the will and its signing were the voluntary acts of the decedents. 6
In the case at bench, respondent court held that the holographic will of Anne Sand was not executed in accordance with the formalities prescribed by law. It held that Articles 813 and 814 of the New Civil Code, ante, were
not complied with, hence, it disallowed the probate of said will. This is erroneous. cdrep
We reiterate what we held in Abangan vs. Abangan, 40 Phil. 476, 479 (1919), that:
"The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and
authenticity. Therefore, the laws on this subject should be interpreted in such a way as to attain these primordial ends. But, on the other hand, also one must not lose sight of the fact that it is not the
object of the law to restrain and curtail the exercise of the right to make a will. So when an interpretation already given assures such ends, any other interpretation whatsoever, that adds nothing but
demands more requisites entirely unnecessary, useless and frustrative of the testator's last will, must be disregarded."
For purposes of probating non-holographic wills, these formal solemnities include the subscription, attestation, and acknowledgment requirements under Articles 805 and 806 of the New Civil Code.
In the case of holographic wills, on the other hand, what assures authenticity is the requirement that they be totally autographic or handwritten by the testator himself, 7 as provided under Article 810 of the New Civil Code,
thus:
"A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the
Philippines, and need not be witnessed." (Emphasis supplied.)
Failure to strictly observe other formalities will not result in the disallowance of a holographic will that is unquestionably handwritten by the testator.
A reading of Article 813 of the New Civil Code shows that its requirement affects the validity of the dispositions contained in the holographic will, but not its probate. If the testator fails to sign and date some of the
dispositions, the result is that these dispositions cannot be effectuated. Such failure, however, does not render the whole testament void.
Likewise, a holographic will can still be admitted to probate, notwithstanding non-compliance with the provisions of Article 814. In the case of Kalaw vs. Relova, 132 SCRA 237, 242 (1984), this Court held: cdrep
"Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic Will have not been noted under his signature, . . . the Will is not thereby invalidated as
a whole, but at most only as respects the particular words erased, corrected or interlined. Manresa gave an identical commentary when he said 'la omision de la salvedad no anula el testamento,
segun la regla de jurisprudencia establecida en la sentencia de 4 de Abril de 1895.'" 8 (Emphasis omitted.)
Thus, unless the unauthenticated alterations, cancellations or insertions were made on the date of the holographic will or on testator's signature, 9 their presence does not invalidate the will itself. 10 The lack of
authentication will only result in disallowance of such changes.
It is also proper to note that the requirements of authentication of changes and signing and dating of dispositions appear in provisions (Articles 813 and 814) separate from that which provides for the necessary conditions
for the validity of the holographic will (Article 810). The distinction can be traced to Articles 678 and 688 of the Spanish Civil Code, from which the present provisions covering holographic wills are taken. They read as
follows:
"Article 678: A will is called holographic when the testator writes it himself in the form and with the requisites required in Article 688.
"Article 688: Holographic wills may be executed only by persons of full age.
"In order that the will be valid it must be drawn on stamped paper corresponding to the year of its execution, written in its entirety by the testator and signed by him, and must contain a statement of
the year, month and day of its execution.
"If it should contain any erased, corrected, or interlined words, the testator must identify them over his signature.
"Foreigners may execute holographic wills in their own language."
This separation and distinction adds support to the interpretation that only the requirements of Article 810 of the New Civil Code and not those found in Articles 813 and 814 of the same Code are essential to the
probate of a holographic will.
The Court of Appeals further held that decedent Annie Sand could not validly dispose of the house and lot located in Cabadbaran, Agusan del Norte, in its entirety. This is correct and must be affirmed. LexLib
As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic validity of the will sought to be probated. However, in exceptional instances, courts are not powerless to do what the situation
constrains them to do, and pass upon certain provisions of the will. 11 In the case at bench, decedent herself indubitably stated in her holographic will that the Cabadbaran property is in the name of her late father, John H.
Sand (which led oppositor Dr. Jose Ajero to question her conveyance of the same in its entirety.). Thus, as correctly held by respondent court, she cannot validly dispose of the whole property, which she shares with her

father's other heirs.

IN VIEW WHEREOF, the instant petition is GRANTED. The Decision of the Court of Appeals in CA-G.R. CV No. 22840, dated March 30, 1992, is REVERSED and SET ASIDE, except with respect to the invalidity of the
disposition of the entire house and lot in Cabadbaran, Agusan del Norte. The Decision of the Regional Trial Court of Quezon City, Branch 94 in Sp. Proc. No. Q-37171, dated November 19, 1988, admitting to probate the
holographic will of decedent Annie Sand, is hereby REINSTATED, with the above qualification as regards the Cabadbaran property. No costs. LexLib
SO ORDERED.
Narvasa, C.J., Padilla, Regalado and Mendoza, JJ., concur.
||| (Spouses Ajero v. Court of Appeals, G.R. No. 106720, [September 15, 1994]RUBEN AUSTRIA, CONSUELO AUSTRIA-BENTA and LAURO AUSTRIA MOZO,petitioners, vs. HON. ANDRES REYES, Judge,
Court of First Instance of Rizal, PERFECTO CRUZ, BENITA CRUZ-MENEZ ISAGANI CRUZ, ALBERTO CRUZ and LUZ CRUZ-SALONGA respondents.
Salonga, Ordoez, Yap, Sicat & Associates for petitioners.
Ruben Austria for himself and co-petitioners.
De los Santos, De los Santos & De los Santos for respondent Perfecto Cruz.
Villareal, Almacen, Navarra & Amores for other respondents.
SYLLABUS
1. CIVIL LAW; TESTATE SUCCESSION; REQUISITES TO ANNUL INSTITUTION OF HEIRS. Before the institution of heirs may be annulled under article 850 of the Civil Code, the following requisites must
concur: First, the cause for the institution of heirs must be stated in the will; second, the cause must be shown to be false; and third, it must appear from the face of the will that the testator would not have made such
institution if he had known the falsity of the cause.
2. ID.; ID.; CAUSE FOR ANNULMENT OF INSTITUTION OF HEIRS MUST BE CLEAR; CASE AT BAR. If the impelling reason or cause for the institution of the respondents as her heirs was the testatrix's belief
that under the law she could not do otherwise, she did not make it known in her will. Surely if she was aware that succession to the legitime takes place by operation of law, independent of her own wishes, she would
not have found it convenient to name her supposed compulsory heirs to their legitimes. Her express adoption of the rules on legitimes should very well indicate her complete agreement with that statutory scheme.
But even this, like the petitioners' own proposition, is highly speculative of what was in the mind of the testatrix when she executed her will. One fact prevails, however, and it is the decedent's will does not state in a
specific or unequivocal manner the cause for such institution of heirs. We cannot annul the same on the basis of guesswork or uncertain implications.
3. ID.; ID.; TESTACY FAVORED AND WISHES OF TESTATOR MUST PREVAIL. Testacy is favored and doubts are resolved on its side, especially where the will evinces an intention on the part of the testator to
dispose of practically his whole estate, as was done in this case. Moreover, so compelling is the principle that intestacy should be avoided and the wishes of the testator allowed to prevail, that we could even vary
the language of the will for the purpose of giving it effect. As in one case where the probate court has found, by final judgment, that the testator was possessed of testamentary capacity and her last will executed free
from falsification, fraud, trickery or undue influence this Court held, it is its duty to give full expression to her will.
4. ID.; ID.; LEGALITY OF ADOPTION APART FROM CASE OF TESTATE SUCCESSION, ADOPTION NOT SUBJECT TO COLLATERAL ATTACK. The legality of the adoption of the respondents by the testatrix
can be assailed only in a separate action brought for that purpose, and cannot be the subject of a collateral attack.
5. REMEDIAL LAW; COURTS; INHERENT POWER OF COURT. Every court has the inherent power to amend and control its processes and orders so as to make them conformable to law and justice. That the
court a quo has limited the extent of the petitioners' intervention is also within its powers as articulated by the Rules of Court.
DECISION
CASTRO, J p:
On July 7, 1956 Basilia Austria vda. de Cruz filed with the Court of First Instance of Rizal (Special Proceedings 2457) a petition for probate, ante mortem, of her last will and testament. The probate was opposed by the
present petitioners Ruben Austria, Consuelo Austria-Benta and Lauro Austria Mozo, and still others who, like the petitioner, are nephews and nieces of Basilia. This opposition was, however, dismissed and the probate of
the will allowed after due hearing.
The bulk of the estate of Basilia, admittedly, was destined under the will to pass on to the respondents Perfecto Cruz, Benita Cruz-Meez, Isagani Cruz, Alberto Cruz, and Luz Cruz-Salonga, all of whom had been assumed
and declared by Basilia as her own legally adopted children.
On April 23, 1969, more than two years after her will was allowed to probate, Basilia died. The respondent Perfecto Cruz was appointed executor without bond by the same court in accordance with the provisions of the
decedent's will, notwithstanding the blocking attempt pursued by the petitioner Ruben Austria.
Finally, on November 5, 1959, the present petitioners filed in the same proceedings a petition in intervention for partition alleging in substance that they are the nearest of kin of Basilia, and that the five respondents
Perfecto Cruz, et al., had not in fact been adopted by the decedent in accordance with law, in effect rendering these respondents mere strangers to the decedent and without any right to succeed as heirs.
Notwithstanding opposition by the respondent Perfecto Cruz, as executor of the estate, the court a quo allowed the petitioners' intervention by its order of December 22, 1959, couched in broad terms, as follows: "The
Petition in Intervention for Partition filed by the above-named oppositors [Ruben Austria, et al.,] dated November 5, 1969 is hereby granted."
In the meantime, the contending sides debated the matter of authenticity or lack of it of the several adoption papers produced and presented by the respondents. On motion of the petitioners Ruben Austria, et al., these
documents were referred to the National Bureau of Investigation for examination and advice. N.B.I. report seems to bear out the genuineness of the documents, but the petitioners, evidently dissatisfied with the results,
managed to obtain a preliminary opinion from a Constabulary questioned-document examiner whose views undermine the authenticity of the said documents. The petitioners Ruben Austria, et al., thus moved the lower
court to refer the adoption papers to the Philippine Constabulary for further study. The petitioners likewise located former personnel of the court which appeared to have granted the questioned adoption, and obtained
written depositions from two of them denying any knowledge of the pertinent adoption proceedings.
On February 6, 1963, more than three years after they were allowed to intervene, the petitioners Ruben Austria, et al., moved the lower court to set for hearing the matter of the genuineness of the adoption of the
respondents Perfecto Cruz, et al., by the late Basilia. Before the date set by the court for hearing arrived, however, the respondent Benita Cruz-Meez, who entered an appearance separately from that of her brother
Perfecto Cruz, filed on February 28, 1963 a motion asking the lower court, by way of alternative relief, to confine the petitioners' intervention, should it be permitted, to properties not disposed of in the will of the decedent.
On March 4, 1963, the lower court heard the respondent Benita's motion. Both sides subsequently submitted their respective memoranda, and finally, the lower court issued an order on June 4, 1963, delimiting the
petitioners' intervention to the properties of the deceased which were not disposed of in the will.
The petitioners moved the lower court to reconsider this latest order, eliciting thereby an opposition from the respondents. On October 25, 1963 the same court denied the petitioners' motion for reconsideration.
A second motion for reconsideration which set off a long exchange of memoranda from both sides, was summarily denied on April 21, 1964.
Hence this petition for certiorari, praying this Court to annul the orders of June 4 and October 25, 1963 and the order of April 21, 1964, all restricting petitioners' intervention to properties that were not included in the
decedent's testamentary dispositions.
The uncontested premises are clear. Two interests are locked in dispute over the bulk of the estate of the deceased. Arrayed on one side are the petitioners Ruben Austria, Consuelo Austria-Benta and Lauro Austria Mozo,
three of a number of nephews and nieces who are concededly the nearest surviving blood relatives of the decedent. On the other side are the respondents brothers and sisters, Perfecto Cruz, Benita Cruz-Meez, Isagani
Cruz, Alberto Cruz and Luz Cruz-Salonga, all of whom heirs in the will of the deceased Basilia, and all of whom claim kinship with the decedent by virtue of legal adoption. At the heart of the controversy is Basilia's last will
immaculate in its extrinsic validity since it bears the imprimatur of duly conducted probate proceedings.
The complaint in intervention filed in the lower court assails the legality of the tie which the respondent Perfecto Cruz and his brothers and sisters claim to have with the decedent. The lower court had, however, assumed,
by its orders in question, that the validity or invalidity of the adoption is not material nor decisive on the efficacy of the institution of heirs; for, even if the adoption in question were spurious, the respondents Perfecto Cruz, et
al., will nevertheless succeed not as compulsory heirs but as testamentary heirs instituted in Basilia's will. This ruling apparently finds support in article 842 of the Civil Code which reads:
"One who has no compulsory heirs may dispose of by will all his estate or any part of it in favor of any person having capacity to succeed.

"One who has compulsory heirs may dispose of his estate provided he does not contravene the provisions of this Code with regard to the legitime of said heirs."
The lower court must have assumed that since the petitioners nephews and niece are not compulsory heirs, they do not possess that interest which can be prejudiced by a free-wheeling testamentary disposition. The
petitioners' interest is confined to properties, if any, that have not been disposed of in the will, for to that extent intestate succession can take place and the question of the veracity of the adoption acquires relevance.
The petitioners nephews and niece, upon the other hand, insist that the entire estate should descend to them by intestacy by reason of the intrinsic nullity of the institution of heirs embodied in the decedent's will. They have
thus raised squarely the issue of whether or not such institution of heirs would retain efficacy in the event there exists proof that the adoption of the same heirs by the decedent is false.
The petitioners cite, as the controlling rule, article 850 of the Civil Code which reads:
"The statement of a false cause for the institution of an heir shall be considered as not written, unless it appears from the will that the testator would not have made such
institution if he had known the falsity of such cause."
Coming closer to the center of the controversy, the petitioners have called the attention of the lower court and this Court to the following pertinent portions of the will of the deceased which recite:
"III
"Ang aking mga sapilitang tagapagmana (herederos forzosos) ay ang aking itinuturing na mga anak na tunay (Hijos legalmente adoptados) na sina Perfecto, Alberto, Luz, Benita
at Isagani, na pawang may apelyidong Cruz.
xxx xxx xxx
"V
"Kung ako ay bawian ng Dios ng buhay, ay aking ipinamamana ang aking mga ari-ariang maiiwan, sa kaparaanang sumusunod:
"A. Aking ipinamamana sa aking nabanggit na limang anak na sina Perfecto, Alberto, Luz, Benita at Isagani, na pawang may apelyidong Cruz, na parepareho ang kaparti ng
bawa't isa at walang lamangan (en partes iguales), bilang kanilang sapilitang mana (legiti[ma]), ang kalahati (1/2) ng aking kaparti sa lahat ng aming ari-ariang gananciales ng aking
yumaong asawang Pedro Cruz na napapaloob sa Actuacion Especial No. 640 ng Hukumang Unang Dulugan ng Rizal at itinutukoy sa No. 1 ng parafo IV ng testamentong ito, ang kalahati
(1/2) ng mga lagay na lupa at palaisdaan na nasa Obando at Polo, Bulacan, na namana ko sa aking yumaong ama na si Calixto Austria, at ang kalahati (1/2) ng ilang lagay na lupa na nasa
Tinejeros, Malabon, Rizal, na aking namana sa yumao kong kapatid na si Fausto Austria."
The tenor of the language used, the petitioners argue, gives rise to the inference that the late Basilia was deceived into believing that she was legally bound to bequeath one-half of her entire estate to the respondents
Perfecto Cruz, et al. as the latter's legitime. The petitioners further contend that had the deceased known the adoption to be spurious, she would not have instituted the respondents at all the basis of the institution
being solely her belief that they were compulsory heirs. Proof therefore of the falsity of the adoption would cause a nullity of the institution of heirs and the opening of the estate wide to intestacy. Did the lower court
then abuse its discretion or act in violation of the rights of the parties in barring the petitioners nephews and niece from registering their claim even to properties adjudicated by the decedent in her will?
Before the institution of heirs may be annulled under article 850 of the Civil Code, the following requisites must concur: First, the cause for the institution of heirs must be stated in the will; second, the cause must be shown
to be false; and third, it must appear from the face of the will that the testator would not have made such institution if he had known the falsity of the cause.
The petitioners would have us imply, from the use of the terms, "sapilitang tagapagmana" (compulsory heirs) and "sapilitang mana" (legitime), that the impelling reason or cause for the institution of the respondents was the
testatrix's belief that under the law she could not do otherwise. If this were indeed what prompted the testatrix in instituting the respondents, she did not make it known in her will. Surely if she was aware that succession to
the legitime takes place by operation of law, independent of her own wishes, she would not have found it convenient to name her supposed compulsory heirs to their legitimes. Her express adoption of the rules on legitimes
should very well indicate her complete agreement with that statutory scheme. But even this, like the petitioners' own proposition, is highly speculative of what was in the mind of the testatrix when she executed her will. One
fact prevails, however, and it is that the decedent's will does not state in a specific or unequivocal manner the cause for such institution of heirs. We cannot annul the same on the basis of guesswork or uncertain
implications.
And even if we should accept the petitioners' theory that the decedent instituted the respondents perfecto Cruz, et al. solely because she believed that the law commanded her to do so, on the false assumption that her
adoption of these respondents was valid, still such institution must stand.
Article 850 of the Civil Code, quoted above, is a positive injunction to ignore whatever false cause the testator may have written in his will for the institution of heirs. Such institution may be annulled only when one is
satisfied, after an examination of the will, that the testator clearly would not have made the institution if he had known the cause for it to be false. Now, would the late Basilia have caused the revocation of the institution of
heirs if she had known that she was mistaken in treating these heirs as her legally adopted children? Or would she have instituted them nonetheless?
The decedent's will, which alone should provide the answer, is mute on this point or at best is vague and uncertain. The phrases, "mga sapilitang tagapagmana" and "sapilitang mana," were borrowed from the language of
the law on succession and were used, respectively, to de scribe the class of heirs instituted and the abstract object of the inheritance. They offer no absolute indication that the decedent would have willed her estate other
than the way she did if she had known that she was not bound by law to make allowance for legitimes. Her disposition of the free portion of her estate ( libre disposicion) which largely favored the respondent Perfecto Cruz,
the latter's children, and the children of the respondent Benita Cruz, shows a perceptible inclination on her part to give to the respondents more than what she thought the law enjoined her to give to them. Compare this
with the relatively small devise of land which the decedent had left for her blood relatives, including the petitioners Consuelo Austria-Benta and Lauro Mozo and the children of the petitioner Ruben Austria. Were we to
exclude the respondents Perfecto Cruz, et al, from the inheritance, then the petitioners and the other nephews and nieces would succeed to the bulk of the estate by intestacy a result which would subvert the clear
wishes of the decedent.
Whatever doubts one entertains in his mind should be swept away by these explicit injunctions in the Civil Code: "The words of a will are to receive an interpretation which will give to every expression some effect, rather
than one which will render any of the expressions inoperative; and of two modes of interpreting a will, that is to be preferred which will prevent intestacy." 1
Testacy is favored and doubts are resolved on its side, especially where the will evinces an intention on the part of the testator to dispose of practically his whole estate, 2 as was done in this case. Moreover, so compelling
is the principle that intestacy should be avoided and the wishes of the testator allowed to prevail, that we could even vary the language of the will for the purpose of giving it effect. 3 A probate court has found, by final
judgment, that the late Basilia Austria Vda. de Cruz was possessed of testamentary capacity and her last will executed free from falsification, fraud, trickery or undue influence. In this situation, it becomes our duty to give
full expression to her will. 4
At all events, the legality of the adoption of the respondents by the testatrix can be assailed only in a separate action brought for that purpose, and cannot be the subject of a collateral attack. 5
To the petitioners' charge that the lower court had no power to reverse its order of December 22, 1969, suffice it to state that, as borne by the records, the subsequent orders complained of served merely to clarify the first
an act which the court could legally do. Every court has the inherent power to amend and control its processes and orders so as to make them conformable to law and justice. 6 That the court a quo has limited the
extent of the petitioners' intervention is also within its powers as articulated by the Rules of Court. 7
ACCORDINGLY, the present petition is denied, at petitioners cost.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Fernando, Teehankee, Barredo and Villamor, JJ., concur.
||| (Austria v. Reyes, G.R. No. L-23079, [February 27, 1970], 142 PHIL 646-655)
J.L.T. AGRO, INC., represented by its Manager, JULIAN L. TEVES, petitioner, vs. ANTONIO BALANSAG and HILARIA CADAYDAY, respondents.
DECISION
TINGA, J p:
Once again, the Court is faced with the perennial conflict of property claims between two sets of heirs, a conflict ironically made grievous by the fact that the decedent in this case had resorted to great lengths to allocate
which properties should go to which set of heirs.
This is a Rule 45 petition assailing the Decision 1 dated 30 September 1999 of the Court of Appeals which reversed the Decision 2 dated 7 May 1993 of the Regional Trial Court (RTC), Branch 45, of Bais City, Negros

Oriental.
The factual antecedents follow.
Don Julian L. Teves (Don Julian) contracted two marriages, first with Antonia Baena (Antonia), and after her death, with Milagros Donio Teves (Milagros Donio). Don Julian had two children with Antonia, namely: Josefa
Teves Escao (Josefa) and Emilio Teves (Emilio). He had also four (4) children with Milagros Donio, namely: Maria Evelyn Donio Teves (Maria Evelyn), Jose Catalino Donio Teves (Jose Catalino), Milagros Reyes Teves
(Milagros Reyes) and Pedro Reyes Teves (Pedro). 3
The present controversy involves a parcel of land covering nine hundred and fifty-four (954) square meters, known as Lot No. 63 of the Bais Cadastre, which was originally registered in the name of the conjugal partnership
of Don Julian and Antonia under Original Certificate of Title (OCT) No. 5203 of the Registry of Deeds of Bais City. When Antonia died, the land was among the properties involved in an action for partition and damages
docketed as Civil Case No. 3443 entitled "Josefa Teves Escao v. Julian Teves, Emilio B. Teves, et al." 4 Milagros Donio, the second wife of Don Julian, participated as an intervenor. Thereafter, the parties to the case
entered into a Compromise Agreement 5 which embodied the partition of all the properties of Don Julian.
On the basis of the compromise agreement and approving the same, the Court of First Instance (CFI) of Negros Oriental, 12th Judicial District, rendered a Decision 6 dated 31 January 1964. The CFI decision declared a
tract of land known as Hacienda Medalla Milagrosa as property owned in common by Don Julian and his two (2) children of the first marriage. The property was to remain undivided during the lifetime of Don Julian. 7
Josefa and Emilio likewise were given other properties at Bais, including the electric plant, the "movie property," the commercial areas, and the house where Don Julian was living. The remainder of the properties was
retained by Don Julian, including Lot No. 63. acCITS
Paragraph 13 of the Compromise Agreement, at the heart of the present dispute, lays down the effect of the eventual death of Don Julian vis--vis his heirs:
13. That in the event of death of Julian L. Teves, the properties hereinafter adjudicated to Josefa Teves Escao and Emilio B. Teves, (excluding the properties comprised as Hacienda Medalla
Milagrosa together with all its accessories and accessions) shall be understood as including not only their one-half share which they inherited from their mother but also the legitimes and
other successional rights which would correspond to them of the other half belonging to their father, Julian L. Teves. In other words, the properties now selected and adjudicated to Julian L.
Teves (not including his share in the Hacienda Medalla Milagrosa) shall exclusively be adjudicated to the wife in second marriage of Julian L. Teves and his four minor children, namely,
Milagros Donio Teves, his two acknowledged natural children Milagros Reyes Teves and Pedro Reyes Teves and his two legitimated children Maria Evelyn Donio Teves and Jose Catalino
Donio Teves. (Emphasis supplied)
On 16 November 1972, Don Julian, Emilio and Josefa executed a Deed of Assignment of Assets with Assumption of Liabilities 8 in favor of J.L.T. Agro, Inc. (petitioner). Less than a year later, Don Julian, Josefa and Emilio
also executed an instrument entitled Supplemental to the Deed of Assignment of Assets with the Assumption of Liabilities (Supplemental Deed) 9 dated 31 July 1973. This instrument which constitutes a supplement to the
earlier deed of assignment transferred ownership over Lot No. 63, among other properties, in favor of petitioner. 10 On 14 April 1974, Don Julian died intestate.
On the strength of the Supplemental Deed in its favor, petitioner sought the registration of the subject lot in its name. A court, so it appeared, issued an order 11 cancelling OCT No. 5203 in the name of spouses Don Julian
and Antonia on 12 November 1979, and on the same date TCT No. T-375 was issued in the name of petitioner. 12 Since then, petitioner has been paying taxes assessed on the subject lot. 13
Meanwhile, Milagros Donio and her children had immediately taken possession over the subject lot after the execution of the Compromise Agreement. In 1974, they entered into a yearly lease agreement with spouses
Antonio Balansag and Hilaria Cadayday, respondents herein. 14 On Lot No. 63, respondents temporarily established their home and constructed a lumber yard. Subsequently, Milagros Donio and her children executed a
Deed of Extrajudicial Partition of Real Estate 15 dated 18 March 1980. In the deed of partition, Lot No. 63 was allotted to Milagros Donio and her two (2) children, Maria Evelyn and Jose Catalino. Unaware that the subject
lot was already registered in the name of petitioner in 1979, respondents bought Lot No. 63 from Milagros Donio as evidenced by the Deed of Absolute Sale of Real Estate 16 dated 9 November 1983. jur2005cda
At the Register of Deeds while trying to register the deed of absolute sale, respondents discovered that the lot was already titled in the name of petitioner. Thus, they failed to register the deed. 17
Respondents, as vendees of Lot No. 63, filed a complaint before the RTC Branch 45 of Bais City, seeking the declaration of nullity and cancellation of TCT No. T-375 in the name of petitioner and the transfer of the title to
Lot No. 63 in their names, plus damages. 18
After hearing, the trial court dismissed the complaint filed by respondents. The dispositive portion of the decision reads:
WHEREFORE, premises considered, by preponderance of evidence, this Court finds judgment in favor of the defendant and against the plaintiff, and thus hereby orders:
(1) That complaint be dismissed; ASHaTc
(2) That plaintiffs vacate the subject land, particularly identified as Lot No. 63 registered under Transfer Certificate of Title No. T-375;
(3) That plaintiffs pay costs.
Finding no basis on the counterclaim by defendant, the same is hereby ordered dismissed. 19
The trial court ruled that the resolution of the case specifically hinged on the interpretation of paragraph 13 of the Compromise Agreement. 20 It added that the direct adjudication of the properties listed in the Compromise
Agreement was only in favor of Don Julian and his two children by the first marriage, Josefa and Emilio. 21 Paragraph 13 served only as an amplification of the terms of the adjudication in favor of Don Julian and his two
children by the first marriage.
According to the trial court, the properties adjudicated in favor of Josefa and Emilio comprised their shares in the estate of their deceased mother Antonia, as well as their potential share in the estate of Don Julian upon the
latter's death. Thus, upon Don Julian's death, Josefa and Emilio could not claim any share in his estate, except their proper share in the Hacienda Medalla Milagrosa which was adjudicated in favor of Don Julian in the
Compromise Agreement. As such, the properties adjudicated in favor of Don Julian, except Hacienda Medalla Milagrosa, were free from the forced legitimary rights of Josefa and Emilio, and Don Julian was under no
impediment to allocate the subject lot, among his other properties, to Milagros Donio and her four (4) children. 22
The trial court further stressed that with the use of the words "shall be," the adjudication in favor of Milagros Donio and her four (4) children was not final and operative, as the lot was still subject to future disposition by Don
Julian during his lifetime. 23 It cited paragraph 14 24 of the Compromise Agreement in support of his conclusion. 25 With Lot No. 63 being the conjugal property of Don Julian and Antonia, the trial court also declared that
Milagros Donio and her children had no hereditary rights thereto except as to the conjugal share of Don Julian, which they could claim only upon the death of the latter. 26
The trial court ruled that at the time of Don Julian's death on 14 April 1974, Lot No. 63 was no longer a part of his estate since he had earlier assigned it to petitioner on 31 July 1973. Consequently, the lot could not be a
proper subject of extrajudicial partition by Milagros Donio and her children, and not being the owners they could not have sold it. Had respondents exercised prudence before buying the subject lot by investigating the
registration of the same with the Registry of Deeds, they would have discovered that five (5) years earlier, OCT No. 5203 had already been cancelled and replaced by TCT No. T-375 in the name of petitioner, the trial court
added. 27
The Court of Appeals, however, reversed the trial court's decision. The decretal part of the appellate decision reads:
WHEREFORE, premises considered, the decision appealed from is hereby REVERSED and SET ASIDE and a new one is entered declaring the Transfer Certificate of Title No. T-375 registered in
the name of J.L.T. Agro, Inc. as null and void.
With costs against defendant J.L.T. Agro, Inc. represented by its Manager, Julian L. Teves.
SO ORDERED. 28
Per the appellate court, the Compromise Agreement incorporated in CFI decision dated 31 January 1964, particularly paragraph 13 thereof, determined, adjudicated and reserved to Don Julian's two sets of heirs their
future legitimes in his estate except as regards his (Don Julian's) share in Hacienda Medalla Milagrosa. 29 The two sets of heirs acquired full ownership and possession of the properties respectively adjudicated to them in
the CFI decision and Don Julian himself could no longer dispose of the same, including Lot No. 63. The disposition in the CFI decision constitutes res judicata. 30 Don Julian could have disposed of only his conjugal share
in the Hacienda Medalla Milagrosa. 31
The appellate court likewise emphasized that nobody in his right judgment would preterit his legal heirs by simply executing a document like the Supplemental Deed which practically covers all properties which Don Julian
had reserved in favor of his heirs from the second marriage. It also found out that the blanks reserved for the Book No. and Page No. at the upper right corner of TCT No. T-375, "to identify the exact location where the said

title was registered or transferred," were not filled up, thereby indicating that the TCT is "spurious and of dubious origin." 32
Aggrieved by the appellate court's decision, petitioner elevated it to this Court via a petition for review on certiorari, raising pure questions of law. DcaSIH
Before this Court, petitioner assigns as errors the following rulings of the appellate court, to wit: (a) that future legitime can be determined, adjudicated and reserved prior to the death of Don Julian; (b) that Don Julian had
no right to dispose of or assign Lot No. 63 to petitioner because he reserved the same for his heirs from the second marriage pursuant to the Compromise Agreement; (c) that the Supplemental Deed was tantamount to a
preterition of his heirs from the second marriage; and (d) that TCT No. T-375 in the name of petitioner is spurious for not containing entries on the Book No. and Page No. 33
While most of petitioner's legal arguments have merit, the application of the appropriate provisions of law to the facts borne out by the evidence on record nonetheless warrants the affirmance of the result reached by the
Court of Appeals in favor of respondents.
Being the key adjudicative provision, paragraph 13 of the Compromise Agreement has to be quoted again:
13. That in the event of death of Julian L. Teves, the properties herein adjudicated to Josefa Teves Escao and Emilio B. Teves, (excluding the properties comprised as Hacienda Medalla
Milagrosa together with all its accessories and accessions) shall be understood as including not only their one-half share which they inherited from their mother but also the legitimes and
other successional rights which would correspond to them of the other half belonging to their father, Julian L. Teves. In other words, the properties now selected and adjudicated to Julian L.
Teves (not including his share in the Hacienda Medalla Milagrosa) shall exclusively be adjudicated to the wife in second marriage of Julian L. Teves and his four minor children, namely,
Milagros Donio Teves, his two acknowledged natural children Milagros Reyes Teves and Pedro Reyes Teves and his two legitimated children Maria Evelyn Donio Teves and Jose Catalino
Donio Teves." (Emphasis supplied)
With the quoted paragraph as basis, the Court of Appeals ruled that the adjudication in favor of the heirs of Don Julian from the second marriage became automatically operative upon the approval of the Compromise
Agreement, thereby vesting on them the right to validly dispose of Lot No. 63 in favor of respondents.
Petitioner argues that the appellate court erred in holding that future legitime can be determined, adjudicated and reserved prior to the death of Don Julian. The Court agrees. Our declaration in Blas v. Santos 34 is relevant,
where we defined future inheritance as any property or right not in existence or capable of determination at the time of the contract, that a person may in the future acquire by succession. Article 1347 of the New Civil Code
explicitly provides:
ART. 1347. All things which are not outside the commerce of men, including future things, may be the object of a contract. All rights which are not intransmissible may also be the object of
contracts.
No contract may be entered into upon future inheritance except in cases expressly authorized by law.
All services which are not contrary to law, morals, good customs, public order or public policy may likewise be the object of a contract.
Well-entrenched is the rule that all things, even future ones, which are not outside the commerce of man may be the object of a contract. The exception is that no contract may be entered into with respect to future
inheritance, and the exception to the exception is the partition inter vivos referred to in Article 1080. 35
For the inheritance to be considered "future," the succession must not have been opened at the time of the contract. 36 A contract may be classified as a contract upon future inheritance, prohibited under the second
paragraph of Article 1347, where the following requisites concur:
(1) That the succession has not yet been opened; HEcaIC
(2) That the object of the contract forms part of the inheritance; and
(3) That the promissor has, with respect to the object, an expectancy of a right which is purely hereditary in nature. 37
The first paragraph of Article 1080, which provides the exception to the exception and therefore aligns with the general rule on future things, reads:
ART. 1080. Should a person make a partition of his estate by an act inter vivos, or by will, such partition shall be respected, insofar as it does not prejudice the legitime of the compulsory
heirs.
xxx xxx xxx
In interpreting this provision, Justice Edgardo Paras advanced the opinion that if the partition is made by an act inter vivos, no formalities are prescribed by the Article. 38 The partition will of course be effective only after
death. It does not necessarily require the formalities of a will for after all it is not the partition that is the mode of acquiring ownership. Neither will the formalities of a donation be required since donation will not be the mode
of acquiring the ownership here after death; since no will has been made it follows that the mode will be succession (intestate succession). Besides, the partition here is merely the physical determination of the part to be
given to each heir. 39
The historical antecedent of Article 1080 of the New Civil Code is Article 1056 40 of the old Civil Code. The only change in the provision is that Article 1080 now permits any person (not a testator, as under the old law) to
partition his estate by act inter vivos. This was intended to abrogate the then prevailing doctrine that for a testator to partition his estate by an act inter vivos, he must first make a will with all the formalities provided by law.
41
Article 1056 of the old Civil Code (now Article 1080) authorizes a testator to partition inter vivos his property, and distribute them among his heirs, and this partition is neither a donation nor a testament, but an instrument of
a special character, sui generis, which is revocable at any time by the causante during his lifetime, and does not operate as a conveyance of title until his death . It derives its binding force on the heirs from the respect due
to the will of the owner of the property, limited only by his creditors and the intangibility of the legitime of the forced heirs. 42
The partition inter vivos of the properties of Don Julian is undoubtedly valid pursuant to Article 1347. However, considering that it would become legally operative only upon the death of Don Julian, the right of his heirs from
the second marriage to the properties adjudicated to him under the compromise agreement was but a mere expectancy. It was a bare hope of succession to the property of their father. Being the prospect of a future
acquisition, the interest by its nature was inchoate. It had no attribute of property, and the interest to which it related was at the time nonexistent and might never exist. 43
Evidently, at the time of the execution of the deed of assignment covering Lot No. 63 in favor of petitioner, Don Julian remained the owner of the property since ownership over the subject lot would only pass to his heirs
from the second marriage at the time of his death. Thus, as the owner of the subject lot, Don Julian retained the absolute right to dispose of it during his lifetime. His right cannot be challenged by Milagros Donio and her
children on the ground that it had already been adjudicated to them by virtue of the compromise agreement.
Emerging as the crucial question in this case is whether Don Julian had validly transferred ownership of the subject lot during his lifetime. The lower court ruled that he had done so through the Supplemental Deed. The
appellate court disagreed, holding that the Supplemental Deed is not valid, containing as it does a prohibited preterition of Don Julian's heirs from the second marriage. Petitioner contends that the ruling of the Court of
Appeals is erroneous. The contention is well-founded.
Article 854 provides that the preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the
institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious. Manresa defines preterition as the omission of the heir in the will, either by not naming him at all or, while mentioning him as
father, son, etc., by not instituting him as heir without disinheriting him expressly, nor assigning to him some part of the properties. 44 It is the total omission of a compulsory heir in the direct line from inheritance. 45 It
consists in the silence of the testator with regard to a compulsory heir, omitting him in the testament, either by not mentioning him at all, or by not giving him anything in the hereditary property but without expressly
disinheriting him, even if he is mentioned in the will in the latter case. 46 But there is no preterition where the testator allotted to a descendant a share less than the legitime, since there was no total omission of a forced
heir. 47
In the case at bar, Don Julian did not execute a will since what he resorted to was a partition inter vivos of his properties, as evidenced by the court approved Compromise Agreement. Thus, it is premature if not irrelevant
to speak of preterition prior to the death of Don Julian in the absence of a will depriving a legal heir of his legitime. Besides, there are other properties which the heirs from the second marriage could inherit from Don Julian
upon his death. A couple of provisions in the Compromise Agreement are indicative of Don Julian's desire along this line. 48 Hence, the total omission from inheritance of Don Julian's heirs from the second marriage, a
requirement for preterition to exist, is hardly imaginable as it is unfounded. IcESaA

Despite the debunking of respondents' argument on preterition, still the petition would ultimately rise or fall on whether there was a valid transfer effected by Don Julian to petitioner. Notably, Don Julian was also the
president and director of petitioner, and his daughter from the first marriage, Josefa, was the treasurer thereof. There is of course no legal prohibition against such a transfer to a family corporation. Yet close scrutiny is in
order, especially considering that such transfer would remove Lot No. 63 from the estate from which Milagros and her children could inherit. Both the alleged transfer deed and the title which necessarily must have
emanated from it have to be subjected to incisive and detailed examination.
Well-settled, of course, is the rule that a certificate of title serves as evidence of an indefeasible title to the property in favor of the person whose name appears therein. 49 A certificate of title accumulates in one document a
precise and correct statement of the exact status of the fee held by its owner. The certificate, in the absence of fraud, is the evidence of title and shows exactly the real interest of its owner. 50
To successfully assail the juristic value of what a Torrens title establishes, a sufficient and convincing quantum of evidence on the defect of the title must be adduced to overcome the predisposition in law in favor of a holder
of a Torrens title. Thus, contrary to the appellate court's ruling, the appearance of a mere thumbmark of Don Julian instead of his signature in the Supplemental Deed would not affect the validity of petitioner's title for this
Court has ruled that a thumbmark is a recognized mode of signature. 51
The truth, however, is that the replacement of OCT No. 5203 in the name of Julian by T.C.T. No. T-375 is marred by a grave irregularity which is also an illegality, as it contravenes the orthodox, conventional and normal
process established by law. And, worse still, the illegality is reflected on the face of both titles. Where, as in this case, the transferee relies on a voluntary instrument to secure the issuance of a new title in his name such
instrument has to be presented to the Registry of Deeds. This is evident from Sections 53 and 57 of Presidential Decree (P.D.) No. 1529 or the Property Registration Decree. The sections read, thus:
SEC. 53. Presentation of owner's duplicate upon entry of new certificate. No voluntary instrument shall be registered by the Register of Deeds unless the owner's duplicate certificate is
presented with such instrument, except in cases expressly provided for in this Decree or upon order of the court, for cause shown. (Emphasis supplied)
xxx xxx xxx
SEC. 57. Procedure in registration of conveyances. An owner desiring to convey his registered land in fee simple shall execute and register a deed of conveyance in a form sufficient in
law. The Register of Deeds shall thereafter make out in the registration book a new certificate of title to the grantee and shall prepare and deliver to him an owner's duplicate certificate. The
Register of Deeds shall note upon the original and duplicate certificate the date of transfer, the volume and page of the registration book in which the new certificate is registered and a
reference by number to the last preceding certificate. The original and the owner's duplicate of the grantor's certificate shall be stamped "cancelled." The deed of conveyance shall be filed
and endorsed with the number and the place of registration of the certificate of title of the land conveyed. (Emphasis supplied)
As petitioner bases its right to the subject lot on the Supplemental Deed, it should have presented it to the Register of Deeds to secure the transfer of the title in its name. Apparently, it had not done so. There is nothing on
OCT No. 5203 or on the succeeding TCT No. T-375 either which shows that it had presented the Supplemental Deed. In fact, there is absolutely no mention of a reference to said document in the original and transfer
certificates of title. It is in this regard that the finding of the Court of Appeals concerning the absence of entries on the blanks intended for the Book No. and Page No. gains significant relevance. Indeed, this aspect fortifies
the conclusion that the cancellation of OCT No. 5203 and the consequent issuance of TCT No. T-375 in its place are not predicated on a valid transaction.
What appears instead on OCT No. 5203 is the following pertinent entry:
Entry No. 1374: Kind: Order: Executed in favor of J.L.T. AGRO, INC.
CONDITIONS: Lost owner's duplicate is hereby cancelled, and null and void and a new Certificate of Title No. 375 is issued per Order of the Court of First Instance on file in this office. CIaHDc
Date of Instrument: November 12, 1979
Date of Inscription: Nov. 12, 1979 4:00 P.M.
(SGD) MANUEL C. MONTESA
Acting Deputy Register of Deeds II
(Emphasis supplied) 52
What the entry indicates is that the owner's duplicate of OCT No. 5203 was lost, a petition for the reconstitution of the said owner's duplicate was filed in court, and the court issued an order for the reconstitution of the
owner's duplicate and its replacement with a new one. But if the entry is to be believed, the court concerned (CFI, according to the entry) issued an order for the issuance of a new title which is TCT No. T-375 although the
original of OCT No. 5203 on file with the Registry of Deeds had not been lost.
Going by the legal, accepted and normal process, the reconstitution court may order the reconstitution and replacement of the lost title only, nothing else. Since what was lost is the owner's copy of OCT No. 5203, only that
owner's copy could be ordered replaced. Thus, the Register of Deeds exceeded his authority in issuing not just a reconstituted owner's copy of the original certificate of title but a new transfer certificate of title in place of
the original certificate of title. But if the court order, as the entry intimates, directed the issuance of a new transfer certificate of title even designating the very number of the new transfer certificate of title itself the order
would be patently unlawful. A court cannot legally order the cancellation and replacement of the original of the O.C.T. which has not been lost, 53 as the petition for reconstitution is premised on the loss merely of the
owner's duplicate of the OCT.
Apparently, petitioner had resorted to the court order as a convenient contrivance to effect the transfer of title to the subject lot in its name, instead of the Supplemental Deed which should be its proper course of action. It
was so constrained to do because the Supplemental Deed does not constitute a deed of conveyance of the "registered land in fee simple" "in a form sufficient in law," as required by Section 57 of P.D. No. 1529.
A plain reading of the pertinent provisions of the Supplemental Deed discloses that the assignment is not supported by any consideration. The provision reads:
xxx xxx xxx
WHEREAS, in the Deed of Assignment of Assets with the Assumption of Liabilities executed by Julian L. Teves, Emilio B. Teves and Josefa T. Escao at Dumaguete City on 16th day of November
1972 and ratified in the City of Dumaguete before Notary Public Lenin Victoriano, and entered in the latter's notarial register as Doc. No. 367; Page No. 17; Book No. V; series of 1972, Julian L.
Teves, Emilio B. Teves and Josefa T. Escao, transferred, conveyed and assigned unto J.L.T. AGRO, INC., all its assets and liabilities as reflected in the Balance Sheet of the former as of
December 31, 1971.
WHEREAS, on the compromise agreement, as mentioned in the Decision made in the Court of First Instance of Negros Oriental, 12th Judicial District Branch II, on Dec. 31, 1964 pertaining to Civil
Case No. 3443 the following properties were adjudicated to Don Julian L. Teves. We quote. HCacDE
From the properties at Bais
Adjudicated to Don Julian L. Teves
xxx xxx xxx
Lot No. 63, Tax Dec. No. 33, Certificate of Title No. 5203, together with all improvements. Assessed value P2,720.00
xxx xxx xxx
WHEREAS, this Deed of Assignment is executed by the parties herein in order to effect the registration of the transfer of the above corporation.
NOW, THEREFORE, for and in consideration of the above premises the ASSIGNOR hereby transfers, conveys, and assigns unto J.L.T. AGRO, INC., the above described parcel of land[s] with a
fair market value of EIGHTY-FOUR THOUSAND PESOS (P84,000.00), Philippine Currency, and which transfer, conveyance and assignment shall become absolute upon signing. 54 (Emphasis
supplied)
The amount of P84,000.00 adverted to in the dispositive portion of the instrument does not represent the consideration for the assignment made by Don Julian. Rather, it is a mere statement of the fair market value of all
the nineteen (19) properties enumerated in the instrument, of which Lot No. 63 is just one, that were transferred by Don Julian in favor of petitioner. Consequently, the testimony 55 of petitioner's accountant that the
assignment is supported by consideration cannot prevail over the clear provision to the contrary in the Supplemental Deed.
The Court of Appeals, on the other hand, apparently considered the 1948 mortgage which is annotated on the back of the TCT No. T-375 as the consideration for the assignment. 56 However, the said annotation 57 shows
that the mortgage was actually executed in favor of Rehabilitation Finance Corporation, not of petitioner. 58 Clearly, said mortgage, executed as it was in favor of the Rehabilitation Finance Corporation and there being no

showing that petitioner itself paid off the mortgage obligation, could not have been the consideration for the assignment to petitioner.
Article 1318 of the New Civil Code enumerates the requisites of a valid contract, namely: (1) consent of the contracting parties; (2) object certain which is the subject matter of the contract; and (3) Cause of the obligation
which is established.
Thus, Article 1352 declares that contracts without cause, or with unlawful cause produce no effect whatsoever. Those contracts lack an essential element and they are not only voidable but void or inexistent pursuant to
Article 1409, paragraph (2). 59 The absence of the usual recital of consideration in a transaction which normally should be supported by a consideration such as the assignment made by Don Julian of all nineteen (19) lots
he still had at the time, coupled with the fact that the assignee is a corporation of which Don Julian himself was also the President and Director, forecloses the application of the presumption of existence of consideration
established by law. 60
Neither could the Supplemental Deed validly operate as a donation. Article 749 of the New Civil Code is clear on the point, thus:
Art. 749. In order that the donation of the immovable may be valid, it must be made in a public document, specifying therein the property donated and the value of the charges which the
donee must satisfy.
The acceptance may be made in the same deed of donation or in a separate public document, but it shall not take effect unless it is done during the lifetime of the donor.
If the acceptance is made in a separate instrument, the donor shall be notified thereof in an authentic form, and this step shall be noted in both instruments. AcHCED
In Sumipat, et al v. Banga, et al., 61 this Court declared that title to immovable property does not pass from the donor to the donee by virtue of a deed of donation until and unless it has been accepted in a public instrument
and the donor duly notified thereof. The acceptance may be made in the very same instrument of donation. If the acceptance does not appear in the same document, it must be made in another. Where the deed of
donation fails to show the acceptance, or where the formal notice of the acceptance, made in a separate instrument, is either not given to the donor or else not noted in the deed of donation and in the separate acceptance,
the donation is null and void.
In the case at bar, although the Supplemental Deed appears in a public document, 62 the absence of acceptance by the donee in the same deed or even in a separate document is a glaring violation of the requirement.
One final note. From the substantive and procedural standpoints, the cardinal objectives to write finis to a protracted litigation and avoid multiplicity of suits are worth pursuing at all times. 63 Thus, this Court has ruled that
appellate courts have ample authority to rule on specific matters not assigned as errors or otherwise not raised in an appeal, if these are indispensable or necessary to the just resolution of the pleaded issues. 64
Specifically, matters not assigned as errors on appeal but consideration of which are necessary in arriving at a just decision and complete resolution of the case, or to serve the interest of justice or to avoid dispensing
piecemeal justice. 65
In the instant case, the correct characterization of the Supplemental Deed, i.e., whether it is valid or void, is unmistakably determinative of the underlying controversy. In other words, the issue of validity or nullity of the
instrument which is at the core of the controversy is interwoven with the issues adopted by the parties and the rulings of the trial court and the appellate court. 66 Thus, this Court is also resolute in striking down the alleged
deed in this case, especially as it appears on its face to be a blatant nullity.
WHEREFORE, foregoing premises considered, the Decision dated 30 September 1999 of the Court of Appeals is hereby AFFIRMED. Costs against petitioner J.L.T. Agro, Inc.
SO ORDERED.
Puno, Austria-Martinez, Callejo, Sr. and Chico-Nazario, JJ., concur.
||| (J.L.T. Agro Inc. v. Balansag, G.R. No. 141882, [March 11, 2005], 493 PHIL 365-390)
REMEDIOS NUGUID, petitioner-appellant, vs. FELIX NUGUID and PAZ SALONGA NUGUID, oppositors-appellees.
Custodio O. Partade for petitioner-appellant.
Beltran, Beltran & Beltran for oppositors-appellees.
SYLLABUS
1. PROBATE OF WILL; COURT'S AREA OF INQUIRY LIMITED TO EXTRINSIC VALIDITY OF WILL; WHEN COURT MAY RULE ON INTRINSIC VALIDITY; CASE AT BAR. In a proceeding for the probate of a will, the
court's area of inquiry is limited to an examination of, and resolution on, the extrinsic validity of the will; the due execution thereof; the testatrix's testamentary capacity; and the compliance with the requisites or solemnities
prescribed the by law. In the case at bar, however, a peculiar situation exists. The parties shunted aside the question of whether or not the will should be allowed probate. They questioned the intrinsic validity of the will.
Normally, this comes only after the court has declared that the will has been duly authenticated. But if the case were to be remanded for probate of the will, nothing will be gained. In the event of probate or if the court
rejects the will, probability exists that the case will come up once again before this Court on the same issue of the intrinsic validity or nullity of the will. The result would be waste of time, effort, expense, plus added anxiety.
These practical considerations induce this Court to meet head-on the issue of the nullity of the provisions of the will in question, there being a justiciable controversy awaiting solution.
2. SUCCESSION; PRETERITION; OMISSION OF NAMES OF FORCED HEIRS. The deceased left no descendants, legitimate or illegitimate. But she left forced heirs in the direct ascending time her parents. Her will
does not explicitly disinherit them but simply omits their names altogether. Said will rather than he labelled ineffective disinheritance is clearly one in which the said forced heirs suffer from preterition.
3. ID.; ID.; PRETERITION DISTINGUISHED FROM DISINHERITANCE. Preterition "consists in the omission in the testator's will of the forced heirs or anyone of them, either because the are not mentioned therein, or,
though mentioned, they are neither instituted as heirs nor are expressly disinherited." (Neri, et al. vs. Akutin, at al., 72 Phil., p. 325.) Disinheritance; in turn, "is a testamentary disposition depriving any compulsory heir of
heir share in the legitime for a cause authorized by law." (Justice J.B.L. Reyes and R.C. Puno, "An Outline of Philippine Civil Law," 1956 ed., Vol. III, p. 8, citing cases.) Disinheritance is always "voluntary"; preterition upon
the other hand, is presumed to be "involuntary." (Sanchez Roman, Estudios de Derecho Civil, 2nd edition, Volume 20, p. 1131.)
4. ID.; ID.; ID.; EFFECTS FLOWING FROM PRETERITION AND DISINHERITANCE. The effects flowing from preterition are totally different from those of disinheritance. Preterition under Article 854 of the Civil Code
"shall annul the institution of heir. "This annulment is in toto, unless in the will there are, in addition, testamentary dispositions in the form of devises or legacies. In ineffective disinheritance under Article 918 of the same
Code, such disinheritance shall also "annul the institution of heirs," but only "insofar as it may prejudice the person disinherited," which last phrase was omitted in the case of preterition. (III Tolentino, Civil Code of the
Philippines, 1961. Edition, p. 172.) Better stated yet, in disinheritance the nullity is limited to that portion of the estate of which the disinherited heirs have been illegally deprived.
6. ID.; ID.; WHEN LEGACIES AND DEVISES MERIT CONSIDERATION. Legacies and devises merit consideration only when they are so expressly given as such in a will. Nothing in Article 854 of the Civil Code
suggests that the mere institution of a universal heir in a will void because of preterition would give the heir so instituted a share in the inheritance. As to him, the will is inexistent. There must he, in addition to such
institution, a testamentary disposition granting him bequests or legacies apart and separate from the nullified institution of heir.
7. ID.; ID.; ID.; INSTITUTION OF HEIRS CANNOT BE CONSIDERED LEGACY. Petitioner insists that the compulsory heirs ineffectively disinherited are entitled to receive their legitimes, but that the institution of heir "is
not invalidated," although the inheritance of the heir so instituted is reduced to the extent of said legitimes. This theory, if adopted, will result in a complete abrogation of Articles 814 and 851 of the Civil Code.If every case
of institution of heirs may be made to fall into the concept of legacies and betterments reducing the bequest accordingly, then the provisions of Articles 814 and 851 regarding total or partial nullity of the institution, would be
absolutely meaningless and will never have any application at all. And the remaining provisions contained in said articles concerning the reduction of inofficious legacies or betterments would be a surplusage because they
would be absorbed by Article 817 of the same code.
DECISION
SANCHEZ, J p:
Rosario Nuguid, a resident of Quezon City, died on December 30, 1962, single, without descendants, legitimate or illegitimate. Surviving her were her legitimate parents, Felix Nuguid and Paz Salonga Nuguid, and 6
brothers and sisters namely: Alfredo, Federico, Remedios, Conrado, Lourdes and Alberto, all surnamed Nuguid.
On May 18, 1963, petitioner Remedios Nuguid filed in the Court of First Instance of Rizal a holographic will allegedly executed by Rosario Nuguid on November 17, 1951, some 11 years before her demise. Petitioner
prayed that said will be admitted to probate and that letters of administration with the will annexed be issued to her.
On June 25, 1963, Felix Nuguid and Paz Salonga Nuguid, concededly the legitimate father and mother of the deceased Rosario Nuguid, entered their opposition to the probate of her will. Ground therefor, inter alia, is that

by the institution of petitioner Remedios Nuguid as universal heir of the deceased, oppositors who are compulsory heirs of the deceased in the direct ascending line were illegally preterited and that in consequence
the institution is void.
On August 29, 1963, before a hearing was had on the petition for probate and objection thereto, oppositors moved to dismiss on the ground of absolute preterition.
On September 6, 1963, petitioner registered her opposition to the motion to dismiss.
The court's order of November 8, 1963, held that "the will in question is a complete nullity and will perforce create intestacy of the estate of the deceased Rosario Nuguid" and dismissed the petition without costs.
A motion to reconsider having been thwarted below, petitioner came to this Court on appeal.
1. Right at the outset, a procedural aspect has engaged our attention. The case is for the probate of a will. The court's area of inquiry is limited to an examination of, and resolution on, the extrinsic validity of the will. The
due execution thereof, the testatrix's testamentary capacity, and the compliance with the requisites or solemnities by law prescribed, are the questions solely to be represented, and to be acted upon, by the court. Said
court at this stage of the proceedings is not called upon to rule on the intrinsic validity or efficacy of the provisions of the will, the legality of any devise or legacy therein. 1
A peculiar situation is here thrust upon us. The parties shunted aside the question of whether or not the will should he allowed probate. For them, the meat of the case is the intrinsic validity of the will. Normally, this comes
only after the court has declared that the will been duly authenticated. 2 But petitioner and oppositors, in the court below and here on appeal, travelled on the issue of law, to wit: Is the will intrinsically a nullity?
We pause to reflect. If the case were to be remanded for probate of the will, nothing will be gained. On the contrary, this litigation will be protracted. And for aught that appears in the record, in the event of probate or if the
court rejects the will, probability exists that the case will come once again before us on the same issue of the intrinsic validity or nullity of the will. Result: waste of time, effort, expense, plus added anxiety. These are the
practical considerations that induce us to a belief that we might as well meet head-on the issue of the nullity of the provisions of the will in question. 3 After all, there exists a justiciable controversy crying for solution.
2. Petitioner's sole assignment of error challenges the correctness of the conclusion below that the will is a complete nullity. This exacts from us a study of the disputed will and the applicable statute.
Reproduced hereunder is the will:
"Nov. 17, 1951.
I, ROSARIO NUGUID, being of sound and disposing mind and memory, having amassed a certain amount of property, do hereby give, devise, and bequeath all of the property which I may have
when I die to my beloved sister Remedios Nuguid, age 34, residing with me at 38-B Iriga, Q.C. In witness whereof, I have signed my name this seventh day of November, nineteen hundred and fiftyone.
(Sgd.)
Illegible
T/ ROSARIO NUGUID"
The statute we are called upon to apply is Article 854 of the Civil Code which, in part, provides:
"Art. 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator. shall
annul the institution of heir; the devises and legacies shall be valid insofar as they are not inofficious . . ."
Except for inconsequential variation in terms, the foregoing is a reproduction of Article 814 of the Civil Code of Spain of 1889, which is similarly herein copied, thus
"Art. 814. The preterition of one or all of the forced heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall void the institution of heir;
but the legacies and betterments 4 shall be valid, in so far as they are not inofficious. . ."
A comprehensive understanding of the term preterition employed in the law becomes a necessity. On this point Manresa comments:
"La pretericion consiste en omitir al heredero en el testamento. O no se le nombra siquiera, o aun nombrandole como padre, hijo, etc., no se leinstituye heredero ni se le deshereda expresamente,
ni se le asigna parte alguna de los bienes, resultando privado de un modo tacito de su derecho a legitima.
Para que exista pretericion, con arreglo al articulo 814, basta que en el testamento omita el testador a uno cualquiera de aquelloa a quienes por su muerte corresponda la herencia forzosa.
Se necesita, pues, a) Que la omision se refiera a un heredero forzoso.) b) Que la omision sea completa; que el heredero forzoso nada reciba en el testamento. 5
It may now appear trite but nonetheless helpful in giving us a clear perspective of the problem before us, to have on hand a clear-cut definition of the word annul:
"To 'annul' means to abrogate, to make void;. . .In re Morrow's Estate, 54 A. 342, 343, 204 Pa. 484." 6
"The word 'annul' as used in the statute requiring court to annul alimony provisions of divorce decree upon wife's remarriage means to reduce to nothing; to annihilate; obliterate; blot out; to make
void or of no effect; to nullify; to abolish. N.J.S.A. 2:50 38 (now N.J.S.2A:34-25). Madden vs. Madden, 40 A.2d 611, 614, 136 N.J. Eq. 132." 7
"ANNUL. To reduce to nothing; annihilate; obliterate; to make void or of no effect; to nullify; to abolish; to do away with. Ex parte Mitchell, 123 W. Va. 283, S.E. 2d. 771, 774." 8
And now, back to the facts and the law. The deceased Rosario Nuguid left no descendants, legitimate or illegitimate. But she left forced heirs in the direct ascending line her parents, now oppositors Felix Nuguid and
Paz Salonga Nuguid. And, the will completely omits both of them: They thus received nothing by the testament; tacitly, they were deprived of their legitime; neither were they expressly disinherited. This is a clear case of
preterition. Such preterition in the words of Manresa "anular siempre la institucin de heredero, dando carcter absoluto a este ordenamiento," referring to the mandate of Article 814, now 854 of the Civil Code.9 The onesentence will here institutes petitioner as the sole, universal heir nothing more. No specific legacies or bequests are therein provided for. It is in this posture that we say that the nullity is complete. Perforce, Rosario
Nuguid died intestate. Says Manresa:
"En cuanto a la institucion de heredero, se anula. Lo que se anula deja de existir, en todo o en parte? No se aade limitacion alguna, como en el articulo 851, en el que se expresa que se anulara
la institucion de heredero en cuanto perjudique a la legitima del desheredado. Debe, pues, entenderse que la anulacion es completa o total, y que este articulo como especial en el caso que le
motiva, rige con preferencia al 817." 10
The same view is expressed by Snches Roman:
"La consequencia de la anulacion o nulidad de la institucion de heredero por pretericion de uno, varios o todos los forzosos en linea recta, es la apertura de la sucesion intestada, total o parcial.
Sera total, cuando el testador que comete la pretericion, hubiere dispuesto de todos los bienes por titulo universal de herencia en favor de los herederos instituidos, cuya institucion se anula,
porque asi lo exige la generalidad del precepto legal del art. 814, al determinar, como efecto de la pretericion el de que 'anulara la institucion de heredero'. . ." 11
Really, as we analyze the word annul employed in the statute, there is no escaping the conclusion that the universal institution of petitioner to the entire inheritance results in totally abrogating the will. Because, the
nullification of such institution of universal heir without any other testamentary disposition in the will amounts to a declaration that nothing at all was written. Carefully worded and in clear terms, Article 854 offers no
leeway for inferential interpretation. Giving it an expansive meaning will tear up by the roots the fabric of the statute. On this point, Snchez Romn cites the "Memoria annual del Tribunal Supremo, correspondiente a
1908," which in our opinion expresses the rule of interpretation, viz:
" . . . El art. 814, que preceptua en tales casos de pretericion la nulidad de la institucion de heredero no consiente interpretacion alguno favorable a lo persona instituida en el sentido antes
expuesto, aun cuando parezca, y en algun caso pudiera ser, mas o menos equitativa, porque una nulidad no significa en Derecho sino la suposicion de que el hecho o el acto no se ha realizado
debiendo; por lo tanto, procederse sobre tal base o supuesto, y consiguientemente, en un testamento donde falte la institucion, es obligado llamar a los herederos forzosos en todo caso, como
habria que llamar a los de otra clase, cuando el testador no hubiese distribuido todos sus bienes en legados, siendo tanto mas obligada esta consecuencia legal cuanto que, en materia de
testamentos, sabido es, segun tiene declarado la jurisprudencia, con repeticion, que no basta que seo conocida la voluntad de quien testa si esta voluntad no aparece en la forma y en las
condiciones que la ley ha exigido para que sea valido y eficaz, por lo que constituiria una interpretacion arbitraria, dentro del derecho positivo, reputar como legatario a un heredero cuya institucion
fuese anulada con pretexto de que esto se acomodaba mejor a la voluntad del testador, pues aun cuando asi fuese, sera esto razon para modificar la ley, pero que no outoriza a una interpretacion
contraria a sus terminos y a los principios que informan la testamentifaccion, pues no porque parezca mejor una cosa en el terreno del Derecho constituyente, hay razon para convertir este juicio
en regla de interpretacin, desvirtuando y anulando por este procedimiento lo que el legislador quiere establecer." 12

3. We should not be led astray by the statement in Article 854 that, annulment notwithstanding, "the devises and legacies shall be valid insofar as they are not inofficious." Legacies and devises merit consideration only
when they are so expressly given as such in a will. Nothing in Article 854 suggests that the mere institution of a universal heir in a will void because of preterition would give the heir so instituted a share in the
inheritance. As to him, the will is inexistent. There must be, in addition to such institution, a testamentary disposition granting him bequests or legacies apart and separate from the nullified institution of heir. Snchez
Romn, speaking of the two component parts of Article 814, now 854, states that preterition annuls the institution of the heir "totalmente por la pretericin"; but added (in reference to legacies and bequests), "pero
subsistiendo, . . . todas aquellas otras disposiciones que no se refieren a la institucin de heredero . . . " 13 As Manresa puts it, annulment throws open to intestate succession the entire inheritance including la porcin libre
(que) no hubiese dispuesto en virtud de legado, mejora o donacin." 14
As aforesaid, there is no other provision in the will before us except the institution of petitioner as universal heir. That institution, by itself, is null and void. And, intestate succession ensues.
4. Petitioner's mainstay is that the present is "a case of ineffective disinheritance rather than one of preterition." 15 From this, petitioner draws the conclusion that Article 854 "does not apply to the case at bar." This
argument fails to appreciate the distinction between preterition and disinheritance.
Preterition "consists in the omission in the testator's will of the forced heirs or anyone of them, either because they are not mentioned therein, or, though mentioned, they are neither instituted as heirs nor are expressly
disinherited." 16 Disinheritance, in turn, "is a testamentary disposition depriving any compulsory heir of his share in the legitime for a cause authorized by law." 17 In Manresa's own words: "La privacin expresa de la
legitima constituye le desheredacin. La privacin tcita de la misma se denomina pretericin. 18 Snchez Romn emphasizes the distinction by stating that disinheritance "es siempre voluntaria"; preterition, upon the
other hand, is presumed to be "involuntaria." 19 Express as disinheritance should be, the same must be supported by a legal cause specified in the will itself. 20
The will here does not explicitly disinherit the testatrix's parents, the forced heirs. It simply omits their names altogether. Said will rather than be labeled ineffective disinheritance is clearly one in which the said forced heirs
suffer from preterition.
On top of this the fact that the effects flowing from preterition are totally different from those of disinheritance. Preterition under Article 854 of the Civil Code,we repeat, "shall annul the institution of heir." This annulment is in
toto, unless in the will there are, in addition, testamentary dispositions in the form of devises or legacies. In ineffective disinheritance under Article 918 of the same Code, such disinheritance shall also "annul the institution
of heirs," but only "insofar as it may prejudice the person disinherited," which last phrase was omitted in the case of preterition. 21 Better stated yet, in disinheritance the nullity is limited to that portion of the estate of which
the disinherited heirs have been illegally deprived. Manresa's expressive language, in commenting on the rights of the preterited heirs in the case of preterition on the one hand and legal disinheritance on the other, runs
thus: "Preteridos, adquieren el derecho a todo; deshereda dos, solo les corresponde un tercio o dos tercios, 22 segn el caso." 23
5. Petitioner insists that the compulsory heirs ineffectively disinherited are entitled to receive their legitimes, but that the institution of heir "is not invalidated," although the inheritance of the heir so instituted is reduced to the
extent of said legitimes. 24
This is best answered by a reference to the opinion of Mr. Justice Moran in the Neri case heretofore cited, viz:
"But the theory is advanced that the bequest made by universal title in favor of the children by the second marriage should be treated as legado and mejora and, accordingly, it must not be entirely
annulled but merely reduced. This theory, if adopted, will result in a complete abrogation of articles 814 and 851 of the Civil Code.If every case of institution of heirs may be made to fall into the
concept of legacies and betterments reducing the bequest accordingly, then the provisions of articles 814 and 851 regarding total or partial nullity of the institution, would be absolutely meaningless
and will never have application at all. And the remaining provisions contained in said articles concerning the reduction of inofficious legacies or betterments would be a surplusage because they
would be absorbed by article 817. Thus, instead of construing, we would be destroying integral provisions of the Civil Code.
The destructive effect of the theory thus advanced is due mainly to a failure to distinguish institution of heirs from legacies and betterments, and a general from a special provision. With reference to
Article 814, which is the only provision material to the disposition of this case, it must be observed that the institution of heirs is therein dealt with a thing separate and distinct from legacies or
betterment. And they are separate and distinct not only because they are distinctly and separately treated in said article but because they are in themselves different. Institution of heirs is a bequest
by universal title of property that is undetermined. Legacy refers to specific property bequeathed by a particular or special title. . . But again an institution of heirs cannot be taken as a legacy," 25
The disputed order, we observe, declares the will in question "a complete nullity". Article 854 of the Civil Code in turn merely nullifies "the institution of heir." Considering, however, that the will before us solely provides for
the institution of petitioner as universal heir, and nothing more, the result is the same. The entire will is null.
Upon the view we take of this case, the order of November 8, 1963 under review is hereby affirmed. No costs allowed. So ordered.
Concepcion, C.J., J.B.L. Reyes, Barrera, Dizon, Regala, Makalintal, J. P. Bengzon and Zaldivar, JJ., concur.
||| (Nuguid v. Nuguid, G.R. No. L-23445, [June 23, 1966], 123 PHIL 1305-1317)
CARMEN G. DE PEREZ, trustee of the estate of Ana Maria Alcantara, plaintiff-appellee, vs. MARIANO GARCHITORENA, and JOSE CASIMIRO, Sheriff of the Court of First Instance of Manila,
defendants-appellants.
L.D. Lockwood and Jose M. Casal, for appellants.
Eduardo Gutierrez Repide and Leoncio B. Monzon, for appellee.
SYLLABUS
1. WILLS; INSTITUTION OF HEIRS; FIDEICOMMISSARY HEIR. The institution of heirs made in the will in question is in the nature of a fideicommissum: there is an heiress primarily called to
enjoy the estate; an obligation clearly imposed upon her to preserve and transmit the whole of the estate to certain third persons; and there are secondary heirs.
2. ID.; ID.; ID.; DISTINCTION BETWEEN FIDEICOMMISSUM AND TRUST. The heir instituted, or fideicommissioner, as article 783 of the Civil Code has it, is entitled to the enjoyment of the
estate. The fideicommissum thus arising from a fideicommissary substitution, which is of Roman origin, is not exactly equivalent to, and should not be confused with, the English "trust."
DECISION
ROMUALDEZ, J p:
The amount of P21,428.58 is on deposit in the plaintiff's name with the association known as La Urbana in Manila, as the final payment of the liquidated credit of Ana Maria Alcantara, deceased, whose
heiress is said plaintiff, against Andres Garchitorena, also deceased, represented by his son, the defendant Mariano Garchitorena.
And as said Mariano Garchitorena held a judgment for P7,872.23 against Joaquin Perez Alcantara, husband of the plaintiff, Carmen G. de Perez, the sheriff pursuant to the writ of execution issued in said
judgment, levied an attachment on said amount deposited with La Urbana.
The plaintiff, alleging that said deposit belongs to the fideicommissary heirs of the decedent Ana Maria Alcantara, secured a preliminary injunction restraining the execution of said judgment on the sum so
attached. The defendants contend that the plaintiff is the decedent's universal heiress, and pray for the dissolution of the injunction.
The court below held that said La Urbana deposit belongs to the plaintiff's children as fideicommissary heirs of Ana Maria Alcantara, and granted a final writ of injunction.
The defendants insist in their contentions, and, in their appeal from the decision of the trial court, assign the following errors:
"1. The lower court erred in holding that a trust was created by the will of Doa Ana Maria Alcantara.
"2. The lower court erred in concluding and declaring that the amount of P21,428.58 deposited with La Urbana is the property of the children of the plaintiff as 'herederos fideicomisarios.'
"3. The lower court erred in making the injunction permanent and condemning defendant to pay the costs."
The question here raised is confined to the scope and meaning of the institution of heirs made in the will of the late Ana Maria Alcantara already admitted to probate, and whose legal force and effect is not
in dispute.
The clauses of said will relevant to the points in dispute, between the parties are the ninth, tenth, and eleventh, quoted below:

"Ninth. Being single and without any forced heir, to show my gratitude to my niece-in-law, Carmen Garchitorena, of age, married to my nephew, Joaquin Perez Alcantara, and living in this
same house with me, I institute her as my sole and universal heiress to the remainder of my estate after the payment of my debts and legacies, so that upon my death and after probate of this will,
and after the report of the committee on claims and appraisal has been rendered and approved, she will receive from my executrix the properties composing my hereditary estate, that she may
enjoy them with God's blessing and my own.
"Tenth. Should my heiress Carmen Garchitorena die, I order that my whole estate shall pass unimpaired to her surviving children; and should any of these die, his share shall serve to
increase the portions of his surviving brothers (and sisters) by accretion, in such wise that my estate shall never pass out of the hands of my heiress or her children in so far as it is legally possible.
"Eleventh. Should my aforesaid heiress, Carmen Garchitorena, die after me while her children are still in their minority, I order that my estate be administered by my executrix, Mrs. Josefa
Laplana, and in her default, by Attorney Ramon Salinas and in his default, by his son Ramon Salinas; but the direction herein given must not be considered as an indication of lack of confidence in
my nephew Joaquin Perez Alcantara, whom I relieve front he duties of administering my estate, because I recognize that his character is not adapted to management and administration."
The appellants contend that in these clauses the testatrix has ordered a simple substitution, while the appellee contends that it is a fideicommissary substitution.
This will certainly provides for a substitution of heirs, and of the three cases that might give rise to a simple substitution (art. 774, Civil Code), only the death of the instituted heiress before the testatrix would
in the instant case give place to such substitution, inasmuch as nothing is said of the waiver of inheritance, or incapacity to accept it. As a matter of fact, however, clause XI provides for the administration of the estate
in case the heiress instituted should die after the testatrix and while the substitute heirs are still under age. And it is evident that, considering the nature of simple substitution by the heir's death before the testator, and
the fact by clause XI in connection with clause X, the substitution is ordered where the heiress instituted dies after the testatrix, this cannot be a case of simple substitution.
The existence of a substitution in the will is not and cannot be denied, and since it cannot be a simple substitution in the light of the considerations above stated, let us now see whether the instant case is a
fideicommissary substitution.
In clause IX, the testatrix institutes the plaintiff herein her sole and universal heiress, and provides that upon her death (the testatrix's) and after probate of the will and approval of the report of the committee
on claims and appraisal, said heiress shall receive and enjoy the whole hereditary estate. Although this clause provides nothing explicit about substitution, it does not contain anything in conflict with the idea of
fideicommissary substitution. The fact that the plaintiff was instituted the sole and universal heiress does not prevent her children from receiving, upon her death and in conformity with the express desire of the
testatrix, the latter's hereditary estate, as provided in the following (above quoted) clauses, which cannot be disregarded if we are to give a correct interpretation of the will. The word sole does not necessarily exclude
the idea of substitute heirs; and taking these three clauses together, such word means that the plaintiff if the sole heiress instituted in the first instance.
The disposition contained in clause IX, that said heiress shall receive and enjoy the estate, is not incompatible with a fideicommissary substitution (it certainly is incompatible with the idea of simple
substitution, where the heiress instituted does not receive the inheritance). In fact the enjoyment of the inheritance is in conformity with the idea of fideicommissary substitution, by virtue of which the heir instituted
receives the inheritance and enjoys it, although at the same time he preserves it in order to pass it on to the second heir. On this point the illustrious Manresa, in his Civil Code (Vol. 6, pp. 142 and 143, 5th ed.), says:
"Or, what amounts to the same thing, the fideicommissary substitution, as held in the Resolutions of June 25, 1895, February 10, 1899, and July 19, 1909, requires three things:
"1. A first heir called primarily to the enjoyment of the estate.
"2. An obligation clearly imposed upon him to preserve and transmit to a third person the whole or a part of the estate.
"3. A second heir.
"To these requisites, the decision of November 18, 1918 adds another, namely that the fideicommissarius be entitled to the estate from the time the testator dies, since he is to inherit
from the latter and not from the fiduciary." (Emphasis ours.)
It appears from this quotation that the heir instituted or the fiduciary to enjoy the inheritance. And it might here be observed, as a timely remark, that the fideicommissum arising from a fideicommissary
substitution, which is of Roman origin, is not exactly equivalent to, nor may it be confused with, the English "trust."
It should also be noted that said clause IX vests in the heiress only the right to enjoy but not the right to dispose of the estate. It says, she may enjoy it, but does not say she may dispose of it. This is an
indication of the usufruct inherent in fideicommissary substitution.
Clause X expressly provides for the substitution. It is true that it does not say whether the death of the heiress herein referred to is before or after that of the testatrix; but from the whole context it appears
that in making the provisions contained in this clause X, the testatrix had in mind a fideicommissary substitution, since she limits the transmission of her estate to the children of the heiress by this provision, "in such
wise that my estate shall never pass out of the hands of my heiress or her children in so far as it is legally possible." Here it clearly appears that the testatrix tried to avoid the possibility that the substitution might later
be legally declared null for transcending the limits fixed by article 781 of the Civil Code which prescribes that fideicommissary substitutions shall be valid "provided they do not go beyond the second degree."
Another clear and outstanding indication of fideicommissary substitution in clause X is the provision that the whole estate shall pass unimpaired to the heiress's children, that is to say the heiress is required
to preserve the whole estate, without diminution, in order to pass it on in due time to the fideicommissary heirs. This provision complies with another of the requisites of fideicommissary substitution according to our
quotation from Manresa inserted above.
Lastly, clause XI clearly indicates the idea of fideicommissary substitution, when a provision is therein made in the event the heiress should die after the testatrix. That is, said clause anticipates the casewhere the instituted heiress should die after the testatrix and after receiving and enjoying the inheritance.
The foregoing leads us to the conclusion that all the requisites of a fideicommissary substitution, according to the quotation from Manresa above inserted, are present in the case of substitution now under
consideration, to wit:
1. A first heir primarily called to the enjoyment of the estate. In this case the plaintiff was instituted an heiress, called to the enjoyment of the estate, according to clause IX of the will.
2. An obligation clearly imposed upon the heir to preserve and transmit to a third person the whole or a part of the estate. Such an obligation is imposed in clause X which provides that the "whole
estate shall pass unimpaired to her (heiress's) surviving children;" thus, instead of leaving the heiress at liberty to dispose of the estate by will, or of leaving the law to take its course in case she dies intestate,
said clause not only disposes of the estate in favor of the heiress instituted, but also provides for the disposition thereof in case she could die after the testatrix.
3. A second heir. Such are the children of the heiress instituted, who are referred to as such second heirs both in clause X and in clause XI.
Finally, the requisite added by the decision of November 18, 1918, to wit, that the fideicommissarius or second heir should be entitled to the estate from the time of the testator's death, which in the instant
case, is, rather than a requisite, a necessary consequence derived from the nature of the fideicommissary substitution, in which the second heir does not inherit from the heir first instituted, but from the testator.
By virtue of this consequence, the inheritance in question does not belong to the heiress instituted, the plaintiff herein, as her absolute property, but to her children, from the moment of the death of the
testatrix, Ana Maria Alcantara.
Therefore, said inheritance, of which the amount referred to at the beginning, which is on deposit with the association known as La Urbana in the plaintiff's name, is a part, does not belong to her nor can it
be subject to the execution of the judgment against Joaquin Perez, who is not one of the fideicommissary heirs.
The judgment appealed from is affirmed, with costs against the appellant, Mariano Garchitorena. So ordered.
Johnson, Malcolm, Villamor, Ostrand, Johns and Villa-Real, JJ., concur.
||| (de Perez v. Garchitorena, G.R. No. 31703, [February 13, 1930], 54 PHIL 431-437)
PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, Administrator of the Testate Estate of Charles Newton Hodges (Sp. Proc. No. 1672 of the Court of First Instance of Iloilo) , petitioner, vs. THE
HONORABLE VENICIO ESCOLIN, Presiding Judge of the Court of First Instance of Iloilo, Branch II, and AVELINA A. MAGNO, respondents.
[G.R. Nos. L-27936 & L-27937. March 29, 1974.]
TESTATE ESTATE OF THE LATE LINNIE JANE HODGES (Sp. Proc. No. 1307). TESTATE ESTATE OF THE LATE CHARLES NEWTON HODGES (Sp. Proc. No. 1672). PHILIPPINE

COMMERCIAL AND INDUSTRIAL BANK, administrator-appellant, vs. LORENZO CARLES, JOSE PABLICO, ALFREDO CATEDRAL, SALVADOR GUZMAN, BELCESAR CAUSING,
FLORENIA BARRIDO, PURIFICACION CORONADO, GRACIANO LUCERO, ARITEO THOMAS JAMIR, MELQUIADES BATISANAN, PEPITO IYULORES, ESPERIDION PARTISALA,
WINIFREDO ESPADA, ROSARIO ALINGASA, ADELFA PREMAYLON, SANTIAGO PACAONSIS, and AVELINA A. MAGNO, the last as Administratrix in Sp. Proc. No. 1307 , appellees,
WESTERN INSTITUTE OF TECHNOLOGY, INC., movant-appellee.
San Juan, Africa, Gonzales & San Agustin for Philippine Commercial & Industrial Bank.
Manglapus Law Office, Antonio Law Office and Rizal R. Quimpo for private respondents and appellees Avelina A. Magno, etc., et al.
DECISION
BARREDO, J p:
Certiorari and prohibition with preliminary injunction; certiorari to "declare all acts of the respondent court in the Testate Estate of Linnie Jane Hodges (Sp. Proc. No. 1307 of the Court of First Instance of Iloilo) subsequent
to the order of December 14, 1957 as null and void for having been issued without jurisdiction"; prohibition to enjoin the respondent court from allowing, tolerating, sanctioning, or abetting private respondent Avelina A.
Magno to perform or do any acts of administration, such as those enumerated in the petition, and from exercising any authority or power as Regular Administratrix of above-named Testate Estate, by entertaining
manifestations, motion and pleadings filed by her and acting on them, and also to enjoin said court from allowing said private respondent to interfere, meddle or take part in any manner in the administration of the Testate
Estate of Charles Newton Hodges (Sp. Proc. No. 1672 of the same court and branch); with prayer for preliminary injunction, which was issued by this Court on August 8, 1967 upon a bond of P5,000; the petition being
particularly directed against the orders of the respondent court of October 12, 1966 denying petitioner's motion of April 22, 1966 and its order of July 18, 1967 denying the motion for reconsideration of said order.
Related to and involving basically the same main issue as the foregoing petition, thirty-three (33) appeals from different orders of the same respondent court approving or otherwise sanctioning the acts of administration of
the respondent Magno on behalf of the testate Estate of Mrs. Hodges.
THE FACTS
On May 23, 1957, Linnie Jane Hodges died in Iloilo City leaving a will executed on November 22, 1952 pertinently providing as follows:
"FIRST: I direct that all my just debts and funeral expenses be first paid out of my estate.
SECOND: I give, devise and bequeath all of the rest, residue and remainder of my estate, both personal and real, wherever situated, or located, to my beloved husband, Charles Newton Hodges, to
have and to hold unto him, my said husband, during his natural lifetime.
THIRD: I desire, direct and provide that my husband, Charles Newton Hodges, shall have the right to manage, control, use and enjoy said estate during his lifetime, and he is hereby given the right
to make any changes in the physical properties of said estate, by sale or any part thereof which he may think best, and the purchase of any other or additional property as he may think best; to
execute conveyances with or without general or special warranty, conveying in fee simple or for any other term or time, any property which he may deem proper to dispose of; to lease any of the
real property for oil, gas and/or other minerals, and all such deeds or leases shall pass the absolute fee simple title to the interest so conveyed in such property as he may elect to sell. All rents,
emoluments and income from said estate shall belong to him, and he is further authorized to use any part of the principal of said estate as he may need or desire. It is provided herein, however, that
he shall not sell or otherwise dispose of any of the improved property now owned by us located at, in or near the City of Lubbock, Texas, but he shall have the full right to lease, manage and enjoy
the same during his lifetime, above provided. He shall have the right to subdivide any farm land and sell lots therein, and may sell unimproved town lots. aisa dc
FOURTH: At the death of my said husband, Charles Newton Hodges, I give, devise and bequeath all of the rest, residue and remainder of my estate, both real and personal, wherever situated or
located, to be equally divided among my brothers and sisters, share and share alike, namely:
Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Saddie Rascoe, Era Roman and Nimroy Higdon.
FIFTH: In case of the death of any of my brothers and/or sisters named in item Fourth, above, prior to the death of my husband, Charles Newton Hodges, then it is my will and bequest that the heirs
of such deceased brother or sister shall take jointly the share which would have gone to such brother or sister had she or he survived.
SIXTH: I nominate and appoint my said husband, Charles Newton Hodges, to be executor of this, my last will and testament, and direct that no bond or other security be required of him as such
executor.
SEVENTH: It is my will and bequest that no action be had in the probate court, in the administration of my estate, other than that necessary to prove and record this will and to return an inventory
and appraisement of my estate and list of claims." (Pp. 2-4, Petition.)
This will was subsequently probated in aforementioned Special Proceedings No. 1307 of respondent court on June 28, 1957, with the widower Charles Newton Hodges being appointed as Executor, pursuant to the
provisions thereof.
Previously, on May 27, 1957, the said widower (hereafter to be referred to as Hodges) had been appointed Special Administrator, in which capacity he filed a motion on the same date as follows:
"URGENT EX-PARTE MOTION TO ALLOW OR AUTHORIZE PETITIONER TO CONTINUE THE BUSINESS IN WHICH HE WAS ENGAGED AND TO PERFORM ACTS WHICH HE HAD BEEN
DOING WHILE DECEASED WAS LIVING
Come petitioner in the above-entitled special proceedings, thru his undersigned attorneys, to the Hon. Court, most respectfully states:
1. That Linnie Jane Hodges died leaving her last will and testament, a copy of which is attached to the petition for probate of the same.
2. That in said last will and testament herein petitioner Charles Newton Hodges is directed to have the right to manage, control use and enjoy the estate of deceased Linnie Jane Hodges, in the
same way, a provision was placed in paragraph two, the following: 'I give, devise and bequeath all of the rest, residue and remainder of my estate, to my beloved husband, Charles Newton Hodges,
to have and (to) hold unto him, my said husband, during his natural lifetime.'
3. That during the lifetime of Linnie Jane Hodges, herein petitioner was engaged in the business of buying and selling personal and real properties, and do such acts which petitioner may think best.
4. That deceased Linnie Jane Hodges died leaving no descendants or ascendants, except brothers and sisters and herein petitioner as the surviving spouse, to inherit the properties of the
decedent.
"5. That the present motion is submitted in order not to paralyze the business of petitioner and the deceased, especially in the purchase and sale of properties. That proper accounting will be had
also in all these transactions.
WHEREFORE, it is most respectfully prayed that, petitioner C. N. Hodges (Charles Newton Hodges) be allowed or authorized to continue the business in which he was engaged and to perform acts
which he had been doing while deceased Linnie Jane Hodges was living.
City of Iloilo, May 27, 1957." (Annex "D", Petition.)
which the respondent court immediately granted in the following order:
"It appearing in the urgent ex-parte motion filed by petitioner C. N. Hodges, that the business in which said petitioner and the deceased were engaged will be paralyzed, unless and until the
Executor is named and appointed by the Court, the said petitioner is allowed or authorized to continue the business in which he was engaged and to perform acts which he had been doing while the
deceased was living.
SO ORDERED.
City of Iloilo, May 27, 1957."
(Annex "E", Petition.)
Under date of December 11, 1957, Hodges filed as such Executor another motion thus:
"MOTION TO APPROVE ALL SALES, CONVEYANCES, LEASES, MORTGAGES THAT THE EXECUTOR HAD MADE FURTHER AND SUBSEQUENT TRANSACTIONS WHICH THE EXECUTOR

MAY DO IN ACCORDANCE WITH THE LAST WISH OF THE DECEASED LINNIE JANE HODGES.
"Comes the Executor in the above-entitled proceedings, thru his undersigned attorney, to the Hon. Court, most respectfully states:
1. That according to the last will and testament of the deceased Linnie Jane Hodges, the executor as the surviving spouse and legatee named in the will of the deceased; has the right to dispose of
all the properties left by the deceased, portion of which is quoted as follows:
Second: I give, devise and bequeath all of the rest, residue and remainder of my estate, both personal and real, wherever situated, or located, to my beloved husband, Charles Newton
Hodges, to have and to hold unto him, my said husband, during his natural lifetime.
Third: I desire, direct and provide that my husband, Charles Newton Hodges, shall have the right to manage, control, use and enjoy said estate during his lifetime, and he is hereby given
the right to make any changes in the physical properties of said estate, by sale or any part thereof which he may think best, and the purchase of any other or additional property as he
may think best; to execute conveyances with or without general or special warranty, conveying in fee simple or for any other term or time, any property which he may deem proper to
dispose of; to lease any of the real property for oil, gas and/or other minerals, and all such deeds or leases shall pass the absolute fee simple title to the interest so conveyed in such
property as he may elect to sell. All rents, emoluments and income from said estate shall belong to him, and he is further authorized to use any part of the principal of said estate as he
may need or desire. . . . .
2. That herein Executor, is not only part owner of the properties left as conjugal, but also, the successor to all the properties left by the deceased Linnie Jane Hodges. That during the lifetime of
herein Executor, as Legatee, has the right to sell, convey, lease or dispose of the properties in the Philippines. That inasmuch as C. N. Hodges was and is engaged in the buy and sell of real and
personal properties, even before the death of Linnie Jane Hodges, a motion to authorize said C. N. Hodges was filed in Court, to allow him to continue in the business of buy and sell, which motion
was favorably granted by the Honorable Court.
3. That since the death of Linnie Jane Hodges, Mr. C. N. Hodges had been buying and selling real and personal properties, in accordance with the wishes of the late Linnie Jane Hodges.
4. That the Register of Deeds for Iloilo, had required of late the herein Executor to have all the sales, leases, conveyances or mortgages made by him, approved by the Hon. Court.
5. That it is respectfully requested, all the sales, conveyances leases and mortgages executed by the Executor, be approved by the Hon. Court and subsequent sales conveyances, leases and
mortgages in compliances with the wishes of the late Linnie Jane Hodges, and within the scope of the terms of the last will and testament, also be approved;
6. That the Executor is under obligation to submit his yearly accounts, and the properties conveyed can also be accounted for, especially the amounts received.
"WHEREFORE, it is most respectfully prayed that, all the sales, conveyances, leases, and mortgages executed by the Executor, be approved by the Hon. Court, and also the subsequent sales,
conveyances, leases, and mortgages, in consonance with the wishes of the deceased contained in her last will and testament, be with authorization and approval of the Hon. Court.
City of Iloilo, December 11, 1967."
(Annex "G", Petition.)
which again was promptly granted by the respondent court on December 14, 1957 as follows:
ORDER
As prayed for by Attorney Gellada, counsel for the Executor for the reasons stated in his motion dated December 11, 1957, which the Court considers well taken all the sales, conveyances, leases
and mortgages of all properties left by the deceased Linnie Jane Hodges executed by the Executor Charles N. Hodges are hereby APPROVED. The said Executor is further authorized to execute
subsequent sales, conveyances, leases and mortgages of the properties left by the said deceased Linnie Jane Hodges in consonance with the wishes conveyed in the last will and testament of the
latter.
So ordered.
Iloilo City, December 14,1957."
(Annex "H", Petition.)
On April 14, 1959, in submitting his first statement of account as Executor for approval, Hodges alleged:
"Pursuant to the provisions of the Rules of Court, herein executor of the deceased, renders the following account of his administration covering the period from January 1, 1958 to December 31,
1958, which account may he found in detail in the individual income tax return filed for the estate of deceased Linnie Jane Hodges, to wit:
That a certified public accountant has examined the statement of net worth of the estate of Linnie Jane Hodges, the assets and liabilities, as well as the income and expenses, copy of which is
hereto attached and made integral part of this statement of account as Annex "A".
IN VIEW OF THE FOREGOING, it is most respectfully prayed that the statement of net worth of the estate of Linnie Jane Hodges the assets and liabilities, income and expenses as shown in the
individual income tax return for the estate of the deceased and marked as Annex "A", be approved by the Honorable Court, as substantial compliance with the requirements of the Rules of Court.
That no person interested in the Philippines of the time and place of examining the herein accounts be given notice, as herein executor is the only devisee or legatee of the deceased, in accordance
with the last will and testament already probated by the Honorable Court.
City of Iloilo April 14, 1959."
(Annex "I", Petition.)
The respondent court approved this statement of account on April 21, 1959 in its order worded thus:
"Upon petition of Atty. Gellada, in representation of the Executor, the statement of net worth of the estate of Linnie Jane Hodges, the assets and liabilities, income and expenses as shown in the
individual income tax return for the estate of the deceased and marked as Annex "A" is approved.
SO ORDERED. cd
City of Iloilo, April 21, 1959."
(Annex "J", Petition.)
His accounts for the periods January 1, 1959 to December 31, 1959 and January 1, 1960 to December 31, 1960 were submitted likewise accompanied by allegations identical mutatis mutandis to those of April 14, 1959,
quoted above; and the respective orders approving the same, dated July 30, 1960 and May 2, 1961, were substantially identical to the above-quoted order of April 21, 1959. In connection with the statements of account just
mentioned, the following assertions related thereto made by respondent-appellee Magno in her brief do not appear from all indications discernible in the record to be disputable:
"Under date of April 14, 1959, C. N. Hodges filed his first 'Account by the Executor' of the estate of Linnie Jane Hodges. In the 'Statement of Networth of Mr. C. N. Hodges and the Estate of Linnie
Jane Hodges' as of December 31, 1958 annexed thereto, C. N. Hodges reported that the combined conjugal estate earned a net income of P328,402.62, divided evenly between him and the estate
of Linnie Jane Hodges. Pursuant to this, he filed an 'individual income tax return' for calendar year 1958 on the estate of Linnie Jane Hodges reporting, under oath, the said estate as having earned
income of P164,201.31, exactly one-half of the net income of his combined personal assets and that of the estate of Linnie Jane Hodges." (P 91, Appellee's Brief.).
xxx xxx xxx
"Under date of July 21, 1960, C. N. Hodges filed his second 'Annual Statement of Account by the Executor' of the estate of Linnie Jane Hodges. In the 'Statement of Networth of Mr. C. N. Hodges
and the Estate of Linnie Jane Hodges' as of December 31, 1959 annexed thereto, C. N. Hodges reported that the combined conjugal estate earned a net income of P270,623.32, divided evenly
between him and the estate of Linnie Jane Hodges. Pursuant to this, he filed an 'individual income tax return' for calendar year 1959 on the estate of Linnie Jane Hodges reporting, under oath, the
said (state as having earned income of P135,311.66, exactly one-half of the net income of his combined personal assets and that of the estate or Linnie Jane Hodges." (Pp. 91-92, Appellee's Brief.)

xxx xxx xxx

"Under date of April 20, 1961, C. N. Hodges filed his third 'Annual Statement of Account by the Executor for the Year 1960' of the estate of Linnie Jane Hodges. In the 'Statement of Net Worth of Mr.
C. N. Hodges and the Estate of Linnie Jane Hodges' as of December 31, 1960 annexed thereto, C. N. Hodges reported that the combined conjugal estate earned a net income of P314,857.94,
divided evenly between him and the estate of Linnie Jane Hodges. Pursuant to this, he filed an 'individual income tax return' for calendar year 1960 on the estate of Linnie Jane Hodges reporting,
under oath, the aid estate as having earned income of P157,428.97, exactly one-half of the net income of his combined personal assets and that of the estate of Linnie Jane Hodges." (Pp. 92-93,
Appellee's Brief.)
Likewise the following:
"In the petition for probate that he (Hodges) filed, he listed the seven brothers and sisters of Linnie Jane as her 'heirs' (see p. 2, Green ROA). The order of the court admitting the will to probate
unfortunately omitted one of the heirs, Roy Higdon (see p. 14, Green ROA). Immediately, C. N. Hodges filed a verified motion to have Roy Higdon's name included as an heir, stating that he wanted
to straighten the records 'in order the heirs of deceased Roy Higdon may not think or believe they were omitted, and that they were really and are interested in the estate of deceased Linnie Jane
Hodges.
"As an executor, he was bound to file tax returns for the estate he was administering under American law. He did file such as estate tax return on August 8, 1958. In Schedule 'M' of such return, he
answered 'Yes' to the question as to whether he was contemplating 'renouncing the will'. On the question as to what property interests passed to him as the surviving spouse, he answered:
'None, except for purposes of administering the Estate, paying debts, taxes and other legal charges. It is the intention of the surviving husband of deceased to distribute the remaining
property and interests of the deceased in their Community estate to the devisees and legatees named in the will when the debts, liabilities, taxes and expenses of administration are
finally determined and paid.'
"Again, on August 9, 1962, barely four months before his death, he executed an 'affidavit' wherein he ratified and confirmed all that he stated in Schedule 'M' of his estate tax returns as to his having
renounced what was given him by his wife's will. 1
"As appointed executor, C. N. Hodges filed an 'Inventory' dated May 12, 1958. He listed all the assets of his conjugal partnership with Linnie Jane Hodges on a separate balance sheet and then
stated expressly that her estate which has come into his possession as executor was 'one-half of all the items' listed in said balance sheet." (Pp. 89-90, Appellee's Brief.)
Parenthetically, it may be stated, at this juncture, that We are taking pains to quote wholly or at least, extensively from some of the pleadings and orders whenever We feel that it is necessary to do so for a more
comprehensive and clearer view of the important and decisive issues raised by the parties and a more accurate appraisal of their respective positions in regard thereto.
The records of these cases do not show that anything else was done in the above-mentioned Special Proceedings No. 1307 until December 26, 1962, when on account of the death of Hodges the day before, the same
lawyer, Atty. Leon P. Gellada, who had been previously acting as counsel for Hodges in his capacity as Executor of his wife's estate, and as such had filed the aforequoted motions and manifestations, filed the following:
"URGENT EX-PARTE MOTION FOR THE APPOINTMENT OF A SPECIAL ADMINISTRATRIX
COMES the undersigned attorney for the Executor in the above-entitled proceedings, to the Honorable Court, most respectfully states:
1. That in accordance with the Last Will and Testament of Linnie Jane Hodges (deceased), her husband, Charles Newton Hodges was to act as Executor, and in fact, in an order issued by this Hon.
Court dated June 28, 1957, the said Charles Newton Hodges was appointed Executor and had performed the duties as such.
2. That last December 22, 1962, the said Charles Newton Hodges was stricken ill, and brought to the Iloilo Mission Hospital for treatment, but unfortunately, he died on December 25, 1962, as
shown by a copy of the death certificate hereto attached and marked as Annex 'A'.
3. That in accordance with the provisions of the last will and testament of Linnie Jane Hodges, whatever real and personal properties that may remain at the death of her husband Charles Newton
Hodges, the said properties shall be equally divided among their heirs. That there are real and personal properties left by Charles Newton Hodges, which need to be administered and taken care of.
4. That the estate of deceased Linnie Jane Hodges, as well as that of Charles Newton Hodges, have not as yet been determined or ascertained, and there is necessity for the appointment of a
general administrator to liquidate and distribute the residue of the estate to the heirs and legatees of both spouses. That in accordance with the provisions of Section 2 of Rule 75 of the Rules of
Court, the conjugal partnership of Linnie Jane Hodges and Charles Newton Hodges shall be liquidated in the testate proceedings of the wife.
5. That the undersigned counsel, has perfect personal knowledge of the existence of the last will and testament of Charles Newton Hodges, with similar provisions as that contained in the last will
and testament of Linnie Jane Hodges. However, said last will and testament of Charles Newton Hodges is kept inside the vault or iron safe in his office, and will be presented in due time before this
Honorable Court.
6. That in the meantime, it is imperative and indispensable that, an Administratrix be appointed for the estate of Linnie Jane Hodges and a Special Administratrix for the estate of Charles Newton
Hodges, to perform the duties required by law, to administer, collect, and take charge of the goods, chattels, rights, credits, and estate of both spouses, Charles Newton Hodges and Linnie Jane
Hodges, as provided for in Section 1 and 2, Rule 81 of the Rules of Court.
7. That there is delay in granting letters testamentary or of administration, because the last will and testament of deceased, Charles Newton Hodges, is still kept in his safe or vault, and in the
meantime, unless an administratrix (and,) at the same time, a Special Administratrix is appointed, the estate of both spouses are in danger of being lost, damaged or go to waste.
8. That the most trusted employee of both spouses Linnie Jane Hodges and C. N. Hodges, who had been employed for around thirty (30) years, in the person of Miss Avelina Magno, (should) be
appointed Administratrix of the estate of Linnie Jane Hodges and at the same time Special Administratrix of the estate of Charles Newton Hodges. That the said Miss Avelina Magno is of legal age,
a resident of the Philippines, the most fit, competent, trustworthy and well-qualified person to serve the duties of Administratrix and Special Administratrix and is willing to act as such.
9. That Miss Avelina Magno is also willing to file bond in such sum which the Hon. Court believes reasonable.
WHEREFORE, in view of all the foregoing, it is most respectfully prayed that, Miss AVELINA A. MAGNO be immediately appointed Administratrix of the estate of Linnie Jane Hodges and as Special
Administratrix of the estate of Charles Newton Hodges, with powers and duties provided for by law. That the Honorable Court fix the reasonable bond of P1,000.00 to be filed by Avelina A. Magno."
(Annex "O", Petition.)
which respondent court readily acted on in its order of even date thus:
"For the reasons alleged in the Urgent Ex-Parte Motion filed by counsel for the Executor dated December 25, 1962, which the Court finds meritorious, Miss AVELINA A. MAGNO, is hereby
appointed Administratrix of the estate of Linnie Jane Hodges and as Special Administratrix of the estate of Charles Newton Hodges, in the latter case, because the last will of said Charles Newton
Hodges is still kept in his vault or iron safe and that the real and personal properties of both spouses may be lost, damaged or go to waste, unless a Special Administratrix is appointed.
Miss Avelina A. Magno is required to file bond in the sum of FIVE THOUSAND PESOS (P5,000.00), and after having done so, let letters of Administration be issued to her." (Annex "P", Petition.)
On December 29, 1962, however, upon urgent ex-parte petition of respondent Magno herself, thru Atty. Gellada, Harold, R. Davies, "a representative of the heirs of deceased Charles Newton Hodges (who had) arrived
from the United States of America to help in the administration of the estate of said deceased" was appointed as Co-Special Administrator of the estate of Hodges, (pp. 29-33, Yellow Record on Appeal) only to be
replaced as such co-special administrator on January 22, 1963 by Joe Hodges, who, according to the motion of the same attorney, is "the nephew of the deceased (who had) arrived from the United States with instructions
from the other heirs of the deceased to administer the properties or estate of Charles Newton Hodges in the Philippines", (Pp. 47-50, id.)
Meanwhile, under date of January 9, 1963, the same Atty. Gellada filed in Special Proceedings 1672 a petition for the probate of the will of Hodges, 2 with a prayer for the issuance of letters of administration to the same
Joe Hodges, albeit the motion was followed on February 22, 1963 by a separate one asking that Atty. Fernando Mirasol be appointed as his co-administrator. On the same date this latter motion was filed, the court issued
the corresponding order of probate and letters of administration to Joe Hodges and Atty. Mirasol, as prayed for.
At this juncture, again, it may also be explained that just as, in her will, Mrs. Hodges bequeathed her whole estate to her husband to have and to hold unto him, my said husband, during his natural lifetime", she, at the

same time or in like manner, provided that "at the death of my said husband I give devise and bequeath all of the rest, residue and remainder of my estate, both real and personal, wherever situated or located, to be
equally divided among my brothers and sisters, share and share alike ". Accordingly, it became incumbent upon Hodges, as executor of his wife's will, to duly liquidate the conjugal partnership, half of which constituted
her estate, in order that upon the eventuality of his death, "the rest, residue and remainder" thereof could be determined and correspondingly distributed or divided among her brothers and sisters And it was precisely
because no such liquidation was done, furthermore, there is the issue of whether the distribution of her estate should be governed by the laws of the Philippines or those of Texas, of which State she was a national, and,
what is more, as already stated, Hodges made official and sworn statements or manifestations indicating that as far as he was concerned no "property interests passed to him as surviving spouse 'except for purposes of
administering the estate, paying debts, taxes and other legal charges' and it was the intention of the surviving husband of the deceased to distribute the remaining property and interests of the deceased in their Community
Estate to the devisees and legatees named in the will when the debts, liabilities, taxes and expenses of administration are finally determined and paid", that the incidents and controversies now before Us for resolution
arose. As may be observed, the situation that ensued upon the death of Hodges became rather unusual and so, quite understandably, the lower court's actuations presently under review are apparently wanting in
consistency and seemingly lack proper orientation. cdt
Thus, We cannot discern clearly from the record before Us the precise perspective from which the trial court proceeded in issuing its questioned orders. And, regretably, none of the lengthy briefs submitted by the parties is
of valuable assistance in clearing up the matter.
To begin with, We gather from the two records on appeal filed by petitioner, as appellant in the appealed cases, one with green cover and the other with a yellow cover, that at the outset, a sort of modus operandi had been
agreed upon by the parties under which the respective administrators of the two estates were supposed to act conjointly, but since no copy of the said agreement can be found in the record before Us, We have no way of
knowing when exactly such agreement was entered into and under what specific terms. And while reference is made to said modus operandi in the order of September 11, 1964, on pages 205-206 of the Green Record on
Appeal, reading thus:
"The present incident is to hear the side of administratrix, Miss Avelina A. Magno, in answer to the charges contained in the motion filed by Atty. Cesar Tirol on September 3, 1964. In answer to the
said charges, Miss Avelina A. Magno, through her counsel, Atty. Rizal Quimpo, filed a written manifestation.
"After reading the manifestation here of Atty. Quimpo, for and in behalf of the administratrix, Miss Avelina A. Magno, the Court finds that everything that happened before September 3, 1964, which
was resolved on September 8, 1964, to the satisfaction of parties, was simply due to a misunderstanding between the representative of the Philippine Commercial and Industrial Bank and Miss
Magno and in order to restore the harmonious relations between the parties, the Court ordered the parties to remain in status quo as to their modus operandi before September 1, 1964, until after
the Court can have a meeting with all the parties and their counsels on October 3, as formerly agreed upon between counsels, Attys. Ozaeta, Gibbs and Ozaeta, Attys. Tirol and Tirol and Atty. Rizal
Quimpo.
"In the meantime, the prayers of Atty. Quimpo as stated in his manifestation shall not be resolved by this Court until October 3, 1964.
SO ORDERED."
there is nothing in the record indicating whatever happened to it afterwards, except that again, reference thereto was made in the appealed order of October 27, 1965, on pages 292-295 of the Green Record on
Appeal, as follows:
"On record is an urgent motion to allow PCIB to open all doors and locks in the Hodges Office at 206-208 Guanco street, Iloilo city, to take immediate and exclusive possession thereof and to place
its own locks and keys for security purposes of the PCIB dated October 27, 1965 thru Atty. Cesar Tirol. It is alleged in said urgent motion that Administratrix Magno of the testate estate of Linnie
Jane Hodges refused to open the Hodges Office at 206-208 Guanco Street, Iloilo City where PCIB holds office and therefore PCIB is suffering great moral damage and prejudice as a result of said
act. It is prayed that an order be issued authorizing it (PCIB) to open all doors and locks in the said office, to take immediate and exclusive possession thereof and place thereon its own locks and
keys for security purposes; instructing the clerk of court or any available deputy to witness and supervise the opening of all doors and locks and taking possession of the PCIB.
"A written opposition has been filed by Administratrix Magno of even date (Oct. 27) thru counsel Rizal Quimpo stating therein that she was compelled to close the office for the reason that the PCIB
failed to comply with the order of this Court signed by Judge Anacleto I. Bellosillo dated September 11, 1964 to the effect that both estates should remain in status quo as to their modus operandi as
of September 1, 1964.
"To arrive at a happy solution of the dispute and in order not to interrupt the operation of the office of both estates, the Court aside from the reasons stated in the urgent motion and opposition heard
the verbal arguments of Atty. Cesar Tirol for the PCIB and Atty. Rizal Quimpo for Administratrix Magno.
"After due consideration, the Court hereby orders Magno to open all doors and locks in the Hodges Office at 206-208 Guanco Street, Iloilo city in the presence of the PCIB or its duly authorized
representative and deputy clerk of court Albis of this branch not later than 7:30 tomorrow morning October 28, 1965 in order that the office of said estates could operate for business.
"Pursuant to the order of this Court thru Judge Bellosillo dated September 11, 1964, it is hereby ordered:
(a) That all cash collections should be deposited in the joint account of the estates of Linnie Jane Hodges and estate of C. N. Hodges;
(b) That whatever cash collections that had been deposited in the account of either of the estates should be withdrawn and since then deposited in the joint account of the estate of Linnie Jane
Hodges and the estate of C. N. Hodges;
(c) That the PCIB should countersign the check in the amount of P250 in favor of Administratrix Avelina A, Magno as her compensation as administratrix of the Linnie Jane Hodges estate
chargeable to the testate estate of Linnie Jane Hodges only;
(d) That Administratrix Magno is hereby directed to allow the PCIB to inspect whatever records, documents and papers she may have in her possession in the same manner that Administrator PCIB
is also directed to allow Administratrix Magno to inspect whatever records, documents and papers it may have in its possession;
(e) That the accountant of the estate of Linnie Jane Hodges shall have access to all records of the transactions of both estates for the protection of the estate of Linnie Jane Hodges; and in like
manner the accountant or any authorized representative of the estate of C. N. Hodges shall have access to the records of transactions of the Linnie Jane Hodges estate for the protection of the
estate of C. N. Hodges.
"Once the estates' office shall have been opened by Administratrix Magno in the presence of the PCIB or its duly authorized representative and deputy clerk Albis or his duly authorized
representative, both estates or any of the estates should not close it without previous consent and authority from this court.
SO ORDERED."
As may be noted, in this order, the respondent court required that all collections from the properties in the name of Hodges should be deposited in a joint account of the two estates, which indicates that seemingly the
so-called modus operandi was no longer operative, but again there is nothing to show when this situation started.
Likewise, in paragraph 3 of the petitioner's motion of September 14, 1964, on pages 188-201 of the Green Record on Appeal, (also found on pp. 83-91 of the Yellow Record on Appeal) it is alleged that:
"3. On January 24, 1964 virtually all of the heirs of C. N. Hodges, Joe Hodges and Fernando P. Mirasol acting as the two co-administrators of the estate of C. N. Hodges, Avelina A. Magno acting as
the administratrix of the estate of Linnie Jane Hodges, and Messrs. William Brown and Ardell Young acting for all of the Higdon family who claim to be the sole beneficiaries of the estate of Linnie
Jane Hodges and various legal counsel representing the aforementioned parties entered into an amicable agreement, which was approved by this Honorable Court, wherein the parties thereto
agreed that certain sums of money were to be paid in settlement of different claims against the two estates and that the assets (to the extent they existed) of both estates would be administered
jointly by the PCIB as administrator of the estate of C. N. Hodges and Avelina A. Magno as administratrix of the estate of Linnie Jane Hodges, subject, however, to the aforesaid October 5, 1963
Motion, namely, the PCIB's claim to exclusive possession and ownership of one hundred percent (100%) (or, in the alternative, seventy-five percent (75%) of all assets owned by C. N. Hodges or
Linnie Jane Hodges situated in the Philippines. On February 1, 1964 (pp. 934-935, CFI Rec., S.P. No. 1672) this Honorable Court amended its order of January 24, 1964 but in no way changed its
recognition of the aforedescribed basic demand by the PCIB as administrator of the estate of C. N. Hodges to one hundred percent (100%) of the assets claimed by both estates."

but no copy of the mentioned agreement of joint administration of the two estates exists in the record, and so, We are not informed as to what exactly are the terms of the same which could be relevant in the
resolution of the issues herein.
On the other hand, the appealed order of November 3, 1965, on pages 313-320 of the Green Record on Appeal, authorized payment by respondent Magno of, inter alia, her own fees as administratrix, the attorney's fees of
her lawyers, etc., as follows:
"Administratrix Magno thru Attys. Raul S. Manglapus and Rizal R. Quimpo filed a Manifestation and Urgent Motion dated June 10, 1964 asking for the approval of the Agreement dated June 6, 1964
which Agreement is for the purpose of retaining their services to protect and defend the interest of the said Administratrix in these proceedings and the same has been signed by and bears the
express conformity of the attorney-in-fact of the late Linnie Jane Hodges, Mr. James L. Sullivan. It is further prayed that the Administratrix of the Testate Estate of Linnie Jane Hodges be directed to
pay the retainers fee of said lawyers, said fees made chargeable as expenses for the administration of the estate of Linnie Jane Hodges (pp. 1641-1642, Vol. V, Sp. 1307).
"An opposition has been filed by the Administrator PCIB thru Atty. Herminio Ozaeta dated July 11, 1964, on the ground that payment of the retainers fee of Attys. Manglapus and Quimpo as prayed
for in said Manifestation and Urgent Motion is prejudicial to the 100% claim of the estate of C. N. Hodges; employment of Attys. Manglapus and Quimpo is premature and/or unnecessary; Attys.
Quimpo and Manglapus are representing conflicting interests and the estate of Linnie Jane Hodges should be closed and terminated (pp. 1679-1684, Vol. V, Sp. 1307).
"Atty. Leon P. Gellada filed a memorandum dated July 28, 1964 asking that the Manifestation and Urgent Motion filed by Attys. Manglapus and Quimpo be denied because no evidence has been
presented in support thereof. Atty. Manglapus filed a reply to the opposition of counsel for the Administrator of the C. N. Hodges estate wherein it is claimed that expenses of administration include
reasonable counsel or attorney's fees for services to the executor or administrator. As a matter of fact the fee agreement dated February 27, 1964 between the PCIB and the law firm of Ozaeta,
Gibbs & Ozaeta as its counsel (Pp. 1280-1284, Vol. V, Sp. 1307) which stipulates the fees for said law firm has been approved by the Court in its order dated March 31, 1964. If payment of the fees
of the lawyers for the administratrix of the estate of Linnie Jane Hodges will cause prejudice to the estate of C. N. Hodges, in like manner the very agreement which provides for the payment of
attorney's fees to the counsel for the PCIB will also be prejudicial to the estate of Linnie Jane Hodges (pp. 1801-1814, Vol. V, Sp. 1307).
"Atty. Herminio Ozaeta filed a rejoinder dated August 10, 1964 to the reply to the opposition to the Manifestation and Urgent Motion alleging principally that the estates of Linnie Jane Hodges and C.
N. Hodges are not similarly situated for the reason that C. N. Hodges is an heir of Linnie Jane Hodges whereas the latter is not an heir of the former for the reason that Linnie Jane Hodges
predeceased C. N. Hodges (pp. 1839-1848, Vol. V, Sp. 1307); that Attys. Manglapus and Quimpo formally entered their appearance in behalf of Administratrix of the estate of Linnie Jane Hodges on
June 10, 1964 (pp. 1639-1640, Vol. V, Sp. 1307).
"Atty. Manglapus filed a manifestation dated December 18, 1964 stating therein that Judge Bellosillo issued an order requiring the parties to submit memorandum in support of their respective
contentions. It is prayed in this manifestation that the Manifestation and Urgent Motion dated June 10, 1964 be resolved (pp. 6435-6439, Vol. VII, Sp. 1307).
"Atty. Roman Mabanta, Jr. for the PCIB filed a counter manifestation dated January 5, 1965 asking that after the consideration by the court of all allegations and arguments and pleadings of the
PCIB in connection therewith (1) said manifestation and urgent motion of Attys. Manglapus and Quimpo be denied (pp. 6442-6453, Vol. VII, Sp. 1307). Judge Querubin issued an order dated
January 4, 1965 approving the motion dated June 10, 1964 of the attorneys for the administratrix of the estate of Linnie Jane Hodges and agreement annexed to said motion. The said order further
states: "The Administratrix of the estate of Linnie Jane Hodges is authorized to issue or sign whatever check or checks may be necessary for the above purpose and the administrator of the estate
of C. N. Hodges is ordered to countersign the same." (pp. 6518-6523, Vol. VII, Sp. 1307).
"Atty. Roman Mabanta, Jr. for the PCIB filed a manifestation and motion dated January 13, 1965 asking that the order of January 4, 1965 which was issued by Judge Querubin be declared null and
void and to enjoin the clerk of court and the administratrix and administrator in these special proceedings from all proceedings and action to enforce or comply with the provision of the aforesaid
order of January 4, 1965. In support of said manifestation and motion it is alleged that the order of January 4, 1965 is null and void because the said order was never delivered to the deputy clerk
Albis of Branch V (the sala of Judge Querubin) and the alleged order was found in the drawer of the late Judge Querubin in his office when said drawer was opened on January 13, 1965 after the
death of Judge Querubin by Perfecto Querubin, Jr., the son of the judge and in the presence of Executive Judge Rovira and deputy clerk Albis (Sec. 1, Rule 36, New Civil Code) (Pp. 6600-6606,
Vol. VIII, Sp. 1307).
"Atty. Roman Mabanta, Jr. for the PCIB filed a motion for reconsideration dated February 23, 1965 asking that the order dated January 4, 1964 be reversed on the ground that:
1. Attorneys retained must render services to the estate not to the personal heir;
2. If services are rendered to both, fees should be pro-rated between them;
3. Attorneys retained should not represent conflicting interests to the prejudice of the other heirs not represented by said attorneys;
4. Fees must be commensurate to the actual services rendered to the estate;
"5. There must be assets in the estate to pay for said fees (Pp. 6625-6636, Vol. VIII, Sp. 1307).
"Atty. Quimpo for Administratrix Magno of the estate of Linnie Jane Hodges filed a motion to submit dated July 15, 1965 asking that the manifestation and urgent motion dated June 10, 1964 filed by
Attys. Manglapus and Quimpo and other incidents directly appertaining thereto he considered submitted for consideration and approval (pp. 6759-6765, Vol. VIII, Sp. 1307).
"Considering the arguments and reasons in support to the pleadings of both the Administratrix and the PCIB, and of Atty. Gellada, herein before mentioned, the Court believes that the order of
January 4, 1965 is null and void for the reason that the said order has not been filed with deputy clerk Albis of this court (Branch V) during the lifetime of Judge Querubin who signed the said order.
However, the said manifestation and urgent motion dated June 10, 1964 is being treated and considered in this instant order. It is worthy to note that in the motion dated January 24, 1964 (Pp.
1149-1163, Vol. V, Sp. 1307) which has been filed by Atty. Gellada and his associates and Atty. Gibbs and other lawyers in addition to the stipulated fees for actual services rendered. However, the
fee agreement dated February 27, 1964, between the Administrator of the estate of C. N. Hodges and Atty. Gibbs which provides for retainer fee of P4,000 monthly in addition to specific fees for
actual appearances, reimbursement for expenditures and contingent fees has also been approved by the Court and said lawyers have already been paid. (pp. 1273-1279, Vol. V, Sp. Proc. 1307 pp.
1372-1373, Vol. V, Sp. Proc. 1307).
"WHEREFORE, the order dated January 4, 1965 is hereby declared null and void.
"The manifestation and motion dated June 10, 1964 which was filed by the attorneys for the administratrix of the testate estate of Linnie Jane Hodges is granted and the agreement annexed thereto
is hereby approved.
"The administratrix of the estate of Linnie Jane Hodges is hereby directed to be needed to implement the approval of the agreement annexed to the motion and the administrator of the estate of C.
N. Hodges is directed to countersign the said check or checks as the case may be.
SO ORDERED."
thereby implying somehow that the court assumed the existence of independent but simultaneous administrations.
Be that as it may, again, it appears that on August 6, 1965, the court, acting on a motion of petitioner for the approval of deeds of sale executed by it as administrator of the estate of Hodges, issued the following order, also
on appeal herein:
"Acting upon the motion for approval of deeds of sale for registered land of the PCIB, Administrator of the Testate Estate of C. N. Hodges in Sp. Proc. 1672 (Vol. VII, pp. 2244-2245), dated July 16,
1965, filed by Atty. Cesar T. Tirol in representation of the law firms of Ozaeta, Gibbs and Ozaeta and Tirol and Tirol and the opposition thereto of Atty. Rizal R. Quimpo (Vol. VIII, pp. 6811-6813)
dated July 22, 1965 and considering the allegations and reasons therein stated, the court believes that the deeds of sale should be signed jointly by the PCIB, Administrator of the Testate Estate of
C. N. Hodges and Avelina A. Magno, Administratrix of the Testate Estate of Linnie Jane Hodges and to this effect the PCIB should take the necessary steps so that Administratrix Avelina A. Magno
could sign the deeds of sale.

SO ORDERED." (P. 248, Green Record on Appeal.)

Notably, this order required that even the deeds executed by petitioner, as administrator of the Estate of Hodges, involving properties registered in his name, should be co-signed by respondent Magno. 3 And this was
not an isolated instance.
In her brief as appellee, respondent Magno states:
"After the lower court had authorized appellee Avelina A. Magno to execute final deeds of sale pursuant to contracts to sell executed by C. N. Hodges on February 20, 1963 (pp. 45-46, Green ROA),
motions for the approval of final deeds of sale (signed by appellee Avelina A. Magno and the administrator of the estate of C. N. Hodges first Joe Hodges, then Atty. Fernando Mirasol and later the
appellant) were approved by the lower court upon petition of appellee Magno's counsel, Atty. Leon P. Gellada, on the basis of section 8 of Rule 89 of the Revised Rules of Court. Subsequently, the
appellant, after it had taken over the bulk of the assets of the two estates, started presenting these motions itself. The first such attempt was a 'Motion for Approval of Deeds of Sale for Registered
Land and Cancellations of Mortgages' dated July 21, 1964 filed by Atty. Cesar T. Tirol, counsel for the appellant, thereto annexing two (2) final deeds of sale and two (2) cancellations of mortgages
signed by appellee Avelina A. Magno and D. R. Paulino, Assistant Vice-President and Manager of the appellant (CFI Record, Sp. Proc. No. 1307, Vol. V, pp. 1694-1701). This motion was approved
by the lower court on July 27, 1964. It was followed by another motion dated August 4, 1964 for the approval of one final deed of sale again signed by appellee Avelina A. Magno and D. R. Paulino
(CFI Record, Sp. Proc. No. 1307, Vol. V, pp. 1825-1828), which was again approved by the lower court on August 7, 1964. The gates having been opened, a flood ensued: the appellant
subsequently filed similar motions for the approval of a multitude of deeds of sales and cancellations of mortgages signed by both the appellee Avelina A. Magno and the appellant.
A random check of the records of Special Proceeding No. 1307 alone will show Atty. Cesar T. Tirol as having presented for court approval deeds of sale of real properties signed by both appellee
Avelina A. Magno and D. R. Paulino in the following numbers: (a) motion dated September 21, 1964 6 deeds of sale; (b) motion dated November 4, 1964 1 deed of sale; (c) motion dated
December 1, 1964 4 deeds of sale; (d) motion dated February 3, 1965 8 deeds of sale; (f) motion dated May 7, 1965 9 deeds of sale. In view of the very extensive landholdings of the
Hodges spouses and the many motions filed concerning deeds of sale of real properties executed by C. N. Hodges the lower court has had to constitute special but separate expedientesin Special
Proceedings Nos. 1307 and 1672 to include mere motions for the approval of deeds of sale of the conjugal properties of the Hodges spouses.
As an example, from among the very many, under date of February 3, 1965, Atty. Cesar T. Tirol, as counsel for the appellant, filed a 'Motion for Approval of Deeds of Sale for Registered Land and
Cancellations of Mortgages" (CFI Record, Sp. Proc. No. 1307, Vol. VIII, pp. 6570-6596) the allegations of which read:
'1. In his lifetime, the late C. N. Hodges executed 'Contracts to Sell' real property, and the prospective buyers under said contracts have already paid the price and complied with the terms
and conditions thereof;
'2. In the course of administration of both estates, mortgage debtors have already paid the debts secured by chattel mortgages in favor of the late C. N. Hodges, and are now entitled to
release therefrom;
'3. There are attached hereto documents executed jointly by the Administratrix in Sp. Proc. No. 1307 and the Administrator in Sp. Proc. No. 1672, consisting of deeds of sale in favor
Fernando Cano, Bacolod City, Occ. Negros
Fe Magbanua, Iloilo City
Policarpio M. Pareno, La Paz, Iloilo city
Rosario T. Libre, Jaro, Iloilo City
Federico B. Torres, Iloilo City
Reynaldo T. Lataquin, La Paz, Iloilo City
Anatolio T. Viray, Iloilo City
Benjamin Rolando, Jaro, Iloilo City
and cancellations of mortgages in favor of
Pablo Manzano, Oton, Iloilo
Ricardo M. Diana, Dao, San Jose, Antique
Simplicio Tingson, Iloilo City
Amado Magbanua, Pototan, Iloilo
Roselia M. Baes, Bolo, Roxas City
William Bayani, Rizal Estanzuela, Iloilo City
Elpidio Villarete, Molo, Iloilo City
Norma T. Ruiz, Jaro, Iloilo City.
'4. That the approval of the aforesaid documents will not reduce the assets of the estates so as to prevent any creditor from receiving his full debt or diminish his dividend.'
And the prayer of this motion is indeed very revealing:
'WHEREFORE, it is respectfully prayed that, under Rule 89, Section 8 of the Rules of Court, this honorable court approve the aforesaid deeds of sale and cancellations of mortgages.'" (Pp. 113-117,
Appellee's Brief.)
None of these assertions is denied in petitioner's reply brief.
Further indicating lack of concrete perspective or orientation on the part of the respondent court and its hesitancy to clear up matters promptly, in its other appealed order of November 23, 1965, on pages 334-335 of the
Green Record on Appeal, said respondent court allowed the movant Ricardo Salas, President of appellee Western Institute of Technology (successor of Panay Educational Institutions, Inc.), one of the parties with whom
Hodges had contracts that are in question in the appeals herein, to pay petitioner, as Administrator of the estate of Hodges and/or respondent Magno, as Administrator of the estate of Mrs. Hodges, thus:
"Considering that in both eases there is as yet no judicial declaration of heirs nor distribution of properties to whomsoever are entitled thereto, the Court believes that payment to both the
administrator of the testate estate of C. N. Hodges and the administratrix of the testate estate of Linnie Jane Hodges or to either one of the two estates is proper and legal.
WHEREFORE, movant Ricardo T. Salas can pay to both estates or either of them.
SO ORDERED."
(Pp. 334-335, Green Record on Appeal.)
On the other hand, as stated earlier, there were instances when respondent Magno was given authority to act alone. For instance, in the other appealed order of December 19, 1964, on page 221 of the Green Record on
Appeal, the respondent court approved payments made by her of overtime pay to some employees of the court who had helped in gathering and preparing copies of parts of the records in both estates as follows:
"Considering that the expenses subject of the motion to approve payment of overtime pay dated December 10, 1964, are reasonable and are believed by this Court to be a proper charge of
administration chargeable to the testate estate of the late Linnie Jane Hodges, the said expenses are hereby APPROVED and to be charged against the testate estate of the late Linnie Jane
Hodges. The administrator of the testate estate of the late Charles Newton Hodges is hereby ordered to countersign the check or checks necessary to pay the said overtime pay as shown by the
bills marked Annex 'A', 'B' and 'C' of the motion.
SO ORDERED." (Pp. 221-222, Green Record on Appeal.)
Likewise, the respondent court approved deeds of sale executed by respondent Magno alone, as Administratrix of the estate of Mrs. Hodges, covering properties in the name of Hodges, pursuant to "contracts to sell'

executed by Hodges, irrespective of whether they were executed by him before or after the death of his wife. The orders of this nature which are also on appeal herein are the following:
1. Order of March 30, 1966, on p. 137 of the Green Record on Appeal, approving the deed of sale executed by respondent Magno in favor of appellee Lorenzo Carles on February 24, 1966, pursuant to a "contract to sell"
signed by Hodges on June 17, 1958, after the death of his wife, which contract petitioner claims was cancelled by it for failure of Carles to pay the installments due on January 7, 1965.
2. Order of April 5, 1966, on pp. 139-140, id., approving the deed of sale executed by respondent Magno in favor of appellee Salvador Guzman on February 28, 1966 pursuant to a "contract to sell" signed by Hodges on
September 13, 1960, after the death of his wife, which contract petitioner claims it cancelled on March 3, 1965 in view of failure of said appellee to pay the installments on time.
3. Order of April 20, 1966, on pp. 167-168, id., approving the deed of sale executed by respondent Magno in favor of appellee Purificacion Coronado on March 28, 1966 pursuant to a "contract to sell" signed by Hodges on
August 14, 1961, after the death of his wife.
4. Order of April 20, 1966, on pp. 168-169, id., approving the deed of sale executed by respondent Magno in favor of appellee Florenia Barrido on March 28, 1966, pursuant to a "contract to sell" signed by Hodges on
February 21, 1958, after the death of his wife.
5. Order of June 7, 1966, on pp. 184-185, id., approving the deed of sale executed by respondent Magno in favor of appellee Belcezar Causing on May 2, 1966, pursuant to a "contract to sell" signed by Hodges on
February 10, 1959, after the death of his wife.
6. Order of June 21, 1966, on pp. 211-212, id., approving the deed of sale executed by respondent Magno in favor of appellee Artheo Thomas Jamir on June 3, 1966, pursuant to a "contract to sell" signed by Hodges on
May 26, 1961, after the death of his wife.
7. Order of June 21, 1966, on pp. 212-213, id., approving the deed of sale executed by respondent Magno in favor of appellees Graciano Lucero and Melquiades Batisanan on June 6 and June 3, 1966, respectively,
pursuant to "contracts to sell" signed by Hodges on June 9, 1959 and November 27, 1961, respectively, after the death of his wife.
8. Order of December 2, 1966, on pp. 303-304, id., approving the deed of sale executed by respondent Magno in favor of appellees Espiridion Partisala, Winifredo Espada and Rosario Alingasa on September 6, 1966,
August 17, 1966 and August 3, 1966, respectively, pursuant to "contracts to sell" signed by Hodges on April 20, 1960, April 18, 1960 and August 25, 1958, respectively, that is, after the death of his wife.
9. Order of April 5, 1966, on pp. 137-138, id., approving the deed of sale executed by respondent Magno in favor of appellee Alfredo Catedral on March 2, 1966, pursuant to a "contract to sell" signed by Hodges on May 29,
1954, before the death of his wife, which contract petitioner claims it had cancelled on February 16, 1966 for failure of appellee Catedral to pay the installments due on time.
10. Order of April 5, 1966, on pp. 138-139, id., approving the deed of sale executed by respondent Magno in favor of appellee Jose Pablico on March 7, 1966, pursuant to a "contract to sell" signed by Hodges on March 7,
1950, after the death of his wife, which contract petitioner claims it had cancelled on June 29, 1960, for failure of appellee Pablico to pay the installments due on time.
11. Order of December 2, 1966, on pp. 303-304, id., in so far as it approved the deed of sale executed by respondent Magno in favor of appellee Pepito Iyulores on September 6, 1966, pursuant to a "contract to sell" signed
by Hodges on February 5, 1951, before the death of his wife.
12. Order of January 3, 1967, on pp. 335-336, id., approving three deeds of sale executed by respondent Magno, one in favor of appellees Santiago Pacaonsis and two in favor of appellee Adelfa Premaylon on December
5, 1966 and November 3, 1966, respectively, pursuant to separate "promises to sell" signed respectively by Hodges on May 26, 1955 and January 30, 1954, before the death of his wife, and October 31, 1959, after her
death.
In like manner, there were also instances when respondent court approved deeds of sale executed by petitioner alone and without the concurrence of respondent Magno, and such approvals have not been the subject of
any appeal. No less than petitioner points this out on pages 149-150 of its brief as appellant thus:
"The points of fact and law pertaining to the two abovecited assignments of error have already been discussed previously. In the first abovecited error, the order alluded to was general, and as
already explained before, it was, as admitted by the lower court itself, superseded by the particular orders approving specific final deeds of sale executed by the appellee, Avelina A. Magno, which
are subject of this appeal, as well as the particular orders approving specific final deeds of sale executed by the appellant, Philippine Commercial and Industrial Bank, which were never appealed by
the appellee, Avelina A. Magno, nor by any party for that matter, and which are now therefore final."
Now, simultaneously with the foregoing incidents, others of more fundamental and all embracing significance developed. On October 5, 1963, over the signature of Atty. Allison J. Gibbs in representation of the law firm of
Ozaeta, Gibbs & Ozaeta, as counsel for the co-administrators Joe Hodges and Fernando P. Mirasol, the following self-explanatory motion was filed:
"URGENT MOTION FOR AN ACCOUNTING AND DELIVERY TO ADMINISTRATION OF THE ESTATE OF C . N . HODGES OF ALL OF THE ASSETS OF THE CONJUGAL PARTNERSHIP OF
THE DECEASED LINNIE JANE HODGES AND C . N. HODGES EXISTING AS OF MAY 23, 1957 PLUS ALL THE RENTS, EMOLUMENTS AND INCOME THEREFROM
COMES NOW the co-administrator of the estate of C. N. Hodges, Joe Hodges, through his undersigned attorneys in the above-entitled proceedings, and to this Honorable Court respectfully
alleges:
(1) On May 23, 1957 Linnie Jane Hodges died in Iloilo City.
(2) On June 28, 1957 this Honorable Court admitted to probate the Last Will and Testament of the deceased Linnie Jane Hodges executed November 22, 1952 and appointed C. N. Hodges as
Executor of the estate of Linnie Jane Hodges (pp. 24-25, Rec. Sp. Proc. 1307).
(3) On July 1, 1957 this Honorable Court issued Letters Testamentary to C. N. Hodges in the Estate of Linnie Jane Hodges (p. 30, Rec. Sp. Proc. 1307).
(4) On December 14, 1957 this Honorable Court, on the basis of the following allegations in a Motion dated December 11, 1957 filed by Leon P. Gellada as attorney for the executor C. N. Hodges:
'That herein Executor, (is) not only part owner of the properties left as conjugal, but also, the successor to all the properties left by the deceased Linnie Jane Hodges .' (p. 44, Rec. Sp.
Proc. 1307; emphasis supplied.)
issued the following order:
'As prayed for by Attorney Gellada, counsel for the Executor, for the reasons stated in his motion dated December 11, 1957 which the court considers well taken, all the sales,
conveyances, leases and mortgages of all properties left by the deceased Linnie Jane Hodges are hereby APPROVED. The said executor is further authorized to execute subsequent
sales, conveyances, leases and mortgages of the properties lift by the said deceased Linnie Jane Hodges in consonance with the wishes contained in the last will and testament of the
latter.' (p. 46, Rec. Sp. Proc. 1307; emphasis supplied.)
(5) On April 21, 1959 this Honorable Court approved the inventory and accounting submitted by C. N. Hodges through his counsel Leon P. Gellada on April 14, 1959 wherein he alleged among other
things.
'That no person interested in the Philippines of the time and place of examining the herein account, be given notice, as herein executor is the only devisee or legatee of the deceased, in
accordance with the last will and testament already; probated by the Honorable Court.' (pp. 77-78. Rec. Sp. Proc. 1307; emphasis supplied.)
(6) On July 30, 1960 this Honorable Court approved the 'Annual Statement of Account' submitted by C. N. Hodges through his counsel Leon P. Gellada on July 21, 1960 wherein he alleged among
other things:
'That no person interested in the Philippines of the time and place of examining the herein account, be given notice as herein executor is the only devisee or legatee of the deceased
Linnie Jane Hodges, in accordance with the last will and testament of the deceased, already probated by this Honorable Court.' (pp. 81-82, Rec. Sp. Proc. 1307; emphasis supplied.)
(7) On May 2, 1961 this Honorable court approved the 'Annual Statement of Account By The Executor For the Year 1960' submitted through Leon P. Gellada on April 20, 1961 wherein he alleged:
'That no person interested in the Philippines be given notice, of the time and place of examining the herein account, as herein Executor is the only devisee or legatee of the deceased
Linnie Jane Hodges, in accordance with the last will and testament of the deceased, already probated by this Honorable Court.' (pp. 90-91, Rec. Sp. Proc. 1307; emphasis supplied.)
(8) On December 25, 1962, C. N. Hodges died.
(9) On December 25, 1962, on the Urgent Ex-Parte Motion of Leon P. Gellada filed only in Special Proceeding No. 1307, this Honorable Court appointed Avelina A. Magno.

'Administratrix of the estate of Linnie Jane Hodges and as Special Administratrix of the estate of Charles Newton Hodges, in the latter case because the last will of said Charles Newton
Hodges is still kept in his vault or iron safe and that the real and personal properties of both spouses may be lost, damaged or go to waste, unless a Special Administratrix is
appointed.'(p. 100. Rec. Sp. Proc. 1307)
(10) On December 26, 1962 Letters of Administration were issued to Avelina Magno pursuant to this Honorable Court's aforesaid Order of December 25, 1962.
'With full authority to take possession of all the property of said deceased in any province or provinces in which it may be situated and to perform all other acts necessary for the
preservation of said property, said Administratrix and/or Special Administratrix having filed a bond satisfactory to the Court.'
(p. 102. Rec. Sp. Proc. 1307)
(11) On January 22, 1963 this Honorable Court on petition of Leon P. Gellada of January 21, 1963 issued Letters of Administration to:
(a) Avelina A. Magno as Administratrix of the estate of Linnie Jane Hodges;
(b) Avelina A. Magno as Special Administratrix of the Estate of Charles Newton Hodges; and
(c) Joe Hodges as Co-Special Administrator of the Estate of Charles Newton Hodges.
(p. 43, Rec. Sp. Proc. 1307)
(12) On February 20, 1963 this Honorable Court on the basis of a motion filed by Leon P. Gellada as legal counsel on February 16, 1963 for Avelina A. Magno acting as Administratrix of the Estate
of Charles Newton Hodges (pp. 114-116, Sp. Proc. 1307) issued the following order:
'. . . se autoriza a aquella (Avelina A. Magno) a firmar escrituras de venta definitiva de propiedades cubiertas por contratos para vender, firmados, en vida, por el finado Charles Newton
Hodges, cada vez que el precio estipulado en cada contrato este totalmente pagado. Se autoriza igualmente a la misma a firmar escrituras de cancelacion de hipoteca tanto de bienes
reales como personales cada vez que la consideracion de cada hipoteca este totalmente pagada.
'Cada una de dichas escrituras que se otorguen debe ser sometida para la aprobacion de este Juzgado.'(p. 117, Sp. Proc. 1307).
[Par. 1 (c), Reply to Motion For Removal of Joe Hodges]
(13) On September 16, 1963 Leon P. Gellada, acting as attorney for Avelina A. Magno as Administratrix of the estate of Linnie Jane Hodges, alleges:
'3. That since January, 1963, both estates of Linnie Jane Hodges and Charles Newton Hodges have been receiving in full, payments for those 'contracts to sell' entered into by C. N.
Hodges during his lifetime, and the purchasers have been demanding the execution of definite deeds of sale in their favor.
'4. That hereto attached are thirteen (13) copies deeds of sale executed by the Administrative and by the co-administrator (Fernando P. Mirasol) of the estate of Linnie Jane Hodges and
Charles Newton Hodges respectively, in compliance with the terms and conditions of the respective 'contracts to sell' executed by the parties thereto.'
(14) The properties involved in the aforesaid motion of September 16, 1963 are all registered in the name of the deceased C. N. Hodges.
(15) Avelina A. Magno, it is alleged on information and belief, has been advertising in the newspaper in Iloilo thusly:
'For Sale
Testate Estate of Linnie Jane Hodges and Charles Newton Hodges.
All Real Estate or Personal Property will be sold on First Come First Served Basis.
Avelina A. Magno
Administratrix
(16) Avelina A. Magno, it is alleged on information and belief, has paid and still is paying sums of money to sundry persons.
(17) Joe Hodges through the undersigned attorneys manifested during the hearings before this Honorable Court on September 5 and 6, 1963 that the estate of C. N. Hodges was claiming all of the
assets belonging to the deceased spouses Linnie Jane Hodges and C. N. Hodges situated in Philippines cause of the aforesaid election by C. N. Hodges wherein he claimed and took possession
as sole owner of all of said assets during the administration of the estate of Linnie Jane Hodges on the ground that he was the sole devisee and legatee under her Last Will and Testament.
(18) Avelina A. Magno has submitted no inventory and accounting of her administration as Administratrix of the estate of Linnie Jane Hodges and Special Administratrix of the estate of C. N.
Hodges. However, from manifestations made by Avelina A. Magno and her legal counsel, Leon P. Gellada, there is no question she will claim that at least fifty per cent (50%) of the conjugal assets
of the deceased spouses and the rents, emoluments and income therefrom belong to the Higdon family who are named in paragraphs Fourth and Fifth of the Will of Linnie Jane Hodges (p. 5, Rec.
Sp. Proc. 1307).
WHEREFORE, premises considered, movant respectfully prays that this Honorable Court, after due hearing, order:
(1) Avelina A. Magno to submit an inventory and accounting of all of the funds, properties and assets of any character belonging to the deceased Linnie Jane Hodges and C. N. Hodges which have
come into her possession, with full details of what she has done with them;
(2) Avelina A. Magno to turn over and deliver to the Administrator of the estate of C. N. Hodges all of the funds, properties and assets of and character remaining in her possession;
(3) Pending this Honorable Court's adjudication of the aforesaid issues, Avelina A. Magno to stop, unless she first secures the conformity of Joe Hodges (or his duly authorized representative, such
as the undersigned attorneys) as the Co-administrator and attorney-in-fact of a majority of the beneficiaries of the estate of C. N. Hodges:
(a) Advertising the sale and the sale of the properties of the estates:
(b) Employing personnel and paying them any compensation.
(4) Such other relief as this Honorable Court may deem just and equitable in the premises. (Annex "T", Petition.)
Almost a year thereafter, or on September 14, 1964, after the co-administrators Joe Hodges and Fernando P. Mirasol were replaced by herein petitioner Philippine Commercial and Industrial Bank as sole administrator,
pursuant to an agreement of all the heirs of Hodges approved by the court, and because the above motion of October 5, 1963 had not yet been heard due to the absence from the country of Atty. Gibbs, petitioner filed the
following:
"MANIFESTATION AND MOTION, INCLUDING MOTION TO SET FOR HEARING AND RESOLVE URGENT MOTION FOR AN ACCOUNTING AND DELIVERY TO ADMINISTRATORS OF THE
ESTATE OF C. N. HODGES OF ALL THE ASSETS OF THE CONJUGAL PARTNERSHIP OF THE DECEASED LINNIE JANE HODGES AND C. N. HODGES EXISTING AS OF MAY 23, 1957
PLUS ALL OF THE RENTS, EMOLUMENTS AND INCOME THEREFROM OF OCTOBER 5, 1963.
COMES NOW Philippine Commercial and Industrial Bank (hereinafter referred to as PCIB), the administrator of the estate of C. N. Hodges, deceased, in Special Proceedings No. 1672, through its
undersigned counsel, and to this Honorable Court respectfully alleges that:
1. On October 5, 1963, Joe Hodges acting as the co-administrator of the estate of C. N. Hodges filed, through the undersigned attorneys, an 'Urgent Motion For An Accounting and Delivery To
Administrator of the Estate of C. N. Hodges of all of The Assets of The Conjugal Partnership of The Deceased Linnie Jane Hodges and C. N. Hodges Existing as of May 23, 1957 Plus All of The
Rents, Emoluments and Income Therefrom' (pp. 536-542, CFI Rec., S. P. No. 1672).
2. On January 24, 1964 this Honorable Court, on the basis of an amicable agreement entered into on January 23, 1964 by the two co-administrators of the estate of C. N. Hodges and virtually all of
the heirs of C. N. Hodges (p. 912, CFI Rec., S. P. No. 1672), resolved the dispute over who should act as administrator of the estate of C. N. Hodges by appointing the PCIB as administrator of the
estate of C. N. Hodges (pp. 905-906, CFI Rec., S. P. No. 1672) and issuing letters of administration to the PCIB.
3. On January 24, 1964 virtually all of the heirs of C. N. Hodges, Joe Hodges and Fernando P. Mirasol acting as the two co-administrators of the estate of C. N. Hodges, Avelina A. Magno acting as

the administratrix of the estate of Linnie Jane Hodges, and Messrs. William Brown and Ardel Young Acting for all of the Higdon family who claim to be the sole beneficiaries of the estate of Linnie
Jane Hodges and various legal counsel representing the aforenamed parties entered into an amicable agreement, which was approved by this Honorable Court, wherein the parties thereto agreed
that certain sums of money were to be paid in settlement of different claims against the two estates and that the assets (to the extent they existed) of both estates would be administered jointly by
the PCIB as administrator of the estate of C. N. Hodges and Avelina A. Magno as administratrix of the estate of Linnie Jane Hodges, subject, however, to the aforesaid October 5, 1963 Motion,
namely, the PCIB's claim to exclusive possession and ownership of one-hundred percent (100%) (or, in the alternative, seventy-five percent [75%] of all assets owned by C. N. Hodges or Linnie
Jane Hodges situated in the Philippines. On February 1, 1964 (pp. 934-935, CFI Rec., S. P. No. 1672) this Honorable Court amended its order of January 24, 1964 but in no way changes its
recognition of the aforedescribed basic demand by the PCIB as administrator of the estate of C. N. Hodges to one hundred percent (100%) of the assets claimed by both estates.
4. On February 15, 1964 the PCIB filed a 'Motion to Resolve' the aforesaid Motion of October 5, 1963. This Honorable Court set for hearing on June 11, 1964 the Motion of October 5, 1963.
5. On June 11, 1964, because the undersigned Allison J. Gibbs was absent in the United States, this Honorable Court ordered the indefinite postponement of the hearing of the Motion of October 5,
1963.
6. Since its appointment as administrator of the estate of C. N. Hodges the PCIB has not been able to properly carry out its duties and obligations as administrator of the estate of C. N. Hodges
because of the following acts, among others, of Avelina A. Magno and those who claim to act for her as administratrix of the estate of Linnie Jane Hodges:
(a) Avelina A. Magno illegally acts as if she is in exclusive control of all of the assets in the Philippines of both estates including those claimed by the estate of C. N. Hodges as evidenced
in part by her locking the premises at 206-208 Guanco Street, Iloilo City on August 31, 1964 and refusing to reopen same until ordered to do so by this Honorable Court on September 7,
1964.
(b) Avelina A. Magno illegally acts as though she alone may decide how the assets of the estate of C. N. Hodges should be administered, who the PCIB shall employ and how much they
may be paid as evidenced in party by her refusal to sign checks issued by the PCIB payable to the undersigned counsel pursuant to their fee agreement approved by this Honorable
Court in its order dated March 31, 1964.
(c) Avelina A. Magno illegally gives access to and turns over possession of the records and assets of the estate of C. N. Hodges to the attorney-in-fact of the Higdon Family, Mr. James L.
Sullivan, as evidenced in part by the cashing of his personal checks.
(d) Avelina A. Magno illegally refuses to execute checks prepared by the PCIB drawn to pay expenses of the estate of C. N. Hodges as evidenced in part by the check drawn to reimburse
the PCIB's advance of P48,445.50 to pay the 1964 income taxes reported due and payable by the estate of C.N. Hodges.
7. Under and pursuant to the orders of this Honorable Court, particularly those of January 24 and February 1, 1964, and the mandate contained in its Letters of Administration issued on January 24,
1964 to the PCIB, it has
'full authority to take possession of all the property of the deceased C. N. Hodges.
'and to perform all other acts necessary for the preservation of said property.' (p. 914, CFI Rec., S.P. No. 1672.)
8. As administrator of the estate of C. N. Hodges, the PCIB claims the right to the immediate exclusive possession and control of all of the properties, accounts receivables, court cases, bank
accounts and other assets, including the documentary records evidencing same, which existed in the Philippines on the date of C. N. Hodges' death, December 25, 1962, and were in his
possession and registered in his name alone. The PCIB knows of no assets in the Philippines registered in the name of Linnie Jane Hodges, the estate of Linnie Jane Hodges, or, C. N. Hodges,
Executor of the Estate of Linnie Jane Hodges, on December 25, 1962. All of the assets of which the PCIB has knowledge are either registered in the name of C. N. Hodges, alone or were derived
therefrom since his death on December 25, 1962.
9. The PCIB as the current administrator of the estate of C. N. Hodges, deceased, succeeded to all of the rights of the previously duly appointed administrators of the estate of C. N. Hodges, to wit:
(a) On December 25, 1962, date of C. N. Hodges' death, this Honorable Court appointed Miss Avelina A. Magno simultaneously as:
(i) Administratrix of the estate of Linnie Jane Hodges (p. 102, CFI Rec., S.P. No. 1307) to replace the deceased C. N. Hodges who on May 28, 1957 was appointed Special Administrator
(p. 13, CFI Rec., S.P. No. 1307) and on July 1, 1957 Executor of the estate of Linnie Jane Hodges (p. 30, CFI Rec., S. P. No. 1307);
(ii) Special Administration of the estate of C. N. Hodges (p. 102, CFI Rec. S.P. No. 1307).
(b) On December 29, 1962 this Honorable Court appointed Harold K. Davies as co-special administrator of the estate of C.N. Hodges along with Avelina A. Magno (pp. 108-111, CFI Rec.,
S. P. No. 1307).
(c) On January 22, 1963, with the conformity of Avelina A. Magno, Harold K. Davies resigned in favor of Joe Hodges (pp. 35-36, CFI Rec., S.P. No. 1672) who thereupon was appointed
on January 22, 1963 by this Honorable Court as special co-administrator of the estate of C.N. Hodges (pp. 38-40 & 43, CFI Rec., S.P. No. 1672) along with Miss Magno who at that time
was still acting as special co-administratrix of the estate of C. N. Hodges.
(d) On February 22, 1963, without objection on the part of Avelina A. Magno, this Honorable Court appointed Joe Hodges and Fernando P. Mirasol as co-administrators of the estate of
C.N. Hodges (pp. 76-78, 81 & 85, CFI Rec., S.P. No. 1672).
10. Miss Avelina A. Magno, pursuant to the orders of this Honorable Court of December 25, 1962, took possession of all Philippine Assets now claimed by the two estates. Legally, Miss Magno
could take possession of the assets registered in the name of C. N. Hodges alone only in her capacity as Special Administratrix of the Estate of C.N. Hodges. With the appointment by this
Honorable Court on February 22, 1963 of Joe Hodges and Fernando P. Mirasol as the co-administrators of the estate of C.N. Hodges, they legally were entitled to take over from Miss Magno the full
and exclusive possession of all of the assets of the estate of C.N. Hodges. With the appointment on January 24, 1964 of the PCIB as the sole administrator of the estate of C.N. Hodges in
substitution of Joe Hodges and Fernando P. Mirasol, the PCIB legally became the only party entitled to the sole and exclusive possession of all of the assets of the estate of C. N. Hodges.
11. The PCIB's predecessors submitted their accounting and this Honorable Court approved same, to wit:
(a) The accounting of Harold K. Davies dated January 18, 1963 (pp. 16-33, CFI Rec., S.P. No. 1672); which shows on its face the:
(i) Conformity of Avelina A. Magno acting as 'Administratrix of the Estate of Linnie Jane Hodges and Special Administratrix of the Estate of C.N. Hodges';
(ii) Conformity of Leslie Echols, a Texas lawyer acting for the heirs of C. N. Hodges; and
(iii) Conformity of William Brown, a Texas lawyer acting for the Higdon family who claim to be the only heirs of Linnie Jane Hodges (pp. 18, 25-33, CFI Rec., S.P. No. 1672).
"Note: This accounting was approved by this Honorable Court on January 22, 1963 (p. 34, CFI Rec., S.P. No. 1672).
(b) The accounting of Joe Hodges and Fernando P. Mirasol as of January 23, 1964, filed February 24, 1964 (pp. 990-1000, CFI Rec., S.P. No. 1672 and pp. 1806-1848, CFI Rec., S.P.
No. 1307).
Note: This accounting was approved by this Honorable Court on March 3, 1964.
(c) The PCIB and its undersigned lawyers are aware of no report or accounting submitted by Avelina A. Magno of her acts as administratrix of the estate of Linnie Jane Hodges or special
administratrix of the estate of C.N. Hodges, unless it is the accounting of Harold K. Davies as special co-administrator of the estate of C.N. Hodges dated January 18, 1963 to which Miss
Magno manifested her conformity (supra).
12. In the aforesaid agreement of January 24, 1964, Miss Avelina A. Magno agreed to receive P10,000.00.
'for her services as administratrix of the estate of Linnie Jane Hodges'
and in addition she agreed to be employed, starting February 1, 1964, at
'a monthly salary of P500.00 for her services as an employee of both estates.'

24 ems.
13. Under the aforesaid agreement of January 24, 1964 and the orders of this Honorable Court of same date, the PCIB as administrator of the estate of C. N. Hodges is entitled to the exclusive
possession of all records, properties and assets in the name of C. N. Hodges as of the date of his death on December 25, 1962 which were in the possession of the deceased C. N. Hodges on that
date and which then passed to the possession of Miss Magno in her capacity as Special Co-Administratrix of the estate of C. N. Hodges or the possession of Joe Hodges or Fernando P. Mirasol as
co-administrators of the estate of C. N. Hodges.
14. Because of Miss Magno's refusal to comply with the reasonable request of PCIB concerning the assets of the estate of C. N. Hodges, the PCIB dismissed Miss Magno as an employee of the
estate of C. N. Hodges effective August 31, 1964. On September 1, 1964 Miss Magno locked the premises at 206-208 Guanco Street and denied the PCIB access thereto. Upon the Urgent Motion
of the PCIB dated September 3, 1964, this Honorable Court on September 7, 1964 ordered Miss Magno to reopen the aforesaid premises at 206-208 Guanco Street and permit the PCIB access
thereto no later than September 8, 1964.
15. the PCIB pursuant to the aforesaid orders of this Honorable Court is again in physical possession of all of the assets of the estate of C. N. Hodges. However, the PCIB is not in exclusive control
of the aforesaid records, properties and assets because Miss Magno continues to assert the claims hereinabove outlined in paragraph 6, continues to use her own locks to the doors of the aforesaid
premises at 206-208 Guanco Street, Iloilo City and continues to deny the PCIB its right to know the combinations to the doors of the vault and safes situated within the premises at 206-208 Guanco
Street despite the fact that said combinations were known to only C. N. Hodges during his lifetime.
16. The Philippine estate and inheritance taxes assessed the estate of Linnie Jane Hodges were assessed and paid on the basis that C. N. Hodges is the sole beneficiary of the assets of the estate
of Linnie Jane Hodges situated in the Philippines. Avelina A. Magno and her legal counsel at no time have questioned the validity of the aforesaid assessment and the payment of the corresponding
Philippine death taxes.
17. Nothing further remains to be done in the estate of Linnie Jane Hodges except to resolve the aforesaid Motion of October 5, 1963 and grant the PCIB the exclusive possession and control of all
of the records, properties and assets of the estate of C. N. Hodges.
18. Such assets as may have existed of the estate of Linnie Jane Hodges were ordered by this Honorable Court in special Proceedings No. 1307 to be turned over and delivered to C. N. Hodges
alone. He in fact took possession of them before his death and asserted and exercised the right of exclusive ownership over the said assets as the sole beneficiary of the estate of Linnie Jane
Hodges.
WHEREFORE, premises considered, the PCIB respectfully petitions that this Honorable court.
(1) Set the Motion of October 5, 1963 for hearing at the earliest possible date with notice to all interested parties;
(2) Order Avelina A. Magno to submit an inventory and accounting as Administratrix of the Estate of Linnie Jane Hodges and Co-Administratrix of the Estate of C. N. Hodges of all of the funds,
properties and assets of any character belonging to the deceased Linnie Jane Hodges and C. N. Hodges which have come into her possession, with full details of what she has done with them;
(3) Order Avelina A. Magno to turn over and deliver to the PCIB as administrator of the estate of C. N. Hodges all of the funds, properties and assets of any character remaining in her possession;
(4) Pending this Honorable Court's adjudication of the aforesaid issues, order Avelina A. Magno and her representatives to stop interfering with the administration of the estate of C. N. Hodges by
the PCIB and its duly authorized representatives;
(5) Enjoin Avelina A. Magno from working in the premises at 206-208 Guanco Street, Iloilo City as an employee of the estate of C. N. Hodges and approve her dismissal as such by the PCIB
effective August 31, 1964;
(6) Enjoin James L. Sullivan, Attorneys Manglapus and Quimpo and others allegedly representing Miss Magno from entering the premises at 206-208 Guanco Street, Iloilo City or any other
properties of C. N. Hodges without the express permission of the PCIB;
(7) Order such other relief as this Honorable Court finds just and equitable in the premises."(Annex "U", Petition.)
On January 8, 1965, petitioner also filed a motion for "Official Declaration of Heirs of Linnie Jane Hodges Estate" alleging:
COMES NOW Philippine Commercial and Industrial Bank (hereinafter referred to as PCIB), as administrator of the estate of the late C. N. Hodges, through the undersigned counsel, and to this
Honorable Court respectfully alleges that:
'1. During their marriage, spouses Charles Newton Hodges and Linnie Jane Hodges, American citizens originally from the State of Texas, U.S.A., acquired and accumulated considerable assets and
properties in the Philippines and in the States of Texas and Oklahoma, United States of America. All said properties constituted their conjugal estate.
2. Although Texas was the domicile of origin of the Hodges spouses, this Honorable Court, in its orders dated March 31 and December 12, 1964 (CFI Record, Sp. Proc. No. 1307, pp. ----; Sp. Proc.
No. 1672, p. ----), conclusively found and categorically ruled that said spouses had lived and worked for more than 50 years in Iloilo City and had, therefore, acquired a domicile of choice in said city,
which they retained until the time of their respective deaths.
3. On November 22, 1952, Linnie Jane Hodges executed in the City of Iloilo her Last Will and Testament, a copy of which is hereto attached as Annex "A". The bequests in said will pertinent to the
present issue are the second, third, and fourth provisions, which we quote in full hereunder:
"SECOND: I give, devise and bequeath all of the rest, residue and remainder of my estate, both personal and real, wherever situated, or located, to my husband, Charles Newton
Hodges, to have and to hold unto him, my said husband during his natural lifetime.
"THIRD: I desire, direct and provide that my husband, Charles Newton Hodges, shall have the right to manage, control, use and enjoy said estate during his lifetime, and he is hereby
given the right to make and changes in the physical properties of said estate, by sale of any part thereof which he may think best, and the purchase of any other or additional property as
he may think best; to execute conveyances with or without general or special warranty, conveying in fee simple or for any other term or time, any property which he may deem proper to
dispose of; to lease any of the real property for oil, gas and/or other minerals, and all such deeds or leases shall pass the absolute fee simple title to the interest so conveyed in such
property as he may elect to sell. All rents, emoluments and income from said estate shall belong to him, and he is further authorized to use any part of the principal of said estate as he
may need or desire. It is provided herein, however, that he shall not sell or otherwise dispose of any of the improved property now owned by us located at, in or near the City of Lubbock,
Texas, but he shall have the full right to lease, manage and enjoy the same during his lifetime, as above provided. He shall have the right to sub-divide any farmland and sell lots therein,
and may sell unimproved town lots.
"FOURTH: At the death of my said husband, Charles Newton Hodges, I give, devise and bequeath all of the rest, residue and remainder of my estate both real and personal, wherever
situated or located, to be equally divided among my brothers and sisters, share and share alike, namely:
'Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Sadie Rascoe, Era Boman and Nimray Higdon.'
4. On November 14, 1953, C. N. Hodges executed in the City of Iloilo his Last Will and Testament, a copy of which is hereto attached as Annex "B". In said Will, C. N. Hodges designated his wife,
Linnie Jane Hodges, as his beneficiary using the identical language she used in the second and third provisos of her Will, supra.
5. On May 23, 1957 Linnie Jane Hodges died in Iloilo City, pre-deceasing her husband by more than five (5) years. At the time of her death, she had no forced or compulsory heir, except her
husband, C. N. Hodges. She was survived also by various brothers and sisters mentioned in her Will (supra), which, for convenience, we shall refer to as the HIGDONS.
6. On June 28, 1957, this Honorable Court admitted to probate the Last Will and Testament of the deceased Linnie Jane Hodges (Annex "A"), and appointed C. N. Hodges as executor of her estate
without bond. (CFI Record, Sp. Proc. No. 1307, pp. 24-25). On July 1, 1957, this Honorable Court issued letters testamentary to C. N. Hodges in the estate of Linnie Jane Hodges. (CFI Record, Sp.
Proc. No. 1307, p. 30.)

7. The Will of Linnie Jane Hodges, with respect to the order of succession, the amount of successional rights, and the intrinsic validity of its testamentary provisions, should be governed by
Philippine laws, because:
(a) The testatrix, Linnie Jane Hodges, intended Philippine laws to govern her Will;
(b) Article 16 of the Civil Code provides that "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", shall prevail. However, the Conflict of Law of Texas, which is the "national law" of the testatrix, Linnie Jane Hodges, provide that the
domiciliary law (Philippine law see paragraph 2, supra) should govern the testamentary dispositions and successional rights over movables (personal properties), and the law of the
situs of the property (also Philippine law as to properties located in the Philippines) with regards immovable (real properties). Thus applying the "Renvoi Doctrine", as approved and
applied by our Supreme Court in the case of "In The Matter Of The Testate Estate of Eduard E. Christensen", G.R. No. L-16749, promulgated January 31, 1963, Philippine law should
apply to the Will of Linnie Jane Hodges and to the successional rights to her estate insofar as her movable and immovable assets in the Philippines are concerned. We shall not, at this
stage, discuss what law should govern the assets of Linnie Jane Hodges located in Oklahoma and Texas, because the only assets in issue in this motion are those within the jurisdiction
of this Honorable Court in the two above-captioned Special Proceedings.
8. Under Philippine and Texas law, the conjugal or community estate of spouses shall, upon dissolution, be divided equally between them. Thus, upon the death of Linnie Jane Hodges on May 23,
1957, one-half (1/2) of the entirety of the assets of the Hodges spouses constituting their conjugal estate pertained automatically to Charles Newton Hodges, not by way of inheritance, but in his
own right as partner in the conjugal partnership. The other one-half (1/2) portion of the conjugal estate constituted the estate of Linnie Jane Hodges. This is the only portion of the conjugal estate
capable of inheritance by her heirs.
9. This one-half (1/2) portion of the conjugal assets pertaining to Linnie Jane Hodges cannot, under a clear and specific provision of her Will, be enhanced or increased by income, earnings, rents,
or emoluments accruing after her death on May 23, 1957. Linnie Jane Hodges' Will provides that " all rents, emoluments and income from said estate shall belong to him (C. N. Hodges) and he is
further authorized to use any part of the principal of said estate as he may need or desire ." (Paragraph 3, Annex "A".) Thus, by specific provision of Linnie Jane Hodges' Will, "all rents, emoluments
and income" must be credited to the one-half (1/2) portion of the conjugal estate pertaining to C. N. Hodges. Clearly, therefore the estate of Linnie Jane Hodges capable of inheritance by her heirs,
consisted exclusively of no more than one-half (1/2) of the conjugal estate, computed as of the time of her death on May 23, 1957.
10. Articles 900, 995 and 1001 of the New Civil Code provide that the surviving spouse of a deceased leaving no ascendants or descendants is entitled, as a matter of right and by way of
irrevocable legitime, to at least one-half (1/2) of the estate of the deceased, and no testamentary disposition by the deceased can legally and validly affect this right of the surviving spouse. In fact,
her husband is entitled to said one-half (1/2) portion of her estate by way of legitime. (Article 886, Civil Code.) Clearly, therefore, immediately upon the death of Linnie Jane Hodges, C. N. Hodges
was the owner of at least three-fourths (3/4) or seventy-five (75%) percent of all of the conjugal assets of the spouses, (1/2 or 50% by way of conjugal partnership share and 1/4 or 25% by way of
inheritance and legitime), plus all "rents, emoluments and income" accruing to said conjugal estate from the moment of Linnie Jane Hodges' death (see paragraph 9, supra).
11. The late Linnie Jane Hodges designated her husband C. N. Hodges as her sole and exclusive heir with full authority to do what he pleased, as exclusive heir and owner of all the assets
constituting her estate, except only with regards certain properties "owned by us, located at, in or near the City of Lubbock, Texas". Thus, even without relying on our laws of succession and
legitime, which we have cited above, C. N. Hodges, by specific testamentary designation of his wife, was entitled to the entirety to his wife's estate in the Philippines.
12. Article 777 of the New Civil Code provides that "the rights of the successor are transmitted from the death of the decedent". Thus, title to the estate of Linnie Jane Hodges was transmitted to C.
N. Hodges immediately upon her death on May 23, 1957. For the convenience of this Honorable Court, we attached hereto as Annex "C" a graph of how the conjugal estate of the spouses Hodges
should be divided in accordance with Philippine law and the Will of Linnie Jane Hodges.
13. In his capacity as sole heir and successor to the estate of Linnie Jane Hodges as above-stated, C. N. Hodges, shortly after the death of Linnie Jane Hodges, appropriated to himself the entirety
of her estate. He operated all the assets, engaged in business and performed all acts in connection with the entirety of the conjugal estate, in his own name alone, just as he had been operating,
engaging and doing while the late Linnie Jane Hodges was still alive. Upon his death on December 25, 1962, therefore, all said conjugal assets were in his sole possession and control, and
registered in his name alone, not as executor, but as exclusive owner of all said assets.
14. All these acts of C. N. Hodges were authorized and sanctioned expressly and impliedly by various orders of this Honorable Court, as follows:
(a) In an Order dated May 27, 1957, this Honorable Court ruled that C. N. Hodges "is allowed or authorized to continue the business in which he was engaged, and to perform acts which he had
been doing while the deceased was living." (CFI Record, Sp. Proc. No. 1307, p. 11.)
(b) On December 14, 1957, this Honorable Court, on the basis of the following fact, alleged in the verified Motion dated December 11, 1957 filed by Leon P. Gellada as attorney for the executor C.
N. Hodges:
'That herein Executor, (is) not only part owner of the properties left as conjugal, but also, the successor to all the properties left by the deceased Linnie Jane Hodges.' (CFI Record, Sp.
Proc. No. 1307, p. 44; emphasis supplied.)
issued the following order:
'As prayed for by Attorney Gellada, counsel for the Executor, for the reasons stated in his motion dated December 11, 1957, which the Court considers well taken, all the sales,
conveyances, leases and mortgages of all the properties left by the deceased Linnie Jane Hodges executed by the Executor, Charles Newton Hodges are hereby APPROVED. The said
Executor is further authorized to execute subsequent sales, conveyances, leases and mortgages of the properties left by the said deceased Linnie Jane Hodges in consonance with the
wishes contained in the last will and testament of the latter." (CFI Record, Sp. Proc. No. 1307, p. 46; emphasis supplied.)
24 ems.
(c) On April 21, 1959, this Honorable Court approved the verified inventory and accounting submitted by C. N. Hodges through his counsel Leon P. Gellada on April 14, 1959 wherein he alleged
among other things,
'That no person interested in the Philippines of the time and place of examining the herein account, be given notice, as herein executor is the only devisee or legatee of the deceased, in
accordance with the last will and testament already probated by the Honorable Court.' (CFI Record, Sp. Proc. No. 1307, pp 77-78; emphasis supplied.)
(d) On July 20, 1960, this Honorable Court approved the verified "Annual Statement of Account" submitted by C. N. Hodges through his counsel Leon P. Gellada on July 21, 1960 wherein he
alleged, among other things,
'That no person interested in the Philippines of the time and place of examining the herein account, be given notice as herein executor is the only devisee or legatee of the deceased
Linnie Jane Hodges, in accordance with the last will and testament of the deceased, already probated by this Honorable Court.' (CFI Record, Sp. Proc. No 1307, pp. 81-82; emphasis
supplied.)
(e) On May 2, 1961, this Honorable Court approved the verified "Annual Statement of Account By The Executor For the Year 1960' submitted through Leon P. Gellada on April 20, 1961 wherein he
alleged:
'That no person interested in the Philippines be given notice, of the time and place of examining the herein account, as herein executor is the only devisee or legatee of the deceased
Linnie Jane Hodges, in accordance with the last will and testament of the deceased, already probated by this Honorable Court.' (CFI Record, Sp. Proc. No. 1307, pp. 90-91; emphasis
supplied.)
15. Since C. N. Hodges was the sole and exclusive heir of Linnie Jane Hodges, not only by law, but in accordance with the dispositions of her will, there was, in fact, no need to liquidate the

conjugal estate of the spouses. The entirety of said conjugal estate pertained to him exclusively, therefore this Honorable Court sanctioned and authorized, as above-stated, C. N. Hodges to
manage, operate and control all the conjugal assets as owner.
16. By expressly authorizing C. N. Hodges to act as he did in connection with the estate of his wife, this Honorable Court has (1) declared C. N. Hodges as the sole heir of the estate of Linnie Jane
Hodges, and (2) delivered and distributed her estate to C. N. Hodges as sole heir in accordance with the terms and conditions of her Will. Thus, although the "estate of Linnie Jane Hodges" still
exists as a legal and juridical personality, it had no assets or properties located in the Philippines registered in its name whatsoever at the time of the death of C. N. Hodges on December 25, 1962.
17. The Will of Linnie Jane Hodges (Annex "A"), fourth paragraph, provides as follows:
'At the death of my said husband, Charles Newton Hodges, I give, devise and bequeath all of the rest, residue and remainder of my estate both real and personal, wherever situated or
located, to be equally divided among my brothers and sisters, share and share alike, namely:
'Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Sadie Rascoe, Era Boman and Nimray Higdon.'
Because of the facts hereinabove set out there is no "rest, residue and remainder", at least to the extent of the Philippine assets, which remains to vest in the HIGDONS, assuming this proviso in
Linnie Jane Hodges' Will is valid and binding against the estate of C. N. Hodges.
18. Any claims by the HIGDONS under the above-quoted provision of Linnie Jane Hodges' Will is without merit because said provision is void and invalid at least as to the Philippine assets. It
should not, in anyway, affect the rights of the estate of C. N. Hodges or his heirs to the properties, which C. N. Hodges acquired by way of inheritance from his wife Linnie Jane Hodges upon her
death.
(a) In spite of the above-mentioned provision in the Will of Linnie Jane Hodges, C. N. Hodges acquired, not merely a usufructuary right, but absolute title and ownership to her estate. In a
recent case involving a very similar testamentary provision, the Supreme Court held that the heir first designated acquired full ownership of the property bequeathed by the will, not mere
usufructuary rights. (Consolacion Florentino de Crisologo, et al., vs. Manuel Singson, G. R. No. L-13876, February 28, 1962.)
(b) Article 864, 872 and 886 of the New Civil Code clearly provide that no charge, condition or substitution whatsoever upon the legitime can be imposed by a testator. Thus,
under the provisions of Articles 900, 995 and 1001 of the New Civil Code, the legitime of a surviving spouse is 1/2 of the estate of the deceased spouse. Consequently, the abovementioned provision in the Will of Linnie Jane Hodges is clearly invalid insofar as the legitime of C. N. Hodges was concerned, which consisted of 1/2 of the 1/2 portion of the conjugal
estate, or 1/4 of the entire conjugal estate of the deceased.
(c) There are generally only two kinds of substitution provided for and authorized by our Civil Code (Articles 857-870), namely, (1) simple or common substitution, sometimes
referred to as vulgar substitution (Article 859), and (2) fideicommissary substitution (Article 863). All other substitutions are merely variations of these. The substitution provided for by
paragraph four of the Will of Linnie Jane Hodges is not fideicommissary substitution, because there is clearly no obligation on the part of C. N. Hodges as the first heir designated, to
preserve the properties for the substitute heirs. (Consolacion Florentino de Crisologo, et al. vs. Manuel Singson, G.R. No. L-13876.) At most, it is a vulgar or simple substitution. However,
in order that a vulgar or simple substitution can be valid, three alternative conditions must be present, namely, that the first designated heir (1) should die before the testator; or (2) should
not wish to accept the inheritance; or (3) should be incapacitated to do so. None of these conditions apply, to C. N. Hodges, and, therefore, the substitution provided for by the abovequoted provision of the Will is not authorized by the Code, and, therefore, it is void. Manresa, commenting on these kinds of substitution, meaningfully stated that: ". . . cuando el testador
instituye un primer heredero, y por fallecimiento de este, nombra otro u otros, ha de entenderse que estas segundas designaciones solo han de llegar a tener efectividad en el caso de
que el primer instituido muera antes que el testador, fuera o no esta su verdadera intencion. . . .". (6 Manresa, 7 a ed., pag. 175.) In other words, when another heir is designated to
inherit upon the death of a first heir, the second designation can have effect only in case the first instituted heir dies before the testator, whether or not that was the true intention of said
testator. Since C. N. Hodges did not die before Linnie Jane Hodges, the provision for substitution contained in Linnie Jane Hodges' Will is void.
(d) In view of the invalidity of the provision for substitution in the Will, C. N. Hodges' inheritance to the entirety of the Linnie Jane Hodges estate is irrevocable and final.
19. Be that as it may, at the time of C. N. Hodges' death, the entirety of the conjugal estate appeared and was registered in him exclusively as owner. Thus, the presumption is
that all said assets constituted his estate. Therefore
(a) If the HIGDONS wish to enforce their dubious rights as substituted heirs to 1/4 of the conjugal estate (the other 1/4 is covered by the legitime of C. N. Hodges which can not be
affected by any testamentary disposition), their remedy, if any, is to file their claim against the estate of C. N. Hodges, which should be entitled at the present time to full custody and
control of all the conjugal estate of the spouses.
(b) The present proceedings, in which two estates exist under separate administration, where the administratrix of the Linnie Jane Hodges estate exercises an officious right to object and
intervene in matters affecting exclusively the C. N. Hodges estate, is anomalous.
WHEREFORE, it is most respectfully prayed that after trial and reception of evidence, this Honorable Court declare:
1. That the estate of Linnie Jane Hodges was and is composed exclusively of one-half (1/2) share in the conjugal estate of the spouses Hodges, computed as of the date of her death on May 23,
1957;
2. That the other half of the conjugal estate pertained exclusively to C. N. Hodges as his share as partner in the conjugal partnership;
3. That all "rents, emoluments and income" of the conjugal estate accruing after Linnie Jane Hodges' death pertains to C. N. Hodges;
4. That C. N. Hodges was the sole and exclusive heir of the estate of Linnie Jane Hodges;
5. That, therefore, the entire conjugal estate of the spouses located in the Philippines, plus all the "rents, emoluments and income" above-mentioned, now constitutes the estate of C. N. Hodges,
capable of distribution to his heirs upon termination of Special Proceedings No. 1672;
6. That PCIB, as administrator of the estate of C. N. Hodges, is entitled to full and exclusive custody, control and management of all said properties; and
7. That Avelina A. Magno, as administratrix of the estate of Linnie Jane Hodges, as well as the HIGDONS, has no right to intervene or participate in the administration of the C. N. Hodges estate.
PCIB further prays for such and other relief as may be deemed just and equitable in the premises."(Record, pp. 265-277)
Before all of these motions of petitioner could be resolved, however, on December 21, 1965, private respondent Magno filed her own "Motion for the Official Declaration of Heirs of the Estate of Linnie Jane Hodges" as
follows:
"COMES NOW the Administratrix of the Estate of Linnie Jane Hodges and, through undersigned counsel, unto this Honorable Court most respectfully states and manifests:
1. That the spouses Charles Newton Hodges and Linnie Jane Hodges were American citizens who died at the City of Iloilo after having amassed and accumulated extensive properties in the
Philippines;
2. That on November 22, 1952, Linnie Jane Hodges executed a last will and testament (the original of this will now forms part of the records of these proceedings as Exhibit 'C' and appears as Sp.
Proc. No. 1307, Folio I, pp. 17-18);
3. That on May 23, 1957, Linnie Jane Hodges died at the City of Iloilo, at the time survived by her husband, Charles Newton Hodges, and several relatives named in her last will and testament;
4. That on June 28, 1957, a petition therefor having been priorly filed and duly heard, this Honorable Court issued an order admitting to probate the last will and testament of Linnie Jane Hodges
(Sp. Proc. No. 1307, Folio I, pp. 24-25, 26-28);
5. That the required notice to creditors and to all others who may have any claims against the decedent, Linnie Jane Hodges, has already been printed, published and posted (Sp. Proc. No. 1307,
Folio I, pp. 34-40) and the reglementary period for filing such claims has long ago lapsed and expired without any claims having been asserted against the estate of Linnie Jane Hodges, approved

by the Administrator/Administratrix of the said estate, nor ratified by this Honorable Court;
6. That the last will and testament of Linnie Jane Hodges already admitted to probate contains an institution of heirs in the following words:
"SECOND: I give, devise and bequeath all of the rest, residue and remainder of my estate, both personal and real, wherever situated or located, to my beloved husband, Charles Newton
Hodges, to have and to hold unto him, my said husband, during his natural lifetime.
THIRD: I desire, direct and provide that my husband, Charles Newton Hodges, shall have the right to manage, control, use and enjoy said estate during his lifetime, and he is hereby
given the right to make any changes in the physical properties of said estate, by sale of any part thereof which he may think best, and the purchase of any other or additional property as
he may think best; to execute conveyances with or without general or special warranty, conveying in fee simple or for any other term or time, any property which he may deem proper to
dispose of; to lease any of the real property for oil, gas and/or other minerals, and all such deeds or leases shall pass the absolute fee simple title to the interest so conveyed in such
property as he may elect to sell. All rents, emoluments and income from said estate shall belong to him, and he is further authorized to use any part of the principal of said estate as he
may need or desire. It is provided herein, however, that he shall not sell or otherwise dispose of any of the improved property now owned by us located at, in or near the City of Lubbock,
Texas, but he shall have the full right to lease, manage and enjoy the same during his lifetime, above provided. He shall have the right to subdivide any farm land and sell lots therein, and
may sell unimproved town lots.
FOURTH: At the death of my said husband, Charles Newton Hodges, I give, devise and bequeath all of the rest, residue and remainder of my estate, both real and personal, wherever
situated or located, to be equally divided among my brothers and sisters, share and share alike, namely:
Esta Higdon, Emma Howell, Leonard Higdon, Roy Higdon, Sadie Rascoe, Era Boman and Nimroy Higdon.
FIFTH: In case of the death of any of my brothers and/or sisters named in item Fourth, above, prior to the death of my husband, Charles Newton Hodges, then it is my will and bequest
that the heirs of such deceased brother or sister shall take jointly the share which would have gone to such brother or sister had she or he survived.'
7. That under the provisions of the last will and testament already above-quoted, Linnie Jane Hodges gave a life-estate or a usufruct over all her estate to her husband, Charles Newton Hodges,
and a vested remainder-estate or the naked title over the same estate to her relatives named therein;
8. That after the death of Linnie Jane Hodges and after the admission to probate of her last will and testament, but during the lifetime of Charles Newton Hodges, the said Charles Newton Hodges,
with full and complete knowledge of the life-estate or usufruct conferred upon him by the will since he was then acting as Administrator of the estate and later as Executor of the will of Linnie Jane
Hodges, unequivocably and clearly through oral and written declarations and sworn public statements, renounced, disclaimed and repudiated his life-estate and usufruct over the estate of Linnie
Jane Hodges;
9. That, accordingly, the only heirs left to receive the estate of Linnie Jane Hodges, pursuant to her last will and testament, are her named brothers and sisters, or their heirs, to wit: Esta Higdon,
Emma Howell, Leonard Higdon, Aline Higdon and David Higdon, the latter two being the wife and son respectively of the deceased Roy Higdon, Sadie Rascoe, Era Boman and Nimroy Higdon, all
of legal ages, American citizens, with residence at the State of Texas, United States of America;
10. That at the time of the death of Linnie Jane Hodges on May 23, 1957, she was the co-owner (together with her husband Charles Newton Hodges) of an undivided one-half interest in their
conjugal properties existing as of that date, May 23, 1957, which properties are now being administered sometimes jointly and sometimes separately by the Administratrix of the estate of Linnie
Jane Hodges and/or the Administrator of the estate of C. N. Hodges but all of which are under the control and supervision of this Honorable Court;
11. That because there was no separation or segregation of the interests of husband and wife in the combined conjugal estate, as there has been no such separation or segregation up to the
present, both interests have continually earned exactly the same amount of 'rents, emoluments and income', the entire estate having been continually devoted to the business of the spouses as if
they were alive;
12. That the one-half interest of Linnie Jane Hodges in the combined conjugal estate was earning 'rents, emoluments and income' until her death on May 23, 1957, when it ceased to be saddled
with any more charges or expenditures which are purely personal to her in nature, and her estate kept on earning such 'rents, emoluments and income' by virtue of their having been expressly
renounced, disclaimed and repudiated by Charles Newton Hodges to whom they were bequeathed for life under the last will and testament of Linnie Jane Hodges;
13. That, on the other hand, the one-half interest of Charles Newton Hodges in the combined conjugal estate existing as of May 23, 1957, while it may have earned exactly the same amount of
'rents, emoluments and Income' as that of the share pertaining to Linnie Jane Hodges, continued to be burdened by charges, expenditures, and other dispositions which are purely personal to him
in nature, until the death of Charles Newton Hodges himself on December 25, 1962;
14. That of all the assets of the combined conjugal estate of Linnie Jane Hodges and Charles Newton Hodges as they exist today, the estate of Linnie Jane Hodges is clearly entitled to a portion
more than fifty percent (50%) as compared to the portion to which the estate of Charles Newton Hodges may be entitled, which portions can be exactly determined by the following manner:
a. An inventory must be made of the assets of the combined conjugal estate as they existed on the death of Linnie Jane Hodges on May 23, 1957 one-half of these assets belong to
the estate of Linnie Jane Hodges;
b. An accounting must be made of the 'rents, emoluments and income' of all these assets again one-half of these belong to the estate of Linnie Jane Hodges;
c. Adjustments must be made, after making a deduction of charges disbursements and other dispositions made by Charles Newton Hodges personally and for his own personal account
from May 23, 1957 up to December 25, 1962, as well as other charges, disbursements and other dispositions made for him and in his behalf since December 25, 1962 up to the present;
15. That there remains no other matter for disposition now insofar as the estate of Linnie Jane Hodges is concerned but to complete the liquidation of her estate, segregate them from the conjugal
estate, and distribute them to her heirs pursuant to her last will and testament.
WHEREFORE, premises considered, it is most respectfully moved and prayed that this Honorable Court, after a hearing on the factual matters raised by this motion, issue an order:
a. Declaring the following persons, to wit: Esta Higdon, Emma Howell, Leonard Higdon, Aline Higdon, David Higdon, Sadie Rascoe, Era Boman and Nimroy Higdon, as the sole heirs
under the last will and testament of Linnie Jane Hodges and as the only persons entitled to her estate;
b. Determining the exact value of the estate of Linnie Jane Hodges in accordance with the system enunciated in paragraph 14 of this motion;
c. After such determination ordering its segregation from the combined conjugal estate and its delivery to the Administratrix of the estate of Linnie Jane Hodges for distribution to the heirs
to whom they properly belong and appertain."
(Green Record on Appeal, pp. 382-391)
whereupon, instead of further pressing on its motion of January 8, 1965 aforequoted, as it had been doing before, petitioner withdrew the said motion and in addition to opposing the above motion of respondent
Magno, filed a motion on April 22, 1966 alleging in part that:
"1. That it has received from the counsel for the administratrix of the supposed estate of Linnie Jane Hodges a notice to set her 'Motion for Official Declaration of Heirs of the Estate of Linnie Jane
Hodges';
"2. That before the aforesaid motion could be heard, there are matters pending before this Honorable Court, such as:
a. The examination already ordered by this Honorable Court of documents relating to the allegation of Avelina Magno that Charles Newton Hodges 'through . . . written declarations and
sworn public statements, renounced, disclaimed and repudiated his life-estate and usufruct over the Estate of Linnie Jane Hodges';
b. That 'Urgent Motion for An Accounting and Delivery to the Estate of C. N. Hodges of All the Assets of the Conjugal Partnership of the Deceased Linnie Jane Hodges and C. N. Hodges
Existing as of May 23, 1957 Plus All the Rents, Emoluments and Income Therefrom';

c. Various motions to resolve the aforesaid motion;

d. Manifestation of September 14, 1964, detailing acts of interference of Avelina Magno under color of title as administratrix of the Estate of Linnie Jane Hodges;
which are all prejudicial, and which involve no issues of fact, all facts involved therein being matters of record, and therefore require only the resolution of questions of law;
"3. That whatever claims any alleged heirs or other persons may have could be very easily threshed out in the Testate Estate of Charles Newton Hodges;
"4. That the maintenance of two separate estate proceedings and two administrators only results in confusion and is unduly burdensome upon the Testate Estate of Charles Newton Hodges,
particularly because the bond filed by Avelina Magno is grossly insufficient to answer for the funds and property which she has inofficiously collected and held, as well as those which she continues
to inofficiously collect and hold;
"5. That it is a matter of record that such state of affairs affects and inconveniences not only the estate but also third-parties dealing with it," (Annex "V", Petition.)
and then, after further reminding the court, by quoting them, of the relevant allegations of its earlier motion of September 14, 1964, Annex U, prayed that:
"1. Immediately order Avelina Magno to account for and deliver to the administrator of the Estate of C. N. Hodges all the assets of the conjugal partnership of the deceased Linnie Jane Hodges and
C. N. Hodges, plus all the rents, emoluments and income therefrom;
"2. Pending the consideration of this motion, immediately order Avelina Magno to turn over all her collections to the administrator Philippine Commercial & Industrial Bank;
"3. Declare the Testate Estate of Linnie Jane Hodges (Sp. Proc. No. 1307) closed;
"4. Defer the hearing and consideration of the motion for declaration of heirs in the Testate Estate of Linnie Jane Hodges until the matters hereinabove set forth are resolved."(Prayer, Annex "V" of
Petition.)
On October 12, 1966, as already indicated at the outset of this opinion, the respondent court denied the foregoing motion, holding thus:
"O R D E R
On record is a motion (Vol. X, Sp. 1672, pp. 4379-4390) dated April 22, 1966 of administrator PCIB praying that (1) Immediately order Avelina Magno to account for and deliver to the administrator
of the estate of C. N. Hodges all assets of the conjugal partnership of the deceased Linnie Jane Hodges and C. N. Hodges, plus all the rents, emoluments and income therefrom; (2) Pending the
consideration of this motion, immediately order Avelina Magno to turn over all her collections to the administrator PCIB; (3) Declare the Testate Estate of Linnie Jane Hodges (Sp. Proc. No. 1307)
closed; and (4) Defer the hearing and consideration of the motion for declaration of heirs in the Testate Estate of Linnie Jane Hodges until the matters hereinabove set forth are resolved.
This motion is predicated on the fact that there are matters pending before this court such as (a) the examination already ordered by this Honorable Court of documents relating to the allegation of
Avelina Magno that Charles Newton Hodges thru written declaration and sworn public statements renounced, disclaimed and repudiated his life-estate and usufruct over the estate of Linnie Jane
Hodges (b) the urgent motion for accounting and delivery to the estate of C. N. Hodges of all the assets of the conjugal partnership of the deceased Linnie Jane Hodges and C. N. Hodges existing
as of May 23, 1957 plus all the rents, emoluments and income therefrom; (c) various motions to resolve the aforesaid motion; and (d) manifestation of September 14, 1964, detailing acts of
interference of Avelina Magno under color of title as administratrix of the estate of Linnie Jane Hodges.
These matters, according to the instant motion, are all prejudicial involving no issues of facts and only require the resolution of question of law; that in the motion of October 5, 1963 it is alleged that
in a motion dated December 11, 1957 filed by Atty. Leon Gellada as attorney for the executor C. N. Hodges, the said executor C. N. Hodges is not only part owner of the properties left as conjugal
but also the successor to all the properties left by the deceased Linnie Jane Hodges.
Said motion of December 11, 1957 was approved by the Court in consonance with the wishes contained in the last will and testament of Linnie Jane Hodges.
That on April 21, 1959 this Court approved the inventory and accounting submitted by C. N. Hodges thru counsel Atty. Leon Gellada in a motion filed on April 14, 1959 stating therein that executor
C. N. Hodges is the only devisee or legatee of Linnie Jane Hodges in accordance with the last will and testament already probated by the Court.
That on July 13, 1960 the Court approved the annual statement of accounts submitted by the executor C. N. Hodges thru his counsel Atty. Gellada on July 21, 1960 wherein it is stated that the
executor, C. N. Hodges is the only devisee or legatee of the deceased Linnie Jane Hodges; that on May 2, 1961 the Court approved the annual statement of accounts submitted by executor, C. N.
Hodges for the year 1960 which was submitted by Atty. Gellada on April 20, 1961 wherein it is stated that executor Hodges is the only devisee or legatee of the deceased Linnie Jane Hodges;
That during the hearing on September 5 and 6, 1963 the estate of C. N. Hodges claimed all the assets belonging to the deceased spouses Linnie Jane Hodges and C. N. Hodges situated in the
Philippines; that administratrix Magno has executed illegal acts to the prejudice of the testate estate of C. N. Hodges.
An opposition (Sp. 1672, Vol. X, pp. 4415-4421) dated April 27, 1966 of administratrix Magno has been filed asking that the motion be denied for lack of merit and that the motion for the official
declaration of heirs of the estate of Linnie Jane Hodges be set for presentation and reception of evidence.
It is alleged in the aforesaid opposition that the examination of documents which are in the possession of administratrix Magno can be made prior to the hearing of the motion for the official
declaration of heirs of the estate of Linnie Jane Hodges, during said hearing.
That the matters raised in the PCIB's motion of October 5, 1963 (as well as the other motion) dated September 14, 1964 have been consolidated for the purpose of presentation and reception of
evidence with the hearing on the determination of the heirs of the estate of Linnie Jane Hodges. It is further alleged in the opposition that the motion for the official declaration of heirs of the estate of
Linnie Jane Hodges is the one that constitutes a prejudicial question to the motions dated October 5 and September 14, 1964 because if said motion is found meritorious and granted by the Court,
the PCIB's motions of October 5, 1963 and September 14, 1964 will become moot and academic since they are premised on the assumption and claim that the only heir of Linnie Jane Hodges was
C. N. Hodges;
That the PCIB and counsel are estopped from further questioning the determination of heirs in the estate of Linnie Jane Hodges at this stage since it was PCIB as early as January 8, 1965 which
filed a motion for official declaration of heirs of Linnie Jane Hodges; that the claim of any heirs of Linnie Jane Hodges can be determined only in the administration proceedings over the estate of
Linnie Jane Hodges and not that of C. N. Hodges, since the heirs of Linnie Jane Hodges are claiming her estate and not the estate of C. N. Hodges.
A reply (Sp. 1612, Vol. X, pp. 4436-4444) dated May 11, 1966 of the PCIB has been filed alleging that the motion dated April 22, 1966 of the PCIB is not to seek deferment of the hearing and
consideration of the motion for official declaration of heirs of Linnie Jane Hodges but to declare the testate estate of Linnie Jane Hodges closed and for administratrix Magno to account for and
deliver to the PCIB all assets of the conjugal partnership of the deceased spouses which has come to her possession plus all rents and income.
A rejoinder (Sp. 1672, Vol. X, pp. 4458-4462) of administratrix Magno dated May 19, 1966 has been filed alleging that the motion dated December 11, 1957 only sought the approval of all
conveyances made by C. N. Hodges and requested the Court authority for all subsequent conveyances that will be executed by C. N. Hodges; that the order dated December 14, 1967 only
approved the conveyances made by C. N. Hodges; that C. N. Hodges represented by counsel never made any claim in the estate of Linnie Jane Hodges and never filed a motion to declare himself
as the heir of the said Linnie Jane Hodges despite the lapse of more than five (5) years after the death of Linnie Jane Hodges; that it is further alleged in the rejoinder that there can be no order of
adjudication of the estate unless there has been a prior express declaration of heirs and so far no declaration of heirs in the estate of Linnie Jane Hodges (Sp. 1307) has been made.
Considering the allegations and arguments in the motion and reply of the PCIB as well as those in the opposition and rejoinder of administratrix Magno, the Court finds the opposition and rejoinder
to be well taken for the reason that so far there has been no official declaration of heirs in the testate estate of Linnie Jane Hodges and therefore no disposition of her estate.
WHEREFORE, the motion of the PCIB dated April 22, 1966 is hereby DENIED."
(Annex "W", Petition)
In its motion dated November 24, 1966 for the reconsideration of this order, petitioner alleged inter alia that:
"It cannot be over-stressed that the motion of December 11, 1957 was based on the fact that.

a. Under the last will and testament of the deceased, Linnie Jane Hodges, the late Charles Newton Hodges was the sole heir instituted insofar as her properties in the Philippines are
concerned;
b. Said last will and testament vested upon the said late Charles Newton Hodges rights over said properties which, in sum, spell ownership, absolute and in fee simple;
c. Said late Charles Newton Hodges was, therefore, 'not only part owner of the properties left as conjugal, but also, the successor to all the properties left by the deceased Linnie Jane
Hodges.
"Likewise, it cannot be over-stressed that the aforesaid motion was granted by this Honorable Court 'for the reasons stated' therein.
"Again, the motion of December 11, 1957 prayed that not only 'all the sales, conveyances, leases, and mortgages executed by' the late Charles Newton Hodges, but also all 'the subsequent sales,
conveyances, leases, and mortgages . . .' be approved and authorized. This Honorable Court, in its order of December 14, 1957, 'for the reasons stated' in the aforesaid motion, granted the same,
and not only approved all the sales, conveyances, leases and mortgages of all properties left by the deceased Linnie Jane Hodges executed by the late Charles Newton Hodges, but also authorized
'all subsequent sales, conveyances, leases and mortgages of the properties left by the said deceased Linnie Jane Hodges." (Annex "X", Petition)
and reiterated its fundamental pose that the Testate Estate of Linnie Jane Hodges had already been factually, although not legally, closed with the virtual declaration of Hodges and adjudication to him, as sole
universal heir of all the properties of the estate of his wife, in the order of December 14, 1957, Annex G. Still unpersuaded, on July 18, 1967, respondent court denied said motion for reconsideration and held that "the
court believes that there is no justification why the order of October 12, 1966 should be considered or modified", and, on July 19, 1967, the motion of respondent Magno "for official declaration of heirs of the estate of
Linnie Jane Hodges", already referred to above, was set for hearing.
In consequence of all these developments, the present petition was filed on August 1, 1967 (albeit petitioner had to pay another docketing fee on August 9, 1967, since the orders in question were issued in two separate
testate estate proceedings, Nos. 1307 and 1672, in the court below).
Together with such petition, there are now pending before Us for resolution herein, appeals from the following:
1. The order of December 19, 1964 authorizing payment by respondent Magno of overtime pay, (pp. 221, Green Record on Appeal) together with the subsequent orders of January 9, 1965, (pp.
231-232, id.) October 27, 1965, (pp. 227, id.) and February 15, 1966 pp. 455-456, id.) repeatedly denying motions for reconsideration thereof.
2. The order of August 6, 1965 (pp. 248, id.) requiring that deeds executed by petitioner to be co-signed by respondent Magno, as well as the order of October 27, 1965 (pp. 276-277) denying
reconsideration.
3. The other of October 27, 1965 (pp. 292-295, id.) enjoining the deposit of all collections in a joint account and the same order of February 15, 1966 mentioned in No. 1 above which included the
denial of the reconsideration of this order of October 27, 1965.
4. The order of November 3, 1965 (pp. 313-320, id.) directing the payment of attorney's fees, fees of the respondent administratrix, etc. and the order of February 16, 1966 denying reconsideration
thereof.
5. The order of November 23, 1965 (pp. 334-335, id.) allowing appellee Western Institute of Technology to make payments to either one or both of the administrators of the two estates as well as
the order of March 7, 1966 (p. 462, id.) denying reconsideration.
6. The various orders hereinabove earlier enumerated approving deeds of sale executed by respondent Magno in favor of appellees Carles, Catedral, Pablito, Guzman, Coronado, Barrido, Causing,
Javier, Lucero and Batisanan, (see pp. 35 to 37 of this opinion), together with the two separate orders both dated December 2, 1966 (pp. 306-308, and pp. 308-309, Yellow Record on Appeal)
denying reconsideration of said approval.
7. The order of January 3, 1967, on pp. 335-336, Yellow Record on Appeal, approving similar deeds of sale executed by respondent Magno, as those in No. 6, in favor of appellees Pacaonsis and
Premaylon, as to which no motion for reconsideration was filed.
8. Lastly, the order of December 2, 1966, on pp. 305-306, Yellow Record on Appeal, directing petitioner to surrender to appellees Lucero, Batisanan, Javier, Pablito, Barrido, Catedral, Causing,
Guzman, and Coronado, the certificates of title covering the lands involved in the approved sales, as to which no motion for reconsideration was filed either.
Strictly speaking, and considering that the above orders deal with different matters, just as they affect distinctly different individuals or persons, as outlined by petitioner in its brief as appellant on pp. 12-20 thereof, there
are, therefore, thirty-three (33) appeals before Us, for which reason, petitioner has to pay also thirty-one (31) more docket fees.
It is as well perhaps to state here as elsewhere in this opinion that in connection with these appeals, petitioner has assigned a total of seventy-eight (LXXVIII) alleged errors, the respective discussions and arguments under
all of them covering also the fundamental issues raised in respect to the petition for certiorari and prohibition, thus making it feasible and more practical for the Court to dispose of all these cases together. 4
The assignments of error read thus:
"I to IV
THE ORDER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN FAVOR OF THE APPELLEES, PEPITO G. IYULORES, ESPIRIDION PARTISALA, WINIFREDO C. ESPADA AND
ROSARIO ALINGASA, EXECUTED BY THE APPELLEE, AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED BY THE DECEASED, CHARLES NEWTON HODGES, AND THE
CONTRACTS TO SELL COVERING WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME.
V to VIII
THE LOWER COURT ERRED IN APPROVING THE DEEDS OF SALE IN FAVOR OF THE APPELLEES, PEPITO G. IYULORES, ESPIRIDION PARTISALA, WINIFREDO C. ESPADA AND
ROSARIO ALINGASA, COVERING PARCELS OF LAND FOR WHICH THEY HAVE NEVER PAID IN FULL IN ACCORDANCE WITH THE ORIGINAL CONTRACTS TO SELL.
IX to XII
THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF OWNERSHIP OVER REAL PROPERTY OF THE APPELLEES, PEPITO G. IYULORES, ESPIRIDION PARTISALA,
WINIFREDO C. ESPADA AND ROSARIO ALINGASA, WHILE ACTING AS A PROBATE COURT.
XIII to XV
THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN FAVOR OF THE APPELLEES ADELFA PREMAYLON (LOT NO. 102), SANTIAGO PACAONSIS, AND ADELFA
PREMAYLON (LOT NO. 104), EXECUTED BY THE APPELLEE, AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED BY THE DECEASED, CHARLES NEWTON HODGES, AND THE
CONTRACTS TO SELL COVERING WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME.
XVI to XVIII
THE LOWER COURT ERRED IN APPROVING THE DEEDS OF SALE IN FAVOR OF THE APPELLEES ADELFA PREMAYLON (LOT NO. 102), SANTIAGO PACAONSIS, AND ADELFA
PREMAYLON (LOT NO. 104) COVERING PARCELS OF LAND FOR WHICH THEY HAVE NEVER PAID IN FULL IN ACCORDANCE WITH THE ORIGINAL CONTRACTS TO SELL.
XIX to XXI
THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF OWNERSHIP OVER REAL PROPERTY OF THE APPELLEES ADELFA PREMAYLON (LOT NO. 102), SANTIAGO
PACAONSIS, AND ADELFA PREMAYLON (LOT NO. 104) WHILE ACTING AS A PROBATE COURT.
XXII to XXV
THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN FAVOR OF THE APPELLEES LORENZO CARLES, JOSE PABLICO, ALFREDO CATEDRAL AND SALVADOR S.
GUZMAN, EXECUTED BY THE APPELLEE, AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED BY THE DECEASED, CHARLES NEWTON HODGES, AND THE CONTRACTS TO
SELL COVERING WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME.

XXVI to XXIX
THE LOWER COURT ERRED IN APPROVING THE FINAL DEED OF SALE EXECUTED IN FAVOR OF THE APPELLEES, LORENZO CARLES, JOSE PABLICO, ALFREDO CATEDRAL AND
SALVADOR S. GUZMAN PURSUANT TO CONTRACTS TO SELL WHICH WERE CANCELLED AND RESCINDED.
XXX to XXXIV
THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF OWNERSHIP OVER REAL PROPERTY OF THE APPELLEES, LORENZO CARLES, JOSE PABLICO, ALFREDO CATEDRAL
AND SALVADOR S. GUZMAN, WHILE ACTING AS A PROBATE COURT.
XXXV to XXXVI
THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN FAVOR OF THE APPELLEES, FLORENIA BARRIDO AND PURIFICACION CORONADO, EXECUTED BY THE
APPELLEE, AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED BY THE DECEASED, CHARLES NEWTON HODGES AND THE CONTRACTS TO SELL COVERING WHICH WERE
EXECUTED BY HIM DURING HIS LIFETIME.
XXXVII to XXXVIII
THE LOWER COURT ERRED IN APPROVING THE DEEDS OF SALE IN FAVOR OF THE APPELLEES, FLORENIA BARRIDO AND PURIFICACION CORONADO, ALTHOUGH THEY WERE IN
ARREARS IN THE PAYMENTS AGREED UPON IN THE ORIGINAL CONTRACT TO SELL WHICH THEY EXECUTED WITH THE DECEASED, CHARLES NEWTON HODGES, IN THE AMOUNT
OF P10,680.00 and P4,428.90, RESPECTIVELY.
XXXIX to XL
THE LOWER COURT ERRED IN DEPRIVING THE DECEASED, CHARLES NEWTON HODGES, OF THE CONTRACTUAL RIGHT, EXERCISED THROUGH HIS ADMINISTRATOR, THE
INSTANT APPELLANT, TO CANCEL THE CONTRACTS TO SELL OF THE APPELLEES, FLORENIA BARRIDO AND PURIFICACION CORONADO.
XLI to XLIII
THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN FAVOR OF THE APPELLEES, GRACIANO LUCERO, ARITEO THOMAS JAMIR AND MELQUIADES BATISANAN,
EXECUTED BY THE APPELLEE, AVELINA A. MAGNO, COVERING PARCELS OF LAND OWNED BY THE DECEASED, CHARLES NEWTON HODGES, AND THE CONTRACTS TO SELL
COVERING WHICH WERE EXECUTED BY HIM DURING HIS LIFETIME.
XLIV to XLVI
THE LOWER COURT ERRED IN APPROVING THE FINAL DEED OF SALE IN FAVOR OF THE APPELLEES, GRACIANO LUCERO, ARITEO THOMAS JAMIR AND MELQUIADES BATISANAN,
PURSUANT TO CONTRACTS TO SELL EXECUTED BY THEM WITH THE DECEASED, CHARLES NEWTON HODGES, THE TERMS AND CONDITIONS OF WHICH THEY HAVE NEVER
COMPLIED WITH.
XLVII to XLIX
THE LOWER COURT ERRED IN DEPRIVING THE DECEASED, CHARLES NEWTON HODGES, OF HIS RIGHT, EXERCISED THROUGH HIS ADMINISTRATION, THE INSTANT APPELLANT,
TO CANCEL THE CONTRACTS TO SELL OF THE APPELLEES, GRACIANO LUCERO, ARITEO THOMAS JAMIR AND MELQUIADES BATISANAN, AND IN DETERMINING THE RIGHTS OF
THE SAID APPELLEES OVER REAL PROPERTY WHILE ACTING AS A PROBATE COURT.
L
THE LOWER COURT ERRED IN APPROVING THE FINAL DEEDS OF SALE IN FAVOR OF THE APPELLEE, BELCESAR CAUSING EXECUTED BY THE APPELLEE, AVELINA A. MAGNO,
COVERING PARCELS OF LAND OWNED BY THE DECEASED, CHARLES NEWTON HODGES, AND THE CONTRACTS TO SELL COVERING WHICH WERE EXECUTED BY HIM DURING HIS
LIFETIME.
LI
THE LOWER COURT ERRED IN APPROVING THE DEEDS OF SALE IN FAVOR OF THE APPELLEE, BELCESAR CAUSING, ALTHOUGH HE WAS IN ARREARS IN THE PAYMENTS AGREED
UPON IN THE ORIGINAL CONTRACT TO SELL WHICH HE EXECUTED WITH THE DECEASED, CHARLES NEWTON HODGES, IN THE AMOUNT OF P2,337.50.
LII
THE LOWER COURT ERRED IN APPROVING THE DEED OF SALE IN FAVOR OF THE APPELLEE, BELCESAR CAUSING, ALTHOUGH THE SAME WAS NOT EXECUTED IN ACCORDANCE
WITH THE RULES OF COURT.
LIII to LXI
THE LOWER COURT ERRED IN ORDERING THE APPELLANT, PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK TO SURRENDER THE OWNER'S DUPLICATE CERTIFICATES OF TITLE
OVER THE RESPECTIVE LOTS COVERED BY THE DEEDS OF SALE EXECUTED BY THE APPELLEE, AVELINA A. MAGNO, IN FAVOR OF THE OTHER APPELLEES, JOSE PABLICO,
ALFREDO CATEDRAL, SALVADOR S. GUZMAN, FLORENIA BARRIDO, PURIFICACION CORONADO, BELCESAR CAUSING, ARITEO THOMAS JAMIR, MAXIMA BATISANAN AND
GRACIANO L. LUCERO.
LXII
THE LOWER COURT ERRED IN RESOLVING THE MOTION OF THE APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY, DATED NOVEMBER 3, 1965, WITHOUT ANY COPY THEREOF
HAVING BEEN SERVED UPON THE APPELLANT, PHILIPPINE COMMERCIAL & INDUSTRIAL BANK.
LXIII
THE LOWER COURT ERRED IN HEARING AND CONSIDERING THE MOTION OF THE APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY, DATED NOVEMBER 3rd, 1965, ON
NOVEMBER 23, 1965, WHEN THE NOTICE FOR THE HEARING THEREOF WAS FOR NOVEMBER 20, 1965.
LXIV
THE LOWER COURT ERRED IN GRANTING THE APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY A RELIEF OTHER THAN THAT PRAYED FOR IN ITS MOTION, DATED NOVEMBER 3,
1965, IN THE ABSENCE OF A PRAYER FOR GENERAL RELIEF CONTAINED THEREIN.
LXV
THE LOWER COURT ERRED IN ALLOWING THE APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY, TO CONTINUE PAYMENTS UPON A CONTRACT TO SELL THE TERMS AND
CONDITIONS OF WHICH IT HAS FAILED TO FULFILL.
LXVI
THE LOWER COURT ERRED IN DETERMINING THE RIGHTS OF THE APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY OVER THE REAL PROPERTY SUBJECT MATTER OF THE
CONTRACT TO SELL IT EXECUTED WITH THE DECEASED, CHARLES NEWTON HODGES, WHILE ACTING AS A PROBATE COURT.
LXVII
LOWER COURT ERRED IN ALLOWING THE CONTINUATION OF PAYMENTS BY THE APPELLEE, WESTERN INSTITUTE OF TECHNOLOGY, UPON A CONTRACT TO SELL EXECUTED BY
IT AND THE DECEASED, CHARLES NEWTON HODGES, TO A PERSON OTHER THAN HIS LAWFULLY APPOINTED ADMINISTRATOR.
LXVIII
THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF RETAINER'S FEES FROM THE SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE HODGES, WHEN THERE IS

NEITHER SUCH ESTATE NOR ASSETS THEREOF.

LXIX
THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF RETAINER'S FEES OF LAWYERS OF ALLEGED HEIRS TO THE SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE
HODGES.
LXX
THE LOWER COURT ERRED IN IMPLEMENTING THE ALLEGED AGREEMENT BETWEEN THE HEIRS OF THE SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE HODGES, AND
THEIR LAWYERS.
LXXI
THE LOWER COURT ERRED IN ORDERING THE PREMATURE DISTRIBUTION OF ESTATE ASSETS TO ALLEGED HEIRS OR BENEFICIARIES THEREOF, BY WAY OF RETAINER'S FEES.
LXXII
THE LOWER COURT ERRED IN ORDERING THAT ALL FINAL DEEDS OF SALE EXECUTED PURSUANT TO CONTRACTS TO SELL ENTERED INTO BY THE DECEASED, CHARLES
NEWTON HODGES, DURING HIS LIFETIME, BE SIGNED JOINTLY BY THE APPELLEE, AVELINA A. MAGNO, AND THE APPELLANT, PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK,
AND NOT BY THE LATTER ONLY AS THE LAWFULLY APPOINTED ADMINISTRATOR OF HIS ESTATE.
LXXIII
THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF LEGAL EXPENSES FROM THE SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE HODGES, WHEN THERE IS
NEITHER SUCH ESTATE NOR ASSETS THEREOF.
LXXIV
THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF LEGAL EXPENSES OF LAWYERS OF ALLEGED HEIRS TO THE SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE
HODGES.
LXXV
THE LOWER COURT ERRED IN ORDERING THE PREMATURE DISTRIBUTION OF ESTATE ASSETS TO ALLEGED HEIRS OR BENEFICIARIES THEREOF, BY WAY OF LEGAL EXPENSES.
LXXVI
THE LOWER COURT ERRED IN ORDERING THE PAYMENT OF COMPENSATION TO THE PURPORTED ADMINISTRATRIX OF THE SUPPOSED ESTATE OF THE DECEASED, LINNIE JANE
HODGES, THE INSTANT APPELLEE, AVELINA A. MAGNO, WHEN THERE IS NEITHER SUCH ESTATE NOR ASSETS THEREOF.
LXXVII
THE LOWER COURT ERRED IN ORDERING THAT THE FUNDS OF THE TESTATE ESTATE OF THE DECEASED, CHARLES NEWTON HODGES, BE PLACED IN A JOINT ACCOUNT OF THE
APPELLANT, PHILIPPINE COMMERCIAL AND INDUSTRIAL BANK, AND THE APPELLEE, AVELINA A. MAGNO WHO IS A COMPLETE STRANGER TO THE AFORESAID ESTATE.
LXXVIII
THE LOWER COURT ERRED IN ORDERING THAT THE APPELLEE, AVELINA A. MAGNO, BE GIVEN EQUAL ACCESS TO THE RECORDS OF THE TESTATE ESTATE OF THE DECEASED,
CHARLES NEWTON HODGES, WHEN SHE IS A COMPLETE STRANGER TO THE AFORESAID ESTATE."(Pp. 73-83, Appellant's Brief.)
To complete this rather elaborate, and unavoidably extended narration of the factual setting of these cases, it may also be mentioned that an attempt was made by the heirs of Mrs. Hodges to have respondent Magno
removed as administratrix, with the proposed appointment of Benito J. Lopez in her place, and that respondent court did actually order such proposed replacement, but the Court declared the said order of respondent court
violative of its injunction of August 8, 1967, hence without force and effect (see Resolution of September 8, 1972 and February 1, 1973). Subsequently, Atty. Efrain B. Trenas, one of the lawyers of said heirs, appeared no
longer for the proposed administrator Lopez but for the heirs themselves, and in a motion dated October 26, 1972 informed the Court that a motion had been filed with respondent court for the removal of petitioner PCIB as
administrator of the estate of C. N. Hodges in Special Proceedings 1672, which removal motion alleged that 22.968149% of the share of C. N. Hodges had already been acquired by the heirs of Mrs. Hodges from certain
heirs of her husband. Further, in this connection, in the answer of PCIB to the motion of respondent Magno to have it declared in contempt for disregarding the Court's resolution of September 8, 1972 modifying the
injunction of August 8, 1967, said petitioner annexed thereto a joint manifestation and motion, appearing to have been filed with respondent court, informing said court that in addition to the fact that 22% of the share of C.
N. Hodges had already been bought by the heirs of Mrs. Hodges, as already stated, certain other heirs of Hodges representing 17.343750% of his estate were joining cause with the heirs of Mrs. Hodges as against PCIB,
thereby making somewhat precarious, if not possibly untenable, petitioners' continuation as administrator of the Hodges estate.
RESOLUTION OF ISSUES IN THE CERTIORARI AND
PROHIBITION CASES
I
As to the Alleged Tardiness
of the Present Appeals
The priority question raised by respondent Magno relates to the alleged tardiness of all the aforementioned thirty-three appeals of PCIB. Considering, however, that these appeals revolve around practically the same main
issues and that it is admitted that some of them have been timely taken, and, moreover, their final results herein below to be stated and explained make it of no consequence whether or not the orders concerned have
become final by the lapsing of the respective periods to appeal them, We do not deem it necessary to pass upon the timeliness of any of said appeals.
II
The Propriety Here of Certiorari and
Prohibition instead of Appeal
The other preliminary point of the same respondent is alleged impropriety of the special civil action of certiorari and prohibition in view of the existence of the remedy of appeal which it claims is proven by the very appeals
now before Us. Such contention fails to take into account that there is a common thread among the basic issues involved in all these thirty-three appeals which, unless resolved in one single proceeding, will inevitably
cause the proliferation of more or less similar or closely related incidents and consequent eventual appeals. If for this consideration alone, and without taking account anymore of the unnecessary additional effort, expense
and time which would be involved in as many individual appeals as the number of such incidents, it is logical and proper to hold, as We do hold, that the remedy of appeal is not adequate in the present cases. In
determining whether or not a special civil action of certiorari or prohibition may be resorted to in lieu of appeal, in instances wherein lack or excess of jurisdiction or grave abuse of discretion is alleged, it is not enough that
the remedy of appeal exists or is possible. It is indispensable that taking all the relevant circumstances of the given case, appeal would better serve the interests of justice. Obviously, the longer delay, augmented expense
and trouble and unnecessary repetition of the same work attendant to the present multiple appeals, which, after all, deal with practically the same basic issues that can be more expeditiously resolved or determined in a
single special civil action, make the remedies of certiorari and prohibition, pursued by petitioner, preferable, for purposes of resolving the common basic issues raised in all of them, despite the conceded availability of
appeal. Besides, the settling of such common fundamental issues would naturally minimize the areas of conflict between the parties and render more simple the determination of the secondary issues in each of them.
Accordingly, respondent Magno's objection to the present remedy of certiorari and prohibition must be overruled.
We come now to the errors assigned by petitioner-appellant, Philippine Commercial & Industrial Bank, (PCIB, for short) in the petition as well as in its main brief as appellant.
III
On Whether or Not There is Still Any Part of the Testate

Estate of Mrs. Hodges that may be Adjudicated to her brothers

and sisters as her estate, of which respondent Magno is the
unquestioned Administratrix in special Proceedings 1307.
In the petition, it is the position of PCIB that the respondent court exceeded its jurisdiction or gravely abused its discretion in further recognizing after December 14, 1957 the existence of the Testate Estate of Linnie Jane
Hodges and in sanctioning purported acts of administration therein of respondent Magno. Main ground for such posture is that by the aforequoted order of respondent court of said date, Hodges was already allowed to
assert and exercise all his rights as universal heir of his wife pursuant to the provisions of her will, quoted earlier, hence, nothing else remains to be done in Special Proceedings 1307 except to formally close it. In other
words, the contention of PCIB is that in view of said order, nothing more than a formal declaration of Hodges as sole and exclusive heir of his wife and the consequent formal unqualified adjudication to him of all her estate
remain to be done to completely close Special Proceedings 1307, hence respondent Magno should be considered as having ceased to be Administratrix of the Testate Estate of Mrs. Hodges since then.
After carefully going over the record, We feel constrained to hold that such pose is patently untenable from whatever angle it is examined.
To start with, We cannot find anywhere in respondent court's order of December 14, 1957 the sense being read into it by PCIB. The tenor of said order bears no suggestion at all to such effect. The declaration of heirs and
distribution by the probate court of the estate of a decedent is its most important function, and this Court is not disposed to encourage judges of probate proceedings to be less than definite, plain and specific in making
orders in such regard, if for no other reason than that all parties concerned, like the heirs, the creditors, and most of all the government, the devisees and legatees, should know with certainty what are and when their
respective rights and obligations ensuing from the inheritance or in relation thereto would begin or cease, as the case may be, thereby avoiding precisely the legal complications and consequent litigations similar to those
that have developed unnecessarily in the present cases. While it is true that in instances wherein all the parties interested in the estate of a deceased person have already actually distributed among themselves their
respective shares therein to the satisfaction of everyone concerned and no rights of creditors or third parties are adversely affected, it would naturally be almost ministerial for the court to issue the final order of declaration
and distribution, still it is inconceivable that the special proceeding instituted for the purpose may be considered terminated, the respective rights of all the parties concerned be deemed definitely settled, and the executor or
administrator thereof be regarded as automatically discharged and relieved already of all functions and responsibilities without the corresponding definite orders of the probate court to such effect.
Indeed, the law on the matter is specific, categorical and unequivocal. Section 1 of Rule 90 provides:
"SECTION 1. When order for distribution of residue made. When the debts, funeral charges, and expenses of administration, the allowance to the widow, and inheritance tax, if any, chargeable to
the estate in accordance with law, have been paid, the court, on the application of the executor or administrator, or of a person interested in the estate, and after hearing upon notice, shall assign
the residue of the estate to the persons entitled to the same, naming them and the proportions, or parts, to which each is entitled, and such persons may demand and recover their respective
shares from the executor or administrator, or any other person having the same in his possession. If there is a controversy before the court as to who are the lawful heirs of the deceased person or
as to the distributive shares to which each person is entitled under the law, the controversy shall be heard and decided as in ordinary cases.
"No distribution shall be allowed until the payment of the obligations above mentioned has been made or provided for, unless the distributees, or any of them, give a bond, in a sum to be fixed by
the court, conditioned for the payment of said obligations within such time as the court directs."
These provisions cannot mean anything less than that in order that a proceeding for the settlement of the estate of a deceased may be deemed ready for final closure, (1) there should have been issued already an order of
distribution or assignment of the estate of the decedent among or to those entitled thereto by will or by law, but (2) such order shall not be issued until after it is shown that the "debts, funeral expenses, expenses of
administration, allowances, taxes, etc. chargeable to the estate" have been paid, which is but logical and proper. (3) Besides, such an order is usually issued upon proper and specific application for the purpose of the
interested party or parties, and not of the court.
". . . it is only after, and not before, the payment of all debts, funeral charges, expenses of administration, allowance to the widow, and inheritance tax shall have been effected that the court should
make a declaration of heirs or of such persons as are entitled by law to the residue. (Moran, Comments on the Rules of Court, 2nd ed., Vol. II, p. 397, citing Capistrano vs. Nadurata, 49 Phil., 726;
Lopez vs. Lopez, 37 Off. Gaz., 3091.)" (JIMOGA-ON v. BELMONTE, 84 Phil. 545, 548) (p. 86, Appellee's Brief)
xxx xxx xxx
"Under Section 753 of the Code of Civil Procedure, (corresponding to Section 1, Rule 90) what brings an intestate (or testate) proceeding to a close is the order of distribution directing delivery of
the residue to the persons entitled thereto after paying the indebtedness, if any, left by the deceased." (Santiesteban vs. Santiesteban, 68 Phil. 367, 370.)
In the cases at bar, We cannot discern from the voluminous and varied facts, pleadings and orders before Us that the above indispensable prerequisites for the declaration of heirs and the adjudication of the estate of
Mrs. Hodges had already been complied with when the order of December 14, 1957 was issued. As already stated, We are not persuaded that the proceedings leading to the issuance of said order, constituting barely
of the motion of May 27, 1957, Annex D of the petition, the order of even date, Annex E, and the motion of December 11, 1957, Annex H, all aforequoted, are what the law contemplates. We cannot see in the order of
December 14, 1957, so much relied upon by the petitioner, anything more than an explicit approval of "all the sales, conveyances, leases and mortgages of all the properties left by the deceased Linnie Jane Hodges
executed by the Executor Charles N. Hodges" (after the death of his wife and prior to the date of the motion), plus a general advance authorization to enable said "Executor to execute subsequent sales,
conveyances, leases and mortgages of the properties left the said deceased Linnie Jane Hodges in consonance with wishes conveyed in the last will and testament of the latter", which, certainly, cannot amount to the
order of adjudication of the estate of the decedent to Hodges contemplated in the law. In fact, the motion of December 11, 1957 on which the court predicated the order in question did not pray for any such
adjudication at all. What is more, although said motion did allege that "herein Executor (Hodges) is not only part owner of the properties left as conjugal, but also, the successor to all the properties left by the
deceased Linnie Jane Hodges", it significantly added that "herein Executor, as Legatee (sic), has the right to sell, convey, lease or dispose of the properties in the Philippines during his lifetime", thereby indicating
that what said motion contemplated was nothing more than either the enjoyment by Hodges of his rights under the particular portion of the dispositions of his wife's will which were to be operative only during his
lifetime or the use of his own share of the conjugal estate, pending the termination of the proceedings. In other words, the authority referred to in said motions and orders is in the nature of that contemplated either in
Section 2 of Rule 109 which permits, in appropriate cases, advance or partial implementation of the terms of a duly probated will before final adjudication or distribution when the rights of third parties would not be
adversely affected thereby or in the established practice of allowing the surviving spouse to dispose of his own share of the conjugal estate, pending its final liquidation, when it appears that no creditors of the conjugal
partnership would be prejudiced thereby, (see the Revised Rules of Court by Francisco, Vol. V-B, 1970 ed. p. 887) albeit, from the tenor of said motions, We are more inclined to believe that Hodges meant to refer to
the former. In any event, We are fully persuaded that the quoted allegations of said motions read together cannot be construed as a repudiation of the rights unequivocally established in the will in favor of Mrs.
Hodges' brothers and sisters to whatever have not been disposed of by him up to his death.
Indeed, nowhere in the record does it appear that the trial court subsequently acted upon the premise suggested by petitioner. On the contrary, on November 23, 1965, when the court resolved the motion of appellee
Western Institute of Technology by its order We have quoted earlier, it categorically held that as of said date, November 23, 1965, "in both cases (Special Proceedings 1307 and 1672) there is as yet no judicial declaration
of heirs nor distribution of properties to whomsoever are entitled thereto." In this connection, it may be stated further against petitioner, by way of some kind of estoppel, that in its own motion of January 8, 1965, already
quoted in full on pages 54-67 of this decision, it prayed inter alia that the court declare that "C. N. Hodges was the sole and exclusive heir of the estate of Linnie Jane Hodges", which it would not have done if it were really
convinced that the order of December 14, 1957 was already the order of adjudication and distribution of her estate. That said motion was later withdrawn when Magno filed her own motion for determination and
adjudication of what should correspond to the brothers and sisters of Mrs. Hodges does not alter the indubitable implication of the prayer of the withdrawn motion.
It must be borne in mind that while it is true that Mrs. Hodges bequeathed her whole estate to her husband and gave him what amounts to full powers of dominion over the same during his lifetime, she imposed at the same
time the condition that whatever should remain thereof upon his death should go to her brothers and sisters. In effect, therefore, what was absolutely given to Hodges was only so much of his wife's estate as he might
possibly dispose of during his lifetime; hence, even assuming that by the allegations in his motion, he did intend to adjudicate the whole estate to himself, as suggested by petitioner, such unilateral act could not have
affected or diminished in any degree or manner the right of his brothers and sisters-in-law over what would remain thereof upon his death, for surely, no one can rightly contend that the testamentary provision in question
allowed him to so adjudicate any part of the estate to himself as to prejudice them. In other words, irrespective of whatever might have been Hodges' intention in his motions, as Executor, of May 27, 1957 and December
11, 1957, the trial court's orders granting said motions, even in the terms in which they have been worded, could not have had the effect of an absolute and unconditional adjudication unto Hodges of the whole estate of his

wife None of them could have deprived his brothers and sisters-in-law of their rights under said will. And it may be added here that the fact that no one appeared to oppose the motions in question may only be attributed,
firstly, to the failure of Hodges to send notices to any of them, as admitted in the motion itself, and, secondly, to the fact that even if they had been notified, they could not have taken said motions to be for the final
distribution and adjudication of the estate, but merely for him to be able, pending such final distribution and adjudication, to either exercise during his lifetime rights of dominion over his wife's estate in accordance with the
bequest in his favor, which, as already observed, may be allowed under the broad terms of Section 2 of Rule 109, or make use of his own share of the conjugal estate. In any event, We do not believe that the trial court
could have acted in the sense pretended by petitioner, not only because of the clear language of the will but also because none of the interested parties had been duly notified of the motion and hearing thereof. Stated
differently, if the orders of May 21, 1957 and December 4, 1957 were really intended to be read in the sense contended by petitioner, We would have no hesitancy in declaring them null and void.
Petitioner cites the case of Austria vs. Ventenilla, G. R. No. L-10018, September 19, 1956, (unreported but a partial digest thereof appears in 99 Phil. 1069) in support of its insistence that with the orders of May 27 and
December 14, 1957, the closure of Mrs. Hodges' estate has become a mere formality, inasmuch as said orders amounted to the order of adjudication and distribution ordained by Section 1 of Rule 90. But the parallel
attempted to be drawn between that case and the present one does not hold. There the trial court had in fact issued a clear, distinct and express order of adjudication and distribution more than twenty years before the
other heirs of the deceased filed their motion asking that the administratrix be removed, etc. As quoted in that decision, the order of the lower court in that respect read as follows:
"En orden a la mocion de la administradora, el juzgado la encuentra procedente bajo la condicion de que no se hara entrega ni adjudicacion de los bienes a los herederos antes de que estos
presten la fianza correspondiente y de acuerdo con lo prescrito en el Art. 754 del Codigo de Procedimientos: pues, en autos no aparece que hayan sido nombrados comisionados de avaluo y
reclamaciones. Dicha fianza podra ser por un valor igual al de los bienes que correspondan a cada heredero segun el testamento. Creo que no es obice para la terminacion del expediente el hecho
de que la administradora no ha presentado hasta ahora el inventario de los bienes; pues, segun la ley, estan exentos de esta formalidad los administradores que son legatarios del residuo o
remanente de los bienes y hayan prestado fianza para responder de las gestiones de su cargo, y aparece en el testamento que la administradora Alejandra Austria reune dicha condicion.
"POR TODO LO EXPUESTO, el juzgado declara, 1.o: no haber lugar a la mocion de Ramon Ventenilla y otros; 2.o, declara asimismo que los unicos herederos del finado Antonio Ventenilla son su
esposa Alejandra Austria, Maria Ventenilla, hermana del testador, y Ramon Ventenilla, Maria Ventenilla, Ramon Soriano, Eulalio Soriano, Jose Soriano, Gabriela Ventenilla, Lorenzo Ventenilla,
Felicitas Ventenilla, Eugenio Ventenilla y Alejandra Ventenilla, en representacion de los difuntos Juan, Tomas, Catalino y Froilan, hermanos del testador, declarando, ademas, que la heredera
Alejandra Austria tiene derecho al remanente de todos los bienes dejados por el finado, despues de deducir de ellos la porcion que corresponde a cada uno de sus coherederos, conforme esta
mandado en las clausulas 8.a, 9.a, 10.a, 11.a, 12.a y 13.a del testamento; 3.o, se aprueba el pago hecho por la administradora de los gastos de la ultima enfermedad y funerales del testador, de la
donacion hecha por el testador a favor de la Escuela a Publica del Municipio de Mangatarem, y de las misas en sufragio del alma del finado; 4.o, que una vez prestada la fianza mencionada al
principio de este auto, se haga la entrega y adjudicacion de los bienes, conforme se dispone en el testamento y se acaba de declarar en este auto; 5.o, y, finalmente, que verificada la adjudicacion,
se dara por terminada la administracion, revelandole toda responsabilidad a la administradora, y cancelando su fianza.
ASI SE ORDENA."
Undoubtedly, after the issuance of an order of such tenor, the closure of any proceedings for the settlement of the estate of a deceased person cannot be but perfunctory.
In the case at bar, as already pointed out above, the two orders relied upon by petitioner do not appear ex-facie to be of the same tenor and nature as the order just quoted, and, what is more, the circumstances attendant
to its issuance do not suggest that such was the intention of the court, for nothing could have been more violative of the will of Mrs. Hodges.
Indeed, to infer from Hodges' said motions and from his statements of accounts for the years 1958, 1959 and 1960, Annexes I, K and M, respectively, wherein he repeatedly claimed that "herein executor (being) the only
devisee or legatee of the deceased, in accordance with the last will and testament already probated," there is "no (other) person interested in the Philippines of the time and place of examining herein account to be given
notice", an intent to adjudicate unto himself the whole of his wife's estate in an absolute manner and without regard to the contingent interests of her brothers and sisters, is to impute bad faith to him, an imputation which is
not legally permissible, much less warranted by the facts of record herein. Hodges knew or ought to have known that, legally speaking, the terms of his wife's will did not give him such a right. Factually, there are enough
circumstances extant in the records of these cases indicating that he had no such intention to ignore the rights of his co-heirs. In his very motions in question, Hodges alleged, thru counsel, that the "deceased Linnie Jane
Hodges died leaving no descendants and ascendants, except brothers and sisters and herein petitioner, as surviving spouse, to inherit the properties of the decedent", and even promised that "proper accounting will be
had in all these transactions" which he had submitted for approval and authorization by the court, thereby implying that he was aware of his responsibilities vis-a-vis his co-heirs. As alleged by respondent Magno in her
brief as appellee: cdtai
"Under date of April 14, 1959, C. N. Hodges filed his first 'Account by the Executor' of the estate of Linnie Jane Hodges. In the 'Statement of Networth of Mr. C. N. Hodges and the Estate of Linnie
Jane Hodges' as of December 31, 1958 annexed thereto, C. N. Hodges reported that the combined e tax return' for calendar year 1958 on the estate of Linnie Jane Hodges reporting, under oath,
the said estate as having earned income of P164,201.31, exactly one-half of the net income of his combined personal assets and that of the estate of Linnie Jane Hodges." (p. 91, Appellee's Brief.)
"Under date of July 21, 1960, C. N. Hodges filed his second 'Annual Statement of Account by the Executor' of the estate of Linnie Jane Hodges. In the 'Statement of Net worth of Mr. C. N Hodges
and the Estate of Linnie Jane Hodges' as of December 31, 1959 annexed thereto. C. N. Hodges reported that the combined conjugal estate earned a net income of P270,623.32, divided evenly
between him and the estate of Linnie Jane Hodges. Pursuant to this, he filed an 'individual income tax return' for calendar year 1959 on the estate of Linnie Jane Hodges reporting, under oath, the
said estate as having earned income of P135,311.66, exactly one-half of the net income of his combined personal assets and that of the estate of Linnie Jane Hodges. (pp. 91-92, Id.)
"Under date of April 20, 1961, C. N. Hodges filed his third 'Annual Statement of Account by the Executor for the year 1960' of the estate of Linnie Jane Hodges. In the 'Statement of Net Worth of Mr.
C. N. Hodges and the Estate of Linnie Jane Hodges' as of December 31, 1960 annexed thereto, C. N. Hodges reported that the combined conjugal estate earned a net income of P314,857.94,
divided of Linnie Jane Hodges. Pursuant to this, he filed an 'individual evenly between him and the estate income tax return' for calendar year 1960 on the estate of Linnie Jane Hodges reporting,
under oath, the said estate as having earned income of P157,428.97, exactly one-half of the net income of his combined personal assets and that of the estate of Linnie Jane Hodges." (pp. 92-93,
Id.)
"In the petition for probate that he (Hodges) filed, he listed the seven brothers and sisters of Linnie Jane as her 'heirs' (see p. 2, Green ROA). The order of the court admitting the will to probate
unfortunately omitted one of the heirs, Roy Higdon (see p. 14, Green ROA). Immediately, C. N. Hodges filed a verified motion to have Roy Higdon's name included as an heir, stating that he wanted
to straighten the records 'in order (that) the heirs of deceased Roy Higdon may not think or believe they were omitted, and that they were really and are interested in the estate of deceased Linnie
Jane Hodges'."
Thus, he recognized, if in his own way, the separate identity of his wife's estate from his own share of the conjugal partnership up to the time of his death, more than five years after that of his wife. He never considered the
whole estate as a single one belonging exclusively to himself. The only conclusion one can gather from this is that he could have been preparing the basis for the eventual transmission of his wife's estate, or, at least, so
much thereof as he would not have been able to dispose of during his lifetime, to her brothers and sisters in accordance with her expressed desire, as intimated in his tax return in the United States to be more extensively
referred to anon. And assuming that he did pay the corresponding estate and inheritance taxes in the Philippines on the basis of his being sole heir, such payment is not necessarily inconsistent with his recognition of the
rights of his co-heirs. Without purporting to rule definitely on the matter in these proceedings, We might say here that We are inclined to the view that under the peculiar provisions of his wife's will, and for purposes of the
applicable inheritance tax laws, Hodges had to be considered as her sole heir, pending the actual transmission of the remaining portion of her estate to her other heirs, upon the eventuality of his death, and whatever
adjustment might be warranted should there be any such remainder then is a matter that could well be taken care of by the internal revenue authorities in due time.
It is to be noted that the lawyer, Atty. Leon P. Gellada, who signed the motions of May 27, 1957 and December 11, 1957 and the aforementioned statements of account was the very same one who also subsequently signed
and filed the motion of December 26, 1962 for the appointment of respondent Magno as "Administratrix of the Estate of Mrs. Linnie Jane Hodges" wherein it was alleged that "in accordance with the provisions of the last
will and testament of Linnie Jane Hodges, whatever real properties that may remain at the death of her husband, Charles Newton Hodges, the said properties shall be equally divided among their heirs." And it appearing
that said attorney was Hodges' lawyer as Executor of the estate of his wife, it stands to reason that his understanding of the situation, implicit in his allegations just quoted, could somehow be reflective of Hodges' own
understanding thereof.

As a matter of fact, the allegations in the motion of the same Atty. Gellada dated July 1, 1957, a "Request for Inclusion of the Name of Roy Higdon in the Order of the Court dated July 19, 1957, etc.", reference to which is
made in the above quotation from respondent Magno's brief, are over the oath of Hodges himself, who verified the motion. Said allegations read:
"1. That the Hon. Court issued orders dated June 29, 1957, ordering the probate of the will.
2. That in said order of the Hon. Court, the relatives of the deceased Linnie Jane Hodges were enumerated. However, in the petition as well as in the testimony of Executor during the hearing, the
name Roy Higdon was mentioned, but deceased. It was unintentionally omitted the heirs of said Roy Higdon, who are his wife Aline Higdon and son David Higdon, all of age, and residents of
Quinlan, Texas, U.S.A.
3. That to straighten the records, and in order the heirs of deceased Roy Higdon may not think or believe they were omitted, and that they were really and are interested in the estate of deceased
Linnie Jane Hodges, it is requested of the Hon Court to insert the names of Aline Higdon and David Higdon, wife and son of deceased Roy Higdon, in the said order of the Hon. Court dated June
29, 1957." (pars. 1 to 3 Annex 2 of Magno's Answer Record, p. 260)
As can be seen, these italicized allegations indicate, more or less, the real attitude of Hodges in regard to the testamentary dispositions of his wife.
In connection with this point of Hodges' intent, We note that there are documents, copies of which are annexed to respondent Magno's answer, which purportedly contain Hodges' own solemn declarations recognizing the
right of his co-heirs, such as the alleged tax return he filed with the United States Taxation authorities, identified as Schedule M, (Annex 4 of her answer) and his supposed affidavit of renunciation, Annex 5. In said
Schedule M, Hodges appears to have answered the pertinent question thus:
"2a. Had the surviving spouse the right to declare an election between (1) the provisions made in his or her favor by the will and (11) dower, courtesy, or a statutory interest? (X) Yes () No
"2d. Does the surviving spouse contemplate renouncing the will and electing to take dower, courtesy, or a statutory interest? (X) Yes ( ) No.
"3. According to the information and belief of the person or persons filing the return, is any action described under question 1 designed or contemplated? ( ) Yes (X) No"
(Annex 4, Answer Record, p. 263)
and to have further stated under the item, "Description of property interests passing to surviving spouse" the following:
"None, except for purposes of administering the Estate, paying debts, taxes and other legal charges. It is the intention of the surviving husband of deceased to distribute the remaining property and
interest of the deceased in their Community Estate to the devisees and legatees named in the will when the debts, liabilities, taxes and expenses of administration are finally determined and paid ."
(Annex 4, Answer Record, p. 263)
In addition, in the supposed affidavit of Hodges, Annex 5, it is stated:
"I, C. N. Hodges, being duly sworn, on oath affirm that at the time the United States Estate Tax Return was filed in the Estate of Linnie Jane Hodges on August 8, 1958, I renounced and disclaimed
any and all right to receive the rents, emoluments and income from said estate, as shown by the statement contained in Schedule M at page 29 of said return, a copy of which schedule is attached
to this affidavit and made a part hereof.
"The purpose of this affidavit is to ratify and confirm and I do hereby ratify and confirm the declaration made in Schedule M of said return and hereby formally disclaim and renounce any right on my
part to receive any of the said rents, emoluments and income from the estate of my deceased wife, Linnie Jane Hodges. This affidavit is made to absolve me or my estate from any liability for the
payment of income taxes on income which has accrued to the estate of Linnie Jane Hodges since the death of the said Linnie Jane Hodges on May 23, 1957." (Annex 5, Answer Record, p. 264)
Although it appears that said documents were not duly presented as evidence in the court below, and We cannot, therefore, rely on them for the purpose of the present proceedings, still, We cannot close our eyes to their
existence in the record nor fail to note that their tenor jibes with Our conclusion discussed above from the circumstances related to the orders of May 27 and December 14, 1957. 5 Somehow, these documents, considering
they are supposed to be copies of their originals found in the official files of the governments of the United States and of the Philippines, serve to lessen any possible apprehension that Our conclusion from the other
evidence of Hodges' manifest intent vis-a-vis the rights of his co-heirs is without basis in fact.
Verily, with such eloquent manifestations of his good intentions towards the other heirs of his wife, We find it very hard to believe that Hodges did ask the court and that the latter agreed that he be declared her sole heir and
that her whole estate be adjudicated to him without so much as just annotating the contingent interest of her brothers and sisters in what would remain thereof upon his demise. On the contrary, it seems to us more factual
and fairer to assume that Hodges was well aware of his position as executor of the will of his wife and, as such, had in mind the following admonition made by the Court in Pamittan vs. Lasam, et al., 60 Phil. 908, at pp.
913-914:
"Upon the death of Bernarda in September, 1908, said land continued to be conjugal property in the hands of the defendant Lasam. It is provided in article 1418 of the Civil Code that upon the
dissolution of the conjugal partnership, an inventory shall immediately be made and this court in construing this provision in connection with section, 685 of the Code of Civil Procedure (prior to its
amendment by Act No. 3176 of November 24, 1924) has repeatedly held that in the event of the death of the wife, the law imposes upon the husband the duty of liquidating the affairs of the
partnership without delay (desde luego). (Alfonso vs. Natividad, 6 Phil. 240; Prado vs. Lagera, 7 Phil., 395; De la Rama vs. De la Rama, 7 Phil., 745; Enriquez vs. Victoria, 10 Phil., 10; Amancio vs.
Pardo, 13 Phil., 297; Rojas vs. Singson Tongson, 17 Phil., 476; Sochayseng vs. Trujillo, 31 Phil., 153; Molera vs. Molera, 40 Phil., 586; Nable Jose vs. Nable Jose, 41 Phil., 713.)
"In the last mentioned case this court quoted with approval the case of Leatherwood vs. Arnold (66 Texas, 414, 416, 417), in which that court discussed the powers of the surviving spouse in the
administration of the community property. Attention was called to the fact that the surviving husband, in the management of the conjugal property after the death of the wife, was a trustee of unique
character who is liable for any fraud committed by him with relation to the property while he is charged with its administration. In the liquidation of the conjugal partnership, he had wide powers (as
the law stood prior to Act No. 3176) and the high degree of trust reposed in him stands out more clearly in view of the fact that he was the owner of a half interest in his own right of the conjugal
estate which he was charged to administer. He could therefore no more acquire a title by prescription against those for whom he was administering the conjugal estate than could a guardian against
his ward or a judicial administrator against the heirs of estate. Section 38 of Chapter III of the Code of Civil Procedure, with relation to prescription, provides that 'this chapter shall not apply . . . in
the case of a continuing and subsisting trust.' The surviving husband in the administration and liquidation of the conjugal estate occupies the position of a trustee of the highest order and is not
permitted by the law to hold that estate or any portion thereof adversely to those for whose benefit the law imposes upon him the duty of administration and liquidation. No liquidation was ever made
by Lasam hence, the conjugal property which came into his possession on the death of his wife in September, 1908, still remains conjugal property, a continuing and subsisting trust. He should
have made a liquidation immediately (desde luego). He cannot now be permitted to take advantage of his own wrong. One of the conditions of title by prescription (section 41, Code of Civil
Procedure) is possession 'under a claim of title exclusive of any other right'. For a trustee to make such a claim would be a manifest fraud."
And knowing thus his responsibilities in the premises, We are not convinced that Hodges arrogated everything unto himself leaving nothing at all to be inherited by his wife's brothers and sisters.
PCIB insists, however, that to read the orders of May 27 and December 14, 1957, not as adjudicatory, but merely as approving past and authorizing future dispositions made by Hodges in a wholesale and general manner,
would necessarily render the said orders void for being violative of the provisions of Rule 89 governing the manner in which such dispositions may be made and how the authority therefor and approval thereof by the
probate court may be secured. If We sustained such a view, the result would only be that the said orders should be declared ineffective either way they are understood, considering We have already seen it is legally
impossible to consider them as adjudicatory. As a matter of fact, however, what surges immediately to the surface, relative to PCIB's observations based on Rule 89, is that from such point of view, the supposed irregularity
would involve no more than some non-jurisdictional technicalities of procedure, which have for their evident fundamental purpose the protection of parties interested in the estate, such as the heirs, its creditors, particularly
the government on account of the taxes due it; and since it is apparent here that none of such parties are objecting to said orders or would be prejudiced by the unobservance by the trial court of the procedure pointed out
by PCIB, We find no legal inconvenience in nor impediment to Our giving sanction to the blanket approval and authority contained in said orders. This solution is definitely preferable in law and in equity, for to view said
orders in the sense suggested by PCIB would result in the deprivation of substantive rights to the brothers and sisters of Mrs. Hodges, whereas reading them the other way will not cause any prejudice to anyone, and,
withal, will give peace of mind and stability of rights to the innocent parties who relied on them in good faith, in the light of the peculiar pertinent provisions of the will of said decedent.
Now, the inventory submitted by Hodges on May 12, 1958 referred to the estate of his wife as consisting of "One-half of all the items designated in the balance sheet, copy of which is hereto attached and marked as 'Annex

A'." Although, regrettably, no copy of said Annex A appears in the records before Us, We take judicial notice, on the basis of the undisputed facts in these cases, that the same consists of considerable real and other
personal kinds of properties. And since, according to her will, her husband was to be the sole owner thereof during his lifetime, with full power and authority to dispose of any of them, provided that should there be any
remainder upon his death, such remainder would go to her brothers and sisters, and furthermore, there is no pretension, much less any proof that Hodges had in fact disposed of all of them, and, on the contrary, the
indications are rather to the effect that he had kept them more or less intact, it cannot truthfully be said that, upon the death of Hodges, there was no more estate of Mrs. Hodges to speak of it is Our conclusion, therefore,
that properties do exist which constitute such estate, hence Special Proceedings 1307 should not yet be closed.
Neither is there basis for holding that respondent Magno has ceased to be the Administratrix in said proceeding. There is no showing that she has ever been legally removed as such, the attempt to replace her with Mr.
Benito Lopez without authority from the Court having been expressly held ineffective by Our resolution of September 8, 1972. Parenthetically, on this last point, PCIB itself is very emphatic in stressing that it is not
questioning said respondent's status as such administratrix. Indeed, it is not clear that PCIB has any standing to raise any objection thereto, considering it is a complete stranger insofar as the estate of Mrs. Hodges is
concerned.
It is the contention of PCIB, however, that as things actually stood at the time of Hodges' death, their conjugal partnership had not yet been liquidated and, inasmuch as the properties composing the same were thus
commingled pro indiviso and, consequently, the properties pertaining to the estate of each of the spouses are not yet identifiable, it is PCIB alone, as administrator of the estate of Hodges, who should administer
everything, and all that respondent Magno can do for the time being is to wait until the properties constituting the remaining estate of Mrs. Hodges have been duly segregated and delivered to her for her own
administration. Seemingly, PCIB would liken the Testate Estate of Linnie Jane Hodges to a party having a claim of ownership to some properties included in the inventory of an administrator of the estate of a decedent,
(here that of Hodges) and who normally has no right to take part in the proceedings pending the establishment of his right or title; for which as a rule it is required that an ordinary action should be filed, since the probate
court is without jurisdiction to pass with finality on questions of title between the estate of the deceased, on the one hand, and a third party or even an heir claiming adversely against the estate, on the other.
We do not find such contention sufficiently persuasive. As We see it, the situation obtaining herein cannot be compared with the claim of a third party the basis of which is alien to the pending probate proceedings. In the
present cases, what gave rise to the claim of PCIB of exclusive ownership by the estate of Hodges over all the properties of the Hodges spouses, including the share of Mrs. Hodges in the community properties, were the
orders of the trial court issued in the course of the very settlement proceedings themselves, more specifically, the orders of May 27 and December 14, 1957 so often mentioned above. In other words, the root of the issue of
title between the parties is something that the court itself has done in the exercise of its probate jurisdiction. And since in the ultimate analysis, the question of whether or not all the properties herein involved pertain
exclusively to the estate of Hodges depends on the legal meaning and effect of said orders, the claim that respondent court has no jurisdiction to take cognizance of and decide the said issue is incorrect. If it was within the
competence of the court to issue the root orders, why should it not be within its authority to declare their true significance and intent, to the end that the parties may know whether or not the estate of Mrs. Hodges had
already been adjudicated by the court, upon the initiative of Hodges, in his favor, to the exclusion of the other heirs of his wife instituted in her will?
At this point, it bears emphasis again that the main cause of all the present problems confronting the courts and the parties in these cases was the failure of Hodges to secure, as executor of his wife's estate, from May,
1957 up to the time of his death in December, 1962, a period of more than five years, the final adjudication of her estate and the closure of the proceedings. The record is bare of any showing that he ever exerted any effort
towards the early settlement of said estate. While, on the one hand, there are enough indications, as already discussed, that he had intentions of leaving intact her share of the conjugal properties so that it may pass wholly
to his co-heirs upon his death, pursuant to her will, on the other hand, by not terminating the proceedings, his interests in his own half of the conjugal properties remained commingled pro-indiviso with those of his co-heirs
in the other half. Obviously, such a situation could not be conducive to ready ascertainment of the portion of the inheritance that should appertain to his co-heirs upon his death. Having these considerations in mind, it would
be giving a premium for such procrastination, and rather unfair to his co-heirs, if the administrator of his estate were to be given exclusive administration of all the properties in question, which would necessarily include the
function of promptly liquidating the conjugal partnership, thereby identifying and segregating without unnecessary loss of time which properties should be considered as constituting the estate of Mrs. Hodges, the remainder
of which her brothers and sisters are supposed to inherit equally among themselves.
To be sure, an administrator is not supposed to represent the interests of any particular party and his acts are deemed to be objectively for the protection of the rights of everybody concerned with the estate of the
decedent, and from this point of view, it may be said that even if PCIB were to act alone, there should be no fear of undue disadvantage to anyone. On the other hand, however, it is evidently implicit in section 6 of Rule 78
fixing the priority among those to whom letters of administration should be granted that the criterion in the selection of the administrator is not his impartiality alone but, more importantly, the extent of his interest in the
estate, so much so that the one assumed to have greater interest is preferred to another who has less. Taking both of these considerations into account, inasmuch as, according to Hodges' own inventory submitted by him
as Executor of the estate of his wife, practically all their properties were conjugal which means that the spouses have equal shares therein, it is but logical that both estates should be administered jointly by the
representatives of both, pending their segregation from each other. Particularly is such an arrangement warranted because the actuations so far of PCIB evince a determined, albeit groundless, intent to exclude the other
heirs of Mrs. Hodges from their inheritance. Besides, to allow PCIB, the administrator of his estate, to perform now what Hodges was duty bound to do as executor is to violate the spirit, if not the letter, of Section 2 of Rule
78 which expressly provides that "The executor of an executor shall not, as such, administer the estate of the first testator." It goes without saying that this provision refers also to the administrator of an executor like PCIB
here.
We are not unmindful of the fact that under Section 2 of Rule 73, "When the marriage is dissolved by the death of the husband or wife, the community property shall be inventoried, administered, and liquidated, and the
debts thereof paid, in the testate or intestate proceedings of the deceased spouse. If both spouses have died, the conjugal partnership shall be liquidated in the testate or intestate proceedings of either." Indeed, it is true
that the last sentence of this provision allows or permits the conjugal partnership of spouses who are both deceased to be settled or liquidated in the testate or intestate proceedings of either, but precisely because said
sentence allows or permits that the liquidation be made in either proceeding, it is a matter of sound judicial discretion in which one it should be made. After all, the former rule referring to the administrator of the husband's
estate in respect to such liquidation was done away with by Act 3176, the pertinent provisions of which are now embodied in the rule just cited.
Thus, it can be seen that at the time of the death of Hodges, there was already the pending judicial settlement proceeding of the estate of Mrs. Hodges, and, more importantly, that the former was the executor of the latter's
will who had, as such, failed for more than five years to see to it that the same was terminated earliest, which was not difficult to do, since from ought that appears in the record, there were no serious obstacles on the way,
the estate not being indebted and there being no immediate heirs other than Hodges himself. Such dilatory or indifferent attitude could only spell possible prejudice of his co-heirs, whose rights to inheritance depend
entirely on the existence of any remainder of Mrs. Hodges' share in the community properties, and who are now faced with the pose of PCIB that there is no such remainder. Had Hodges secured as early as possible the
settlement of his wife's estate, this problem would not arisen. All things considered, We are fully convinced that the interests of justice will be better served by not permitting or allowing PCIB or any administrator of the
estate of Hodges exclusive administration of all the properties in question. We are of the considered opinion and so hold that what would be just and proper is for both administrators of the two estates to act conjointly until
after said estates have been segregated from each other.
At this juncture, it may be stated that we are not overlooking the fact that it is PCIB's contention that, viewed as a substitution, the testamentary disposition in favor of Mrs. Hodges' brothers and sisters may not be given
effect. To a certain extent, this contention is correct. Indeed, legally speaking, Mrs. Hodges' will provides neither for a simple or vulgar substitution under Article 859 of the Civil Code nor for a fideicommissary substitution
under Article 863 thereof. There is no vulgar substitution therein because there is no provision for either (1) predecease of the testator by the designated heir or (2) refusal or (3) incapacity of the latter to accept the
inheritance, as required by Article 859; and neither is there a fideicommissary substitution therein because no obligation is imposed thereby upon Hodges to preserve the estate or any part thereof for anyone else. But from
these premises, it is not correct to jump to the conclusion, as PCIB does, that the testamentary dispositions in question are therefore inoperative and invalid.
The error in PCIB's position lies simply in the fact that it views the said disposition exclusively in the light of substitutions covered by the Civil Code section on that subject, (Section 3, Chapter 2, Title IV, Book III) when it is
obvious that substitution occurs only when another heir is appointed in a will "so that he may enter into inheritance in default of the heir originally instituted," (Article 857, Id.) and, in the present case, no such possible
default is contemplated. The brothers and sisters of Mrs. Hodges are not substitutes for Hodges because, under her will, they are not to inherit what Hodges cannot, would not or may not inherit, but what he would not
dispose of from his inheritance; rather, therefore, they are also heirs instituted simultaneously with Hodges, subject, however, to certain conditions, partially resolutory insofar as Hodges was concerned and correspondingly
suspensive with reference to his brothers and sisters-in-law. It is partially resolutory, since it bequeaths unto Hodges the whole of her estate to be owned and enjoyed by him as universal and sole heir with absolute
dominion over them 6 only during his lifetime, which means that while he could completely and absolutely dispose of any portion thereof inter vivos to anyone other than himself, he was not free to do so mortis causa, and
all his rights to what might remain upon his death would cease entirely upon the occurrence of that contingency, inasmuch as the right of his brothers and sisters-in-law to the inheritance, although vested already upon the

death of Mrs. Hodges, would automatically become operative upon the occurrence of the death of Hodges in the event of actual existence of any remainder of her estate then.
Contrary to the view of respondent Magno, however, it was not the usufruct alone of her estate, as contemplated in Article 869 of the Civil Code,that she bequeathed to Hodges during his lifetime, but the full ownership
thereof, although the same was to last also during his lifetime only, even as there was no restriction whatsoever against his disposing or conveying the whole or any portion thereof to anybody other than himself. The Court
sees no legal impediment to this kind of institution, in this jurisdiction or under Philippine law, except that it cannot apply to the lifetime of Hodges as the surviving spouse, consisting of one-half of the estate, considering
that Mrs. Hodges had no surviving ascendants nor descendants. (Arts. 872, 900, and 904, New Civil Code.)
But relative precisely to the question of how much of Mrs. Hodges' share of the conjugal partnership properties may be considered as her estate, the parties are in disagreement as to how Article 16 of the Civil Code 7
should be applied. On the one hand, petitioner claims that inasmuch as Mrs. Hodges was a resident of the Philippines at the time of her death, under said Article 16, construed in relation to the pertinent laws of Texas and
the principle of renvoi, what should be applied here should be the rules of succession under the Civil Code of the Philippines, and, therefore, her estate could consist of no more than one-fourth of the said conjugal
properties, the other fourth being, as already explained, the legitime of her husband (Art. 900, Civil Code) which she could not have disposed of nor burdened with any condition (Art. 872, Civil Code). On the other hand,
respondent Magno denies that Mrs. Hodges died a resident of the Philippines, since allegedly she never changed nor intended to change her original residence of birth in Texas, United States of America, and contends
that, anyway, regardless of the question of her residence, she being indisputably a citizen of Texas, under said Article 16 of the Civil Code,the distribution of her estate is subject to the laws of said State which, according to
her, do not provide for any legitime, hence, the brothers and sisters of Mrs. Hodges are entitled to the remainder of the whole of her share of the conjugal partnership properties consisting of one-half thereof. Respondent
Magno further maintains that, in any event, Hodges had renounced his rights under the will in favor of his co-heirs, as allegedly proven by the documents touching on the point already mentioned earlier, the genuineness
and legal significance of which petitioner seemingly questions. Besides, the parties are disagreed as to what the pertinent laws of Texas provide. In the interest of settling the estates herein involved soonest, it would be
best, indeed, if these conflicting claims of the parties were determined in these proceedings. The Court regrets, however, that it cannot do so, for the simple reason that neither the evidence submitted by the parties in the
court below nor their discussion, in their respective briefs and memoranda before Us, of their respective contentions on the pertinent legal issues, of grave importance as they are, appear to Us to be adequate enough to
enable Us to render an intelligent, comprehensive and just resolution. For one thing, there is no clear and reliable proof of what in fact the possibly applicable laws of Texas are. 7* Then also, the genuineness of documents
relied upon by respondent Magno is disputed. And there are a number of still other conceivable related issues which the parties may wish to raise but which it is not proper to mention here. In Justice, therefore, to all the
parties concerned, these and all other relevant matters should first be threshed out fully in the trial court in the proceedings hereafter to be held therein for the purpose of ascertaining and adjudicating and/or distributing the
estate of Mrs. Hodges to her heirs in accordance with her duly probated will.
To be more explicit, all that We can and do decide in connection with the petition for certiorari and prohibition are: (1) that regardless of which corresponding laws are applied, whether of the Philippines or of Texas, and
taking for granted either of the respective contentions of the parties as to provisions of the latter, 8 and regardless also of whether or not it can be proven by competent evidence that Hodges renounced his inheritance in
any degree, it is easily and definitely discernible from the inventory submitted by Hodges himself, as Executor of his wife's estate, that there are properties which should constitute the estate of Mrs. Hodges and ought to be
disposed of or distributed among her heirs pursuant to her will in said Special Proceedings 1307; (2) that, more specifically, inasmuch as the question of what are the pertinent laws of Texas applicable to the situation herein
is basically one of fact, and, considering that the sole difference in the positions of the parties as to the effect of said laws has reference to the supposed legitime of Hodges it being the stand of PCIB that Hodges had
such a legitime whereas Magno claims the negative it is now beyond controversy for all future purposes of these proceedings that whatever be the provisions actually of the laws of Texas applicable hereto, the estate of
Mrs. Hodges is at least, one-fourth of the conjugal estate of the spouses; the existence and effects of foreign laws being questions of fact, and it being the position now of PCIB that the estate of Mrs. Hodges, pursuant to
the laws of Texas, should only be one-fourth of the conjugal estate, such contention constitutes an admission of fact, and consequently, it would be in estoppel in any further proceedings in these cases to claim that said
estate could be less, irrespective of what might be proven later to be actually the provisions of the applicable laws of Texas; (3) that Special Proceedings 1307 for the settlement of the testate estate of Mrs. Hodges cannot
be closed at this stage and should proceed to its logical conclusion, there having been no proper and legal adjudication or distribution yet of the estate therein involved; and (4) that respondent Magno remains and
continues to be the Administratrix therein. Hence, nothing in the foregoing opinion is intended to resolve the issues which, as already stated, are not properly before the Court now, namely, (1) whether or not Hodges had in
fact and in law waived or renounced his inheritance from Mrs. Hodges, in whole or in part, and (2) assuming there had been no such waiver, whether or not, by the application of Article 16 of the Civil Code,and in the light of
what might be the applicable laws of Texas on the matter, the estate of Mrs. Hodges is more than the one-fourth declared above. As a matter of fact, even our finding above about the existence of properties constituting the
estate of Mrs. Hodges rests largely on a general appraisal of the size and extent of the conjugal partnership gathered from reference made thereto by both parties in their briefs as well as in their pleadings included in the
records on appeal, and it should accordingly yield, as to which exactly those properties are, to the more concrete and specific evidence which the parties are supposed to present in support of their respective positions in
regard to the foregoing main legal and factual issues. In the interest of justice, the parties should be allowed to present such further evidence in relation to all these issues in a joint hearing of the two probate proceedings
herein involved. After all, the court a quo has not yet passed squarely on these issues, and it is best for all concerned that it should do so in the first instance.
Relative to Our holding above that the estate of Mrs. Hodges cannot be less than the remainder of one-fourth of the conjugal partnership properties, it may be mentioned here that during the deliberations, the point was
raised as to whether or not said holding might be inconsistent with Our other ruling here also that, since there is no reliable evidence as to what are the applicable laws of Texas, U.S.A. "with respect to the order of
succession and to the amount of successional rights" that may be willed by a testator which, under Article 16 of the Civil Code,are controlling in the instant cases, in view of the undisputed Texan nationality of the deceased
Mrs. Hodges, these cases should be returned to the court a quo, so that the parties may prove what said law provides, it is premature for Us to make any specific ruling now on either the validity of the testamentary
dispositions herein involved or the amount of inheritance to which the brothers and sisters of Mrs. Hodges are entitled. After nature reflection, We are of the considered view that, at this stage and in the state of the records
before Us, the feared inconsistency is more apparent than real. Withal, it no longer lies in the lips of petitioner PCIB to make any claim that under the laws of Texas, the estate of Mrs. Hodges could in any event be less
than that We have fixed above.
It should be borne in mind that as above-indicated, the question of what are the laws of Texas governing the matters herein issue is, in the first instance, one of fact, not of law. Elementary is the rule that foreign laws may
not be taken judicial notice of and have to be proven like any other fact in dispute between the parties in any proceeding, with the rare exception in instances when the said laws are already within the actual knowledge of
the court, such as when they are well and generally known or they have been actually ruled upon in other cases before it and none of the parties concerned do not claim otherwise. (5 Moran, Comments on the Rules of
Court, p. 41, 1970 ed.) In Fluemer vs. Hix, 54 Phil. 610, it was held:
"It is the theory of the petitioner that the alleged will was executed in Elkins, West Virginia, on November 3, 1985, 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. 1960, and as certified to by the
Director of the National Library. But this was far from a compliance with the law. The laws of a foreign jurisdiction do not prove themselves in our courts. The courts of the Philippine Islands are not
authorized to take judicial notice of the laws of the various States of the American Union. Such laws must be proved as facts. (In re Estate of Johnson [1918], 39 Phil., 156.) Here the requirements
of the law were not met. There was no showing that the book from which an extract was taken was printed or published under the authority of the State of West Virginia, as provided in section 300
of the Code of Civil Procedure. Nor was the extract from the law attested by the certificate of the officer having charge of the original, under the seal of the State of West Virginia, as provided in
section 301 of the Code of Civil Procedure. No evidence was introduced to show that the extract from the laws of West Virginia was in force at the time the alleged will was executed."
No evidence of the nature thus suggested by the Court may be found in the records of the cases at bar. Quite to the contrary, the parties herein have presented opposing versions in their respective pleadings and
memoranda regarding the matter. And even if We took into account that in Aznar vs. Garcia, the Court did make reference to certain provisions regarding succession in the laws of Texas, the disparity in the material
dates of that case and the present ones would not permit Us to indulge in the hazardous conjecture that said provisions have not been amended or changed in the meantime.
On the other hand, in In re Estate of Johnson, 39 Phil. 156, We held:
"Upon to other point as to whether the will was executed in conformity with the statutes of the State of Illinois we note that it does not affirmatively appear from the transcription of the testimony
adduced in the trial court that any witness was examined with reference to the law of Illinois on the subject of the execution of will. The trial judge no doubt was satisfied that the will was properly
executed by examining section 1874 of the Revised Statutes of Illinois, as exhibited in volume 3 of Starr & Curtis's Annotated Illinois Statutes, 2nd ed., p. 426; and he may have assumed that he

could take judicial notice of the laws of Illinois under section 275 of the Code of Civil Procedure. If so, he was in our opinion mistaken. That section authorizes the courts here to take judicial notice,
among other things, of the acts of the legislative department of the United States. These words clearly have reference to Acts of the Congress of the United States; and we would hesitate to hold
that our courts can, under this provision, take judicial notice of the multifarious laws of the various American States. Nor do we think that any such authority can be derived from the broader
language, used in the same section, where it is said that our courts may take judicial notice of matters of public knowledge "similar" to those therein enumerated. The proper rule we think is to
require proof of the statutes of the States of the American Union whenever their provisions are determinative of the issues in any action litigated in the Philippine courts.
Nevertheless, even supposing that the trial court may have erred in taking judicial notice of the law of Illinois on the point in question, such error is not now available to the petitioner, first, because
the petition does not state any fact from which it would appear that the law of Illinois is different from what the court found, and, secondly, because the assignment of error and argument for the
appellant in this court raises no question based or such supposed error. Though the trial court may have acted upon pure conjecture as to the law prevailing in the State of Illinois, its judgment could
not be set aside, even upon application made within six months under section 113 of the Code of Civil Procedure, unless it should be made to appear affirmatively that the conjecture was wrong.
The petitioner, it is true, states in general terms that the will in question is invalid and inadequate to pass real and personal property in the State of Illinois, but this is merely a conclusion of law. The
affidavits by which the petition is accompanied contain no reference to the subject, and we are cited to no authority in the appellant's brief which might tend to raise a doubt as to the correctness of
the conclusion of the trial court. It is very clear, therefore, that this point cannot be urged as of serious moment."
It is implicit in the above ruling that when, with respect to certain aspects of the foreign laws concerned, the parties in a given case do not have any controversy or are more or less in agreement, the Court may take it for
granted for the purposes of the particular case before it that the said laws are as such virtual agreement indicates, without the need of requiring the presentation of what otherwise would be the competent evidence on the
point. Thus, in the instant cases wherein it results from the respective contentions of both parties that even if the pertinent laws of Texas were known and to be applied, the amount of the inheritance pertaining to the heirs
of Mrs. Hodges is as We have fixed above, the absence of evidence to the effect that, actually and in fact, under said laws, it could be otherwise is of no longer of any consequence, unless the purpose is to show that it
could be more. In other words, since PCIB, the petitioner-appellant, concedes that upon application of Article 16 of the Civil Code and the pertinent laws of Texas, the amount of the estate in controversy is just as We have
determined it to be, and respondent-appellee is only claiming, on her part, that it could be more, PCIB may not now or later pretend differently.
To be more concrete, on pages 20-21 of its petition herein, dated July 31, 1967, PCIB states categorically:
"Inasmuch as Article 16 of the Civil Code provides that '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', while the law of Texas (the Hodges spouses being nationals of U.S.A., State of Texas), in its conflicts of law rules, provides that the domiciliary
law (in this case Philippine law) governs the testamentary dispositions and successional rights over movables or personal properties, while the law of the situs (in this case also Philippine law with
respect to all Hodges properties located in the Philippines), governs with respect to immovable properties, and applying therefore the 'renvoi doctrine' as enunciated and applied by this Honorable
Court in the case of In re Estate of Christensen (G.R. No. L-16749, Jan. 31, 1963), there can be no question that Philippine law governs the testamentary dispositions contained in the Last Will and
Testament of the deceased Linnie Jane Hodges, as well as the successional rights to her estate, both with respect to movables, as well as to immovables situated in the Philippines."
In its main brief dated February 26, 1968, PCIB asserts:
"The law governing successional rights.
As recited above, there is no question that the deceased, Linnie Jane Hodges, was an American citizen. There is also no question that she was a national of the State of Texas, U.S.A. Again, there
is likewise no question that she had her domicile of choice in the City of Iloilo, Philippines, as this has already been pronounced by the above cited orders of the lower court, pronouncements which
are by now res adjudicata (par. [a], Sec. 49, Rule 39, Rules of Court; In re Estate of Johnson, 39 Phil. 156).
"Article 16 of the Civil Code provides:
'Real property as well as personal property is subject to the law of the country where it is situated.
However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall
be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be
found.'
Thus the aforecited provision of the Civil Code points towards the national law of the deceased, Linnie Jane Hodges, which is the law of Texas, as governing succession 'both with respect to the
order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions . . .'. But the law of Texas, in its conflicts of law rules, provides that the domiciliary
law governs the testamentary dispositions and successional rights over movables or personal property, while the law of the situs governs with respect to immovable property. Such that with respect
to both movable property, as well as immovable property situated in the Philippines, the law of Texas points to the law of the Philippines.
Applying, therefore, the so called "renvoi doctrine", as enunciated and applied by this Honorable Court in the case of "In re Christensen" (G.R. No. L-16749, Jan. 31, 1963), there can be no question
that Philippine law governs the testamentary provisions in the Last Will and Testament of the deceased Linnie Jane Hodges, as well as the successional rights to her estate, both with respect to
movables, as well as immovables situated in the Philippines.
The subject of successional rights.
Under Philippine law, as it is under the law of Texas, the conjugal or community property of the spouses, Charles Newton Hodges and Linnie Jane Hodges, upon the death of the latter, is to be
divided into two, one-half pertaining to each of the spouses, as his or her own property. Thus, upon the death of Linnie Jane Hodges, one-half of the conjugal partnership property immediately
pertained to Charles Newton Hodges as his own share, and not by virtue of any successional rights. There can be no question about this.
Again, Philippine law, or more specifically, Article 900 of the Civil Code provides:
"If the only survivor is the widow or widower, she or he shall be entitled to one-half of the hereditary estate of the deceased spouse, and the testator may freely dispose of the other half.
If the marriage between the surviving spouse and the testator was solemnized in articulo mortis, and the testator died within three months from the time of the marriage, the legitime of the
surviving spouse as the sole heir shall be one-third of the hereditary estate, except when they have been living as husband and wife for more than five years. In the latter case, the
legitime of the surviving spouse shall be that specified in the preceding paragraph."
This legitime of the surviving spouse cannot be burdened by an fideicommissary substitution (Art. 864, Civil code), nor by any charge, condition, or substitution (Art. 872, Civil code). It is clear,
therefore, that in addition to one-half of the conjugal partnership property as his own conjugal share, Charles Newton Hodges was also immediately entitled to one-half of the half conjugal share of
the deceased, Linnie Jane Hodges, or one-fourth of the entire conjugal property, as his legitime.
One-fourth of the conjugal property therefore remains at issue."
In the summary of its arguments in its memorandum dated April 30, 1968, the following appears:
"Briefly, the position advanced by the petitioner is:
a. That the Hodges spouses were domiciled legally in the Philippines (pp. 19-20, petition). This is now a matter of res adjudicata (p. 20, petition).
b. That under Philippine law, Texas law, and the renvoi doctrine, Philippine law governs the successional rights over the properties left by the deceased, Linnie Jane Hodges (pp. 20-21, petition).
c. That under Philippine as well as Texas law, one-half of the Hodges properties pertains to the deceased, Charles Newton Hodges (p. 21, petition). This is not questioned by the respondents.
d. That under Philippine law, the deceased, Charles Newton Hodges, automatically inherited one-half of the remaining one-half of the Hodges properties as his legitime (p. 21, petition).
e. That the remaining 25% of the Hodges properties was inherited by the deceased, Charles Newton Hodges, under the will of his deceased spouse (pp. 22-23, petition). Upon the death of Charles

Newton Hodges, the substitution provision of the will of the deceased, Linnie Jane Hodges, did not operate because the same is void (pp. 23-25, petition).
f. That the deceased, Charles Newton Hodges, asserted his sole ownership of the Hodges properties and the probate court sanctioned such assertion (pp. 25-29, petition). He in fact assumed such
ownership and such was the status of the properties as of the time of his death (pp. 29-34, petition)."
Of similar tenor are the allegations of PCIB in some of its pleadings quoted in the earlier part of this option.
On her part, it is respondent-appellee Magno's posture that under the laws of Texas, there is no system of legitime, hence the estate of Mrs. Hodges should be one-half of all the conjugal properties.
It is thus unquestionable that as far as PCIB is concerned, the application to these cases of Article 16 of the Civil Code in relation to the corresponding laws of Texas would result in that the Philippine laws on succession
should control. On that basis, as We have already explained above, the estate of Mrs. Hodges is the remainder of one-fourth of the conjugal partnership properties, considering that We have found that there is no legal
impediment to the kind of disposition ordered by Mrs. Hodges in her will in favor of her brothers and sisters and, further, that the contention of PCIB that the same constitutes an inoperative testamentary substitution is
untenable. As will be recalled, PCIB's position that there is no such estate of Mrs. Hodges is predicated exclusively on two propositions, namely (1) that the provision in question in Mrs. Hodges' testament violates the rules
on substitution of heirs under the Civil Code and (2) that, in any event, by the orders of the trial court of May 27, and December 14, 1957, the trial court had already finally and irrevocably adjudicated to her husband the
whole free portion of her estate to the exclusion of her brothers and sisters, both of which poses, We have overruled. Nowhere in its pleadings, briefs and memoranda does PCIB maintain that the application of the laws of
Texas would result in the other heirs of Mrs. Hodges not inheriting anything under her will. And since PCIB's representations in regard to the laws of Texas virtually constitute admissions of fact which the other parties and
the Court are being made to rely and act upon, PCIB is "not permitted to contradict them or subsequently take a position contradictory to or inconsistent with them." (5 Moran, id, p. 65, citing Cunanan vs. Amparo, 80 Phil.
227; Sta. Ana vs. Maliwat, L-23023, Aug. 31, 1968, 24 SCRA 1018).
Accordingly, the only question that remains to be settled in the further proceedings hereby ordered to be held in the court below is how much more than as fixed above is the estate of Mrs. Hodges, and this would depend
on (1) whether or not the applicable laws of Texas do provide in effect for more, such as, when there is no legitime provided therein, and (2) whether or not Hodges has validly waived his whole inheritance from Mrs.
Hodges.
In the course of the deliberations, it was brought out by some members of the Court that to avoid or, at least, minimize further protracted legal controversies between the respective heirs of the Hodges spouses, it is
imperative to elucidate on the possible consequences of dispositions made by Hodges after the death of his wife from the mass of the unpartitioned estates without any express indication in the pertinent documents as to
whether his intention is to dispose of part of his inheritance from his wife or part of his own share of the conjugal estate as well as of those made by PCIB after the death of Hodges. After a long discussion, the consensus
arrived at was as follows: (1) any such dispositions made gratuitously in favor of third parties, whether these be individuals, corporations or foundations, shall be considered as intended to be of properties constituting part
of Hodges' inheritance from his wife, it appearing from the tenor of his motions of May 27 and December 11, 1957 that in asking for general authority to make sales or other disposals of properties under the jurisdiction of
the court, which include his own share of the conjugal estate, he was not invoking particularly his right over his own share, but rather his right to dispose of any part of his inheritance pursuant to the will of his wife; (2) as
regards sales, exchanges or other remunerative transfers, the proceeds of such sales or the properties taken in by virtue of such exchanges, shall be considered as merely the products of "physical changes" of the
properties of her estate which the will expressly authorizes Hodges to make, provided that whatever of said products should remain with the estate at the time of the death of Hodges should go to her brothers and sisters;
(3) the dispositions made by PCIB after the death of Hodges must naturally be deemed as covering only the properties belonging to his estate considering that being only the administrator of the estate of Hodges, PCIB
could not have disposed of properties belonging to the estate of his wife. Neither could such dispositions be considered as involving conjugal properties, for the simple reason that the conjugal partnership automatically
ceased when Mrs. Hodges died, and by the peculiar provision of her will, under discussion, the remainder of her share descended also automatically upon the death of Hodges to her brothers and sisters, thus outside of
the scope of PCIB's administration. Accordingly, these construction of the will of Mrs. Hodges should be adhered to by the trial court in its final order of adjudication and distribution and/or partition of the two estates in
question.
THE APPEALS
A cursory examination of the seventy-eight assignments of error in appellant PCIB's brief would readily reveal that all of them are predicated mainly on the contention that inasmuch as Hodges had already adjudicated unto
himself all the properties constituting his wife's share of the conjugal partnership, allegedly with the sanction of the trial court per its order of December 14, 1957, there has been, since said date, no longer any estate of
Mrs. Hodges of which appellee Magno could be administratrix, hence the various assailed orders sanctioning her actuations as such are not in accordance with law. Such being the case, with the foregoing resolution
holding such posture to be untenable in fact and in law and that it is in the best interest of justice that for the time being the two estates should be administered conjointly by the respective administrators of the two estates,
it should follow that said assignments of error have lost their fundamental reasons for being. There are certain matters, however, relating peculiarly to the respective orders in question, if commonly among some of them,
which need further clarification. For instance, some of them authorized respondent Magno to act alone or without concurrence of PCIB. And with respect to many of said orders, PCIB further claims that either the matters
involved were not properly within the probate jurisdiction of the trial court or that the procedure followed was not in accordance with the rules. Hence, the necessity of dealing separately with the merits of each of the
appeals.
Indeed, inasmuch as the said two estates have until now remained commingled pro-indiviso, due to the failure of Hodges and the lower court to liquidate the conjugal partnership, to recognize appellee Magno as
Administratrix of the Testate Estate of Mrs. Hodges which is still unsegregated from that of Hodges is not to say, without any qualification, that she was therefore authorized to do and perform all her acts complained of in
these appeals, sanctioned though they might have been by the trial court. As a matter of fact, it is such commingling pro-indiviso of the two estates that should deprive appellee of freedom to act independently from PCIB,
as administrator of the estate of Hodges, just as, for the same reason, the latter should not have authority to act independently from her. And considering that the lower court failed to adhere consistently to this basic point
of view, by allowing the two administrators to act independently of each other, in the various instances already noted in the narration of facts above, the Court has to look into the attendant circumstances of each of the
appealed orders to be able to determine whether any of them has to be set aside or they may all be legally maintained notwithstanding the failure of the court a quo to observe the pertinent procedural technicalities, to the
end only that graver injury to the substantive rights of the parties concerned and unnecessary and undesirable proliferation of incidents in the subject proceedings may be forestalled. In other words, We have to determine,
whether or not, in the light of the unusual circumstances extant in the record, there is need to be more pragmatic and to adopt a rather unorthodox approach, so as to cause the least disturbance in rights already being
exercised by numerous innocent third parties, even if to do so may not appear to be strictly in accordance with the letter of the applicable purely adjective rules.
Incidentally, it may be mentioned, at this point, that it was principally on account of the confusion that might result later from PCIB's continuing to administer all the community properties, notwithstanding the certainty of the
existence of the separate estate of Mrs. Hodges, and to enable both estates to function in the meantime with a relative degree of regularity, that the Court ordered in the resolution of September 8, 1972 the modification of
the injunction issued pursuant to the resolutions of August 8, October 4 and December 6, 1967, by virtue of which respondent Magno was completely barred from any participation in the administration of the properties
herein involved. In the September 8 resolution, We ordered that, pending this decision, Special Proceedings 1307 and 1672 should proceed jointly and that the respective administrators therein "act conjointly - none of
them to act singly and independently of each other for any purpose." Upon mature deliberation, We felt that to allow PCIB to continue managing or administering all the said properties to the exclusion of the administratrix
of Mrs. Hodges' estate might place the heirs of Hodges at an unduly advantageous position which could result in considerable, if not irreparable, damage or injury to the other parties concerned. It is indeed to be regretted
that apparently, up to this date, more than a year after said resolution, the same has not been given due regard, as may be gleaned from the fact that recently, respondent Magno has filed in these proceedings a motion to
declare PCIB in contempt for alleged failure to abide therewith, notwithstanding that its repeated motions for reconsideration thereof have all been denied soon after they were filed. 9
Going back to the appeals, it is perhaps best to begin first with what appears to Our mind to be the simplest, and then proceed to the more complicated ones in that order, without regard to the numerical sequence of the
assignments of error in appellant's brief or to the order of the discussion thereof by counsel.
Assignments of error Numbers
LXXII, LXXVII and LXXVIII.
These assignments of error relate to (1) the order of the trial court of August 6, 1965 providing that "the deeds of sale (therein referred to involving properties in the name of Hodges) should be signed jointly by the PCIB, as
Administrator of Testate Estate of C.N. Hodges, and Avelina A. Magno, as Administratrix of the Testate Estate of Linnie Jane Hodges, and to this effect, the PCIB should take the necessary steps so that Administratrix
Avelina A. Magno could sign the deeds of sale," (p. 248, Green Rec. on Appeal) (2) the order of October 27, 1965 denying the motion for reconsideration of the foregoing order, (pp. 276-277, id.) (3) the other order also

dated October 27, 1965 enjoining inter alia, that "(a) all cash collections should be deposited in the joint account of the estate of Linnie Jane Hodges and estate of C. N. Hodges, (b) that whatever cash collections (that) had
been deposited in the account of either of the estates should be withdrawn and since then (sic) deposited in the joint account of the estate of Linnie Jane Hodges and the estate of C. N. Hodges; . . . (d) (that) Administratrix
Magno allow the PCIB to inspect whatever records, documents and papers she may have in her possession, in the same manner that Administrator PCIB is also directed to allow Administratrix Magno to inspect
whatever records, documents and papers it may have in its possession" and "(e) that the accountant of the estate of Linnie Jane Hodges shall have access to all records of the transactions of both estates for the protection
of the estate of Linnie Jane Hodges; and in like manner, the accountant or any authorized representative of the estate of C. N. Hodges shall have access to the records of transactions of the Linnie Jane Hodges estate for
the protection of the estate of C. N. Hodges", (pp. 292-295, id.) and (4) the order of February 15, 1966, denying, among others, the notion for reconsideration of the order of October 27, 1965 last referred to. (pp. 455-456,
id.)
As may be readily seen, the thrust of all these four impugned orders is in line with the Court's above-mentioned resolution of September 8, 1972 modifying the injunction previously issued on August 8, 1967, and, more
importantly, with what We have said the trial court should have always done pending the liquidation of the conjugal partnership of the Hodges spouses. In fact, as already stated, that is the arrangement We are ordering, by
this decision, to be followed. Stated differently, since the questioned orders provide for joint action by the two administrators, and that is precisely what We are holding out to have been done and should be done until the
two estates are separated from each other, the said orders must be affirmed. Accordingly, the foregoing assignments of error must be, as they are hereby overruled.
Assignments of error Numbers LXVIII
to LXXI and LXXIII to LXXVI.
The orders complained of under these assignments of error commonly deal with expenditures made by appellee Magno, as Administratrix of the Estate of Mrs. Hodges, in connection with her administration thereof, albeit
additionally, assignments of error Numbers LXIX to LXXI put into question the payment of attorneys fees provided for in the contract for the purpose, as constituting, in effect, premature advances to the heirs of Mrs.
Hodges.
More specifically, assignment Number LXXIII refers to reimbursement of overtime pay paid to six employees of the court and three other persons for services in copying the court records to enable the lawyers of the
administration to be fully informed of all the incidents in the proceedings. The reimbursement was approved as proper legal expenses of administration per the order of December 19, 1964, (pp. 221-222, id.) and repeated
motions for reconsideration thereof were denied by the orders of January 9, 1965, (pp. 231-232, id.) October 27, 1965, (p. 277, id.) and February 15, 1966, (pp. 455-456, id.) On the other hand, Assignments Numbers
LXVIII to LXXI, LXXIV and LXXV question the trial court's order of November 3, 1965 approving the agreement of June 6, 1964 between Administratrix Magno and James L. Sullivan, attorney-in-fact of the heirs of Mrs.
Hodges, as Parties of the First Part, and Attorneys Raul Manglapus and Rizal R. Quimpo, as Parties of the Second Part, regarding attorneys fees for said counsel who had agreed "to prosecute and defend their interests
(of the Parties of the First Part) in certain cases now pending litigation in the Court of First Instance of Iloilo , more specifically in Special Proceedings 1307 and 1672 ", (pp. 126-129, id.) and directing Administratrix
Magno "to issue and sign whatever check or checks may be needed to implement the approval of the agreement annexed to the motion" as well as the "administrator of the estate of C. N. Hodges to countersign the said
check or checks as the case may be." (pp. 313-320, id.), reconsideration of which order of approval was denied in the order of February 16, 1966, (p. 456, id.) Assignment Number LXXVI imputes error to the lower court's
order of October 27,1965, already referred to above, insofar as it orders that "PCIB should countersign the check in the amount of P250 in favor of Administratrix Avelina A. Magno as her compensation as administratrix of
Linnie Jane Hodges estate chargeable to the Testate Estate of Linnie Jane Hodges only." (p. 294, id.)
Main contention again of appellant PCIB in regard to these eight assigned errors is that there is no such estate as the estate of Mrs. Hodges for which the questioned expenditures were made, hence what were authorized
were in effect expenditures from the estate of Hodges. As We have already demonstrated in Our resolution above of the petition for certiorari and prohibition, this posture is incorrect. Indeed, in whichever way the remaining
issues between the parties in these cases are ultimately resolved, 10 the final result will surely be that there are properties constituting the estate of Mrs. Hodges of which Magno is the current administratrix. It follows,
therefore, that said appellee had the right, as such administratrix, to hire the persons whom she paid overtime pay and to be paid for her own services as administratrix. That she has not yet collected and is not collecting
amounts as substantial as that paid to or due appellant PCIB is to her credit.
Of course, she is also entitled to the services of counsel and to that end had the authority to enter into contracts for attorney's fees in the manner she had done in the agreement of June 6, 1964. And as regards to the
reasonableness of the amount therein stipulated, We see no reason to disturb the discretion exercised by the probate court in determining the same. We have gone over the agreement, and considering the obvious size of
the estate in question and the nature of the issues between the parties as well as the professional standing of counsel, We cannot say that the fees agreed upon require the exercise by the Court of its inherent power to
reduce it.
PCIB insists, however, that said agreement of June 6, 1964 is not for legal services to the estate but to the heirs of Mrs. Hodges, or, at most, to both of them, and such being the case, any payment under it, insofar as
counsels' services would redound to the benefit of the heirs, would be in the nature of advances to such heirs and a premature distribution of the estate. Again, We hold that such posture cannot prevail.
Upon the premise We have found plausible that there is an existing estate of Mrs. Hodges, it results that juridically and factually the interests involved in her estate are distinct and different from those involved in her estate
of Hodges and vice versa. Insofar as the matters related exclusively to the estate of Mrs. Hodges, PCIB, as administrator of the estate of Hodges, is a complete stranger and it is without personality to question the
actuations of the administratrix thereof regarding matters not affecting the estate of Hodges. Actually, considering the obviously considerable size of the estate of Mrs. Hodges, We see no possible cause for apprehension
that when the two estates are segregated from each other, the amount of attorney's fees stipulated in the agreement in question will prejudice any portion that would correspond to Hodges' estate. And as regards the other
heirs of Mrs. Hodges who ought to be the ones who should have a say on the attorney's fees and other expenses of administration assailed by PCIB, suffice it to say that they appear to have been duly represented in the
agreement itself by their attorney-in-fact, James L. Sullivan and have not otherwise interposed any objection to any of the expenses incurred by Magno questioned by PCIB in these appeals. As a matter of fact, as ordered
by the trial court, all the expenses in question, including the attorney's fees, amy be paid without awaiting the determination and segregation of the estate of Mrs. Hodges.
Withal, the weightiest consideration in connection with the point under discussion is that at this stage of the controversy among the parties herein the vital issue refers to the existence or non-existence of the estate of Mrs.
Hodges. In this respect, the interest of respondent Magno, as the appointed administratrix of the said estate, is to maintain that it exists, which is naturally common and identical with and inseparable from the interest of the
brothers and sisters of Mrs. Hodges, Thus it should not be wondered why both Magno and these heirs have seemingly agreed to retain but one counsel. In fact, such an arrangement should be more convenient and
economical to both. The possibility of conflict of interest between Magno and the heirs of Mrs. Hodges would be, at this stage, quite remote and, in any event, rather insubstantial. Besides should any substantial conflict of
interest between them arise in the future, the same would be a matter that the probate court can very well take care of in the course of the independent proceedings in Case No. 1307 after the corresponding segregation of
the two subject estates. We cannot perceive any cogent reason why, at this stage the estate and the heirs of Mrs. Hodges cannot be represented by a common counsel.
Now, as to whether or not the portion of the fees in question that should correspond to the heirs constitutes premature partial distribution of the estate of Mrs. Hodges is also a matter in which neither PCIB nor the heirs of
Hodges have any interest. In any event, since, as far as the records show, the estate has no creditors and the corresponding estate and inheritance taxes, except those of the brothers and sisters of Mrs. Hodges, have
already been paid. 11 no prejudice can caused to anyone by the comparatively small amount of attorney's fees although strictly speaking, the attorney's fees of the counsel of an administrator is in the first instance his
personal responsibility, reimbursable later on by the estate, in the final analysis, when, as in the situation on hand, the attorney-in-fact of the heirs has given his conformity thereto, it would be idle effort to inquire whether or
not the sanction given to said fees by the probate court is proper.
For the foregoing reasons, Assignments of Error LXVIII to LXXI and LXXVI should be as they are hereby overruled.
Assignments of error I to IV,
XIII to XV, XXII to XXV, XXXV
to XXXVI, XLI to XLIII and L.
These assignments of error deal with the approval by the trial court of various deeds of sale of real properties registered in the name of Hodges but executed by appellee Magno, as Administratrix of the Estate of Mrs.
Hodges, purportedly in implementation of corresponding supposed written "Contracts to Sell" previously executed by Hodges during the interim between May 23, 1957, when his wife died, and December 25, 1962, the day
he died. As stated on pp. 118-120 of appellant's main brief, "These are: the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Pepito G. Iyulores, executed on February 5, 1961; the contract
to sell between the deceased, Charles Newton Hodges, and the appellant Esperidion Partisala, executed on April 20, 1960; the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Winifredo

C. Espada, executed on April 18, 1960; the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Rosario Alingasa, executed on August 25, 1958; the contract to sell between the deceased,
Charles Newton Hodges, and the appellee, Lorenzo Carles, executed on June 17, 1958; the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Salvador S. Guzman, executed on
September 13, 1960; the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Florenia Barriod, executed on February 21, 1958; the contract to sell between the deceased, Charles Newton
Hodges, and the appellee, Pruficacion Coronado, executed on August 14, 1961; the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Graciano Lucero, executed on November 27, 1961;
the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Ariteo Thomas Jamir, executed on May 26, 1961; the contract to sell between the deceased, Charles Newton Hodges, and the
appellee, Belcezar Causing, executed on February 10, 1959; and the contract to sell between the deceased, Charles Newton Hodges, and the appellee, Adelfa Premaylon, executed on October 31, 1959, re Title No.
13815."
Relative to these sales, it is the position of appellant PCIB that, inasmuch as pursuant to the will of Mrs. Hodges, her husband was to have dominion over all her estate during his lifetime, it was as absolute owner of the
properties respectively covered by said sales that he executed the aforementioned contracts to sell, and consequently, upon his death, the implementation of said contracts may be undertaken only by the administrator of
his estate and not by the administratrix of the estate of Mrs. Hodges. Basically, the same theory is involked with particular reference to five other sales, in which the respective "contracts to sell" in favor of these appellees
were executed by Hodges before the death of his wife, namely those in favor of appellee Santiago Pacaonsis, Alfredo Catedral, Jose Pablico, Western Institute of Technology and Adelfa Premaylon.
Anent those deeds of sale based on promises or contracts to sell executed by Hodges after the death of his wife, those enumerated in the quotation in the immediately preceding paragraph, it is quite obvious that PCIB's
contention cannot be sustained. As already explained earlier, 11* all proceeds of remunerative transfers or dispositions made by Hodges after the death of his wife should be deemed as continuing to be parts of her estate
and, therefore, subject to the terms of her will in favor of her brothers and sisters, in the sense that should there be no showing that such proceeds, whether in cash or property, have been subsequently conveyed or
assigned subsequently by Hodges to any third party by acts inter vivos, with the result that they could not thereby belong to him anymore at the time of his death, they automatically became part of the inheritance of said
brothers and sisters. The deeds here in question involve transactions which are exactly which are exactly of this nature. Consequently, the payments to the estate of Mrs. Hodges which is to be distributed and partitioned
among her heirs specified in the will.
The five deeds of sale predicated on contracts to sell executed by Hodges during the lifetime of his wife, present a different situation. At first blush, it would appear that as to them, PCIB's position has some degree of
plausibility. Considering, however, that the adoption of PCIB's theory would necessarily have tremendous repurcussions and would bring about considerable disturbance of property rights that have somehow accrued
already in favor of innocent third parties, the five purchasers aforenamed, the Court is inclined to take a pragmatic and practical view of the legal situation involving them by overlooking the possible technicalities in the way,
the non-observance of which would not, after all, detract materially from what should substantially correspond to each and all of the parties concerned.
To start with, these contracts can hardly be ignored. Bona fide third parties are involved; as much as possible, they should not be made to suffer any prejudice on account of judicial controversies not of their own making.
What is more, the transactions they rely on were submitted by them to the probate court for approval, and from already known and recorded actuations of said court then, they had reason to believe that it had authority to
act on their motions, since appellee Magno had, from time to time prior to their transactions with her, been allowed to act in her capacity as administratrix of one of the subject estates either alone or conjointly with PCIB. All
the sales in question were executed by Magno in 1966 already, but before that, the court had previously authorized or otherwise sanctioned expressly many of her acts as administratrix involving expenditures from the
estate made by her either conjoinly with or independently from PCIB, as Administrator of the Estate of Hodges. Thus, it may be said that said buyers-appellees merely followed precedents in previous orders of the court.
Accordingly, unless the impugned orders approving those sales indubitably suffer from some clearly fatal infirmity the Court would rather affirm them.
It is quite apparent from the record that the properties covered by said sales are equivalent only to a fraction of what should constitute the estate of Mrs. Hodges, even if it is assumed that the same would finally be held to
be only one-fourth of the conjugal properties of the spouses as of the time of her death or, to be more exact, one-half of her estate as per the inventory submitted by Hodges as executor, on May 12, 1958. In none of its
numerous, varied and voluminous pleadings, motions and manifestations has PCIB claimed any possibility otherwise. Such being the case, to avoid any conflict with the heirs of Hodges, the said properties covered by the
questioned deeds of sale executed by appellee Magno may be treated as among those corresponding to the estate of Mrs. Hodges, which would have been actually under her control and administration had Hodges
complied with his duty to liquidate the conjugal partnership. Viewing the situation in that manner, the only ones who could stand to be prejudiced by the appealed orders referred to in the assignment of errors under
discussion and who could, therefore, have the requisite interest to question them would be only the heirs of Mrs. Hodges, definitely not PCIB.
It is of no moment in what capacity Hodges made the "contracts to sell' after the death of his wife. Even if he had acted as executor of the will of his wife, he did not have to submit those contracts to the court nor follow the
provisions of the rules, (Sections 2, 4, 5, 6, 8 and 9 of Rule 89 quoted by appellant on pp. 125 to 127 of its brief) for the simple reason that by the very orders, much relied upon by appellant for other purposes, of May 27,
1957 and December 14, 1957, Hodges was "allowed or authorized" by the trial court "to continue the business in which he was engaged and to perform acts which he had been doing while the deceased was living", (Order
of May 27) which according to the motion on which the court acted was "of buying and selling personal and real properties", and "to execute subsequent sales, conveyances, leases and mortgages of the properties left by
the said deceased Linnie Jane Hodges in consonance with the wishes conveyed in the last will and testament of the latter." (Order of December 14) In other words, if Hodges acted then as executor, it can be said that he
had authority to do so by virtue of these blanket orders, and PCIB does not question the legality of such grant of authority; on the contrary, it is relying on the terms of the order itself for its main contention in these cases.
On the other hand, if, as PCIB contends, he acted as heir-adjudicatee, the authority given to him by the aforementioned orders would still suffice.
As can be seen, therefore, it is of no moment whether the "contracts to sell" upon which the deeds in question were based were executed by Hodges before or after the death of his wife. In a word, We hold, for the reasons
already stated, that the properties covered by the deeds being assailed pertain or should be deemed as pertaining to the estate of Mrs. Hodges; hence, any supposed irregularity attending the actuations of the trial court
may be invoked only by her heirs, not by PCIB, and since the said heirs are not objecting, and the defects pointed out not being strictly jurisdictional in nature, all things considered, particularly the unnecessary disturbance
of rights already created in favor of innocent third parties, it is best that the impugned orders are not disturbed.
In view of these considerations, We do not find sufficient merit in the assignments of error under discussion.
Assignments of error V to VIII,
XVI to XVIII, XXVI to XXIX, XXXVII
to XXXVIII, XLIV to XLVI and LI.
All these assignments of error commonly deal with alleged non-fulfillment by the respective vendees, appellees herein, of the terms and conditions embodied in the deeds of sale referred to in the assignments of error just
discussed. It is claimed that some of them never made full payments in accordance with the respective contracts to sell, while in the cases of the others, like Lorenzo Carles, Jose Pablico, Alfredo Catedral and Salvador S.
Guzman, the contracts with them had already been unilaterally cancelled by PCIB pursuant to automatic rescission clauses contained in them, in view of the failure of said buyers to pay arrearages long overdue. But
PCIB's posture is again premised on its assumption that the properties covered by the deeds in question could not pertain to the estate of Mrs. Hodges. We have already held above that, it being evident that a considerable
portion of the conjugal properties, much more than the properties covered by said deeds, would inevitably constitute the estate of Mrs. Hodges, to avoid unnecessary legal complications, it can be assumed that said
properties form part of such estate. From this point of view, it is apparent again that the questions, whether or not it was proper for appellee Magno to have disregarded the cancellations made by PCIB, thereby reviving the
rights of the respective buyers-appellees, and, whether or not the rules governing new dispositions of properties of the estate were strictly followed, may not be raised by PCIB but only by the heirs of Mrs. Hodges as the
persons designated to inherit the same, or perhaps the government because of the still unpaid inheritance taxes. But, again, since there is no pretense that any objections were raised by said parties or that they would
necessarily be prejudiced, the contentions of PCIB under the instant assignments of error hardly merit any consideration.
Assignments of error IX to XII, XIX
to XXI, XXX to XXIV, XXXLX to XL,
XLVII to XLLX, LII and LIII to LXI.
PCIB raises under those assignments of error two issues which according to it are fundamental, namely: (1) that in approving the deeds executed by Magno pursuant to contracts to sell already cancelled by it in the
performance of its functions as administrator of the estate of Hodges, the trial court deprived the said estate of the right to invoke such cancellations it (PCIB) had made and (2) that in so acting, the court "arrogated unto
itself, while acting as a probate court, the power to determine the contending claims of third parties against the estate of Hodges over real property," since it has in effect determined whether or not all the terms and

conditions of the respective contracts to sell executed by Hodges in favor of the buyers-appellees concerned were complied with by the latter. What is worse, in the view of PCIB, is that the court has taken the word of the
appellee Magno, "a total stranger to his estate as determinative of the issue".
Actually, contrary to the stand of PCIB, it is this last point regarding appellee Magno's having agreed to ignore the cancellations made by PCIB and allowed the buyers-appellees to consummate the sales in their favor that
is decisive. Since We have already held that the properties covered by the contracts in question should be deemed to be portions of the estate of Mrs. Hodges and not that of Hodges, it is PCIB that is a complete stranger
in these incidents. Considering, therefore, that the estate of Mrs. Hodges and her heirs who are the real parties in interest having the right to oppose the consummation of the impugned sales are not objecting, and that
they are the ones who are precisely urging that said sales be sanctioned, the assignments of error under discussion have no basis and must accordingly be as they are hereby overruled.
With particular reference to assignments LIII to LXI, assailing the orders of the trial court requiring PCIB to surrender the respective owner's duplicate certificates of title over the properties covered by the sales in question
and otherwise directing the Register of Deeds of Iloilo to cancel said certificates and to issue new transfer certificates of title in favor of the buyers-appellees, suffice it to say that in the light of the above discussion, the trial
court was within its rights to so require and direct, PCIB having refused to give way, by withholding said owners' duplicate certificates, of the corresponding registration of the transfers duly and legally approved by the court.
Assignments of error LXII to LXVII.
All these assignments of error commonly deal with the appeal against orders favoring appellee Western Institute of Technology. As will be recalled, said institute is one of the buyers of real property covered by a contract to
sell executed by Hodges prior to the death of his wife. As of October, 1965, it was in arrears in the total amount of P92,691.00 in the payment of its installments on account of its purchase, hence it received under date of
October 4, 1965 and October 20, 1965, letters of collection, separately and respectively, from PCIB and appellee Magno, in their respective capacities as administrators of the distinct estates of the Hodges spouses, albeit,
while in the case of PCIB it made known that "no other arrangement can be accepted except by paying all your past due account", on the other hand, Magno merely said she would "appreciate very much if you can make
some remittance to bring this account up-to-date and to reduce the amount of the obligation." (See pp. 295-311, Green R. on A.) On November 3, 1965, the Institute filed a motion which, after alleging that it was ready and
willing to pay P20,000 on account of its overdue installments but uncertain whether it should pay PCIB or Magno, it prayed that it be "allowed to deposit the aforesaid amount with the court pending resolution of the
conflicting claims of the administrators." Acting on this motion, on November 23, 1965, the trial court issued an order, already quoted in the narration of facts in this opinion, holding that payment to both or either of the two
administrators is "proper and legal", and so "movant can pay to both estates or either of them", considering that "in both cases (Special Proceedings 1307 and 1672) there is as yet no judicial declaration of heirs nor
distribution of properties to whomsoever are entitled thereto."
The arguments under the instant assignments of error revolve around said order. From the procedural standpoint, it is claimed that PCIB was not served with a copy of the Institute's motion, that said motion was heard,
considered and resolved on November 23, 1965, whereas the date set for its hearing was November 20, 1965, and that what the order grants is different from what is prayed for in the motion. As to the substantive aspect,
it is contended that the matter treated in the motion is beyond the jurisdiction of the probate court and that the order authorized payment to a person other than the administrator of the estate of Hodges with whom the
Institute had contracted.
The procedural points urged by appellant deserve scant consideration. We must assume, absent any clear proof to the contrary, that the lower court had acted regularly by seeing to it that appellant was duly notified. On
the other hand, there is nothing irregular in the court's having resolved the motion three days after the date set for hearing the same. Moreover, the record reveals that appellants' motion for reconsideration wherein it raised
the same points was denied by the trial court on March 7, 1966 (p. 462, Green R. on A.). Withal, We are not convinced that the relief granted is not within the general intent of the Institute's motion.
Insofar as the substantive issues are concerned, all that need be said at this point is that they are mere reiterations of contentions WE have already resolved above adversely to appellants' position. Incidentally, We may
add, perhaps, to erase all doubts as to the priority of not disturbing the lower court's orders sanctioning the sales questioned in all these appeals by PCIB, that it is only when one of the parties to a contract to convey
property executed by a deceased person raises substantial objections to its being implemented by the executor or administrator of the decedent's estate that Section 8 of Rule 89 may not apply and, consequently, the
matter has, to be taken up in a separate action outside of the probate court; but where, as in the cases of the sales herein involved, the interested parties are in agreement that the conveyance be made, it is properly within
the jurisdiction of the probate court to give its sanction thereto pursuant to the provision of the rule just mentioned. And with respect to the supposed automatic rescission clauses contained in the contracts to sell executed
by Hodges in favor of herein appellees, the effect of said clauses depend on the true nature of the said contracts, despite the nomenclature appearing therein, which is not controlling, for if they amount to actual contracts
of sale instead of being mere unilateral accepted "promises to sell", (Art. 1479, Civil Code of the Philippines, 2nd paragraph) the pactum commissorium or the automatic rescission provision would not operate, as a matter
of public policy, unless there has been a previous notarial or judicial demand by the seller (10 Manres 263, 2nd ed.), neither of which have been shown to have been made in connection with the transactions herein
involved.
Consequently, We find no merit in the assignments of error Number LXII to LXVII.
S UMMARY
Considering the fact that this decision is unusually extensive and that the issues herein taken up and resolved are rather numerous and varied, what with appellant making seventy-eight assignments of error affecting no
less than thirty separate orders of the court a quo, if only to facilitate proper understanding of the import and extent of our rulings herein contained, it is perhaps desirable that a brief restatement of the whole situation be
made together with our conclusions in regard to its various factual and legal aspects.
That instant cases refer to the estate left by the late Charles Newton Hodges as well as that of his wife, Linnie Jane Hodges, who predeceased him by about five years and a half. In their respective wills which were
executed on different occasions, each one of them provided mutually as follows: "I give, devise and bequeath all of the rest, residue and remainder (after funeral and administration wherever situated or located, to my
beloved (spouse) to have and to hold unto (him/her) during (his/her) natural lifetime", subject to the condition that upon the death of whoever of them survived the other, the remainder of what he or she would inherit
from the other is "give(n), devise(d) and bequeath(ed)" to the brothers and sisters of the latter.
Mrs. Hodges died first, on May 23, 1957. Four days later, on May 27, Hodges was appointed special administrator of her estate, and in a separate order of the same date, he was "allowed or authorized to continue the
business in which he was engaged, (buying and selling personal and real properties) and to perform acts which he had been doing while the deceased was living." Subsequently, on December 14, 1957, after Mrs. Hodges'
will had been probated and Hodges had been appointed and had qualified as Executor thereof, upon his motion in which he asserted that he was "not only part owner of the properties left as conjugal, but also, the
successor to all the properties left by the deceased Linnie Jane Hodges", the trial court ordered that "for the reasons stated in his motion dated December 11, 1957, which the Court considers well taken, . . . all the sales,
conveyances, leases and mortgages of all properties left by the deceased Linnie Jane Hodges executed by the Executor, Charles Newton Hodges are hereby APPROVED. The said Executor is further authorized to
execute subsequent sales, conveyances, leases and mortgages of the properties left by the said deceased Linnie Jane Hodges in consonance with the wishes contained in the last will and testament of the latter."
Annually thereafter, Hodges submitted to the court the corresponding statements of account of his administration, with the particularity that in all his motions, he always made it a point to urge that "no person interested in
the Philippines of the time and place of examining the herein accounts be given notice, as herein executor is the only devisee or legatee of the deceased, in accordance with the last will and testament already probated by
the Honorable Court." All said accounts were invariably approved as prayed for.
Nothing else appears to have been done either by the court a quo or by Hodges until December 25, 1962. Importantly to be noted, despite the provision in the will of Mrs. Hodges that her share of the conjugal partnership
was to be inherited by her husband "to have and to hold unto him, my said husband, during his natural lifetime" and that "at the death of my said husband, I give, devise and bequeath all the rest, residue and remainder of
my estate, both real and personal, wherever situated or located, to be equally divided among my brothers and sisters, share and share alike", which provision naturally made it imperative that the conjugal partnership be
promptly liquidated, in order that the "rest, residue and remainder" of his wife's share thereof, as of the time of Hodges' own death, may be readily known and identified, no such liquidation was ever undertaken. The record
gives no indication of the reason for such omission, although relatedly, it appears therein:
1. That in his annual statement submitted to the court of the net worth of C. N. Hodges and the Estate of Linnie Jane Hodges, Hodges repeatedly and consistently reported the combined income of
the conjugal partnership and then merely divided the same equally between himself and the estate of the deceased wife, and, more importantly, he also, as consistently, filed corresponding
separate income tax returns for each calendar year for each resulting half of such combined income, thus reporting that the estate of Mrs. Hodges had its own income distinct from his own.
2. That when the court a quo happened to inadvertently omit in its order probating the will of Mrs. Hodges, the name of one of her brothers, Roy Higdon, then already deceased, Hodges lost no time
in asking for the proper correction "in order that the heirs of deceased Roy Higdon may not think or believe they were omitted, and that they were really interested in the estate of the deceased

Linnie Jane Hodges".

3. That in his aforementioned motion of December 11, 1957, he expressly stated that "deceased Linnie Jane Hodges died leaving no descendants or ascendants except brothers and sisters and
herein petitioner as the surviving spouse, to inherit the properties of the decedent", thereby indicating that he was not excluding his wife's brothers and sisters from the inheritance.
4. That Hodges allegedly made statements and manifestations to the United States inheritance tax authorities indicating that he had renounced his inheritance from his wife in favor of her other
heirs, which attitude he is supposed to have reiterated or ratified in an alleged affidavit subscribed and sworn to here in the Philippines and in which he even purportedly stated that his reason for so
disclaiming and renouncing his rights under his wife's will was to "absolve (him) or (his) estate from any liability for the payment of income taxes on income which has accrued to the estate of Linnie
Jane Hodges", his wife, since her death.
On said date, December 25, 1962, Hodges died. The very next day, upon motion of herein respondent and appellee, Avelina A. Magno, she was appointed by the trial court as Administratrix of the Testate Estate of Linnie
Jane Hodges, in Special Proceedings No. 1307 and as Special Administratrix of the estate of Charles Newton Hodges, "in the latter case, because the last will of said Charles Newton Hodges is still kept in his vault or iron
safe and that the real and personal properties of both spouses may be lost, damaged or go to waste, unless Special Administratrix is appointed," (Order of December 26, 1962, p. 27, Yellow R. on A.) although, soon
enough, on December 29, 1962, a certain Harold K. Davies was appointed as her Co-Special Administrator and when Special Proceedings No. 1672, Testate Estate of Charles Newton Hodges, was opened, Joe Hodges,
as next of kin of the deceased, was in due time appointed as Co-Administrator of said estate together with Atty. Fernando P. Mirasol, to replace Magno and Davies, only to be in turn replaced eventually by petitioner PCIB
alone.
At the outset, the two probate proceedings appear to have been proceeding jointly, with each administrator acting together with the other, under a sort of modus operandi. PCIB used to secure at the beginning the
conformity to and signature of Magno in transactions it wanted to enter into and submitted the same to the court for approval as their joint acts. So did Magno do likewise. Somehow, however, differences seem to have
arisen, for which reason, each of them began acting later on separately and independently of each other, with apparent sanction of the trial court. Thus, PCIB had its own lawyers whom it contracted and paid handsomely,
conducted the business of the estate independently of Magno and otherwise acted as if all the properties appearing in the name of Charles Newton Hodges belonged solely and only to his estate, to the exclusion of the
brothers and sisters of Mrs. Hodges, without considering whether or not in fact any of said properties corresponded to the portion of the conjugal partnership pertaining to the estate of Mrs. Hodges. On the other hand,
Magno made her own expenditures, hired her own lawyers, on the premise that there is such an estate of Mrs. Hodges, and dealt with some of the properties, appearing in the name of Hodges, on the assumption that they
actually correspond to the estate of Mrs. Hodges. All of these independent and separate actuations of the two administrators were invariably approved by the trial court upon submission. Eventually, the differences reached
a point wherein Magno, who was more cognizant than anyone else about the ins and outs of the businesses and properties of the deceased spouses because of her long and intimate association with them, made it difficult
for PCIB to perform normally its functions as administrator separately from her. Thus, legal complications arose and the present judicial controversies came about.
Predicating its position on the tenor of the orders of May 27 and December 14, 1957 as well as the approval by the court a quo of the annual statements of account of Hodges, PCIB holds to the view that the estate of Mrs.
Hodges has already been in effect closed with the virtual adjudication in the mentioned orders of her whole estate to Hodges, and that, therefore, Magno had already ceased since then to have any estate to administer and
the brothers and sisters of Mrs. Hodges have no interests whatsoever in the estate left by Hodges. Mainly upon such theory, PCIB has come to this Court with a petition for certiorari and prohibition praying that the lower
court's orders allowing respondent Magno to continue acting as administratrix of the estate of Mrs. Hodges in Special Proceedings 1307 in the manner she has been doing, as detailed earlier above, to set aside.
Additionally, PCIB maintains that the provision in Mrs. Hodges' will instituting her brothers and sisters in the manner therein specified is in the nature of a testamentary substitution, but inasmuch as the purported
substitution is not, in its view, in accordance with the pertinent provisions of the Civil Code,it is ineffective and may not be enforced. It is further contended that, in any event, inasmuch as the Hodges spouses were both
residents of the Philippines, following the decision of this Court in Aznar vs. Garcia, or the case of Christensen, 7 SCRA 95, the estate left by Mrs. Hodges could not be more than one-half of her share of the conjugal
partnership, notwithstanding the fact that she was a citizen of Texas, U.S.A., in accordance with Article 16 in relation to Articles 900 and 872 of the Civil Code.Initially, We issued a preliminary injunction against Magno and
allowed PCIB to act alone.
At the same time, PCIB has appealed several separate orders of the trial court approving individual acts of appellee Magno in her capacity as administratrix of the estate of Mrs. Hodges, such as, hiring of lawyers for
specified fees and incurring expenses of administration for different purposes and executing deeds of sale in favor of her co-appellees covering properties which are still registered in the name of Hodges, purportedly,
pursuant to corresponding "contracts to sell" executed by Hodges. The said orders are being questioned on jurisdictional and procedural grounds directly or indirectly predicated on the principal theory of appellant that all
the properties of the two estates belong already to the estate of Hodges exclusively.
On the other hand, respondent-appellee Magno denies that the trial court's orders of May 27 and December 14, 1957 were meant to be finally adjudicatory of the hereditary rights of Hodges and contends that they were no
more than the court's general sanction of past and future acts of Hodges as executor of the will of his wife in due course of administration. As to the point regarding substitution, her position is that what was given by Mrs.
Hodges to her husband under the provision in question was a lifetime usufruct of her share of the conjugal partnership, with the naked ownership passing directly to her brothers and sisters. Anent the application of Article
16 of the Civil Code,she claims that the applicable law to the will of Mrs. Hodges is that of Texas under which, she alleges, there is no system of legitime, hence, the estate of Mrs. Hodges cannot be less than her share or
one-half of the conjugal partnership properties. She further maintains that, in any event, Hodges had as a matter of fact and of law renounced his inheritance from his wife and, therefore, her whole estate passed directly to
her brothers and sisters effective at the latest upon the death of Hodges.
In this decision, for the reasons discussed above, and upon the issues just summarized, We overrule PCIB's contention that the orders of May 27, 1957 and December 14, 1957 amount to an adjudication to Hodges of the
estate of his wife, and We recognize the present existence of the estate of Mrs. Hodges, as consisting of properties, which, while registered in the name of Hodges, do actually correspond to the remainder of the share of
Mrs. Hodges in the conjugal partnership, it appearing that pursuant to the pertinent provisions of her will, any portion of said share still existing and undisposed of by her husband at the time of his death should go to her
brothers and sisters share and share alike. Factually, We find that the proven circumstances relevant to the said orders do not warrant the conclusion that the court intended to make thereby such alleged final adjudication.
Legally, We hold that the tenor of said orders furnish no basis for such a conclusion, and what is more, at the time said orders were issued, the proceedings had not yet reached the point when a final distribution and
adjudication could be made. Moreover, the interested parties were not duly notified that such disposition of the estate would be done. At best, therefore, said orders merely allowed Hodges to dispose portions of his
inheritance in advance of final adjudication, which is implicitly permitted under Section 2 of Rule 109, there being no possible prejudice to third parties, inasmuch as Mrs. Hodges had no creditors and all pertinent taxes
have been paid.
More specifically, We hold that, on the basis of circumstances presently extant in the record, and on the assumption that Hodges' purported renunciation should not be upheld, the estate of Mrs. Hodges inherited by her
brothers and sisters consists of one-fourth of the community estate of the spouses at the time of her death, minus whatever Hodges had gratuitously disposed of therefrom during the period from, May 23, 1957, when she
died, to December 25, 1962, when he died provided, that with regard to remunerative dispositions made by him during the same period, the proceeds thereof, whether in cash or property, should be deemed as continuing
to be part of his wife's estate, unless it can be shown that he had subsequently disposed of them gratuitously.
At this juncture, it may be reiterated that the question of what are the pertinent laws of Texas and what would be the estate of Mrs. Hodges under them is basically one of fact, and considering the respective positions of the
parties in regard to said factual issue, it can already be deemed as settled for the purposes of these cases that, indeed, the free portion of said estate that could possibly descend to her brothers and sisters by virtue of her
will may not be less than one-fourth of the conjugal estate, it appearing that the difference in the stands of the parties has reference solely to the legitime of Hodges, PCIB being of the view that under the laws of Texas,
there is such a legitime of one-fourth of said conjugal estate and Magno contending, on the other hand, that there is none. In other words, hereafter, whatever might ultimately appear, at the subsequent proceedings, to be
actually the laws of Texas on the matter would no longer be of any consequence, since PCIB would anyway be in estoppel already to claim that the estate of Mrs. Hodges should be less than as contended by it now, for
admissions by a party related to the effects of foreign laws, which have to be proven in our courts like any other controverted fact, create estoppel.
In the process, We overrule PCIB's contention that the provision in Mrs. Hodges' will in favor of her brothers and sisters constitutes ineffective hereditary substitutions. But neither are We sustaining, on the other hand,
Magno's pose that it gave Hodges only a lifetime usufruct. We hold that by said provision, Mrs. Hodges simultaneously instituted her brothers and sisters as co-heirs with her husband, with the condition, however, that the
latter would have complete rights of dominion over the whole estate during his lifetime and what would go to the former would be only the remainder thereof at the time of Hodges' death. In other words, whereas they are
not to inherit only in case of default of Hodges, on the other hand, Hodges was not obliged to preserve anything for them. Clearly then, the essential elements of testamentary substitution are absent; the provision in

question is a simple case of conditional simultaneous institution of heirs, whereby the institution of Hodges is subject to a partial resolutory condition the operative contingency of which is coincidental with that of the
suspensive condition of the institution of his brothers and sisters-in-law, which manner of institution is not prohibited by law.
We also hold, however, that the estate of Mrs. Hodges inherited by her brothers and sisters could be more than just stated, but this would depend on (1) whether upon the proper application of the principle of renvoi in
relation to Article 16 of the Civil Code and the pertinent laws of Texas, it will appear that Hodges had no legitime as contended by Magno, and (2) whether or not it can be held that Hodges had legally and effectively
renounced his inheritance from his wife. Under the circumstances presently obtaining and in the state of the record of these cases, as of now, the Court is not in a position to make a final ruling, whether of fact or of law, on
any of these two issues, and We, therefore, reserve said issues for further proceedings and resolution in the first instance by the court o quo, as hereinabove indicated. We reiterate, however, that pending such further
proceedings, as matters stand at this stage, Our considered opinion is that it is beyond cavil that since, under the terms of the will of Mrs. Hodges, her husband could not have anyway legally adjudicated or caused to be
adjudicated to himself her whole share of their conjugal partnership, albeit he could have disposed any part thereof during his lifetime, the resulting estate of Mrs. Hodges, of which Magno is the uncontested administratrix,
cannot be less than one-fourth of the conjugal partnership properties, as of the time of her death, minus what, as explained earlier, have been gratuitously disposed of therefrom, by Hodges in favor of third persons since
then, for even if it were assumed that, as contended by PCIB, under Article 16 of the Civil Code and applying renvoi the laws of the Philippines are the ones ultimately applicable, such one-fourth share would be her free
disposable portion, taking into account already the legitime of her husband under Article 900 of the Civil Code.
The foregoing considerations leave the Court with no alternative than to conclude that in predicating its orders on the assumption, albeit unexpressed therein, that there is an estate of Mrs. Hodges to be distributed among
her brothers and sisters and that respondent Magno is the legal administratrix thereof, the trial court acted correctly and within its jurisdiction. Accordingly, the petition for certiorari and prohibition has to be denied. The
Court feels, however, that pending the liquidation of the conjugal partnership and the determination of the specific properties constituting her estate, the two administrators should act conjointly as ordered in the Court's
resolution of September 8, 1972 and as further clarified in the dispositive portion of this decision.
Anent the appeals from the orders of the lower court sanctioning payment by appellee Magno, as administratrix, of expenses of administration and attorney's fees, it is obvious that, with our holding that there is such an
estate of Mrs. Hodges, and for the reasons stated in the body of this opinion, the said orders should be affirmed. This We do on the assumption We find justified by the evidence of record, and seemingly agreed to by
appellant PCIB, that the size and value of the properties that should correspond to the estate of Mrs. Hodges far exceed the total of the attorney's fees and administration expenses in question.
With respect to the appeals from the orders approving transactions made by appellee Magno, as administratrix, covering properties registered in the name of Hodges, the details of which are related earlier above, a
distinction must be made between those predicated on contracts to sell executed by Hodges before the death of his wife, on the one hand, and those premised on contracts to sell entered into by him after her death. As
regards the latter, We hold that inasmuch as the payments made by appellees constitute proceeds of sales of properties belonging to the estate of Mrs. Hodges, as may be implied from the tenor of the motions of May 27
and December 14, 1957, said payments continue to pertain to said estate, pursuant to her intent obviously reflected in the relevant provisions of her will, on the assumption that the size and value of the properties to
correspond to the estate of Mrs. Hodges would exceed the total value of all the properties covered by the impugned deeds of sale, for which reason, said properties may be deemed as pertaining to the estate of Mrs.
Hodges. And there being no showing that thus viewing the situation, there would be prejudice to anyone, including the government, the Court also holds that, disregarding procedural technicalities in favor of a pragmatic
and practical approach as discussed above, the assailed orders should be affirmed. Being a stranger to the estate of Mrs. Hodges, PCIB has no personality to raise the procedural and jurisdictional issues raised by it. And
inasmuch as it does not appear that any of the other heirs of Mrs. Hodges or the government has objected to any of the orders under appeal, even as to these parties, there exists no reason for said orders to be set aside.
DISPOSITIVE PART
IN VIEW OF ALL THE FOREGOING PREMISES, judgment is hereby rendered DISMISSING the petition in G. R. Nos. L-27860 and L-27896, and AFFIRMING, in G. R. Nos. L-27936-37 and the other thirty-one numbers
hereunder ordered to be added after payment of the corresponding docket fees, all the orders of the trial court under appeal enumerated in detail on pages 35 to 37 and 80 to 82 of this decision; the existence of the Testate
Estate of Linnie Jane Hodges, with respondent-appellee Avelina A. Magno, as administratrix thereof is recognized, and it is declared that, until final judgment is ultimately rendered regarding (1) the manner of applying
Article 16 of the Civil Code of the Philippines to the situation obtaining in these cases and (2) the factual and legal issue of whether or not Charles Newton Hodges had effectively and legally renounced his inheritance
under the will of Linnie Jane Hodges, the said estate consists of one-fourth of the community properties of the said spouses, as of the time of the death of the wife on May 23, 1957, minus whatever the husband had
already gratuitously disposed of in favor of third persons from said date until his death, provided, first, that with respect to remunerative dispositions, the proceeds thereof shall continue to be part of the wife's estate, unless
subsequently disposed of gratuitously to third parties by the husband, and second, that should the purported renunciation be declared legally effective, no deductions whatsoever are to be made from said estate; in
consequence, the preliminary injunction of August 8, 1967, as amended on October 4 and December 6, 1967, is lifted, and the resolution of September 8, 1972, directing that petitioner-appellant PCIB, as Administrator of
the Testate Estate of Charles Newton Hodges, in Special Proceedings 1672, and respondent-appellee Avelina A. Magno, as Administratrix of the Testate Estate of Linnie Jane Hodges, in Special Proceedings 1307, should
act thenceforth always conjointly, never independently from each other, as such administrators, is reiterated, and the same is made part of this judgment and shall continue in force, pending the liquidation of the conjugal
partnership of the deceased spouses and the determination and segregation from each other of their respective estates, provided, that upon the finality of this judgment, the trial court should immediately proceed to the
partition of the presently combined estates of the spouses, to the end that the one-half share thereof of Mrs. Hodges may be properly and clearly identified; thereafter, the trial court should forthwith segregate the remainder
of the one-fourth herein adjudged to be her estate and cause the same to be turned over or delivered to respondent for her exclusive administration in Special Proceedings 1307, while the other one-fourth shall remain
under the joint administration of said respondent and petitioner under a joint proceedings in Special Proceedings 1307 and 1672, whereas the half unquestionably pertaining to Hodges shall be administered by petitioner
exclusively in Special Proceedings 1672, without prejudice to the resolution by the trial court of the pending motions for its removal as administrator 12 ; and this arrangement shall be maintained until the final resolution of
the two issues of renvoi and renunciation hereby reserved for further hearing and determination, and the corresponding complete segregation and partition of the two estates in the proportions that may result from the said
resolution.
Generally and in all other respects, the parties and the court a quo are directed to adhere henceforth, in all their actuations in Special Proceedings 1307 and 1672, to the views passed and ruled upon by the Court in the
foregoing opinion.
Appellant PCIB is ordered to pay, within five (5) days from notice hereof, thirty-one additional appeal docket fees, but this decision shall nevertheless become final as to each of the parties herein after fifteen (15) days from
the respective notices to them hereof in accordance with the rules.
Costs against petitioner-appellant PCIB.
Zaldivar, Castro, Esguerra and Fernandez, JJ ., concur.
Fernando, J ., concurs on the basis of the procedural pronouncements in the opinion.
Makasiar, Antonio, Muoz Palma and Aquino, JJ ., concur in the result.
||| (Philippine Commercial and Industrial Bank v. Escolin, G.R. Nos. L-27860 & L-27896, L-27937, [March 29, 1974], 155 PHIL 228-400)
"Testate Estate of Joseph G. Brimo. JUAN MICIANO, administrator, petitioner-appellee, vs. ANDRE BRIMO, opponent-appellant.
Ross, Lawrence & Selph for appellant.
Camus & Delgado for appellee.
SYLLABUS
1. FOREIGN LAWS; PRESUMPTION. In the absence of evidence to the contrary foreign laws on a particular subject are presumed to be the same as those of the Philippines. (Lim and Lim vs.
Collector of Customs, 36 Phil., 472.)
2. POSTPONEMENT OF PROCEEDING; DISCRETION. It is discretionary on the part of the court to postpone or not to postpone a particular proceeding in a case, and when the person applying
for it has already been given ample opportunity to present the evidence that he wishes to introduce, the court commits no abuse of discretion in denying it.
3. SUCCESSIONS; CONDITIONAL LEGACY; CONDITION CONTRARY TO LAW; NULLITY OF. If the condition imposed upon the legatee is that he respect the testator's order that his property be
distributed in accordance with the laws of the Philippines and not in accordance with the laws of his nation, said condition is illegal, because, according to article 10 of the Civil Code, said laws govern his

testamentary disposition, and, being illegal, shall be considered unwritten, thus making the institution unconditional.
DECISION
ROMUALDEZ, J p:
The partition of the estate left by the deceased Joseph G. Brimo is in question in this case.
The judicial administrator of this estate filed a scheme of partition. Andre Brimo, one of the brothers of the deceased, opposed it. The court, however, approved it.
The errors which the oppositor-appellant assigns are: (1) The approval of said scheme of partition; (2) the denial of his participation in the inheritance; (3) the denial of the motion for reconsideration of the
order approving the partition; (4) the approval of the purchase made by Pietro Lanza of the deceased's business and the deed of transfer of said business; and (5) the declaration that the Turkish laws are impertinent
to this cause, and the failure not to postpone the approval of the scheme of partition and the delivery of the deceased's business to Pietro Lanza until the receipt of the depositions requested in reference to the Turkish
laws.
The appellant's opposition is based on the fact that the partition in question puts into effect the provisions of Joseph G. Brimo's will which are not in accordance with the laws of his Turkish nationality, for
which reason they are void as being in violation of article 10 of the Civil Code which, among other things, provides the following:
"Nevertheless, legal and testamentary successions, in respect to the order of succession as well as to the amount of the successional rights and the intrinsic validity of their provisions,
shall be regulated by the national law of the person whose succession is in question, whatever may be the nature of the property or the country in which it may be situated."
But the fact is that the oppositor did not prove that said testamentary dispositions are not in accordance with the Turkish laws, inasmuch as he did not present any evidence showing what the Turkish laws
are on the matter, and in the absence of evidence on such laws, they are presumed to be the same as those of the Philippines. (Lim and Lim vs. Collector of Customs, 36 Phil., 472.)
It has not been proved in these proceedings what the Turkish laws are. He, himself, acknowledges it when he desires to be given an opportunity to present evidence on this point; so much so that he
assigns as an error of the court in not having deferred the approval of the scheme of partition until the receipt of certain testimony requested regarding the Turkish laws on the matter.
The refusal to give the oppositor another opportunity to prove such laws does not constitute an error. It is discretionary with the trial court, and, taking into consideration that the oppositor was granted ample
opportunity to introduce competent evidence, we find no abuse of discretion on the part of the court in this particular.
There is, therefore, no evidence in the record that the national law of the testator Joseph G. Brimo was violated in the testamentary dispositions in question which, not being contrary to our laws in force,
must be complied with and executed.
Therefore, the approval of the scheme of partition in this respect was not erroneous.
In regard to the first assignment of error which deals with the exclusion of the herein appellant as a legatee, inasmuch as he is one of the persons designated as such in the will, it must be taken into
consideration that such exclusion is based on the last part of the second clause of the will, which says:
"Second. I likewise desire to state that although, by law, I am a Turkish citizen, this citizenship having been conferred upon me by conquest and not by free choice, nor by nationality and,
on the other hand, having resided for a considerable length of time in the Philippine Islands where I succeeded in acquiring all of the property that I now possess, it is my wish that the distribution of
my property and everything in connection with this, my will, be made and disposed of in accordance with the laws in force in the Philippine Islands, requesting all of my relatives to respect this wish,
otherwise, I annul and cancel beforehand whatever disposition found in this will favorable to the person or persons who fail to comply with this request."
The institution of legatees in this will is conditional, and the condition is that the instituted legatees must respect the testator's will to distribute his property, not in accordance with the laws of his nationality,
but in accordance with the laws of the Philippines.
If this condition as it is expressed were legal and valid, any legatee who fails to comply with it, as the herein oppositor who, by his attitude in these proceedings has not respected the will of the testator, as
expressed, is prevented from receiving his legacy.
The fact is, however, that the said condition is void, being contrary to law, for article 792 of the Civil Code provides the following:
"Impossible conditions and those contrary to law or good morals shall be considered as not imposed and shall not prejudice the heir or legatee in any manner whatsoever, even should
the testator otherwise provide."
And said condition is contrary to law because it expressly ignores the testator's national law when, according to article 10 of the Civil Code above quoted, such national law of the testator is the one to
govern his testamentary dispositions.
Said condition then, in the light of the legal provisions above cited, is considered unwritten, and the institution of legatees in said will is unconditional and consequently valid and effective even as to the
herein oppositor.
It results from all this that the second clause of the will regarding the law which shall govern it, and to the condition imposed upon the legatees, is null and void, being contrary to law.
All of the remaining clauses of said will with all their dispositions and requests are perfectly valid and effective it not appearing that said clauses are contrary to the testator's national laws.
Therefore, the orders appealed from are modified and it is directed that the distribution of this estate be made in such a manner as to include the herein appellant Andre Brimo as one of the legatees, and
the scheme of partition submitted by the judicial administrator is approved in all other respects, without any pronouncement as to costs. So ordered.
Street, Malcolm, Avancea, Villamor, and Ostrand, JJ., concur.
Johnson, J., dissents.
||| (Miciano v. Brimo, G.R. No. 22595, [November 1, 1924])
JOHNNY S. RABADILLA, 1 petitioner, vs. COURT OF APPEALS AND MARIA MARLENA 2 COSCOLLUELA Y BELLEZA VILLACARLOS, respondents.
Romeo S. Perez for petitioner.
Benjamin Santos & Ofelia Calcetas-Santos Law Offices collaborating counsel for respondent Marlene C. Villacarlos.
Garcia Ines Villacarlos Garcia and Recina Law Offices for private respondents.
SYNOPSIS
Dr. Jorge Rabadilla, in a codicil of Aleja Belleza, was instituted devisee of Lot No. 1392 with an area of 511,855 square meters with the obligation to deliver 100 piculs of sugar to herein private respondent
every year during the latter's lifetime. The codicil provides that the obligation is imposed not only on the instituted heir but also to his successors-in-interest and that in case of failure to deliver, private respondent shall
seize the property and turn it over to the testatrix's "near descendants." Dr. Rabadilla died and was survived by his wife and children, one of whom is herein petitioner. Private respondent, alleging failure of the heirs to
comply with their obligation, filed a complaint with the RTC praying for the reconveyance of the subject property to the surviving heirs of the testatrix. During the pre-trial, a compromise agreement was concluded
between the parties wherein the lessee of the property assumed the delivery of 100 piculs of sugar to private respondent. However, only partial delivery was made. Thereafter, the trial court dismissed the complaint
for lack of cause of action. The Court of Appeals, on appeal, reversed the decision and held that the institution of Dr. Rabadilla is in the nature of a modal institution and a cause of action in favor of private respondent
arose when petitioner failed to comply with their obligation under the codicil, and in ordering the reversion of Lot 1392 to the estate of testatrix. Aggrieved, petitioner availed of this recourse.
Successional rights are transmitted from the moment of death and compulsory heirs succeed the decedent not only to all the property but also to his rights and obligations. Hence, the heirs of Dr. Rabadilla is also obliged
under the codicil to deliver 100 piculs of sugar to private respondent every year.
There is no substitution of heir where no substitute was provided by the testatrix in case the instituted heir predecease her or in case of the latter's incapacity or renunciation nor was the instituted heir mandated to preserve
the property and to transmit it to the second heir.
SYLLABUS
1. CIVIL LAW; WILLS AND SUCCESSION; SUCCESSIONAL RIGHTS TRANSMITTED FROM MOMENT OF DEATH OF DECEDENT. It is a general rule under the law on succession that successional rights are

transmitted from the moment of death of the decedent and compulsory heirs are called to succeed by operation of law. The legitimate children and descendants, in relation to their legitimate parents, and the widow
or widower, are compulsory heirs. Thus, the petitioner, his mother and sisters, as compulsory heirs of the instituted heir, Dr. Jorge Rabadilla, succeeded the latter by operation of law, without need of further
proceedings, and the successional rights were transmitted to them from the moment of death of the decedent, Dr. Jorge Rabadilla.
2. ID.; ID.; INHERITANCE INCLUDES ALL PROPERTY, RIGHTS AND OBLIGATIONS NOT EXTINGUISHED BY DEATH. Under Article 776 of the New Civil Code, inheritance includes all the property, rights and
obligations of a person, not extinguished by his death. Conformably, whatever rights Dr. Jorge Rabadilla had by virtue of subject Codicil were transmitted to his forced heirs, at the time of his death. And since
obligations not extinguished by death also form part of the estate of the decedent; corollarily, the obligations imposed by the Codicil on the deceased Dr. Jorge Rabadilla, were likewise transmitted to his compulsory
heirs upon his death.
3. ID.; ID.; SUBSTITUTION, DEFINED. Substitution is the designation by the testator of a person or persons to take the place of the heir or heirs first instituted. Under substitutions in general, the testator may
either (1) provide for the designation of another heir to whom the property shall pass in case the original heir should die before him/her, renounce the inheritance or be incapacitated to inherit, as in a simple
substitution, or (2) leave his/her property to one person with the express charge that it be transmitted subsequently to another or others, as in a fideicommissary substitution. dctai
4. ID.; ID.; SIMPLE SUBSTITUTIONS DIFFERENT FROM CODICIL; CASE AT BAR. In simple substitutions, the second heir takes the inheritance in default of the first heir by reason of incapacity, predecease or
renunciation. In the case under consideration, the provisions of subject Codicil do not provide that should Dr. Jorge Rabadilla default due to predecease, incapacity or renunciation, the testatrix's near descendants
would substitute him. What the Codicil provides is that, should Dr. Jorge Rabadilla or his heirs not fulfill the conditions imposed in the Codicil, the property referred to shall be seized and turned over the testatrix's
near descendants.
5. ID.; ID.; FIDEICOMMISSARY SUBSTITUTION DIFFERENT FROM CODICIL; CASE AT BAR. Neither is there a fideicommissary substitution here and on this point, petitioner is correct. In a fideicommissary
substitution, the first heir is strictly mandated to preserve the property and to transmit the same later to the second heir. In the case under consideration, the instituted heir is in fact allowed under the Codicil to
alienate the property provided the negotiation is with the near descendants or the sister of the testatrix. Thus, a very important element of a fideicommissary substitution is lacking; the obligation clearly imposing
upon the first heir the preservation of the property and its transmission to the second heir. "Without this obligation to preserve clearly imposed by the testator in his will, there is no fideicommissary substitution." Also,
the near descendants' right to inherit from the testatrix is not definite. The property will only pass to them should Dr. Jorge Rabadilla or his heirs not fulfill the obligation to deliver part of the usufruct to private
respondent. Another important element of a fideicommissary substitution is also missing here. Under Article 863, the second heir or the fideicommissary to whom the property is transmitted must not be beyond one
degree from the first heir or the fiduciary. A fideicommissary substitution is therefore, void if the first heir is not related by first degree to the second heir. In the case under scrutiny, the near descendants are not at all
related to the instituted heir, Dr. Jorge Rabadilla.
6. ID.; ID.; MODAL INSTITUTION DISTINGUISHED FROM CONDITIONAL TESTAMENTARY DISPOSITION. The institution of an heir in the manner prescribed in Article 882 is what is known in the law of
succession as an institucion sub modo or a modal institution. In a modal institution, the testator states (1) the object of the institution, (2) the purpose or application of the property left by the testator, or (3) the charge
imposed by the testator upon the heir. A "mode" imposes an obligation upon the heir or legatee but it does not affect the efficacy of his rights to the succession. On the other hand, in a conditional testamentary
disposition, the condition must happen or be fulfilled in order for the heir to be entitled to succeed the testator. The condition suspends but does not obligate; and the mode obligates but does not suspend. To some
extend, it is similar to a resolutory condition.
7. ID.; ID.; OBLIGATION IMPOSED ON HEIRS SHOULD NOT BE CONSIDERED A CONDITION UNLESS IT CLEARLY APPEARS FROM THE WILL ITSELF THAT SUCH WAS THE INTENTION OF THE
TESTATOR. Since testamentary dispositions are generally acts of liberality, an obligation imposed upon the heir should not be considered a condition unless it clearly appears from the Will itself that such was the
intention of the testator. In case of doubt, the institution should be considered as modal and not conditional.
8. ID.; ID.; UNCERTAINTY ON APPLICATION OF ANY PROVISION, INTERPRETED ACCORDING TO TESTATOR'S INTENTION. In the interpretation of Wills, when an uncertainty arises on the face of the Will,
as to the application of any of its provisions, the testator's intention is to be ascertained from the words of the Will, taking into consideration the circumstances under which it was made. Such construction as will
sustain and uphold the Will in all its parts must be adopted.
9. ID.; ID.; CANNOT BE THE SUBJECT OF COMPROMISE. A Will is a personal, solemn, revocable and free act by which a person disposes of his property, to take effect after his death. Since the Will expresses
the manner in which a person intends how his properties be disposed, the wishes and desires of the testator must be strictly followed. Thus, a Will cannot be the subject of a compromise agreement which would
thereby defeat the very purpose of making a Will.
VITUG, J., separate opinion:
1. CIVIL LAW; WILLS AND SUCCESSION; SUBSTITUTION; KINDS. Substitution is the appointment of another heir so that he may enter into the inheritance in default of the heir originally instituted. Substitution
is simple when the testator designates one or more persons to substitute the heir or heirs instituted in case the latter should die before him, or should not wish, or should be incapacitated to accept the inheritance,
and a substitution without a statement of the cases to which it refers shall comprise all said three cases. There is no simple substitution that takes place where the heir originally instituted is able to succeed.
Fideicommissary substitution, on the other hand, occurs when the fiduciary or first heir instituted is entrusted with the obligation to preserve and to transmit to a second heir the whole or part of the inheritance. Every
fideicommissary substitution should be expressly made in order that it may be valid. The term "fideicommissary substitution" need not, however, be used in the will; it is enough that there is a clear and unequivocal
statement that one shall enjoy usufructuary or other rights, short of naked ownership or title, over certain property of the testator with the obligation to preserve the property and to transmit it to a second heir. It is
essential for the validity of a fideicommissary substitution that both heirs are living and qualified to succeed at the time of death by the testator and that the substitute does not go beyond one degree from the heir
originally instituted.
2. ID.; ID.; MODE DISTINGUISHED FROM CONDITION. A mode is distinguished from a condition contemplated in the rules on succession in that the latter dictates the efficacy, either in a suspensive or
resolutory manner, of a testamentary disposition while the former obligates the instituted heir to comply with the mandate made by the testator but does not prevent the heir from at once claiming the inheritance
provided he gives a security to ensure compliance with the will of the testator and the return of the thing received together with its fruits and interests, "should (the heir) disregard the obligation." The obligation
imposed upon the heir or legatee is deemed not to be a condition for his entry forthwith into the inheritance unless a contrary intention of the testator is evident. In case of doubt, the institution is considered modal,
rather than conditional. Much of the variance in the legal effects of the two classes, however, is now practically theoretical and merely conceptual. Under the old Civil Code an institucion sub modo could be said to be
more akin to an institution sub demonstratione, or an expression of a wish or suggestion of the testator that did not have any real obligatory force, that matter being left instead to the discretion of the heir, i.e.,
whether to abide by it or not. The amendatory provisions of the new Civil Code now hardly differentiates between the principal effect of the non-compliance with the mode and that of the occurrence of a resolutory
condition expressed in the will. In both instances, the property must be returned to the estate of the decedent to then pass on under the rules on intestacy.
DECISION
PURISIMA, J p:
This is a petition for review of the decision of the Court of Appeals, 3 dated December 23, 1993, in CA-G.R. No. CV-35555, which set aside the decision of Branch 52 of the Regional Trial Court in Bacolod City, and ordered
the defendants-appellees (including herein petitioner), as heirs of Dr. Jorge Rabadilla, to reconvey title over Lot No. 1392, together with its fruits and interests, to the estate of Aleja Belleza.
The antecedent facts are as follows:
In a Codicil appended to the Last Will and Testament of testatrix Aleja Belleza, Dr. Jorge Rabadilla, predecessor-in-interest of the herein petitioner, Johnny S. Rabadilla, was instituted as a devisee of 511,855 square meters
of that parcel of land surveyed as Lot No. 1392 of the Bacolod Cadastre. The said Codicil, which was duly probated and admitted in Special Proceedings No. 4046 before the then Court of First Instance of Negros
Occidental, contained the following provisions:
"FIRST
I give, leave and bequeath the following property owned by me to Dr. Jorge Rabadilla resident of 141 P. Villanueva, Pasay City:

(a) Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002 (10942), which is registered in my name according to the records of the Register of Deeds of Negros
Occidental.
(b) That should Jorge Rabadilla die ahead of me, the aforementioned property and the rights which I shall set forth hereinbelow, shall be inherited and acknowledged by the children and spouse of
Jorge Rabadilla.
xxx xxx xxx
FOURTH
(a) It is also my command, in this my addition (Codicil), that should I die and Jorge Rabadilla shall have already received the ownership of the said Lot No. 1392 of the Bacolod Cadastre, covered by
Transfer Certificate of Title No. RT-4002 (10942), and also at the time that the lease of Balbinito G. Guanzon of the said lot shall expire, Jorge Rabadilla shall have the obligation until he dies, every
year to give Maria Marlina Coscolluela y Belleza, Seventy (75) (sic) piculs of Export sugar and Twenty Five (25) piculs of Domestic sugar, until the said Maria Marlina Coscolluela y Belleza dies.
Cdpr
FIFTH
(a) Should Jorge Rabadilla die, his heir to whom he shall give Lot No. 1392 of the Bacolod Cadastre, covered by Transfer Certificate of Title No. RT-4002 (10492), shall have the obligation to still
give yearly, the sugar as specified in the Fourth paragraph of his testament, to Maria Marlina Coscolluela y Belleza on the month of December of each year.
SIXTH
I command, in this my addition (Codicil) that the Lot No. 1392, in the event that the one to whom I have left and bequeathed, and his heir shall later sell, lease, mortgage this said Lot, the buyer,
lessee, mortgagee, shall have also the obligation to respect and deliver yearly ONE HUNDRED (100) piculs of sugar to Maria Marlina Coscolluela y Belleza, on each month of December, SEVENTY
FIVE (75) piculs of Export and TWENTY FIVE (25) piculs of Domestic, until Maria Marlina shall die, lastly should the buyer, lessee or the mortgagee of this lot, not have respected my command in
this my addition (Codicil), Maria Marlina Coscolluela y Belleza, shall immediately seize this Lot No. 1392 from my heir and the latter's heirs, and shall turn it over to my near desendants, (sic) and
the latter shall then have the obligation to give the ONE HUNDRED (100) piculs of sugar until Maria Marlina shall die. I further command in this my addition (Codicil) that my heir and his heirs of this
Lot No. 1392, that they will obey and follow that should they decide to sell, lease, mortgage, they cannot negotiate with others than my near descendants and my sister." 4
Pursuant to the same Codicil, Lot No. 1392 was transferred to the deceased, Dr. Jorge Rabadilla, and Transfer Certificate of Title No. 44498 thereto issued in his name.
Dr. Jorge Rabadilla died in 1983 and was survived by his wife Rufina and children Johnny (petitioner), Aurora, Ofelia and Zenaida, all surnamed Rabadilla.
On August 21, 1989, Maria Marlena Coscolluela y Belleza Villacarlos brought a complaint, docketed as Civil Case No. 5588, before Branch 52 of the Regional Trial Court in Bacolod City, against the above-mentioned heirs
of Dr. Jorge Rabadilla, to enforce the provisions of subject Codicil. The Complaint alleged that the defendant-heirs violated the conditions of the Codicil, in that:
1. Lot No. 1392 was mortgaged to the Philippine National Bank and the Republic Planters Bank in disregard of the testatrix's specific instruction to sell, lease, or mortgage only to the near
descendants and sister of the testatrix.
2. Defendant-heirs failed to comply with their obligation to deliver one hundred (100) piculs of sugar (75 piculs export sugar and 25 piculs domestic sugar) to plaintiff Maria Marlena
Coscolluela y Belleza from sugar crop years 1985 up to the filing of the complaint as mandated by the Codicil, despite repeated demands for compliance.
3. The banks failed to comply with the 6th paragraph of the Codicil which provided that in case of the sale, lease, or mortgage of the property, the buyer, lessee, or mortgagee shall likewise
have the obligation to deliver 100 piculs of sugar per crop year to herein private respondent.
The plaintiff then prayed that judgment be rendered ordering defendant-heirs to reconvey/return Lot No. 1392 to the surviving heirs of the late Aleja Belleza, the cancellation of TCT No. 44498 in the name of the deceased,
Dr. Jorge Rabadilla, and the issuance of a new certificate of title in the names of the surviving heirs of the late Aleja Belleza.
On February 26, 1990, the defendant-heirs were declared in default but on March 28, 1990 the Order of Default was lifted, with respect to defendant Johnny S. Rabadilla, who filed his Answer, accordingly.
During the pre-trial, the parties admitted that:
On November 15, 1998, the plaintiff (private respondent) and a certain Alan Azurin, son-in-law of the herein petitioner who was lessee of the property and acting as attorney-in-fact of defendant heirs, arrived at an amicable
settlement and entered into a Memorandum of Agreement on the obligation to deliver one hundred piculs of sugar, to the following effect:
"That for crop year 1988-89, the annuity mentioned in Entry No. 49074 of TCT No. 44489 will be delivered not later than January of 1989, more specifically, to wit:
75 piculs of 'A' sugar, and 25 piculs of 'B' sugar, or then existing in any of our names, Mary Rose Rabadilla y Azurin or Alan Azurin, during December of each sugar crop year; in Azucar
Sugar Central; and, this is considered compliance of the annuity as mentioned, and in the same manner will compliance of the annuity be in the next succeeding crop years.
That the annuity above stated for crop year 1985-86, 1986-87, and 1987-88, will be complied in cash equivalent of the number of piculs as mentioned therein and which is as herein
agreed upon, taking into consideration the composite price of sugar during each sugar crop year, which is in the total amount of ONE HUNDRED FIVE THOUSAND PESOS
(P105,000.00).
That the above-mentioned amount will be paid or delivered on a staggered cash installment, payable on or before the end of December of every sugar crop year, to wit:
For 1985-86, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before December of crop year 1988-89;
For 1986-87, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before December of crop year 1989-90;
For 1987-88, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before December of crop year 1990-91; and
For 1988-89, TWENTY SIX THOUSAND TWO HUNDRED FIFTY (P26,250.00) Pesos, payable on or before December of crop year 1991-92." 5
However, there was no compliance with the aforesaid Memorandum of Agreement except for a partial delivery of 50.80 piculs of sugar corresponding to sugar crop year 1988-1989.
On July 22, 1991, the Regional Trial Court came out with a decision, dismissing the complaint and disposing as follows:
"WHEREFORE, in the light of the aforegoing findings, the Court finds that the action is prematurely filed as no cause of action against the defendants has as yet arose in favor of plaintiff. While
there may be the non-performance of the command as mandated exaction from them simply because they are the children of Jorge Rabadilla, the title holder/owner of the lot in question, does not
warrant the filing of the present complaint. The remedy at bar must fall. Incidentally, being in the category as creditor of the left estate, it is opined that plaintiff may initiate the intestate proceedings,
if only to establish the heirs of Jorge Rabadilla and in order to give full meaning and semblance to her claim under the Codicil.
In the light of the aforegoing findings, the Complaint being prematurely filed is DISMISSED without prejudice. LexLib
SO ORDERED." 6
On appeal by plaintiff, the First Division of the Court of Appeals reversed the decision of the trial court; ratiocinating and ordering thus:
"Therefore, the evidence on record having established plaintiff-appellant's right to receive 100 piculs of sugar annually out of the produce of Lot No. 1392; defendants-appellee's obligation under
Aleja Belleza's codicil, as heirs of the modal heir, Jorge Rabadilla, to deliver such amount of sugar to plaintiff-appellant; defendants-appellee's admitted non-compliance with said obligation since
1985; and, the punitive consequences enjoined by both the codicil and the Civil Code, of seizure of Lot No. 1392 and its reversion to the estate of Aleja Belleza in case of such non-compliance, this
Court deems it proper to order the reconveyance of title over Lot No. 1392 from the estates of Jorge Rabadilla to the estate of Aleja Belleza. However, plaintiff-appellant must institute separate
proceedings to re-open Aleja Belleza's estate, secure the appointment of an administrator, and distribute Lot No. 1392 to Aleja Belleza's legal heirs in order to enforce her right, reserved to her by
the codicil, to receive her legacy of 100 piculs of sugar per year out of the produce of Lot No. 1392 until she dies.
Accordingly, the decision appealed from is SET ASIDE and another one entered ordering defendants-appellees, as heirs of Jorge Rabadilla, to reconvey title over Lot No. 1392, together with its

fruits and interests, to the estate of Aleja Belleza.

SO ORDERED." 7
Dissatisfied with the aforesaid disposition by the Court of Appeals, petitioner found his way to this Court via the present petition, contending that the Court of Appeals erred in ordering the reversion of Lot 1392 to the estate
of the testatrix Aleja Belleza on the basis of paragraph 6 of the Codicil, and in ruling that the testamentary institution of Dr. Jorge Rabadilla is a modal institution within the purview of Article 882 of the New Civil Code.
The petition is not impressed with merit.
Petitioner contends that the Court of Appeals erred in resolving the appeal in accordance with Article 882 of the New Civil Code on modal institutions and in deviating from the sole issue raised which is the absence or
prematurity of the cause of action. Petitioner maintains that Article 882 does not find application as there was no modal institution and the testatrix intended a mere simple substitution i.e., the instituted heir, Dr. Jorge
Rabadilla, was to be substituted by the testatrix's "near descendants" should the obligation to deliver the fruits to herein private respondent be not complied with. And since the testatrix died single and without issue, there
can be no valid substitution and such testamentary provision cannot be given any effect.
The petitioner theorizes further that there can be no valid substitution for the reason that the substituted heirs are not definite, as the substituted heirs are merely referred to as "near descendants" without a definite identity
or reference as to who are the "near descendants" and therefore, under Articles 843 8 and 845 9 of the New Civil Code, the substitution should be deemed as not written.
The contentions of petitioner are untenable. Contrary to his supposition that the Court of Appeals deviated from the issue posed before it, which was the propriety of the dismissal of the complaint on the ground of
prematurity of cause of action, there was no such deviation. The Court of Appeals found that the private respondent had a cause of action against the petitioner. The disquisition made on modal institution was, precisely, to
stress that the private respondent had a legally demandable right against the petitioner pursuant to subject Codicil; on which issue the Court of Appeals ruled in accordance with law.
It is a general rule under the law on succession that successional rights are transmitted from the moment of death of the decedent 10 and compulsory heirs are called to succeed by operation of law. The legitimate children
and descendants, in relation to their legitimate parents, and the widow or widower, are compulsory heirs. 11 Thus, the petitioner, his mother and sisters, as compulsory heirs of the instituted heir, Dr. Jorge Rabadilla,
succeeded the latter by operation of law, without need of further proceedings, and the successional rights were transmitted to them from the moment of death of the decedent, Dr. Jorge Rabadilla. dctai
Under Article 776 of the New Civil Code, inheritance includes all the property, rights and obligations of a person, not extinguished by his death. Conformably, whatever rights Dr. Jorge Rabadilla had by virtue of subject
Codicil were transmitted to his forced heirs, at the time of his death. And since obligations not extinguished by death also form part of the estate of the decedent; corollarily, the obligations imposed by the Codicil on the
deceased Dr. Jorge Rabadilla, were likewise transmitted to his compulsory heirs upon his death.
In the said Codicil, testatrix Aleja Belleza devised Lot No. 1392 to Dr. Jorge Rabadilla, subject to the condition that the usufruct thereof would be delivered to the herein private respondent every year. Upon the death of Dr.
Jorge Rabadilla, his compulsory heirs succeeded to his rights and title over said property, and they also assumed his (decedent's) obligation to deliver the fruits of the lot involved to herein private respondent. Such
obligation of the instituted heir reciprocally corresponds to the right of private respondent over the usufruct, the fulfillment or performance of which is now being demanded by the latter through the institution of the case at
bar. Therefore, private respondent has a cause of action against petitioner and the trial court erred in dismissing the complaint below.
Petitioner also theorizes that Article 882 of the New Civil Code on modal institutions is not applicable because what the testatrix intended was a substitution Dr. Jorge Rabadilla was to be substituted by the testatrix's
near descendants should there be non-compliance with the obligation to deliver the piculs of sugar to private respondent.
Again, the contention is without merit.
Substitution is the designation by the testator of a person or persons to take the place of the heir or heirs first instituted. Under substitutions in general, the testator may either (1) provide for the designation of another heir
to whom the property shall pass in case the original heir should die before him/her, renounce the inheritance or be incapacitated to inherit, as in a simple substitution, 12 or (2) leave his/her property to one person with the
express charge that it be transmitted subsequently to another or others, as in a fideicommissary substitution. 13 The Codicil sued upon contemplates neither of the two.
In simple substitutions, the second heir takes the inheritance in default of the first heir by reason of incapacity, predecease or renunciation. 14 In the case under consideration, the provisions of subject Codicil do not
provide that should Dr. Jorge Rabadilla default due to predecease, incapacity or renunciation, the testatrix's near descendants would substitute him. What the Codicil provides is that, should Dr. Jorge Rabadilla or his heirs
not fulfill the conditions imposed in the Codicil, the property referred to shall be seized and turned over to the testatrix's near descendants.
Neither is there a fideicommissary substitution here and on this point, petitioner is correct. In a fideicommissary substitution, the first heir is strictly mandated to preserve the property and to transmit the same later to the
second heir. 15 In the case under consideration, the instituted heir is in fact allowed under the Codicil to alienate the property provided the negotiation is with the near descendants or the sister of the testatrix. Thus, a very
important element of a fideicommissary substitution is lacking; the obligation clearly imposing upon the first heir the preservation of the property and its transmission to the second heir. "Without this obligation to preserve
clearly imposed by the testator in his will, there is no fideicommissary substitution." 16 Also, the near descendants' right to inherit from the testatrix is not definite. The property will only pass to them should Dr. Jorge
Rabadilla or his heirs not fulfill the obligation to deliver part of the usufruct to private respondent.
Another important element of a fideicommissary substitution is also missing here. Under Article 863, the second heir or the fideicommissary to whom the property is transmitted must not be beyond one degree from the first
heir or the fiduciary. A fideicommissary substitution is therefore, void if the first heir is not related by first degree to the-second heir. 17 In the case under scrutiny, the near descendants are not at all related to the instituted
heir, Dr. Jorge Rabadilla.
The Court of Appeals erred not in ruling that the institution of Dr. Jorge Rabadilla under subject Codicil is in the nature of a modal institution and therefore, Article 882 of the New Civil Code is the provision of law in point.
Articles 882 and 883 of the New Civil Code provide:
ARTICLE 882. The statement of the object of the institution or the application of the property left by the testator, or the charge imposed on him, shall not be considered as a condition unless it
appears that such was his intention.
That which has been left in this manner may be claimed at once provided that the instituted heir or his heirs give security for compliance with the wishes of the testator and for the return of anything
he or they may receive, together with its fruits and interests, if he or they should disregard this obligation.
ARTICLE 883. When without the fault of the heir, an institution referred to in the preceding article cannot take effect in the exact manner stated by the testator, it shall be complied with in a
manner most analogous to and in conformity with his wishes.
The institution of an heir in the manner prescribed in Article 882 is what is known in the law of succession as an institucion sub modo or a modal institution. In a modal institution, the testator states (1) the object of the
institution, (2) the purpose or application of the property left by the testator, or (3) the charge imposed by the testator upon the heir. 18 A "mode" imposes an obligation upon the heir or legatee but it does not affect the
efficacy of his rights to the succession. 19 On the other hand, in a conditional testamentary disposition, the condition must happen or be fulfilled in order for the heir to be entitled to succeed the testator. The condition
suspends but does not obligate; and the mode obligates but does not suspend. 20 To some extent, it is similar to a resolutory condition. 21
From the provisions of the Codicil litigated upon, it can be gleaned unerringly that the testatrix intended that the subject property be inherited by Dr. Jorge Rabadilla. It is likewise clearly worded that the testatrix imposed an
obligation on the said instituted heir and his successors-in-interest to deliver one hundred piculs of sugar to the herein private respondent, Marlena Coscolluela Belleza, during the lifetime of the latter. However, the testatrix
did not make Dr. Jorge Rabadilla's inheritance and the effectivity of his institution as a devisee, dependent on the performance of the said obligation. It is clear, though, that should the obligation be not complied with, the
property shall be turned over to the testatrix's near descendants. The manner of institution of Dr. Jorge Rabadilla under subject Codicil is evidently modal in nature because it imposes a charge upon the instituted heir
without, however, affecting the efficacy of such institution.
Then too, since testamentary dispositions are generally acts of liberality, an obligation imposed upon the heir should not be considered a condition unless it clearly appears from the Will itself that such was the intention of
the testator. In case of doubt, the institution should be considered as modal and not conditional. 22
Neither is there tenability in the other contention of petitioner that the private respondent has only a right of usufruct but not the right to seize the property itself from the instituted heir because the right to seize was
expressly limited to violations by the buyer, lessee or mortgagee.
In the interpretation of Wills, when an uncertainty arises on the face of the Will, as to the application of any of its provisions, the testator's intention is to be ascertained from the words of the Will, taking into consideration

the circumstances under which it was made. 23 Such construction as will sustain and uphold the Will in all its parts must be adopted. 24
Subject Codicil provides that the instituted heir is under obligation to deliver One Hundred (100) piculs of sugar yearly to Marlena Belleza Coscuella. Such obligation is imposed on the instituted heir, Dr. Jorge Rabadilla, his
heirs, and their buyer, lessee, or mortgagee should they sell, lease, mortgage or otherwise negotiate the property involved. The Codicil further provides that in the event that the obligation to deliver the sugar is not
respected, Marlena Belleza Coscuella shall seize the property and turn it over to the testatrix's near descendants. The non-performance of the said obligation is thus with the sanction of seizure of the property and
reversion thereof to the testatrix's near descendants. Since the said obligation is clearly imposed by the testatrix, not only on the instituted heir but also on his successors-in-interest, the sanction imposed by the testatrix in
case of non-fulfillment of said obligation should equally apply to the instituted heir and his successors-in-interest.
Similarly unsustainable is petitioner's submission that by virtue of the amicable settlement, the said obligation imposed by the Codicil has been assumed by the lessee, and whatever obligation petitioner had become the
obligation of the lessee; that petitioner is deemed to have made a substantial and constructive compliance of his obligation through the consummated settlement between the lessee and the private respondent, and having
consummated a settlement with the petitioner, the recourse of the private respondent is the fulfillment of the obligation under the amicable settlement and not the seizure of subject property.
Suffice it to state that a Will is a personal, solemn, revocable and free act by which a person disposes of his property, to take effect after his death. 25 Since the Will expresses the manner in which a person intends how his
properties be disposed, the wishes and desires of the testator must be strictly followed. Thus, a Will cannot be the subject of a compromise agreement which would thereby defeat the very purpose of making a Will.
WHEREFORE, the petition is hereby DISMISSED and the decision of the Court of Appeals, dated December 23, 1993, in CA-G.R. No. CV-35555 AFFIRMED. No Pronouncement as to costs. prcd
SO ORDERED.
Melo, J., I concur as well in the separate opinion of Justice Vitug.
Vitug, J., see separate opininon (concurring in result).
Panganiban, J., I join the separate opinion of Justice Vitug.
Gonzaga-Reyes, J., took no part.
||| (Rabadilla v. Court of Appeals, G.R. No. 113725, [June 29, 2000], 390 PHIL 11-36)
DANILO I. SUAREZ, EUFROCINA SUAREZ-ANDRES, MARCELO I. SUAREZ, JR., EVELYN SUAREZ-DE LEON and REGINIO I. SUAREZ, petitioners, vs. THE COURT OF APPEALS,
VALENTE RAYMUNDO, VIOLETA RAYMUNDO, MA. CONCEPCION VITO and VIRGINIA BANTA, respondents.
Villareal Law Offices for petitioners.
Nelson Loyola for private respondent.
SYLLABUS
1. CIVIL LAW; WILLS AND SUCCESSION; LEGITIME; PROPRIETARY INTEREST OF THE CHILDREN, DIFFERENT AND ADVERSE FROM THEIR MOTHER. The legitime of the surviving spouse is equal to
the legitime of each child. The proprietary interest of petitioners in the levied and auctioned property is different from and adverse to that of their mother. Petitioners became co-owners of the property not because of
their mother but through their own right as children of their deceased father. Therefore, petitioners are not barred in any way from instituting the action to annul the auction sale to protect their own interest.
DECISION
NOCON, J p:
The ultimate issue before Us is whether or not private respondents can validly acquire all the five (5) parcels of land co-owned by petitioners and registered in the name of petitioners' deceased father, Marcelo Suarez,
whose estate has not been partitioned or liquidated, after the said properties were levied and publicly sold en masse to private respondents to satisfy the personal judgment debt of Teofista Suarez, the surviving spouse of
Marcelo Suarez, mother of herein petitioners. LLphil
The undisputed facts of the case are as follows:
Herein petitioners are brothers and sisters. Their father died in 1955 and since then his estate consisting of several valuable parcels of land in Pasig, Metro Manila has lot been liquidated or partitioned. In 1977, petitioners'
widowed mother and Rizal Realty Corporation lost in the consolidated cases for rescission of contract and for damages, and were ordered by Branch 1 of the then Court of First Instance of Rizal (now Branch 151, RTC of
Pasig) to pay, jointly and severally, herein respondents the aggregate principal amount of about P70,000 as damages. 1
The judgment against petitioners' mother and Rizal Realty Corporation having become final and executory, five (5) valuable parcel of land in Pasig, Metro Manila, (worth to be millions then) were levied and sold on
execution on June 24, 1983 in favor of the private respondents as the highest bidder for the amount of P94,170.000. Private respondents were then issued a certificate of sale which was subsequently registered or August
1, 1983.
On June 21, 1984 before the expiration of the redemption period, petitioners filed a reivindicatory action 2 against private respondents and the Provincial Sheriff of Rizal, thereafter docketed as Civil Case No. 51203, for the
annulment of the auction sale and the recovery of the ownership of the levied pieces of property. Therein, they alleged, among others, that being strangers to the case decided against their mother, they cannot be held
liable therefor and that the five (5) parcels of land, of which they are co-owners, can neither be levied nor sold on execution.
On July 31, 1984, the Provincial Sheriff of Rizal issued to private respondents a final deed of sale 3 over the properties.
On October 22, 1984, Teofista Suarez joined by herein petitioners filed with Branch 151 a Motion for Reconsideration 4 of the Order dated October 10, 1984, claiming that the parcels of land are co-owned by them and
further informing the Court the filing and pendency of an action to annul the auction sale (Civil Case No. 51203), which motion however, was denied. LibLex
On February 25, 1985, a writ of preliminary injunction was issued enjoining private respondents from transferring to third parties the levied parcels of land based on the finding that the auctioned lands are co-owned by
petitioners.
On March 1, 1985, private respondent Valente Raymundo filed in Civil Case No. 51203 a Motion to Dismiss for failure on the part of the petitioners to prosecute, however, such motion was later denied by Branch 155,
Regional Trial Court, Pasig.
On December 1985, Raymundo filed in Civil Case No. 51203 an Ex-Parte Motion to Dismiss complaint for failure to prosecute. This was granted by Branch 155 through an Order dated May 29, 1986, notwithstanding
petitioner's pending motion for the issuance of alias summons to be served upon the other defendants in the said case. A motion for reconsideration was filed but was later denied.
On October 10, 1984, RTC Branch 151 issued in Civil Case Nos. 21736-21739 an Order directing Teofista Suarez and all persons claiming right under her to vacate the lots subject of the judicial sale; to desist from
removing or alienating improvements thereon; and to surrender to private respondents the owner's duplicate copy of the torrens title and other pertinent documents.
Teofista Suarez then filed with the then Court of Appeals a petition for certiorari to annul the Orders of Branch 151 dated October 10, 1984 and October 14, 1986 issued in Civil Case Nos. 21736-21739.
On December 4, 1986 petitioners filed with Branch 155 a Motion for reconsideration of the Order 5 dated September 24, 1986. In an Order dated June 10, 1987, 6 Branch 155 lifted its previous order of dismissal and
directed the issuance of alias summons. LLpr
Respondents then appealed to the Court of Appeals seeking to annul the orders dated February 25, 1985, 7 May 19, 1989 8 and February 26, 1990 9 issued in Civil Case No. 51203 and further ordering respondent Judge
to dismiss Civil Case No. 51203. The appellate court rendered its decision on July 27, 1990, 10 the dispositive portion of which reads:
"WHEREFORE, the petition for certiorari is hereby granted and the questioned orders dated February 25, 1985, May 19, 1989 and February 26, 1990 issued in Civil Case No. 51203 are hereby
annulled, further respondent Judge is ordered to dismiss Civil Case No. 51203." 11
Hence, this appeal.
Even without touching on the incidents and issues raised by both petitioner and private respondents and the developments subsequent to the filing of the complaint, We cannot but notice the glaring error committed by the
trial court.
It would be useless to discuss the procedural issue on the validity of the execution and the manner of publicly selling en masse the subject properties for auction. To start with, only one-half of the 5 parcels of land should
have been the subject of the auction sale.

The law in point is Article 777 of the Civil Code, the law applicable at the time of the institution of the case.
"The rights to the succession are transmitted from the moment of the death of the decedent."
Article 888 further provides: prLL
"The legitime of the legitimate children and descendants consists of one-half of the hereditary estate of the father and of the mother.
The latter may freely dispose of the remaining half, subject to the rights of illegitimate children and of the surviving spouse as hereinafter provided."
Article 892, par. 2 likewise provides:
"If there are two or more legitimate children or descendants, the surviving spouse shall be entitled to a portion equal to the legitime of each of the legitimate children or descendants."
Thus, from the foregoing, the legitime of the surviving spouse is equal to the legitime of each child.
The proprietary interest of petitioners in the levied and auctioned property is different from and adverse to that of their mother. Petitioners became co-owners of the property not because of their mother but through their
own right as children of their deceased father. Therefore, petitioners are not barred in any way from instituting the action to annul the auction sale to protect their own interest.
WHEREFORE, the decision of the Court of Appeals dated July 27, 1990 as well as its Resolution of August 28, 1990 are hereby REVERSED and set aside; and Civil Case No. 51203 is reinstated only to determine that
portion which belongs to petitioners and to annul the sale with regard to said portion. LLphil
SO ORDERED.
Narvasa, C .J ., Padilla and Regalado, JJ ., concur.
Melo, J ., took no part.
CARMEN LAPUZ SY, represented by her substitute MACARIO LAPUZ,petitioner-appellant, vs. EUFEMIO S. EUFEMIO alias EUFEMIO SY UY, respondent-appellee.
Jose W. Diokno for petitioner and appellant.
Deogracias C. Eufemio for respondent and appellee.
SYLLABUS
1. CIVIL LAW; ACTION FOR LEGAL SEPARATION; NATURE OF ACTION; EFFECT OF DEATH OF PLAINTIFF BEFORE FINAL DECREE. The death of the plaintiff before final decree in an action for legal
separation abates the action. An action for legal separation which involves nothing more than the bed-and-board separation of the spouses (there being no absolute divorce in this jurisdiction) is purely personal. The
Civil Code of the Philippines recognizes this in its Article 100, by allowing only the innocent spouse (and no one else) to claim legal separation and in its article 108, by providing that the spouses can, by
reconciliation, stop or abate the proceedings and even rescind a decree of legal separation already rendered. Being personal in character, it follows that the death of one party to the action causes the death of the
action itself actio personalis moritur cum persona.
2. ID.; ID.; ID.; EFFECT OF DEATH OF PLAINTIFF BEFORE FINAL DECREE ON PROPERTY RELATIONS. A review of the resulting changes in property relations between spouses shows that they are solely
the effect of the decree of legal separation; hence, they can not survive the death of the plaintiff if it occurs prior to the decree.
3. ID.; ID.; ID.; ID.; CLAIM TO RIGHTS UNDER ART. 106, CIVIL CODE OF THE PHILIPPINES, EXTINGUISHED UPON THE DEATH OF THE SPOUSE INVOLVED. From Art. 106 of the Civil Code of the
Philippines it is apparent that the right to the dissolution of the conjugal partnership or gains (or of the absolute community of property), the loss of right by the offending spouse to any share of the profits earned by
the partnership or community, or his disqualification to inherit by intestacy from the innocent spouse as well as revocation testamentary provisions in favor of the offending spouse made by the innocent one, are all
rights and disabilities that, by the very terms of Civil Code article, are vested exclusively in the persons of the spouses; and by their nature and intent, such claims and disabilities are difficult to conceive as
assignable or transmissible. Hence, a claim to said rights is not a claim that "is not thereby extinguished" after a party dies, under section 17 Rule 3 of the Rules of Court, to warrant continuation of the action through
a substitute of the deceased party. The same result flows from a consideration of the enumeration of the actions that survive for or against administrators in Section 1, Rule 67, of the Revised Rules of Court which
shows that neither action for legal separation or for annulment of marriage can be deemed fairly included therein.
4. ID.; ID.; ID.; ID.; ID.; REASON. The reason why an action is abated by the death of the plaintiff, even if property rights are involved, is that these rights are mere effects of a decree of separation, their source
being the decree itself; without the decree such rights do not come into existence, so that before the finality of a decree, these claims are merely rights in expectation. If death supervenes during the pendency of the
action, no decree can be forthcoming, death producing a more radical and definitive separation; and the expected consequential rights and claims would necessarily remain unborn.
5. ID.; ID.; ID.; ACTION FOR DECLARATION OF NULLITY AB INITIO OF MARRIAGE; EFFECT OF DEATH OF PLAINTIFF UPON DEFENDANT'S PROPERTY RIGHTS. A petition for a declaration of nullity ab
initio of marriage becomes moot and academic upon the death of the wife, and there could be no further interest in continuing the same after her demise, that automatically dissolved the questioned union. Any
property rights acquired by either party as a result of Art. 144 of the Civil Code of the Philippines could be resolved and determined in a proper action for partition by either the appellee or by the heirs of the appellant.
6. ID.; ID.; ID.; ACTION FOR ANNULMENT OF BIGAMOUS VOIDABLE MARRIAGE; EFFECT OF DEATH OF ONE PARTY; PROPER PROCEEDINGS FOR LIQUIDATION CONJUGAL PARTNERSHIP. Even if
the bigamous marriage had not been void ab initio but only voidable under Article 83, par. 2 of the Civil Code, because the second marriage had been contracted with the first wife having been an absentee for seven
consecutive years, or when she had been generally believed dead, still the action for annulment became extinguished as soon as one of the three persons involved had died, as provided in Article 87, par. 2 of the
Code, requiring that the action for annulment should be brought during the lifetime of any one of the parties involved. And furthermore, the liquidation of any conjugal partnership might have resulted from such
voidable marriage must be carried out "in the testate or intestate proceedings of the deceased spouse", as expressly provided in section 3 of the Revised Rule 73, and not in the annulment proceedings.
DECISION
REYES, J.B.L., J p:
Petition, filed after the effectivity of Republic Act 5440, for review by certiorari of an order, dated 29 July 1969, of the Juvenile and Domestic Relations Court of Manila, in its Civil Case No. 20387, dismissing said case for
legal separation on the ground that the death of the therein plaintiff, Carmen O. Lapuz Sy, which occurred during the pendency of the case, abated the cause of action as well as the action itself. The dismissal order was
issued over the objection of Macario Lapuz, the heir of the deceased plaintiff (and petitioner herein) who sought to substitute the deceased and to have the case prosecuted to final judgment.
On 18 August 1953, Carmen O. Lapuz Sy filed a petition for legal separation against Eufemio S. Eufemio, alleging, in the main, that they were married civilly on 21 September 1934 and canonically on 30 September 1934;
that they had lived together as husband and wife continuously until 1943 when her husband abandoned her; that they had no child; that they acquired properties during their marriage; and that she discovered her husband
cohabiting with a Chinese woman named Go Hiok at 1319 Sisa Street, Manila, on or about March 1949. She prayed for the issuance of a decree of legal separation, which, among others, would order that the defendant
Eufemio S. Eufemio should be deprived of his share of the conjugal partnership profits.
In his second amended answer to the petition, herein respondent Eufemio S. Eufemio alleged affirmative and special defenses, and, along with several other claims involving money and other properties, counterclaimed for
the declaration of nullity ab initio of his marriage with Carmen O. Lapuz Sy, on the ground of his prior and subsisting marriage, celebrated according to Chinese law and customs, with one Go Hiok, alias Ngo Hiok.
Issues having been joined, trial proceeded and the parties adduced their respective evidence. But before the trial could be completed (the respondent was already scheduled to present surrebuttal evidence on 9 and 18
June 1969), petitioner Carmen O. Lapuz Sy died in a vehicular accident on 31 May 1969. Counsel for petitioner duly notified the court of her death.
On 9 June 1969, respondent Eufemio moved to dismiss the "petition for legal separation" 1 on two (2) grounds, namely: that the petition for legal separation was filed beyond the one-year period provided for in Article 102
of the Civil Code; and that the death of Carmen abated the action for legal separation.
On 26 June 1969, counsel for deceased petitioner moved to substitute the deceased Carmen by her father, Macario Lapuz. Counsel for Eufemio opposed the motion.
On 29 July 1969, the court issued the order under review, dismissing the case. 2 In the body of the order, the court stated that the motion to dismiss and the motion for substitution had to be resolved on the question of
whether or not the plaintiff's cause of action has survived, which the court resolved in the negative. Petitioner's moved to reconsider but the motion was denied on 15 September 1969.
After first securing an extension of time to file a petition for review of the order of dismissal issued by the juvenile and domestic relations court, the petitioner filed the present petition on 14 October 1969. The same was
given due course and answer thereto was filed by respondent, who prayed for the affirmance of the said order. 3

Although the defendant below, the herein respondent Eufemio S. Eufemio, filed counterclaims, he did not pursue them after the court below dismissed the case. He acquiesced in the dismissal of said counterclaims by
praying for the affirmance of the order that dismissed not only the petition for legal separation but also his counterclaim to declare the Eufemio-Lapuz marriage to be null and void ab initio.
But petitioner Carmen O. Lapuz Sy (through her self-assumed substitute for the lower court did not act on the motion for substitution) stated the principal issue to be as follows:
"When an action for legal separation is converted by the counterclaim into one for a declaration of nullity of a marriage, does the death of a party abate the proceedings?"
The issue as framed by petitioner injects into it a supposed conversion of a legal separation suit to one for declaration of nullity of a marriage, which is without basis, for even petitioner asserted that "the respondent has
acquiesced to the dismissal of his counterclaim" (Petitioner's Brief, page 22). Not only this. The petition for legal separation and the counterclaim to declare the nullity of the self same marriage can stand independent and
separate adjudication. They are not inseparable nor was the action for legal separation converted into one for a declaration of nullity by the counterclaim, for legal separation presupposes a valid marriage, while the petition
for nullity has a voidable marriage as a precondition.
The first real issue in this case is: Does the death of the plaintiff before final decree, in an action for legal separation, abate the action? If it does, will abatement also apply if the action involves property rights?
An action for legal separation which involves nothing more than the bed-and-board separation of the spouses (there being no absolute divorce in this jurisdiction) is purely personal. The Civil Code of the Philippines
recognizes this in its Article 100, by allowing only the innocent spouse (and no one else) to claim legal separation; and in its Article 108, by providing that the spouses can, by their reconciliation, stop or abate the
proceedings and even rescind a decree of legal separation already rendered. Being personal in character, it follows that the death of one party to the action causes the death of the action itself actio personalis moritur
cum persona.
". . . When one of the spouses is dead, there is no need for divorce, because the marriage is dissolved. The heirs cannot even continue the suit, if the death of the spouse takes
place during the course of the suit (Article 244, Section 3). The action is absolutely dead (Cass., July 27, 1871, D. 71. 1. 81; Cass. req., May 8, 1933, D. D. 1933, 332." 4
"Marriage is a personal relation or status, created under the sanction of law, and an action for divorce is a proceeding brought for the purpose of effecting a dissolution of that
relation. The action is one of a personal nature. In the absence of a statute to the contrary, the death of one of the parties to such action abates the action, for the reason that death has
settled the question of separation beyond all controversy and deprived the court of jurisdiction, both over the persons of the parties to the action and of the subject-matter of the action itself.
For this reason the courts are almost unanimous in holding that the death of either party to a divorce proceeding, before final decree, abates the action. 1 Corpus Juris, 208; Wren v. Moss,
2 Gilman, 72; Danforth v. Danforth, 111 III. 236; Matter of Grandall, 196 N.Y. 127, 89 N.E. 578; 134 Am St. Rep. 830; 17 Ann. Cas. 874; Wilcon v. Wilson, 73 Mich, 620, 41 N.W. 817;
Strickland v. Strickland, 80 Ark. 452, 97 S. W. 659; McCurley v. McCurley, 60 Md. 185. 45 Am. Rep. 717; Begbie v. Begbie, 128 Cal. 155, 60 Pac. 667, 49 L.R.A. 141." 5
The same rule is true of causes of action and suits for separation and maintenance (Johnson vs. Bates, Ark. 101 SW 412; 1 Corpus Juris 208).
A review of the resulting changes in property relations between spouses shows that they are solely the effect of the decree of legal separation; hence, they can not survive the death of the plaintiff if it occurs prior to the
decree. On the point, Article 106 of the Civil Code provides:
"Art. 106. The decree of legal separation shall have the following effects:
"(1) The spouses shall be entitled to live separately from each other, but the marriage bonds shall not be severed;
"(2) The conjugal partnership of gains or the absolute conjugal community of property shall be dissolved and liquidated, but the offending spouse shall have no right to any
share of the profits earned by the partnership or community, without prejudice to the provisions of article 176;
"(3) The custody of the minor children shall be awarded to the innocent spouse, unless otherwise directed by the court in the interest of said minors, for whom said court
may appoint a guardian;
"(4) The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate succession. Moreover, provisions in favor of the offending spouse
made in the will of the innocent one shall be revoked by operation of law." . . .
From this article it is apparent that the right to the dissolution of the conjugal partnership of gains (or of the absolute community of property), the loss of right by the offending spouse to any share of the profits earned by the
partnership or community, or his disqualification to inherit by intestacy from the innocent spouse as well as the revocation of testamentary provisions in favor of the offending spouse made by the innocent one, are all rights
and disabilities that, by the very terms of the Civil Code article, are vested exclusively in the persons of the spouses; and by their nature and intent, such claims and disabilities are difficult to conceive as assignable or
transmissible. Hence, a claim to said rights is not a claim that "is not thereby extinguished" after a party dies, under Section 17, Rule 3, of the Rules of Court, to warrant continuation of the action through a substitute of the
deceased party.
"Sec. 17. Death of party. After a party dies and the claim is not thereby extinguished, the court shall order, upon proper notice, the legal representative of the deceased to
appear and to be substituted for the deceased, within a period of thirty (30) days, or within such time as may be granted. . . ."
The same result flows from a consideration of the enumeration of the actions that survive for or against administrators in Section 1, Rule 87, of the Revised Rules of Court:
"SECTION 1. Actions which may and which may not be brought against executor or administrator. No action upon a claim for the recovery of money or debt or interest
thereon shall be commenced against the executor or administrator; but actions to recover real or personal property, or an interest therein, from the estate, or to enforce a lien thereon,
and actions to recover damages for an injury to person or property, real or personal, may be commenced against him."
Neither actions for legal separation or for annulment of marriage can be deemed fairly included in the enumeration.
A further reason why an action for legal separation is abated by the death of the plaintiff, even if property rights are involved, is that these rights are mere effects of a decree of separation, their source being the decree
itself; without the decree such rights do not come into existence, so that before the finality of a decree, these claims are merely rights in expectation. If death supervenes during the pendency of the action, no decree can be
forthcoming, death producing a more radical and definitive separation; and the expected consequential rights and claims would necessarily remain unborn.
As to the petition of respondent-appellee Eufemio for a declaration of nullity ab initio of his marriage to Carmen Lapuz, it is apparent that such action became moot and academic upon the death of the latter, and there
could be no further interest in continuing the same after her demise, that automatically dissolved the questioned union. Any property rights acquired by either party as a result of Article 144 of the Civil Code of the
Philippines 6 could be resolved and determined in a proper action for partition by either the appellee or by the heirs of the appellant.
In fact, even if the bigamous marriage had not been void ab initio but only voidable under Article 83, paragraph 2, of the Civil Code, because the second marriage had been contracted with the first wife having been an
absentee for seven consecutive years, or when she had been generally believed dead, still the action for annulment became extinguished as soon as one of the three persons involved had died, as provided in Article 87,
paragraph 2, of the Code, requiring that the action for annulment should be brought during the lifetime of any one of the parties involved. And furthermore, the liquidation of any conjugal partnership that might have resulted
from such voidable marriage must be carried out "in the testate or intestate proceedings of the deceased spouse", as expressly provided in Section 2 of the Revised Rule 73, and not in the annulment proceeding.
ACCORDINGLY, the appealed judgment of the Manila Court of Juvenile and Domestic Relations is hereby affirmed. No special pronouncement as to costs.
Concepcion, C.J., Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo, Villamor and Makasiar, JJ., concur.
||| (Sy v. Eufemio, G.R. No. L-30977, [January 31, 1972], 150 PHIL 204-213)
JOSE BARITUA and EDGAR BITANCOR, petitioners, vs. HONORABLE COURT OF APPEALS, NICOLAS NACARIO and VICTORIA RONDA NACARIO, respondents.
Ernesto A. Atienza for private respondents.
SYLLABUS
1. CIVIL LAW; OBLIGATION; MODES OF EXTINGUISHMENT. Obligations are extinguished by various modes among them being by payment. Article 1231 of the Civil Code of the Philippines provides: Art. 1231.
Obligations are extinguished: (1) By payment or performance; (2) By the loss of the thing due; (3) By the condonation or remission of the debt; (4) By the confusion or merger of the rights of creditor and debtor; (5)
By compensation; (6) By novation.

2. ID.; ID.; ID.; SUCCESSORS IN INTEREST AUTHORIZED TO RECEIVE PAYMENT IN FAVOR OF DECEASED PERSON. Article 1240 of the Civil Code of the Philippines enumerates the persons to whom
payment to extinguish an obligation should be made. Art. 1240. Payment shall be made to the person in whose favor the obligation has been constituted, or his successor in interest, or any person authorized to
receive it. Certainly there can be no question that Alicia and her son with the deceased are the successors in interest referred to in law as the persons authorized to receive payment.
3. ID.; WILLS AND SUCCESSION; COMPULSORY HEIRS; PARENTS OF THE DECEASED SUCCEED ONLY WHEN THE LATTER DIES WITHOUT A LEGITIMATE DESCENDANT. The Civil Code states: Article
887. The following are compulsory heirs: 1. Legitimate children and descendants, with respect to their legitimate parents and ascendants; 2. In default of the foregoing, legitimate parents and ascendants, with
respect to their legitimate children and descendants; 3. The widow or widower; 4. Acknowledged natural children, and natural children by legal fiction; 5. Other illegitimate children referred to in Article 287.
Compulsory heirs mentioned in Nos. 3, 4 and 5 are not excluded by those in Nos. 1 and 2. Neither do they exclude one another. Article 985. In default of legitimate children and descendants of the deceased, his
parents and ascendants shall inherit from him, to the exclusion of collateral relatives. It is patently clear that the parents of the deceased succeed only when the latter dies without a legitimate descendant. On the
other hand, the surviving spouse concurs with all classes of heirs. As it has been established that Bienvenido was married to Alicia and that they begot a child, the private respondents are not successors-in-interest
of Bienvenido; they are not compulsory heirs.
4. ID.; ID.; ID.; ESTRANGEMENT OF SURVIVING SPOUSE WITH THE DECEASED SPOUSE, NOT A GROUND FOR DISQUALIFICATION. The petitioners acted correctly in settling their obligation with Alicia as
the widow of Bienvenido and as the natural guardian of their lone child. This is so even if Alicia had been estranged from Bienvenido. Mere estrangement is not a legal ground for the disqualification of a surviving
spouse as an heir of the deceased spouse.
5. REMEDIAL LAW; SPECIAL PROCEEDINGS; CLAIMS AGAINST THE ESTATE; LOAN FOR THE PURCHASE OF PERSONAL PROPERTY AND FUNERAL EXPENSES CONSIDERED MONEY CLAIMS
AGAINST THE ESTATE OF THE DECEASED. Private respondents, as alleged creditors of Bienvenido, seek relief and compensation from the petitioners. While it may be true that the private respondents loaned
to Bienvenido the purchase price of the damaged tricycle and shouldered the expenses for his funeral, the said purchase price and expenses are but money claims against the estate of their deceased son.
DECISION
SARMIENTO, J p:
This petition for review on certiorari assails as erroneous and contrary to existing relevant laws and applicable jurisprudence the decision 1 of the Court of Appeals dated December 11, 1987 which reversed and set aside
that of the Regional Trial Court, Branch XXXII, at Pili, Camarines Sur. 2 The challenged decision adjudged the petitioners liable to the private respondents in the total amount of P20,505.00 and for costs. LexLib
The facts are as follows:
In the evening of November 7, 1979, the tricycle then being driven by Bienvenido Nacario along the national highway at Barangay San Cayetano, in Baao, Camarines Sur, figured in an accident with JB Bus No. 80 driven
by petitioner Edgar Bitancor and owned and operated by petitioner Jose Baritua. 3 As a result of that accident Bienvenido and his passenger died, 4 and the tricycle was damaged. 5 No criminal case arising from the
incident was ever instituted. 6
Subsequently, on March 27, 1980, as a consequence of the extra-judicial settlement of the matter negotiated by the petitioners and the bus' insurer Philippine First Insurance Company, Incorporated (PFICI for brevity)
Bienvenido Nacario's widow, Alicia Baracena Vda. de Nacario, received P18,500.00. In consideration of the amount she received, Alicia executed on March 27, 1980 a "Release of Claim" in favor of the petitioners and
PFICI, releasing and forever discharging them from all actions, claims, and demands arising from the accident which resulted in her husband's death and the damage to the tricycle which the deceased was then driving.
Alicia likewise executed an affidavit of desistance in which she formally manifested her lack of interest in instituting any case, either civil or criminal, against the petitioners. 7
On September 2, 1981, or about one year and ten months from the date of the accident on November 7, 1979, the private respondents, who are the parents of Bienvenido Nacario, filed a complaint for damages against the
petitioners with the then Court of First Instance of Camarines Sur. 8 In their complaint, the private respondents alleged that during the vigil for their deceased son, the petitioners through their representatives promised them
(the private respondents) that as extra-judicial settlement, they shall be indemnified for the death of their son, for the funeral expenses incurred by reason thereof, and for the damage to the tricycle the purchase price of
which they (the private respondents) only loaned to the victim. The petitioners, however, reneged on their promise and instead negotiated and settled their obligations with the long-estranged wife of their late son. The
Nacario spouses prayed that the defendants, petitioners herein, be ordered to indemnify them in the amount of P25,000.00 for the death of their son Bienvenido, P10,000.00 for the damaged tricycle, P25,000.00 for
compensatory and exemplary damages, P5,000.00 for attorney's fees, and for moral damages. 9
After trial, the court a quo dismissed the complaint, holding that the payment by the defendants (herein petitioners) to the widow and her child, who are the preferred heirs and successors-in-interest of the deceased
Bienvenido to the exclusion of his parents, the plaintiffs (herein private respondents), extinguished any claim against the defendants (petitioners). 10
The parents appealed to the Court of Appeals which reversed the judgment of the trial court. The appellate court ruled that the release executed by Alicia Baracena Vda. de Nacario did not discharge the liability of the
petitioners because the case was instituted by the private respondents in their own capacity and not as "heirs, representatives, successors, and assigns" of Alicia; and Alicia could not have validly waived the damages
being prayed for (by the private respondents) since she was not the one who suffered these damages arising from the death of their son. Furthermore, the appellate court said that the petitioners "failed to rebut the
testimony of the appellants (private respondents) that they were the ones who bought the tricycle that was damaged in the incident. Appellants had the burden of proof of such fact, and they did establish such fact in their
testimony . . . ." 11 Anent the funeral expenses," (T)he expenses for the funeral were likewise shouldered by the appellants (the private respondents). This was never contradicted by the appellees (petitioners). . . . Payment
(for these) were made by the appellants, therefore, the reimbursement must accrue in their favor." 12
Consequently, the respondent appellate court ordered the petitioners to pay the private respondents P10,000.00 for the damage of the tricycle, P5,000.00 for "complete" funeral services, P450.00 for cemetery lot, P55.00
for oracion adulto, and P5,000.00 for attorney's fees. 13 The petitioners moved for a reconsideration of the appellate court's decision 14 but their motion was denied. 15 Hence, this petition. cdll
The issue here is whether or not the respondent appellate court erred in holding that the petitioners are still liable to pay the private respondents the aggregate amount of P20,505.00 despite the agreement of extrajudicial
settlement between the petitioners and the victim's compulsory heirs.
The petition is meritorious.
Obligations are extinguished by various modes among them being by payment. Article 1231 of the Civil Code of the Philippines provides:
Art. 1231. Obligations are extinguished:
(1) By payment or performance;
(2) By the loss of the thing due;
(3) By the condonation or remission of the debt;
(4) By the confusion or merger of the rights of creditor and debtor;
(5) By compensation;
(6) By novation.
(Emphasis ours.)
There is no denying that the petitioners had paid their obligation arising from the accident that occurred on November 7, 1979. The only question now is whether or not Alicia, the surviving spouse and the one who received
the petitioners' payment, is entitled to it. LLpr
Article 1240 of the Civil Code of the Philippines enumerates the persons to whom payment to extinguish an obligation should be made.
Art. 1240. Payment shall be made to the person in whose favor the obligation has been constituted, or his successor in interest, or any person authorized to receive it.
Certainly there can be no question that Alicia and her son with the deceased are the successors in interest referred to in law as the persons authorized to receive payment. The Civil Code states:
Article 887. The following are compulsory heirs:
1. Legitimate children and descendants, with respect to their legitimate parents and ascendants;

2. In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants;
3. The widow or widower;
4. Acknowledged natural children, and natural children by legal fiction;
5. Other illegitimate children referred to in Article 287.
Compulsory heirs mentioned in Nos. 3, 4 and 5 are not excluded by those in Nos. 1 and 2. Neither do they exclude one another. (Emphasis ours.)
Article 985. In default of legitimate children and descendants of the deceased, his parents and ascendants shall inherit from him, to the exclusion of collateral relatives.(Emphasis ours.) Cdpr
It is patently clear that the parents of the deceased succeed only when the latter dies without a legitimate descendant. On the other hand, the surviving spouse concurs with all classes of heirs. As it has been established
that Bienvenido was married to Alicia and that they begot a child, the private respondents are not successors-in-interest of Bienvenido; they are not compulsory heirs. The petitioners therefore acted correctly in settling their
obligation with Alicia as the widow of Bienvenido and as the natural guardian of their lone child. This is so even if Alicia had been estranged from Bienvenido. Mere estrangement is not a legal ground for the disqualification
of a surviving spouse as an heir of the deceased spouse.
Neither could the private respondents, as alleged creditors of Bienvenido, seek relief and compensation from the petitioners. While it may be true that the private respondents loaned to Bienvenido the purchase price of the
damaged tricycle and shouldered the expenses for his funeral, the said purchase price and expenses are but money claims against the estate of their deceased son. 16 These money claims are not the liabilities of the
petitioners who, as we have said, had been released by the agreement of the extra-judicial settlement they concluded with Alicia Baracena Vda. de Nacario, the victim's widow and heir, as well as the natural guardian of
their child, her co-heir. As a matter of fact, she executed a "Release Of Claim" in favor of the petitioners.
WHEREFORE, the petition is GRANTED; the decision of the Court of Appeals is REVERSED and SET ASIDE and the decision of the Regional Trial Court is hereby REINSTATED. Costs against the private respondents.
prLL
SO ORDERED.
Melencio-Herrera, Paras, Padilla and Regalado, JJ., concur.
||| (Baritua v. Court of Appeals, G.R. No. 82233, [March 22, 1990], 262 PHIL 618-625)
IRENE REYES (alias IRENE RAMERO, alias IRENE DELGADO), MOISES VILLANUEVA and GENOVEVA RAMERO, petitioners, vs. COURT OF APPEALS, PLACIDA DELGADO, DOMINGO DELGADO,
PAULA. DELGADO and MAXIMINA DELGADO, respondents.
Ruben M. Orteza for petitioner.
Leovigildo L. Cerilla for private respondents.
SYLLABUS
1. CIVIL LAW; SUCCESSION; ILLEGITIMATE CHILDREN; TO INHERIT, AN ILLEGITIMATE CHILD MUST BE RECOGNIZED. The doctrine that for an illegitimate child other than natural to inherit must be first
recognized voluntarily or by court action is well settled in Our Jurisprudence (Bercilles vs. GSIS, 128 SCRA 53 [1984]).
2. ID.; PERSONS; CLASSIFICATION OF ILLEGITIMATE CHILDREN; TO CLASSIFY UNRECOGNIZED NATURAL CHILDREN UNDER THE CLASS OF SPURIOUS CHILDREN IS NOT LEGALLY POSSIBLE.
There are two (2) general classifications of illegitimate children or those who are conceived and born out of wedlock. They may be either natural (actually or by fiction) or spurious (the incestuous, adulterous or illicit).
Natural children are defined as those born outside of wedlock of parents, who at the time of conception of the former, were not disqualified by any impediment to many each other (Article 269, New Civil Code). On
the other hand, spurious children are those born of parents, who at the time of their conception, are disqualified to marry each other on account of certain impediment. Because of this basic distinction between these
children, it is not legally class possible to classify unrecognized natural children under the class of spurious children.
3. ID.; ID.; ILLEGITIMATE CHILDREN OTHER THAN NATURAL, UNDER ARTICLE 287 OF THE CIVIL CODE; REFERS TO NATURAL CHILD PROPER BY BIRTH AND WHO HAVE NOT SECURED
RECOGNITION. Besides, commentators construe the phrase "illegitimate children other than natural" as excluding from the grants of rights under Article 287 of the New Civil Code those children who are natural
child proper by birth and who have not secured voluntary or compulsory recognition (p. 276. An Outline of Civil Law, J.B.L. Reyes and R.C. Puno, Vol. 1). They fall within the scope of the definition of natural children
enumerated in Article 269, New Civil Code (p. 142, Civil Law. Reviewer, D. Jurado, 1982 ed.).
4. ID.; ID.; ID.; UNRECOGNIZED NATURAL CHILD HAS NO RIGHTS AGAINST PARENT OR HIS ESTATE; RIGHT SPRINGS FROM ACKNOWLEDGMENT BY THE NATURAL PARENTS. It is an elementary
and basic principle under the old and new Civil Code, that an unrecognized natural child has no rights whatsoever against his parent or his estate. His rights spring not from the filiation itself, but from the child's
acknowledgment by the natural parent (Alabat vs. Alabat, 21 SCRA 1479 [19671]).
5. ID.; ID.; ID.; RECOGNITION; CERTIFIED COPY OF BIRTH CERTIFICATE, NOT SUFFICIENT RECOGNITION. It can be seen from the record of birth (Exhibit "L-2") that the name of the petitioner was Irene
Ramero, and signed by Genoveva Ramero and of an unknown father. This was certified to by the treasurer of the municipality of Alitagtag, Batangas (Exhibits "L" and "L-1"). Another certified copy of another birth
certificate issued by the municipal treasurer and local civil registrar of the municipality of Alitagtag (Exhibit "20") stated therein that the name of the child is Irene Ramero, and the name of the father is "Francisco" and
the mother "Genoveva Ramero." Any of these records of birth cannot be sufficient recognition under the law.
6. ID.; ID.; ID.; ID.; BIRTH CERTIFICATE MUST BE SIGNED EITHER JOINTLY BY THE FATHER AND MOTHER OR BY THE MOTHER ALONE. The birth certificate to be sufficient recognition must be signed by
the father and mother jointly, or by the mother alone if the father refuses, otherwise she may be penalized (Sec. 5, Act 3753; Madredejo vs. De Leon, 55 Phil. 1 [1930]); and if the alleged father did not sign in the birth
certificate. the placing of his name by the mother, or doctor or registrar is incompetent evidence of paternity of said child (Bercilles vs. GSIS, 128 SCRA 53 [1984], Roces vs. Local Civil Registrar of Manila, 102 Phil
1050 [1958]). Since any of the certificates of birth presented were not signed by Francisco Delgado, it cannot be taken as record of birth to prove recognition of Irene Delgado; nor can this birth certificate be taken as
a recognition in a public instrument (Pareja vs. Pareja, 95 Phil. 167 [1954]).
7. ID.; ID.; ID.; ID.; CERTIFICATE OF BAPTISM IS NOT PROOF OF RECOGNITION. Irene's certificate of baptism (Exhibit "1") cannot be taken as proof of recognition (Bercilles vs. GSIS, supra; People vs.
Villeza, 127 SCRA 349 [1984]; Cid vs. Burnaman, 24 SCRA 434 [1968]; Vudaurrazaga vs. CA, 91 Phil. 492 [1952]; Capistrano vs. Gabino, 8 Phil. 135 [1907]. In the case of Macadangdang vs. CA, 100 SCRA 73
[1980]), this Court said that while baptismal certificates may be considered public documents, they are evidence only to prove the administration of the sacraments on the dates therein specified, but not the veracity
of the statements or declarations made therein with respect to his kinsfolk.
8. ID.; ID.; ID.; ID.; NEITHER STUDENT PERMANENT RECORD NOR WRITTEN CONSENT TO FATHER'S OPERATION CAN BE TAKEN AS AN AUTHENTIC WRITING. Irene's secondary student permanent
record (Exhibits "12", "13", "15" and "16") nor the written consent given by Irene to the operation of her alleged father (Exhibit "4") cannot be taken as an authentic writing. An authentic writing does not have to be a
public instrument; it is sufficient that it is genuine and not a forgery. It must generally be signed by the alleged parent (Madredejo vs. De Leon, supra) unless the whole instrument is in the handwriting of the alleged
parent and the facts mentioned therein correspond to actual and real facts (Varela vs. Villanueva, 95 Phil. 248 [1954]). Thus, Irene's secondary student permanent record and her written consent to the operation of
her father not being signed nor written in the handwriting of Francisco Delgado cannot be taken as an authentic writing to prove her recognition by her alleged father.
9. ID.; ID.; ID.; ID.; MARRIAGE CONTRACT WHERE ALLEGED FATHER GAVE CONSENT CANNOT BE TAKEN AS AUTHENTIC WRITING. The marriage contract (Exhibit "17") of Irene Delgado and Moises
Villanueva wherein it was stated that Francisco Delgado gave his consent or advice for Irene Delgado to marry and that he was her father cannot be also taken as recognition in an authentic document because it
was not signed nor in the handwriting of Francisco Delgado. It cannot also be taken as recognition in a public instrument as held in the case of Lim vs. C.A. (65 SCRA 161, 165 [1975]).
10. ID.; ID.; ID.; ID.; FAMILY PICTURES ARE NOT SUFFICIENT FOR RECOGNITION. The family pictures (Exhibits "11" to "11-E") presented by Irene showing Irene posing with Francisco Delgado cannot be a
sufficient proof of recognition. In the case of Bercilles vs. GSIS, supra, it was held that pictures do not constitute proof of filiation.
11. ID.; ID.; ID.; ID.; CHILD HAS RIGHT TO COMPEL JUDICIAL RECOGNITION; MUST BE BROUGHT WITHIN THE PROPER PRESCRIPTIVE PERIOD. She nevertheless possesses the right to compel judicial
recognition and the action for this must be brought within the proper prescriptive period (Clemea vs. Clemea, supra). Article 285 of the New Civil Code provides "that the action for the recognition of natural children
may be brought only during the lifetime of the presumed parents, except when the father or mother dies during the minority of the child, the action shall be brought within four years from the age of majority, or if after

the death of the father or of the mother a document should appear of which nothing had been heard and in which either or both parents recognize the child, the action shall be brought within four years from the
finding of the document." Since Irene was already of age (35 years old) when her alleged father died, and she had not presented any discovered document wherein her presumed father recognized her, the action to
compel recognition is already barred (Canales vs. Arrogante, 91 Phil. 6 [1952]).
AQUINO, J., dissenting opinion:
1. CIVIL LAW; ILLEGITIMATE CHILDREN; RECOGNITION; VOLUNTARY OR COMPULSORY RECOGNITION OF SPURIOUS CHILDREN OR BASTARDS IS NOT MANDATORY. In my opinion the rule requiring
voluntary or compulsory recognition for the so-called spurious children or bastards is not mandatory. Article 289 of the Civil Code does not make such recognition mandatory.
2. ID.; SUCCESSION; SPURIOUS CHILDREN; MAY INHERIT BY PROVING FILIATION ACCORDING TO RULES ON ACKNOWLEDGMENT FOR NATURAL CHILDREN. Irene's status as an heir is governed by
the Civil Code pursuant to its Article 2264. To enjoy successional rights, she has to prove her filiation as required in Article 887 of the Civil Code. To prove filiation, the rules on acknowledgment for natural children
may be applied to spurious children. But there may be cases, where the filiation of an illegitimate child, other than natural, has been duly proven and such proof does not satisfy the requirements of recognition under
Articles 278 and 283.
3. ID.; ID.; ID.; ARTICLES 278 AND 283 ADMIT EXCEPTIONS; SUFFICIENT PROOF OF FILIATION ENTITLES THE CHILD TO SUCCESSIONAL RIGHTS; CASE AT BAR. In such exceptional cases, Articles
278 and 283 should not be applied. If sufficient proof to satisfy the judicial mind has been adduced to prove the spurious child's filiation, he or she should be entitled to successional rights. This is justified by the
liberal policy of the Civil Code towards illegitimate children. The natural child needs acknowledgment because he may become a legitimated child. The spurious child will never attain the status of a legitimate child. I
agree with Judge Lorenzo Relova that Irene's filiation as Francisco Delgado's child was duly proven within the meaning of Article 887. She is the nearest compulsory and legal heir of Francisco. She excludes the
brother, two sisters and niece of Francisco (Art. 988, Civil Code).
DECISION
MAKASIAR, J p:
This is a petition for certiorari to review the decision of the Court of Appeals Special Division of Five dated October 7, 1974 in CA-G.R. No. L-44964-R, reversing the decision of the Court of First Instance of Batangas,
Branch I, dated December 26, 1969, in Civil Case No. 1144 dismissing the action for reconveyance. cdrep
On January 29, 1967, private respondents as plaintiffs filed a complaint in the Court of first Instance of Batangas praying that the defendant Irene Reyes, alias Irene Romero or Irene Delgado, be ordered to execute a deed
of reconveyance in favor of plaintiffs Placida Delgado, Domingo Delgado, and Paula Delgado over four parcels of land located in Tayabas, Quezon, and one parcel of land located in Pagbilao, Quezon, and another deed of
reconveyance in favor of plaintiff Maximina Delgado over three parcels of land located in Alitagtag, Batangas.
It was alleged in the complaint that the defendants thru abuse of confidence, fraud, deceit, misrepresentation and other falsifications succeeded in registering in the offices of the Register of Deeds of Quezon and Batangas
a document of self-adjudication (Exhibit "24"), wherein defendant Irene Delgado alleged that she was the sole child of the deceased Francisco Delgado and entitled to inherit the parcels of lands described in the complaint;
that as a result thereof Transfer Certificate of Title Nos. 9913, 10348, 14937, T-11747 and 13489 were cancelled and new Transfer Certificates of Title were issued in the name of Irene Delgado; that defendant Irene
Delgado is not the illegitimate daughter of Francisco Delgado, who died without issue, but is the legitimate daughter of Genoveva Romero and Justino Reyes; that plaintiffs Placida Delgado, Domingo Delgado and Paula
Delgado, sisters and brother of the deceased Francisco Delgado are the heirs entitled to inherit from Francisco Delgado; and that Paula, Placido and Domingo Delgado defrayed the expenses of the last illness and the
funeral expenses of Francisco Delgado and for the purpose they borrowed the sum of P7,000.00 from their niece, plaintiff Maximina Delgado, and to pay Maximina Delgado they conveyed to her the three parcels of land
described in subparagraphs (f) to (g) of paragraph 9 of the complaint. They also alleged that the defendant spouses Irene and Moises Villanueva borrowed from plaintiffs common fund the sum of P23,000.00 which they
used in the purchase of a parcel of land (pp. 1-14, Record on Appeal; p. 63, rec.). cdll
On or about March 2, 1967, defendant Irene Delgado, one of the petitioners herein, filed an answer to the complaint and set up the affirmative defense that she is the illegitimate daughter of the defendant Genoveva
Romero and the deceased Francisco Delgado; that for several years preceding the birth of Irene Delgado, her mother Genoveva Ramero had separated from her lawful husband Justino Reyes and never reconciled since
then; and that Irene was born during the cohabitation of Francisco Delgado and Genoveva Ramero as common-law husband and wife, and since her birth, lived with Francisco Delgado and Genoveva Ramero, who reared
and treated her as their child, maintaining her and sending her through college. Defendants also denied having contracted a debt of P23,000.00 from plaintiffs, or that plaintiffs spent for the last illness and funeral of
Francisco Delgado. Irene Delgado likewise set up a counterclaim, alleging that, as the illegitimate daughter of Francisco Delgado, she has the right to represent her father to the inheritance left by her grandmother (pp. 1543, Record on Appeal; p. 63, rec.).
On March 16, 1967, the plaintiffs thru counsel filed an answer to the counterclaim denying that the defendant Irene Delgado was the illegitimate child of Francisco Delgado, and hence has no right to claim from the estate
of Francisco's mother, Benigna Castillo, and that the properties claimed by the defendant Irene Delgado no longer formed part of the estate of Benigna Castillo as she had previously disposed of them during her lifetime
(pp. 43-46, Record on Appeal; p. 63, rec.).
On August 15, 1967, a pre-trial in Civil Case No. 1144 was conducted.
On March 25, 1969, the plaintiffs filed a motion to admit an amended answer to the counterclaim posed by defendant, wherein the plaintiffs alleged that the counterclaim of the defendant, in so far as it would have the effect
of being an indirect action for acknowledgment, has already prescribed (pp. 50-55, Record on Appeal; p. 63, rec.).
On April 14, 1969, the lower court admitted the amended answer to the counterclaim over the objections of the defendant (pp. 56-61, Record on Appeal; p. 63, rec.). LibLex
After trial on the merits, the Court rendered its decision on December 26, 1969 dismissing the action for reconveyance and declaring defendant Irene Delgado the lawful owner of the eight parcels of land. The counterclaim
of Irene Delgado was dismissed for insufficiency of evidence.
Both parties appealed to the Court of Appeals (now IAC), the plaintiffs with respect to their complaint and the defendants with respect to their counterclaim.
The then Court of Appeals sitting as a Special Division of Five rendered its decision on October 7, 1974, the dispositive portion of which reads as follows:
"Wherefore, the decision of the court a quo is hereby reversed The deed of self-adjudication executed by Irene Delgado is hereby declared null and void and set aside. The transfer certificates of
title issued in the name of Irene Delgado in lieu of Transfer Certificate of Title Nos. 9913, 10348, 14937, T-11747 and 13489 are hereby canceled, and T.C.T. 9913, 10348, 14937, T-11747 and
13489 are reinstated in the name of Francisco Delgado. Likewise, the extrajudicial declaration executed by Irene Delgado adjudicating to herself the 3 parcels of land located in Alitagtag, Batangas,
with Tax Declaration Nos. 8625, 8626 and 8627 are declared null and void. No costs" (pp. 52-53, rec.).
The then Court of Appeals in arriving at this decision found that, although Irene Delgado was the spurious daughter of Francisco Delgado, she nevertheless cannot merit from the estate of the deceased Francisco Delgado
because she was not recognized either voluntarily or by court action (pp. 52-53, rec.).
The titles to the questioned lot however cannot be executed in favor of the plaintiffs; because in so doing it will be in effect a recognition by the court that the plaintiffs are the only heirs of Francisco Delgado to the prejudice
of other possible heirs or creditors of the deceased.
As to alleged loan contracted by Irene from the plaintiffs, the then Court of Appeals affirmed the lower court's decision that it was without merit, because if it were true, the plaintiffs could have demanded a receipt for such a
big amount.
The counterclaim of Irene that she has the share to the inheritance of Benigna Castillo, Francisco Delgado's mother, and her alleged share in the expenses for the sickness and funeral of Francisco Delgado which was
advanced by the plaintiffs, need not be ruled upon because of the findings that Irene is not an heir of Francisco Delgado (pp. 57-58, rec.). prLL
On December 2, 1974, defendants, petitioners herein, filed a petition to review the decision of the Court of Appeals (pp. 22-37, rec.).
On January 2, 1975, the plaintiffs, respondents herein, submitted their comment on the petition for review filed by the petitioner (pp. 67-71, rec.).
On January 15, 1975, the petition for review filed by petitioners was denied in a resolution by the First Division of the Supreme Court for lack of merit (p. 75, rec.).
On February 18, 1975, petitioners filed a motion for reconsideration (pp. 86-113, rec.).

On April 5, 1975, respondents filed their comments on the motion for reconsideration filed by petitioners (pp. 130-134, rec.).
On April 23, 1975, petitioners filed their reply to respondents' comment (pp. 118-125, rec.).
On May 23, 1975, the Supreme Court reconsidered its resolution denying petitioners' motion for reconsideration (p. 142, rec.).
In their petition, petitioners sought to reverse the decision of the Court of Appeals raising the following arguments:
1. "There are strong and cogent reasons why this Honorable Court must return to and even enhance the doctrine in Zuzuarregui vs. Zuzuarregui, considering serious flaws in the reasoning of
the currently prevailing doctrine, so that assuming arguendo and pro hac vice that Irene was not duly recognized or acknowledged as illegitimate child, she is nevertheless entitled to
successional rights as sole heir of the late Francisco Delgado, considering that her filiation as illegitimate daughter of Francisco Delgado is undisputed and beyond question" (p. 12,
Petitioner's Brief; p. 164, rec.).
2. "Upon the other hand, this time assuming arguendo and pro hac vice that under the Civil Code recognition of an 'other illegitimate' is a pre-requisite to enjoyment of rights, Irene Delgado
was legally acknowledged by her father Francisco Delgado, specially by his consent or advice to her marriage with Moises Villanueva contrary to the erroneous conclusions of the Court of
Appeals" (p. 39, Petitioner's Brief, p. 164, rec.).
The petition is without merit.
The doctrine that for an illegitimate child other than natural to inherit must be first recognized voluntarily or by court action is well settled in Our jurisprudence. (Bercilles vs. GSIS, 128 SCRA 53 [1984]; Divinagracia vs.
Rovira, 72 SCRA 307 [1976]; Clemea vs. Clemea, 24 SCRA 720 [1968]; Noble vs. Noble, 18 SCRA 1104 [1966]; Republic vs. Workmen's Compensation Commission, 13 SCRA 272 [1969]; Paulino vs. Paulino, 3 SCRA
730 [1961]; Barles vs. Ponce Enrile, 109 Phil. 522 [1960]). Cdpr
There is no reason to overturn this doctrine and revert to what was enunciated in the case of Zuzuarregui vs. Zuzuarregui (103 Phil. 346 [1958]); as suggested by herein petitioners in their first assignment of errors.
It is the contention of the petitioners that the silence of the Civil Code as to the recognition of illegitimate children other than natural, in contrast to natural children who are expressly required to be recognized in order to
inherit, only meant that illegitimate children need not be recognized in order to inherit from his or her alleged parent (p. 13, Petitioner's Brief; p. 164, rec.). Petitioners also raised the argument that under Article 287 of the
New Civil Code which reads: "Illegitimate children other than natural in accordance with Article 269 and other than natural children by legal fiction are entitled to support and such successional rights as are granted in this
code." The term "other illegitimate children" refers not only to those who are not natural or merely adulterous or incestuous but also includes natural children who were not acknowledged or recognized (p. 18, Petitioner's
Brief; p. 164, rec.). In other words, unrecognized natural children can inherit not the share of a natural child but the share of a spurious child so long as his filiation shall be duly proved. So, in effect, illegitimate children
need only to prove his filiation to inherit and such does not place him in a more advantageous position than natural children, as they are placed in the same situation.
WE do not find these arguments persuasive.
Though the Civil Code is silent with respect to spurious children as to their recognition, this Court, in applying the rules of recognition, applicable to natural children, to said spurious children, declared in Clemea vs.
Clemea, supra that:
"The considerations of fairness and justice that underlie the time limit fixed in Article 285 of the Civil Code for actions seeking compulsory acknowledgment of natural children are fully applicable, if
not more, to actions to investigate and declare the paternity of illegitimate children that are not natural. The motive that led the codifiers to restrict the period for bringing action for compulsory
recognition of natural children were stated by this Court in Serrano vs. Aragon, 22 Phil. 18, to be as follows:
'. . . the writers of the code no doubt had in mind that there would arise instances where certain illegitimate children, on account of the strong temptation due to the large estates left by deceased
persons, would attempt to establish that they were natural children of such persons in order to get part of the property, and furthermore, they considered that it is nothing but just and right that
alleged parents should have a personal opportunity to be heard. It was for these reasons and others equally as well founded that Article 137 was enacted'" (p. 724).
There are two (2) general classifications of illegitimate children or those who are conceived and born out of wedlock. They may be either natural (actually or by fiction) or spurious (the incestuous, adulterous or illicit).
Natural children are defined as those born outside of wedlock of parents, who at the time of conception of the former, were not disqualified by any impediment to marry each other (Article 269, New Civil Code). On the other
hand, spurious children are those born of parents, who at the time of their conception, are disqualified to marry each other on account of certain impediment. Because of this basic distinction between these children, it is not
legally possible to classify unrecognized natural children under the class of spurious children. Besides, commentators construe the phrase "illegitimate children other than natural" as excluding from the grants of rights
under Article 287 of the New Civil Code those children who are natural child proper by birth and who have not secured voluntary or compulsory recognition (p. 276, An Outline of Civil Law, J.B.L. Reyes and R.C. Puno, Vol.
1). They fall within the scope of the definition of natural children enumerated in Article 269, New Civil Code (p. 142, Civil Law Reviewer, D. Jurado, 1982 ed.). Lastly, to follow petitioners' contention will not be in accordance
with the consistent pronouncements of this Court. It is an elementary and basic principle under the old and new Civil Code, that an unrecognized natural child has no rights whatsoever against his parent or his estate. His
rights spring not from the filiation itself, but from the child's acknowledgment by the natural parent (Alabat vs. Alabat, 21 SCRA 1479 [1967]; Mise vs. Rodriguez, 95 Phil. 396 [1954]; Magallanes vs. CA, 95 Phil. 797 [1954];
Canales vs. Ugarte, 91 Phil. 6 [1952]; Malonda vs. Malonda, 81 Phil. 149 [1948]; Buenaventura vs. Urbano, 5 Phil. 1 [1905]).
As to the second assignment of error raised by petitioners, We find that there was no sufficient legal recognition of petitioner Irene Delgado by Francisco Delgado.
It can be seen from the record of birth (Exhibit "L-2") that the name of the petitioner was Irene Ramero, and signed by Genoveva Ramero and of an unknown father. This was certified to by the treasurer of the municipality
of Alitagtag, Batangas (Exhibits "L" and "L-1"). Another certified copy of another birth certificate issued by the municipal treasurer and local civil registrar of the municipality of Alitagtag (Exhibit "20") stated therein that the
name of the child is Irene Ramero, and the name of the father is "Francisco" and the mother "Genoveva Ramero." Any of these records of birth cannot be sufficient recognition under the law. The birth certificate, to be
sufficient recognition, must be signed by the father and mother jointly, or by the mother alone if the father refuses, otherwise she may be penalized (Sec. 5, Act 3753; Madredejo vs. De Leon, 55 Phil. 1 [1930]); and if the
alleged father did not sign in the birth certificate, the placing of his name by the mother, or doctor or registrar, is incompetent evidence of paternity of said child (Bercilles vs. GSIS, 128 SCRA 53 [1984]; Roces vs. Local Civil
Registrar of Manila, 102 Phil. 1050 [1958]). Since any of the certificates of birth presented were not signed by Francisco Delgado, it cannot be taken as record of birth to prove recognition of Irene Delgado; nor can this birth
certificate be taken as a recognition in a public instrument (Pareja vs. Pareja, 95 Phil. 167 [1954]).
Irene's certificate of baptism (Exhibit "1") cannot be taken as proof of recognition (Bercilles vs. GSIS, supra, People vs. Villeza, 127 SCRA 349 [1984]; Cid vs. Burnaman, 24 SCRA 434 [19681; Vudaurrazaga vs. CA, 91
Phil. 492 [1952]; Capistrano vs. Gabino, 8 Phil. 135 [1907]). In the case of Macadangdang vs. CA [100 SCRA 73 [1980]), this Court said that while baptismal certificates may be considered public documents, they are
evidence only to prove the administration of the sacraments on the dates therein specified, but not the veracity of the statements or declarations made therein with respect to his kinsfolk. LLpr
Irene's secondary student permanent record (Exhibits "12", "13", "15" and "16") nor the written consent given by Irene to the operation of her alleged father (Exhibit "4") cannot be taken as an authentic writing. An authentic
writing does not have to be a public instrument; it is sufficient that it is genuine and not a forgery. It must generally be signed by the alleged parent (Madredejo vs. De Leon, supra) unless the whole instrument is in the
handwriting of the alleged parent and the facts mentioned therein correspond to actual and real facts (Varela vs. Villanueva, 95 Phil. 248 [1954]). Thus, Irene's secondary student permanent record and her written consent
to the operation of her father, not being signed nor written in the handwriting of Francisco Delgado, cannot be taken as an authentic writing to prove her recognition by her alleged father.
The marriage contract (Exhibit "17") of Irene Delgado and Moises Villanueva, wherein it was stated that Francisco Delgado gave his consent or advice for Irene Delgado to marry, and that he was her father cannot be also
taken as recognition in an authentic document because it was not signed nor in the handwriting of Francisco Delgado. It cannot also be taken as recognition in a public instrument as held in the case of Lim vs. CA, (65
SCRA 161, 164 [1975]) wherein the Court said:
"According to Article 1216 of the Civil Code of 1889, public documents are those authenticated by a notary or by a competent public official, with the formalities required by law.' Thus, 'there are two
classes of public documents, those executed by private individuals which must be authenticated by notaries, and those issued by competent public officials by reason of their office.' "The public
document pointed out in Article 131 as one of the means by which recognition may be made belongs to the first class.'
"The marriage contract presented by Felisa Lim does not satisfy the requirements of solemnity prescribed by article 131 of the Civil Code of 1889. Such contract is not a written act with the
intervention of a notary; it is not an instrument executed in due form before a notary and certified by him. The marriage contract is a mere declaration by the contracting parties, in the presence of

the person solemnizing the marriage and of two witnesses of legal age, that they take each other as husband and wife, signed by signature or mark by said contracting parties and the said
witnesses, and attested by the person solemnizing the marriage. The marriage contract does not possess the requisites of a public document of recognition . . ."
The family pictures (Exhibits "11" to "11-E") presented by Irene, showing Irene posing with Francisco Delgado, cannot be a sufficient proof of recognition. In the case of Bercilles vs. (GSIS, supra, it was held that pictures do
not constitute proof of filiation.
What Irene may have proved is that she had been in continuous possession of a status of an illegitimate child who is not natural. But such fact alone without a valid recognition in a record of birth, will, statement before a
court of record, or authentic writing does not make Irene a recognized illegitimate child who is not natural. She nevertheless possesses the right to compel judicial recognition and the action for this must be brought within
the proper prescriptive period (Clemea vs. Clemea, supra). Article 285 of the New Civil Code provides "that the action for the recognition of natural children may be brought only during the lifetime of the presumed
parents, except when the father or mother dies during the minority of the child, the action shall be brought within four years from the age of majority, or if after the death of the father or of the mother a document should
appear of which nothing had been heard and in which either or both parents recognize the child, the action shall be brought within four years from the finding of the document." Since Irene was already of age (35 years old)
when her alleged father died, and she had not presented any discovered document wherein her presumed father recognized her, the action to compel recognition is already barred (Canales vs. Arrogante, 91 Phil. 6
[1952]).
WE affirm the findings of the then Court of Appeals that Irene Reyes has Irene Delgado is not an heir of the late Francisco Delgado. LLphil
WHEREFORE, THE DECISION OF THE THEN COURT OF APPEALS IS HEREBY AFFIRMED IN TOTO, WITH COSTS AGAINST PETITIONERS.
Concepcion, Jr., Abad Santos, Escolin and Cuevas, JJ., concur.
||| (Reyes v. Court of Appeals, G.R. No. 39537, [March 19, 1985], 220 PHIL 116-133)
BEATRIZ L. GONZALEZ, petitioner, vs. COURT OF FIRST INSTANCE OF MANILA (BRANCH V), BENITO F. LEGARDA, ROSARIO L. VALDES, ALEJANDRO LEGARDA, TERESA LEGARDA, JOSE
LEGARDA, BENITO LEGARDA Y FERNANDEZ, CARMEN LEGARDA Y FERNANDEZ, FILOMENA LEGARDA Y HERNANDEZ, CARMEN LEGARDA Y HERNANDEZ, ALEJANDRO LEGARDA Y
HERNANDEZ, RAMON LEGARDA Y HERNANDEZ, FILOMENA LEGARDA Y LOBREGAT, JAIME LEGARDA Y LOBREGAT, CELSO LEGARDA Y LOBREGAT, ALEJANDRO LEGARDA Y LOBREGAT, MA.
TERESA LEGARDA Y LOBREGAT, MA. ANTONIA LEGARDA Y LOBREGAT, JOSE LEGARDA Y LOBREGAT, ROSARIO LEGARDA Y LOBREGAT, BENITO LEGARDA Y LOBREGAT, EDUARDO
LEGARDA Y LOBREGAT, TRINIDAD F. LEGARDA, and the ESTATE OF DOA FILOMENA ROCES DE LEGARDA, respondents.
Eligio G. Lagman and Roberto A. Gianzon for petitioner.
Teves, Campos, Mendoza and Hernandez Baizas, Alberto and Association, Macias and Achos for private-respondents.
SYNOPSIS
The real properties left by Benito Legarda y Tuason were partitioned in three equal portions by his two daughters and the heirs of his deceased son Benito Legarda y De La Paz who was survived by his widow, Filomena
Roces y Legarda and their seven children: four daughters named, Beatriz, Rosario, Teresa and Filomena and their three sons, named Benito, Alejandro and Jose. Meanwhile. one of the daughters, Filomena, died intestate
and without an issue and her mother Filomena Roces y Legarda who became her sole heir, partitioned their one-third share in the estate of Benito Legarda y Tuason with her six surviving children and then conveyed the
properties she inherited from her deceased daughter by holographic will to her 16 grandchildren. In opposition thereto, one of the daughters Beatriz Legarda Gonzales filed a motion in the testate proceeding and an
ordinary civil action in the lower court contending that the disputed properties are resersable properties. The lower court dismissed the complaint.
On appeal by certiorari, the Supreme Court held that the properties in question are subject to raserva troncal under Art. 891 of the Civil Code which the testatrix as reservor could not dispose by holographic will to the
reservees within the third degree (her sixteen grandchildren) and deprive the reservees in the second degree (her six children) of their share therein.
Decision Reversed.
SYLLABUS
1. CIVIL LAW; SUCCESSION; LEGITIME; RESERVA TRONCAL; NATURE. Resersa troncal is also called lineal, familiar, extreordinaria o semi-troncal. It is provided for in Article 811 of the Spanish Civil Code now
article 891 of the Civil Code. In reserva ironcal, (1) a descendant inherited or acquired by gratuitous title property from an ascendant or from a brother or sister; (2) the same property is inherited by another
ascendant or is acquired by him by operation of law from the said descendant, and (3) the said ascendant should reserve the said property for the benefit of relatives who are within the third degree from the
deceased descendant (prepositus) who belong to the tine from which the property came.
2. ID.; ID.; ID.; ID.; TRANSMISSION INVOLVED. The three transmissions involved are: (1) a first transmission by lucrative title (inheritance or donation) from an ascendant or brother or sister to the deceased
descendant; (2) a posterior transmission, by operation of law (intestate succession or legitime) from the deceased descendant (causante de la reserva) in favor of another ascendant, the reservor or reservista, which
two transmissions precede the reservation, and (3) a third transmission of the same property (in consequence of the reservation) from the reservor to the reservees ( reservatarios) or the relatives within the third
degree from the deceased descendant belonging to the line of the first ascendant, brother or sister of the deceased descendant (6 Castan Toneas, Derecho Civil, Part I, 1960, 6th Ed., pp. 198-9). If there are only
two transmissions there is no reserva.
3. ID.; ID.; ID.; ID.; PERSONS INVOLVED. The persons involved in reserva troncal are (1) the ascendant or brother or sister from whom the property was received by the descendant by lucrative or gratuitous title,
(2) the descendant or prepositus ( propositus) who received the property, (3) the reservor (reservista), the other ascendant who obtained the property from the prepositus by operation of law and (4) the reservee
(reservatarin) who is within the third degree from the prepositus and who belongs to the line (ltnea o tronco) from which the property came and for whom the property should be reserved by the reservor.
4. ID.; ID.; ID.; ID.; RELATIVES CONSIDERED RESERVEES. The reservees may be half-brothers and sisters (Rodrigues vs. Rodriguez, 101 Phil. 1098; Chua vs. Court of First Instance of Negros Occidental, L29901, August 31, 1977, 78 SCRA 412). Fourth degree relatives are not included (Jardin vs. Villamayor, 72 Phil. 392). First cousins of the prepositus are in the fourth degree and are not reservees. They cannot even
represent their parents because representation is confined to relatives within the third degree (Florentino vs. Florentino, 40 Phil. 480).
5. ID.; ID.; ID.; ID.; RATIONALE. The rationale of reserva troncal is to avoid "el peligro de que bienes poseidos sedularmente por una familia pasen bruscamente a titulo gratuito a manos extraas por el azar de
los enlaces y muertes prematuras", or "impedir que, por un azar de la vida, personas extraas a una familia puedan adquirir bienes que sin aquel hubieran quedado en ella" (6 Castan Tobeas, Derecho Civil, Part 1,
6th Ed., 1960, p. 203; Padura vs. Baldovino, 104 Phil. 1065).
6. ID.; ID.; ID.; ID.; PREPOSITUS DEFINED. Prepositus or the person from whom the degree should be reckoned is the descendant, or the one at the end of the line from which the property came and upon
whom the property last revolved by descent (Cabardo vs. Villanueva, 44 Phil. 186, 190).
7. ID.; ID.; ID.; ID.; NEAREST RELATIVE EXCLUDE THE MORE REMOTE. Within the third degree, the nearest relatives exclude the more remote subject to the rule of representation. But the representative
should be within the third degree from the prepositus (Padura vs. Baldovino, 104 Phil. 1065).
8. ID.; ID.; ID.; ID.; NATURE OF RELATIONSHIP CONTEMPLATED. Reserva troncal contemplates legitimate relationship. Illegitimate relationship and relationship by affinity are excluded.
9. ID.; ID.; ID.; ID.; GRATUITOUS TITLE DEFINED. Gratuitous title or titulo lucrativo refers to a transmission wherein the recipient gives nothing in return such as donation and succession (Cabardo vs. Villanueva,
44 Phil. 186, 189-190, citing 6 Manresa, Codigo Civil, 7th. Ed., 1951, p. 360).
10. ID.; ID.; ID.; ID.; RESOLUTORY CONDITIONS CREATED BY RESERVA. The reserva creates two resolutory conditions, namely: (I) the death of the ascendant obliged to reserve; and (2) the survival, at the
time of his death, of relatives within the third degree belonging to the fine from which the property came (Sienes vs. Esparcia, 111 Phil. 349, 353).
11. ID.; ID.; ID.; ID.; NATURE OF RESERVOR'S TITLE. The reservor has the legal title and dominion to the reservable property but subject to the resolutory condition that such title is extinguished if the reservor
predeceased the reservee. The reservor is a usufructuary of the reservable property. He may alienate it subject to the reservation. The transferee gets the revocable and conditional ownership of the reservor. The
transferee's rights are revoked upon the survival of the reservees at the time of the time of the death of the reservor but become indefeasible when the reservees predecease the reservor (Sienes vs. Esparcia, 111
Phil. 349, 353; Edroso vs. Sablan, 25 Phil. 295; Lunsod vs. Ortega, 46 Phil. 664; Florentino vs. Florentino, 40 Phil. 480; Director of Lands vs. Aguas, 63 Phil. 279). "The authorities are all agreed that there being
reservatorios that survive the reservista, the latter must be deemed to have enjoyed no more than a life interest in the reservable property." (J.B.L. Rayes in Cano vs. Director of Lands, 105 Phil. 1, 5).

12. ID.; ID.; ID.; ID.; RESERVOR'S TITLE COMPARED WITH THAT OF THE VENDEE A RETRO OR TO A FIDEICOMISO CONDICIONAL. The reservor's title has been compared with that of the vendee a retro
in a pacto de retro sale or to a fideicomiso condicional. The reservor's alienation of the reservable property is subject to a resolutory condition, meaning that if at the time of the reservor's death, there are reservees,
the transferee of the property should deliver it to the reservees. If there are no reservees at the time of the reservor's death, the transferee's title would become absolute (Lunsod vs. Ortega, 46 Phil. 664: Gueco vs.
Lacson, 118 Phil. 944; Nono vs. Nequia, 93 Phil. 120).
13. ID.; ID.; ID.; ID.; NATURE OF RESERVEE'S TITLE. The reservee has only an inchoate, expectant or contingent right. His expectant right would disappear if he predeceased the reservor. It would become
absolute should the reservor predecese the reservee. There is a holding that renunciation of the reservee's right to the reservable property is illegal for being a contract regarding future inheritance (Velayo Bernardo
vs. Siojo, 58 Phil. 89, 96). And there is a dictum that the reservee's right is a real right which he may alienate and dispose of conditionally. The condition is that the alienation shall transfer ownership to the vendee
only if and when the reservee survives the tetervor (Sienes vs. Esparcia, ill Phil. 349, 353). "The reservatorio receives the property as a conditional heir of the descendant (prepositus), said property merely reverting
to the line of origin from which it had temporarily and accidentally strayed during the reservista's lifetime" (J.B.L. Reyes in Cano vs. Director of Lands, Supra).
14. ID.; ID.; ID.; ID.; RESERVEE'S (RESERVATORIO'S) RIGHT OVER THE PROPERTY DURING RESERVOR'S (RESERVISTA'S) LIFETIME. The reservee cannot impugn any conveyance made by the reservor
but he can require that the reservable character of the property be recognized by the purchaser (Riosa vs. Rocha, 48 Phil. 737; Edroso vs. Sablan 25 Phil. 295, 312-3; Gueco vs. Lacson, 118 Phil. 944). "Even during
the reservista's lifetime, the reservatarios, who are the ultimate acquirers of the property, can already assert the right to prevent the reservista from doing anything that might frustrate their revisionary right. and, for
this purpose, they can compel the annotation of their right in the registry of property even while the reservista is alive." (Ley Hipotecaria de Ultramar, Arts. 168, 199; Edroso vs. Sablan, 25 Phil. 295)
15. ID.; ID.; ID.; ID.; RESERVABLE PROPERTY, NOT A PART OF THE ESTATE OF RESERVOR (RESERVISTA); CASE AT BAR. The right to reserva troncal is incompatible with the mere expectancy that
corresponds to the natural heirs of the reservista (reservor). It is likewise clear that the reservable property is no part of the estate of the reservista (raservor) who may not dispose of them (it) by will, so long as there
are reservatarios (reservees) existing (Arroyo vs. Gerona, 58 Phil. 226, 237). "The latter, therefore, do not inherit from the reservista but from the descendant prepositus, of whom the reservatarios are the heirs
mortis causa. subject to the condition that they must survive the reservista." (Sanchez Roman, Vol. VI, Tomo 2, p. 286; Manresa, Commentaries, Vol. 6, 6th Ed., pp. 274, 310, cited by J. J.B.L. Reyes in Padura vs.
Baldovino, L-l1960, December 27, 1958, 104 Phil. 1065). Hence, upon the reservista's death, the reservatario nearest to the prepositus becomes, "automatically and by operation of law, the owner of the reservable
property." (Cano vs. Director of Lands, Supra) Mrs. Filomena Legarda, as reservor in the case at bar could not convey in her holographic will to her sixteen grandchildren (the reservees within the third degree) the
reservable properties which she had inherited from her daughter Filomena because the reservable properties did not form part of her estate (Cobardo vs. Villanueva, 44 Phil. 186, 191). The reservor cannot make a
disposition mortis causa of the reservable properties as long as the reservees survived the reservor.
16. ID.; ID.; ID.; ID.; RESERVABLE PROPERTIES INHERITED FROM THE PREPOSITUS; CASE AT BAR. As repeatedly held in the Cano and Padura cases, the reservees inherit the reservable properties from
the prepositus, not from the reservor. Art. 891 clearly indicates that the reservable properties should be inherited by all the nearest relatives within the third degree from the prepositus who in this case are the six
children of Mrs. Legarda. She could not select the reservees to whom the reservable property should be given and deprive the other reservees of their share therein.
17. ID.; ID.; ID.; ID.; WHEN RESERVATION IS EXTINGUISHED; CASE AT BAR. Under the rule of stare decisis at non quieta movere. the Court is bound to follow in this case the doctrine of the Florentino case
which means that as long as during the reservor's lifetime and upon his death there are relatives within the third degree of the prepositus, regardless of whether those reservees are common descendants of the
reservor and the ascendant from whom the property came, the property retains its reservable character. The property should go to the nearest reservees. Hence, in the case at bar, the reservation could have been
extinguished only by the absence of reservees at the time of Mrs. Legarda's death. Since at the time of her death, there were (and still are) reservees belonging to the second and third degrees, the disputed
properties did not lose their reservable character. The disposition of the said properties should be made in accordance with article 891 or the rule on reserva troncal and not in accordance with the reservor's
holographic will. The said properties did not form part of Mrs. Legarda's estate (Cano vs. Director of Lands, 105 Phil. 4).
DECISION
AQUINO, J p:
Beatriz Legarda Gonzalez appealed from the decision of the Court of First Instance of Manila, dismissing her complaint for partition, accounting, reconveyance and damages and holding, as not subject to reserva troncal,
the properties which her mother Filomena Roces inherited in 1943 from Filomena Legarda (Civil Case No. 73335). The facts are as follows:
Benito Legarda y De la Paz, the son of Benito Legarda y Tuason, died in Manila on June 17, 1933. He was survived by his widow, Filomena Roces, and their seven children: four daughters named Beatriz, Rosario, Teresa
and Filomena and three sons named Benito, Alejandro and Jose.
On July 12, 1939, the real properties left by Benito Legarda y Tuason were partitioned in three equal portions by his daughters, Consuelo and Rita, and the heirs of his deceased son Benito Legarda y De la Paz who were
represented by Benito F. Legarda.
Filomena Legarda y Roces died intestate and without issue on March 19, 1943. Her sole heiress was her mother, Filomena Roces Vda. de Legarda.
Mrs. Legarda executed on May 12, 1947 an affidavit adjudicating extrajudicially to herself the properties which she inherited from her deceased daughter, Filomena Legarda. The said properties consist of the following:
(a) Savings deposit in the National City Bank of New York with a credit balance of P3,699.63.
(b) 1,429 shares of the Benguet Consolidated Mining Company and a 1/7 interest in certain shares of the San Miguel Brewery, Tuason & Legarda, Ltd., Philippine Guaranty Company, Insular
Life Assurance Company and the Manila Times.
(c) 1/7 of the properties described in TCT Nos. 80226, 80237 to 80243 (7 titles), 80260, 80261 and 57512 of the Manila registry of deeds.
1/21st of the properties covered by TCT Nos. 48164, 84714, 48201, 48202, 48205, 48203, 48206, 48160 and 48192 of the Manila registry of deeds;
1/21st of the property described in TCT No. 4475 of the registry of deeds of Rizal, now Quezon City; 1/14th of the property described in TCT No. 966 of the registry of deeds of Baguio;
1/7th of the lot and improvements at 127 Aviles described in TCT No. 41862 of the Manila registry of deeds;
1/7th of the lots and improvements at 181 San Rafael described in TCT Nos. 50495 and 48161 of the Manila registry of deeds;
1/7th of the property described in TCT No. 48163 of the Manila registry of deeds (Streets);
1/21st of the properties described in TCT Nos. 48199 and 57551 of the Manila registry of deeds (Streets and Estero);
2/21st of the property described in TCT No. 13458 of the registry of deeds of Tayabas.
These are the properties in litigation in this case. As a result of the affidavit of adjudication, Filomena Roces succeeded her deceased daughter Filomena Legarda as co-owner of the properties held proindiviso by her other
six children.
Mrs. Legarda on March 6, 1953 executed two hand-written identical documents wherein she disposed of the properties, which she inherited from her daughter, in favor of the children of her sons, Benito, Alejandro and Jose
(sixteen grandchildren in all). The document reads:
"A mis hijos:
"Dispongo que se reparta a todos mis nietos, hijos de Ben, Mandu y Pepito, los bienes que he heredado de mi difunta hija Filomena y tambien los acciones de la Distileria 'La Rosario'
recientemente comprada a los hermanos Valdes Legarda.
"De los bienes de mi hija Filomena se deducira un lote de terreno que yo he donada a las Hijas de Jesus, en Guipit.
"La casa No. 181 San Rafael, la cedo a mi hijo Mandu, solo la casa; porque ella esta construida sobre terreno de los hermanos Legarda Roces.
"(Sgd.) FILOMENA ROCES LEGARDA
"6 Marzo 1953"
During the period from July, 1958 to February, 1959 Mrs. Legarda and her six surviving children partitioned the properties consisting of the one-third share in the estate of Benito Legarda y Tuason which the children

inherited in representation of their father, Benito Legarda y De la Paz.

Mrs. Legarda died on September 22, 1967. Her will was admitted to probate as a holographic will in the order dated July 16, 1968 of the Court of First Instance of Manila in Special Proceeding No. 70878, Testate Estate of
Filomena Roces Vda. de Legarda. The decree of probate was affirmed by the Court of Appeals in Legarda vs. Gonzalez, CA-G.R. No. 43480-R, July 30, 1976.
In the testate proceeding, Beatriz Legarda Gonzalez, a daughter of the testatrix, filed on May 20, 1968 a motion to exclude from the inventory of her mother's estate the properties which she inherited from her deceased
daughter, Filomena, on the ground that said properties are reservable properties which should be inherited by Filomena Legarda's three sisters and three brothers and not by the children of Benito, Alejandro and Jose, all
surnamed Legarda. That motion was opposed by the administrator, Benito F. Legarda.
Without awaiting the resolution on that motion, Mrs. Gonzalez filed on June 20, 1968 an ordinary civil action against her brothers, sisters, nephews and nieces and her mother's estate for the purpose of securing a
declaration that the said properties are reservable properties which Mrs. Legarda could not bequeath in her holographic will to her grandchildren to the exclusion of her three daughters and her three sons (See Paz vs.
Madrigal, 100 Phil. 1085).
As already stated, the lower court dismissed the action of Mrs. Gonzalez. In this appeal under Republic Act No. 5440 she contends in her six assignments of error that the lower court erred in not regarding the properties in
question as reservable properties under article 891 of the Civil Code.
On the other hand, defendants-appellees in their six counter-assignments of error contend that the lower court erred in not holding that Mrs. Legarda acquired the estate of her daughter Filomena Legarda in exchange for
her conjugal and hereditary shares in the estate of her husband Benito Legarda y De la Paz and in not holding that Mrs. Gonzalez waived her right to the reservable properties and that her claim is barred by estoppel,
laches and prescription.
The preliminary issue raised by the private respondents as to the timeliness of Mrs. Gonzalez' petition for review is a closed matter. This Court in its resolution of December 16, 1971 denied respondents' motion to dismiss
and gave due course to the petition for review.
In an appeal under Republic Act No. 5440 only legal issues can be raised under undisputed facts. Since on the basis of the stipulated facts the lower court resolved only the issue of whether the properties in question are
subject to reserva troncal, that is the only legal issue to be resolved in this appeal.
The other issues raised by the defendants-appellees, particularly those involving factual matters, cannot be resolved in this appeal. As the trial court did not pass upon those issues, there is no ruling which can be reviewed
by this Court.
The question is whether the disputed properties are reservable properties under article 891 of the Civil Code, formerly article 811, and whether Filomena Roces Vda. de Legarda could dispose of them in her will in favor of
her grandchildren to the exclusion of her six children.
Did Mrs. Legarda have the right to convey mortis causa what she inherited from her daughter Filomena to the reservees within the third degree and to bypass the reservees in the second degree or should that inheritance
automatically go to the reservees in the second degree, the six children of Mrs. Legarda?
As will hereinafter be shown that is not a novel issue or a question of first impression. It was resolved in Florentino vs. Florentino, 40 Phil. 480. Before discussing the applicability to this case of the doctrine in the Florentino
case and other pertinent rulings, it may be useful to make a brief discourse on the nature of reserva troncal, also called lineal, familiar, extraordinaria o semi-troncal.
Much time, effort and energy were spent by the parties in their five briefs in descanting on the nature of reserva troncal, which together with the reserva viudal and reversion legal, was abolished by the Code Commission to
prevent the decedent's estate from being entailed, to eliminate the uncertainty in ownership caused by the reservation (which uncertainty impedes the improvement of the reservable property) and to discourage the
confinement of property within a certain family for generations which situation allegedly leads to economic oligarchy and is incompatible with the socialization of ownership.
The Code Commission regarded the reservas as remnants of feudalism which fomented agrarian unrest. Moreover, the reservas, insofar as they penalize legitimate relationship, is considered unjust and inequitable.
However, the lawmaking body, not agreeing entirely with the Code Commission, restored the reserva troncal, a legal institution which, according to Manresa and Castan Tobeas, has provoked questions and doubts that
are difficult to resolve.
Reserva troncal is provided for in article 811 of the Spanish Civil Code, now article 891, which reads:
"ART. 811. El ascendiente que heredare de su descendiente bienes que ste hubiese adquirido por titulo lucrativo de otro ascendiente, o de un hermano, se halla obligado reservar los que
hubiere adquirido por ministerio de la ley en favor de los parientes que esten dentro del tercer grado y pertenezcan a la linea de donde los bienes proceden."
"ART. 891. The ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant, or a brother or sister, is obliged to
reserve such property as he may have acquired by operation of law for the benefit of relatives who are within the third degree and who belong to the line from which said property came. "
In reserva troncal, (1) a descendant inherited or acquired by gratuitous title property from an ascendant or from a brother or sister; (2) the same property is inherited by another ascendant or is acquired by him by operation
of law from the said descendant, and (3) the said ascendant should reserve the said property for the benefit of relatives who are within the third degree from the deceased descendant ( prepositus) and who belong to the
line from which the said property came.
So, three transmissions are involved: (1) a first transmission by lucrative title (inheritance or donation) from an ascendant or brother or sister to the deceased descendant; (2) a posterior transmission, by operation of law
(intestate succession or legitime) from the deceased descendant (causante de la reserva) in favor of another ascendant, the reservor or reservista, which two transmissions precede the reservation, and (3) a third
transmission of the same property (in consequence of the reservation) from the reservor to the reservees (reservatarios) or the relatives within the third degree from the deceased descendant belonging to the line of the
first ascendant, brother or sister of the deceased descendant (6 Castan Tobeas, Derecho Civil, Part I, 1960, 6th Ed., pp. 198-9).
If there are only two transmissions there is no reserva. Thus, where one Bonifacia Lacerna died and her properties were inherited by her son, Juan Marbebe, upon the death of Juan, those lands should be inherited by his
half-sister, to the exclusion of his maternal first cousins. The said lands are not reservable property within the meaning of article 811 (Lacerna vs. Vda. de Corcino, 111 Phil. 872).
The persons involved in reserva troncal are (1) the ascendant or brother or sister from whom the property was received by the descendant by lucrative or gratuitous title, (2) the descendant or prepositus ( propositus) who
received the property, (3) the reservor (reservista), the other ascendant who obtained the property from the prepositus by operation of law and (4) the reservee (reservatario) who is within the third degree from the
prepositus and who belongs to the line (linea o tronco) from which the property came and for whom the property should be reserved by the reservor.
The reservees may be half-brothers and sisters (Rodriguez vs. Rodriguez, 101 Phil. 1098; Chua vs. Court of First Instance of Negros Occidental, L-29901, August 31, 1977, 78 SCRA 412). Fourth degree relatives are not
included (Jardin vs. Villamayor, 72 Phil. 392).
The rationale of reserva troncal is to avoid "el peligro de que bienes poseidos secularmente por una familia pasen bruscamente a titulo gratuito a manos extraas por el azar de los enlaces y muertes prematuras", or
"impedir que, por un azar de la vida, personas extraas a una familia puedan adquirir bienes que sin aquel hubieran quedado en ella" (6 Castan Tobeas, Derecho Civil, Part 1, 6th Ed., 1960, p. 203; Padura vs. Baldovino,
104 Phil. 1065).
An illustration of reserva troncal is found in Edroso vs. Sablan, 25 Phil. 295. In that case, Pedro Sablan inherited two parcels of land from his father Victoriano. Pedro died in 1902, single and without issue. His mother,
Marcelina Edroso, inherited from him the two parcels of land.
It was held that the land was reservable property in the hands of Marcelina. The reservees were Pablo Sablan and Basilio Sablan, the paternal uncles of Pedro Sablan, the prepositus. Marcelina could register the land
under the Torrens system in her name but the fact that the land was reservable property in favor of her two brothers-in-law, should they survive her, should be noted in the title.
In another case, it appears that Maria Aglibot died intestate in 1906. Her one-half share of a parcel of conjugal land was inherited by her daughter, Juliana Maalac. When Juliana died intestate in 1920, said one-half share
was inherited by her father, Anacleto Maalac who owned the other one-half portion.
Anacleto died intestate in 1942, survived by his second wife and their six children. It was held that the said one-half portion was reservable property in the hands of Anacleto Maalac and, upon his death, should be
inherited by Leona Aglibot and Evarista Aglibot, sisters of Maria and maternal aunts of Juliana Maalac, who belonged to the line from which said one-half portion came (Aglibot vs. Maalac, 114 Phil. 964).
Other illustrations of reserva troncal are found in Florentino vs. Florentino, 40 Phil. 480; Nieva and Alcala vs. Alcala and Deocampo, 41 Phil. 915; Maghirang and Gutierrez vs. Balcita, 46 Phil. 551; Lunsod vs. Ortega, 46

Phil. 664; Dizon vs. Galang, 48 Phil. 601; Riosa vs. Rocha, 48 Phil. 737; Centeno vs. Centeno, 52 Phil. 322; Velayo Bernardo vs. Siojo, 58 Phil. 89; Director of Lands vs. Aguas, 63 Phil. 279; Fallorfina vs. Abille, CA 39 O.G.
1784.
The person from whom the degree should be reckoned is the descendant, or the one at the end of the line from which the property came and upon whom the property last revolved by descent. He is called the prepositus
(Cabardo vs. Villanueva, 44 Phil. 186, 190).
In the Cabardo case, one Cornelia Abordo inherited property from her mother, Basilia Cabardo. When Cornelia died, her estate passed to her father, Lorenzo Abordo. In his hands, the property was reservable property.
Upon the death of Lorenzo, the person entitled to the property was Rosa Cabardo, a maternal aunt of Cornelia, who was her nearest relative within the third degree.
First cousins of the prepositus are in the fourth degree and are not reservees. They cannot even represent their parents because representation is confined to relatives within the third degree (Florentino vs. Florentino, 40
Phil. 480).
Within the third degree, the nearest relatives exclude the more remote subject to the rule of representation. But the representative should be within the third degree from the prepositus (Padura vs. Baldovino, 104 Phil.
1065).
Reserva troncal contemplates legitimate relationship. Illegitimate relationship and relationship by affinity are excluded.
Gratuitous title or titulo lucrativo refers to a transmission wherein the recipient gives nothing in return such as donation and succession (Cabardo vs. Villanueva, 44 Phil. 186-189-190, citing 6 Manresa, Codigo Civil, 7th Ed.,
1951, p. 360).
The reserva creates two resolutory conditions, namely, (1) the death of the ascendant obliged to reserve and (2) the survival, at the time of his death, of relatives within the third degree belonging to the line from which the
property came (Sienes vs. Esparcia, 111 Phil. 349, 353).
The reservor has the legal title and dominion to the reservable property but subject to the resolutory condition that such title is extinguished if the reservor predeceased the reservee. The reservor is a usufructuary of the
reservable property. He may alienate it subject to the reservation. The transferee gets the revocable and conditional ownership of the reservor. The transferee's rights are revoked upon the survival of the reservees at the
time of the death of the reservor but become indefeasible when the reservees predecease the reservor. (Sienes vs. Esparcia, 111 Phil. 349, 353; Edroso vs. Sablan, 25 Phil. 295; Lunsod vs. Ortega, 46 Phil. 664; Florentino
vs. Florentino, 40 Phil. 480; Director of Lands vs. Aguas, 63 Phil. 279.)
The reservor's title has been compared with that of the vendee a retro in a pacto de retro sale or to a fideicomiso condicional.
The reservor's alienation of the reservable property is subject to a resolutory condition, meaning that if at the time of the reservor's death, there are reservees, the transferee of the property should deliver it to the reservees.
If there are no reservees at the time of the reservor's death, the transferee's title would become absolute (Lunsod vs. Ortega, 46 Phil. 664; Gueco vs. Lacson, 118 Phil. 944; Nono vs. Nequia, 93 Phil. 120).
On the other hand, the reservee has only an inchoate, expectant or contingent right. His expectant right would disappear if he predeceased the reservor. It would become absolute should the reservor predecease the
reservee.
The reservee cannot impugn any conveyance made by the reservor but he can require that the reservable character of the property be recognized by the purchaser (Riosa vs. Rocha, 48 Phil. 737; Edroso vs. Sablan, 25
Phil. 295, 312-3; Gueco vs. Lacson, 118 Phil. 944).
There is a holding that the renunciation of the reservee's right to the reservable property is illegal for being a contract regarding future inheritance (Velayo Bernardo vs. Siojo, 58 Phil. 89, 96).
And there is a dictum that the reservee's right is a real right which he may alienate and dispose of conditionally. The condition is that the alienation shall transfer ownership to the vendee only if and when the reservee
survives the reservor (Sienes vs. Esparcia, 111 Phil. 349, 353).
"The reservatario receives the property as a conditional heir of the descendant ( prepositus), said property merely reverting to the line of origin from which it had temporarily and accidentally strayed during the reservista's
lifetime. The authorities are all agreed that there being reservatarios that survive the reservista, the latter must be deemed to have enjoyed no more than a life interest in the reservable property." (J. J.B.L. Reyes in Cano
vs. Director of Lands, 105 Phil. 1, 5.)
"Even during the reservista's lifetime, the reservatarios, who are the ultimate acquirers of the property, can already assert the right to prevent the reservista from doing anything that might frustrate their reversionary right,
and, for this purpose, they can compel the annotation of their right in the registry of property even while the reservista is alive" (Ley Hipotecaria de Ultramar, Arts. 168, 199; Edroso vs. Sablan, 25 Phil. 295).
This right is incompatible with the mere expectancy that corresponds to the natural heirs of the reservista. It is likewise clear that the reservable property is no part of the estate of the reservista who may not dispose of
them (it) by will, so long as there are reservatarios existing (Arroyo vs. Gerona, 58 Phil. 226, 237).
"The latter, therefore, do not inherit from the reservista but from the descendant prepositus, of whom the reservatarios are the heirs mortis causa, subject to the condition that they must survive the reservista." (Sanchez
Roman, Vol. VI, Tomo 2, p. 286; Manresa, Commentaries, Vol. 6, 6th Ed., pp. 274, 310, cited by J. J.B.L. Reyes in Padura vs. Baldovino, L-11960, December 27, 1958, 104 Phil. 1065).
Hence, upon the reservista's death, the reservatario nearest to the prepositus becomes, "automatically and by operation of law, the owner of the reservable property." (Cano vs. Director of Lands, 105 Phil. 1, 5.)
In the instant case, the properties in question were indubitably reservable properties in the hands of Mrs. Legarda. Undoubtedly, she was a reservor. The reservation became a certainty when at the time of her death the
reservees or relatives within the third degree of the prepositus Filomena Legarda were living or they survived Mrs. Legarda.
So, the ultimate issue in this case is whether Mrs. Legarda, as reservor, could convey the reservable properties by will or mortis causa to the reservees within the third degree (her sixteen grandchildren) to the exclusion of
the reservees in the second degree, her three daughters and three sons.
As indicated at the outset, that issue is already res judicata or cosa juzgada.
We hold that Mrs. Legarda could not convey in her holographic will to her sixteen grandchildren the reservable properties which she had inherited from her daughter Filomena because the reservable properties did not form
part of her estate (Cabardo vs. Villanueva, 44 Phil. 186, 191). The reservor cannot make a disposition mortis causa of the reservable properties as long as the reservees survived the reservor.
As repeatedly held in the Cano and Padura cases, the reservees inherit the reservable properties from the prepositus, not from the reservor.
Article 891 clearly indicates that the reservable properties should be inherited by all the nearest relatives within the third degree from the prepositus who in this case are the six children of Mrs. Legarda. She could not
select the reservees to whom the reservable property should be given and deprive the other reservees of their share therein.
To allow the reservor in this case to make a testamentary disposition of the reservable properties in favor of the reservees in the third degree and, consequently, to ignore the reservees in the second degree would be a
glaring violation of article 891. That testamentary disposition cannot be allowed.
We have stated earlier that this case is governed by the doctrine of Florentino vs. Florentino, 40 Phil. 480, a similar case, where it was ruled:
"Reservable property left, through a will or otherwise, by the death of ascendant (reservista) together with his own property in favor of another of his descendants as forced heir, forms no part of the
latter's lawful inheritance nor of the legitime, for the reason that, as said property continued to be reservable, the heir receiving the same as an inheritance from his ascendant has the strict
obligation of its delivery to the relatives, within the third degree, of the predecessor in interest ( prepositus), without prejudicing the right of the heir to an aliquot part of the property, if he has at the
same time the right of a reservatario" (reservee).
In the Florentino case, it appears that Apolonio Florentino II and his second wife Severina Faz de Leon begot two children, Mercedes and Apolonio III. These two inherited properties from their father. Upon Apolonio III's
death in 1891, his properties were inherited by his mother, Severina, who died in 1908. In her will she instituted her daughter Mercedes as heiress to all her properties, including those coming from her deceased husband
through their son, Apolonio III.
The surviving children, begotten by Apolonio II with his first wife Antonia Faz de Leon and the descendants of the deceased children of his first marriage, sued Mercedes Florentino for the recovery of their share in the
reservable properties, which Severina de Leon had inherited from Apolonio III, which the latter had inherited from his father Apolonio II and which Severina willed to her daughter Mercedes.
Plaintiff's theory was that the said properties, as reservable properties, could not be disposed of in Severina's will in favor of Mercedes only. That theory was sustained by this Court.
It was held that the said properties, being reservable properties, did not form part of Severina's estate and could not be inherited from her by her daughter Mercedes alone.

As there were seven reservees, Mercedes was entitled, as a reservee, to one-seventh of the properties. The other six-sevenths portions were adjudicated to the other six reservees.
Under the rule of stare decisis et non quieta movere, we are bound to follow in this case the doctrine of the Florentino case. That doctrine means that as long as during the reservor's lifetime and upon his death there are
relatives within the third degree of the prepositus, regardless of whether those reservees are common descendants of the reservor and the ascendant from whom the property came, the property retains its reservable
character. The property should go to the nearest reservees. The reservor cannot, by means of his will, choose the reservee to whom the reservable property should be awarded.
The alleged opinion of Sanchez Roman that there is no reserva troncal when the only relatives within the third degree are the common descendants of the predeceased ascendant and the ascendant who would be obliged
to reserve is irrelevant and sans binding force in the light of the ruling in the Florentino case.
It is contended by the appellees herein that the properties in question are not reservable properties because only relatives within the third degree from the paternal line have survived and that when Mrs. Legarda willed the
said properties to her sixteen grandchildren, who are third-degree relatives of Filomena Legarda who belong to the paternal line, the reason for the reserva troncal has been satisfied: "to prevent persons outside a family
from securing, by some special accident of life, property that would otherwise have remained therein."
That same contention was advanced in the Florentino case where the reservor willed the reservable properties to her daughter, a full-blood sister of the prepositus and ignored the other six reservors, the relatives of the
half-blood of the prepositus.
In rejecting that contention, this Court held that the reservable property bequeathed by the reservor to her daughter does not form part of the reservor's estate nor of the daughter's estate but should be given to all the
seven reservees or nearest relatives of the prepositus within the third degree.
This Court noted that, while it is true that by giving the reservable property to only one reservee it did not pass into the hands of strangers, nevertheless, it is likewise true that the heiress of the reservor was only one of the
reservees and there is no reason founded upon law and justice why the other reservees should be deprived of their shares in the reservable property (pp. 894-5).
Applying that doctrine to this case, it results that Mrs. Legarda could not dispose of in her will the properties in question even if the disposition is in favor of the relatives within the third degree from Filomena Legarda. The
said properties, by operation of article 891, should go to Mrs. Legarda's six children as reservees within the second degree from Filomena Legarda.
It should be repeated that the reservees do not inherit from the reservor but from the prepositus, of whom the reservees are the heirs mortis causa subject to the condition that they must survive the reservor (Padura vs.
Baldovino, L-11960, December 27, 1958, 104 Phil. 1065).
The trial court said that the disputed properties lost their reservable character due to the non-existence of third degree relatives of Filomena Legarda at the time of the death of the reservor, Mrs. Legarda, belonging to the
Legarda family, "except third-degree relatives who pertain to both" the Legarda and Roces lines.
That holding is erroneous. The reservation could have been extinguished only by the absence of reservees at the time of Mrs. Legarda's death. Since at the time of her death, there were (and still are) reservees belonging
to the second and third degrees, the disputed properties did not lose their reservable character. The disposition of the said properties should be made in accordance with article 891 or the rule on reserva troncal and not in
accordance with the reservor's holographic will. The said properties did not form part of Mrs. Legarda's estate (Cano vs. Director of Lands, 105 Phil. 1, 4).
WHEREFORE, the lower court's decision is reversed and set aside. It is hereby adjudged that the properties inherited by Filomena Roces Vda. de Legarda from her daughter Filomena Legarda, with all the fruits and
accessions thereof, are reservable properties which belong to Beatriz, Rosario, Teresa, Benito, Alejandro and Jose, all surnamed Legarda y Roces, as reservees. The shares of Rosario L. Valdes and Benito F. Legarda,
who died in 1969 and 1973, respectively, should pertain to their respective heirs. Costs against the private respondents.
SO ORDERED.
Barredo, Guerrero, Abad Santos and De Castro, JJ., concur .
Concepcion, Jr., J., is on leave.
||| (Gonzalez v. Court of First Instance of Manila, G.R. No. L-34395, [May 19, 1981], 192 PHIL 1-21)
MARCELINA EDROSO, petitioner-appellant, vs. PABLO and BASILIO SABLAN, opponents-appellees.
Francisco Dominguez for appellant.
Crispin Oben for appellees.
SYLLABUS
1. ESTATES; DUTY OF ASCENDANT, WHO INHERITS THROUGH A DESCENDANT, TO RESERVE THE PROPERTY IN ACCORDANCE WITH LAW; ARTICLE 811, CIVIL CODE. Property
which an ascendant inherits by operation of law from his descendant and which was inherited by the latter from another ascendant of his, must be reserved by the ascendant heir in favor of uncles of the
descendant from whom the inheritance proceeded, who are his father's brothers, because they are relatives within the third degree, if they belong to the line whence the property proceeded, according to the
provisions of article 811 of the Civil Code.
2. ID.; ID.; RIGHTS OF PERSONS FOR WHOM SUCH PROPERTY IS RESERVED. Since the reservation does not imply coownership of any kind between the reservor and the reservees, that is,
between the ascendant who is the immediate heir of the person from whom the inheritance proceeded and who is the actual owner of the property to be reserved and the relatives within the third degree of such
person, who are merely in their turn and eventually his possible heirs in second place, if they outlive the heir who must make the reservation, such reservees, with only the expectation of inheriting, are not in
law entitled to act and be regarded as though they actually participated in the ownership of the property to be registered by taking part or pretending to take part in the application for registration which the
reservor presents; the fact being that with such expectation of inheriting, which is neither a real nor a personal a personal right, but at most a legitimate expectation of a right, they cannot be better off than a
mortgage who has a real right to the property that his debtor attempts to register, and yet the Land Registration Act (No 496, sec. 19 b) only grants him the right that the application of the mortgagor cannot be
presented without his consent in writing.
3. ID.; ID.; RIGHT OF ASCENDANT TO DISPOSE OF OR REGISTER THE PROPERTY IN HIS OWN NAME. The heir of real property who has beyond any doubt the rights of using and enjoying
it, and even of alienating it, is not prevented from himself alone registering the title to the property he has inherited, merely because to his right of disposal there is annexed a condition subsequent arising from
the expectation of a right, when the reservees who have that expectation of a right agreed thereto, provided that, in accordance with the law, the reservable character of such property in their favor be entered in
the record.
DECISION
ARELLANO, C.J p:
The subject matter of this appeal is the registration of certain property classified as required by law to be reserved. Marcelina Edroso applied for registration and issuance of title to two parcels of land
situated in the municipality of Pagsanjan, Province of Laguna, one of 1 hectare 77 ares and 63 centares, and the other of 1 hectare 6 ares and 26 centares. Two applications were filed, one for each parcel, but both
were heard and decided in a single judgment.
Marcelina Edroso was married to Victoriano Sablan until his death on September 22, 1882. In this marriage they had a son named Pedro, who was born on August 1, 1881, and who at his father's death
inherited the two said parcels. Pedro also died on July 15, 1902, unmarried and without issue, and by his decease the two parcels of land passed through inheritance to his mother, Marcelina Edroso. Hence the
hereditary title whereupon is based the application for registration of her ownership.
Two legitimate brothers of Victoriano Sablan that is, two uncles german of Pedro Sablan appeared in the case to oppose the registration, claiming one of two things: Either that the registration be
denied, "or that if granted to her the right reserved by law to the opponents be recorded in the registration of each parcel." (B. of E., 11, 12.)
The Court of Land Registration denied the registration and the applicant appealed through a bill of exceptions.
Registration was denied because the trial court held that the parcels of land in question partake of the nature of property required by law to be reserved and that in such a case application could only be
presented jointly in the names of the mother and the said two uncles of Pedro Sablan.

The appellant impugns as erroneous the first idea advanced (second assignment of error), and denies that the lands which are the subject matter of the application are required by law to be reserved a
contention we regard as indefensible.
Facts: (1) The applicant acquired said lands from her descendant Pedro Sablan by inheritance; (2) Pedro Sablan had acquired them from his ascendant Victoriano Sablan, likewise by inheritance; (3)
Victoriano Sablan had likewise acquired them by inheritance from his ascendants, Mariano Sablan and Maria Rita Fernandez, they having been adjudicated to him in the partition of hereditary property had between
him and his brothers. There are admitted facts.
A very definite conclusion of law is that the hereditary title is one without a valuable consideration [gratuitous title], and it is so characterized in article 968 of the Civil Code, for he who acquires by
inheritance gives nothing in return for what he receives; and a very definite conclusion of law also is that the uncles german are within the third degree of blood relationship.
"The ascendant who inherits from his descendant property which the latter acquired without a valuable consideration from another ascendant, or from a brother or sister, is under
obligation to reserve what he has acquired by operation of law for the relatives who are within the third degree and belong to the line whence the property proceeded." (Civil Code, art. 811.)
Marcelina Edroso, ascendant of Pedro Sablan, inherited from him these two parcels of land which had acquired without a valuable consideration that is, by inheritance from another ascendant, his father
Victoriano. Having acquired them by operation of law, she is obligated to reserve them intact for the claimants, who are uncles or relatives within the third degree and belong to the line of Mariano Sablan and Maria
Rita Fernandez, whence the lands proceeded. The trial court's ruling that they partake of the nature of property required by law to be reserved is therefore in accordance with the law.
But the appellant contends that it is not proven that the two parcels of land in question have been acquired by operation of law, and that only property acquired without a valuable consideration, which is by
operation of law, is required by law to be reserved.
The appellees justly argue that this defense was not alleged or discussed in first instance, but only herein. Certainly, the allegation in first instance was merely that "Pedro Sablan acquired the property in
question in 1882, before the enforcement of the Civil Code, which establishes the alleged right required by law to be reserved, of which the opponents speak; hence, prescription of the right of action; and, finally,
opponents' renunciation of their right, admitting that it existed and that they had it" (p. 49).
However that be, it is not superfluous to say, although it may be unnecessary, that the applicant inherited the two parcels of land from her son Pedro, who died "unmarried and without issue." The trial court
so held as a conclusion of fact, without any objection on the appellant's part. (B. of E., 17, 20.) When Pedro Sablan died without issue, his mother became his heir by virtue of her right to her son's legal portion under
article 935 of the Civil Code:
"In the absence of legitimate children and descendants of the deceased, his ascendants shall inherit from him, to the exclusion of collaterals."
The contrary could only have occurred if the heiress had demonstrated that any of these lands had passed into her possession by free disposal in her son's will; but the case presents no testamentary
provision that demonstrates any transfer of property from the son to the mother, not by operation of law, but by her son's wish. The legal presumption is that the transfer of the two parcels of land was abintestate or by
operation of law, and not by will or the wish of the predecessor in interest. (Act. No. 190, sec. 334, No. 26.) All the provisions of article 811 of the Civil Code have therefore been fully complied with.
If Pedro Sablan had instituted his mother in a will as the universal heiress of his property, all he left at death would not be required by law to be reserved, but only what he would have perforce left her as the
legal portion of a legitimate ascendant.
"The legal portion of the parents or ascendants is constituted by one-half of the hereditary estate of the children and descendants. The latter may unrestrictedly dispose of the other half,
with the exception of what is established in article 836." (Civil Code, art. 809.)
In such case only the half constituting the legal portion would be required by law to be reserved, because it is what by operation of law would fall to the mother from her son's inheritance; the other half at
free disposal would not have to be reserved. This is all that article 811 of the Civil Code says.
No error has been incurred in holding that the two parcels of land which are the subject matter of the application are required by law to be reserved, because the interested party has not proved that either
of them became her inheritance through the free disposal of her son.
Proof of testate succession devolves upon the heir or heiress who alleges it. It must be admitted that a half of Pedro Sablan's inheritance was acquired by his mother by operation of law. The law provides
that the other half is also presumed to be acquired by operation of law that is, by intestate succession. Otherwise, proof to offset this presumption must be presented by the interested party, that is, that the other
half was acquired by the man's wish and not by operation of law.
Nor is the third assignment of error admissible that the trial court failed to sustain the renunciation of the right required by law to be reserved, which the applicant attributes to the opponents. Such
renunciation does not appear in the case. The appellant deduces it from the fact that the appellees did not contradict the following statement of hers at the trial:
"The day after my brother-in-law Pablo Sablan died and was buried, his brother came to my house and said that those rice lands were mine, because we had already talked about making delivery of them"
(p. 91).
The other brother alluded to is Basilio Sablan, as stated on page 92. From the fact that Basilio Sablan said that the lands belong to the appellant and must be delivered to her it cannot be deduced that he
renounced the right required by law to be reserved in such lands by virtue of the provisions of article 811 of the Civil Code, for they really belong to her and must be delivered to her.
The fourth assignment of error sets up the defense of prescription of the right of action. The appellant alleges prescription of the opponents' right of action for requiring fulfillment of the obligation they
attribute to her recording in the property registry the right required by law to be reserved, in accordance with the provisions of the Mortgage Law; and as such obligation is created by law, it prescribes in the time fixed
in No. 2 of section 43 of Act No. 190. She adds: "Prescription of the right alleged to be reserved by force by law has not been invoked." (Eighth allegation.)
The appellant does not state in her brief what those provisions of the Mortgage Law are. Nor did she do so in first instance, where she says only the following, which is quoted from the record: "I do not refer
to the prescription of the right required by law to be reserved in the property; I refer to the prescription of the right of action of those who are entitled to the guaranty of that right for seeking that guaranty, for to those
who are entitled to that right the Mortgage Law grants a period of time for recording it in the property registry, if I remember correctly, ninety days, for seeking entry in the registry; but as they have not exercised that
right of action, such right of action for seeking here that it be recorded has prescribed. The right of action for requiring that the property be reserved has not prescribed, but the right of action for guaranteeing in the
property registry that this property is required by law to be reserved" (p. 69 of the record.)
The appellees reply: It is true that their right of action has prescribed for requiring the applicant to constitute the mortgage imposed by the Mortgage Law for guaranteeing the effectiveness of the right
required by law to be reserved; but because that right of action has prescribed, that property has not been divested of its character of property required by law to be reserved; that it has such character by virtue of
article 811 of the Civil Code, which went into effect in the Philippines in December, 1889, and not by virtue of the Mortgage Law, which only went into effect in the country by law of July 14, 1893; that from December,
1889, to July, 1893, property which under article 811 of the Civil Code acquired the character of property reserved by operation of law was such independently of the Mortgage Law, which did not yet form part of the
positive legislation of the country; that although the Mortgage Law has been in effect in the country since July, 1893, still it has in no way altered the force of article 811 of the Civil Code, but has operated to reinforce
the same merely by granting the right of action to the persons in whose favor the right is reserved by operation of law to require of the person holding the property a guaranty in the form of a mortgage to answer for
the enforcement, in due time, of the right; that to lose the right of action to the guaranty is not to lose the right itself; that the right reserved is the principal obligation and the mortgage the accessory obligation, and loss
of the accessory does not mean loss of the principal. (Fifth and sixth allegations.)
The existence of the right required by law to be reserved in the two parcels of land in question being indisputable, even though it be admitted that the right of action which the Mortgage Law grants as a
guaranty of final enforcement of such right has prescribed, the only thing to be determined in this appeal is the question raised in the first assignment of error, that is, how said two parcels of land can and ought to be
registered, not in the property registry established by the Mortgage Law, but in the registry newly organized by Act No. 496. But as there have slipped into the allegations quoted some rather inexact ideas that further
obscure such an intricate subject as this of the rights required to be reserved in Spanish-Philippine law, a brief digression on the most essential points may not be out of place here.
The Mortgage Law of July 14, 1893, to which the appellees allude, is the amended one of the colonies, not the first enforced in the colonies and consequently in the Philippines. The preamble of said
amended Mortgage Law States:

"The Mortgage Law in force in Spain for thirty years went into effect, with the modifications necessary for its adaptation, in the Antilles on May 1, 1880, and in the Philippines on
December 1, 1889, thus commencing in those regions the renovation of the law on real property, and consequently of agrarian credit."
The Civil Code went into effect in the Philippines in the same year, 1889, but on the eight day.
Two kinds of property required by law to be reserved are distinguished in the Civil Code, as set forth in article 968 thereof, where it says:
"Besides the reservation imposed by article 811 , the widow or widower contracting a second marriage shall be obliged to set apart for the children and descendants of the first marriage
the ownership of all the property he or she may have acquired from the deceased spouse by will, by intestate succession, by gift, or other transfer without a valuable consideration."
The Mortgage Law of Spain and the first law that went into effect in the Philippines on December 1, 1889, do not contain any provision that can be applied to the right reserved by article 811 of the Civil
Code, for such right is a creation of the Civil Code. In those laws appear merely the provisions intended to guarantee the effectiveness of the right in favor of the children of the first marriage when their father or
mother contracts a second marriage. Nevertheless, the holding of the supreme court of Spain, for the first time set forth in the decision on appeal of November 8, 1894, has been reiterated:
"That while the provisions of articles 977 and 978 of the Civil Code that tend to secure the right required to be reserved in the property refer especially to the spouses who contract
second or later marriages, they do not thereby cease to be applicable to the right established in article 811, because, aside from the legal reason, which is the same in both cases, such must be the
construction from the important and conclusive circumstance that said provisions are set forth in the chapter that deals with inheritances in common, either testate or intestate, and because article
968, which heads the section that deals in general with property required by law to be reserved, makes reference to the provisions in article 811; and it would consequently be contradictory to the
principle of the law and of the common nature of said provisions not to hold them applicable to that right."
Thus it was again stated in a decision on appeal, December 30, 1897, that: "As the supreme court has already declared, the guaranties that the Code fixes in articles 977 and 978 for the rights required by
law to be reserved to which said articles refer, are applicable to the special right dealt with in article 811, because the same principle exists and because of the general nature of the provisions of the chapter in which
they are found."
From this principle of jurisprudence it is inferred that if from December, 1889, to July, 1893, a case had occurred of a right required to be reserved by article 811, the persons entitled to such right would
have been able to institute, against the ascendants who must make the reservation, proceedings for the assurance and guaranty that articles 977 and 978 grant to the children of a first marriage against their father or
mother who has married again. The proceedings for assurance, under article 977, are: Inventory of the property subject to the right reserved, annotation in the property registry of such right reserved in the real
property and appraisal of the personal property; and the guaranty, under article 978, is the assurance by mortgage, in the case of realty, of the value of what is validly alienated.
But since the amended Mortgage Law went into effect by law of July 14, 1893, in the Philippines this is not only a principle of jurisprudence which may be invoked for the applicability to the right reserved in
article 811 of the remedies of assurance and guaranty provided for the right reserved in article 968, but there is a positive provision of said law, which is an advantage over the law of Spain, to wit, article 199, which
read thus:
"The special mortgage for guaranteeing the right reserved by article 811 of the Civil Code can only be required by the relatives in whose favor the property is to be reserved, if they are of
age; if minors, it will be required by the persons who should legally represent them. In either case the right of the persons in whose favor the property must be reserved will be secured by the same
requisites as set forth in the preceding articles (relative to the right reserved by article 968 of the Civil Code), applying to the person obligated to reserve the right the provisions with respect to the
father."
In article 168 of the same law the new subsection 2 is added in connection with article 199 quoted, so that said article 168 reads thus:
"Legal mortgage is established:
"1. . . .
"2. In favor of the relatives to whom article 811 of the Civil Code refers, for the property required to be reserved, upon the property of the person obligated to reserve it."
This being admitted, and admitted also that both the litigating parties agree that the period of ninety days fixed for the right of action to the guaranty, that is, to require the mortgage that guarantees the
effectiveness of the right required by law to be reserved, has prescribed, it is necessary to lay down a principle in this matter. Now it should be noted that such action has not prescribed, because the period of ninety
days fixed by the Mortgage Law is not for the exercise of the right of action of the persons entitled to the right reserved, but for the fulfillment of the obligation of the person who must make the reservation.
Article 191 of the law reads thus: "If ninety days pass without the father's instituting in court the proceeding to which the foregoing article refers, the relatives themselves may demand fulfillment, etc., . . .
applying, according to said article 199, to the person obligated to reserve the right the provisions with respect to the father."
Article 203 of the regulation for the application of the Mortgage Law says: "In the case of article 199 of the law the proceedings to which article 190 thereof refers will be instituted within the ninety days
succeeding the date of the date of the acceptation of the inheritance by the person obligated to reserve the property; after this period has elapsed, the interested parties may require the institution of such proceedings,
if they are of age; and in any other case, their legal representatives."
Thus it clearly appears that the lapse of the ninety days is not the expiration by prescription of the period for the exercise of this right of action by the persons in whose favor the right must be reserved, but
really the commencement thereof, and enables them to exercise it at any time, since no limit is set in the law. So, if the annotation of the right required by law to be reserved in the two parcels of land in question must
be made in the property registry of the Mortgage Law, the persons entitled to it may now institute proceedings to that end, and an allegation of prescription against the exercise of such right of action cannot be
sustained.
Since the applicant confesses that she does not allege prescription of the right of action for requiring that the property be reserved, for she explicitly so stated at the trial, and as the case presents no
necessity for the proceedings that should be instituted in accordance with the provisions of the Mortgage Law, this prescription of the right of action cannot take place, because such right of action does not exist with
reference to instituting proceedings for annotation in the registry of Act No. 496 of the right to the property required by law to be reserved. It is sufficient, as was done in the present case, to intervene in the registration
proceedings with the claim set up by the two opponents for recording therein the right reserved in either parcel of land.
Now comes the main point in the appeal. The trial court denied the registration because of this finding set forth in its decision:
"Absolute title to the two parcels of land undoubtedly belongs to the applicant and the two uncles of the deceased Pedro Sablan, and the application cannot be made except in the name
of all of them in common." (B. of E., p. 20.)
It must be remembered that absolute title consists of the rights to use, enjoy, dispose of, and recover. The person who has in himself all these rights has the absolute or complete ownership of the thing;
otherwise, the person who has the rights to use and enjoy will have the usufruct, and the person who has the rights of disposal and recovery the direct title. The person who by law, act, or contract is granted the right
of usufruct has the first two rights of using and enjoying, and then he is said not to have the fee simple that is, the rights of disposal and recovery, which pertain to another who, after the usufruct expires, will come
into full ownership.
The question set up in the first assignment of error of the appellant's brief is this:
"What are the rights in the property of the person who holds it subject to the reservation of article 811 of the Civil Code?"
There are not lacking writers who say, only those of a usufructuary, the ultimate title belonging to the persons in whose favor the reservation is made. If that were so, the person holding the property could
not apply for registration of title, but the person in whose favor it must be reserved, with the former's consent. This opinion does not seem to be admissible, although it appears to be supported by decisions of the
supreme court of Spain of May 21, 1861, and June 18, 1880, prior to the Civil Code, and of June 22, 1895, somewhat subsequent to the enforcement thereof.
Another writer says: "This opinion only looks at two salient points the usufruct and the fee simple; the remaining features of the arrangement are not perceived, but become obscured in the presence of
that deceptive emphasis which only brings out two things: that the person holding the property will enjoy it and that he must keep what he enjoys for other person." (Manresa, VII, 189.)
In another place he says: "We do not believe that the third opinion can now be maintained that is, that the surviving spouse (the person obligated by article 968 to make the reservation) can be regarded

as a mere usufructuary and the descendants immediately as the owner; such theory has no serious foundation in the Code." (Ibid., 238.)
The ascendants who inherits from a descendant, whether by the latter's wish or by operation of law, acquires the inheritance by virtue of a title perfectly transferring absolute ownership. All the attributes of
the right of ownership belong to him exclusively use, enjoyment, disposal and recovery. This absolute ownership, which is inherent in the hereditary title, is not altered in the least, if there be no relatives within the
third degree in the line whence the property proceeds or they die before the ascendant heir who is the possessor and absolute owner of the property. If there should be relatives within the third decree who belong to
the line whence the property proceeded, then a limitation to that absolute ownership would arise. The nature and scope of this limitation must be determined with exactness in order not to vitiate rights that the law
wishes to be effective. The opinion which makes this limitation consist in reducing the ascendant heir to the condition of a mere usufructuary, depriving him of the right of disposal and recovery, does not seem to have
any support in the law, as it does not have, according to the opinion that has been expressed in speaking of the rights of the father or mother who has married again. There is a marked difference between the case
where a man's wish institutes two persons as his heirs, one as usufructuary and the other as owner of his property, and the case of the ascendant in article 811 or of the father or mother in article 968. In the first case,
there is not the slightest doubt that the title to the hereditary property resides in the hereditary owner and only he can dispose of and recover it, while the usufructuary can in no way perform any act of disposal of the
hereditary property (except that he may dispose of the right of usufruct in accordance with the provisions of article 480 of the Civil Code), or any act of recovery thereof except the limited one in the form prescribed in
article 486 of the Code itself, because he totally lacks the fee simple. But the ascendant who holds the property required by article 811 to be reserved, and the father or mother required by article 968 to reserve the
right, can dispose of the property they inherit itself, the former from his descendant and the latter from his or her child in first marriage, and recover it from anyone who may unjustly detain it, while the persons in
whose favor the rights is required to be reserved in either case cannot perform any act whatsoever of disposal of recovery.
Article 975 states explicitly that the father or mother required by article 968 to reserve the right may dispose of the property itself:
"Alienation of the property required by law to be reserved which may be made by the surviving spouse after contracting a second marriage shall be valid only if at his or her death no
legitimate children or descendants of the first marriage survive, without prejudice to the provisions of the Mortgage Law."
It thus appears that the alienation is valid, although not altogether effective, but under a condition subsequent, to wit: "If at his or her death no legitimate children or descendants of the first marriage
survive."
If the title did not reside in the person holding the property to be reserved, his alienation thereof would necessarily be null and void, as executed without a right to do so and without a right which he could
transmit to the acquirer. The law says that the alienation subsists (to subsist is to continue to exist) "without prejudice to the provisions of the Mortgage Law." Article 109 of this Law says:
"The possessor of property subject to conditions subsequent that are still pending may mortgage or alienate it, provided always that he preserve the right of the parties interested in said
conditions by expressly reserving that right in the registration."
In such case, the child or legitimate descendant of the first marriage in whose favor the right is reserved cannot impugn the validity of the alienation so long as the condition subsequent is pending, that is,
so long as the remarried spouse who must reserve the right is alive, because it might easily happen that the person who must reserve the right should outlive all the persons in whose favor the right is reserved and
then there would be no reason for the condition subsequent that they survive him, and, the object of the law having disappeared, the right required to be reserved would disappear, and the alienation would not only be
valid but also in every way absolutely effective. Consequently, the alienation is valid when the right required by law to be reserved to the children is respected; while the effects of the alienation depend upon a
condition, because it will or will not become definite, it will continue to exist or cease to exist, according to circumstances. This is what the law establishes with reference to the reservation of article 968, wherein the
legislator expressly directs that the surviving spouse who contracts a second marriage shall reserve to the children or descendants of the first marriage ownership. Article 811 says nothing more than that the
ascendant must make the reservation.
Manresa, with his recognized ability, summarizes the subject under the hearing, "Rights and obligations during the existence of the right required by law to be reserved," in these words:
"During the whole period between the constitution in legal form of the right required by law to be reserved and the extinction thereof, the relatives within the third degree, after the right
that in their turn may pertain to them has been assured, have only an expectation, and therefore they do not even have the capacity to transmit that expectation to their heirs.
"The ascendant is in the first place a usufructuary who should use and enjoy the things according to their nature, in the manner and form already set forth in commenting upon the articles
of the Code referring to use and usufruct.
"But since in addition to being the usufructuary he is, even though conditionally, the owner in fee simple of the property, he can dispose of it in the manner provided in articles 974 and 976
of the same Code. Doubt arose also on this point, but the Direccion General of the registries, in an opinion of June 25, 1892, declared that articles 974 and 975, which are applicable by analogy, for
they refer to property reserved by law, reveal in the clearest manner the attitude of the legislator on this subject, and the relatives within the third degree ought not to be more privileged in the right
reserved in article 811 than the children in the right reserved by article 975, chiefly for the reason that the right required to be reserved carries with it a condition subsequent, and the property subject
to those conditions can validly be alienated in accordance with article 109 of the Mortgage Law, such alienation to continue, pending fulfillment of the condition." (Civil Code, VI, 270.)
Another commentator corroborates the foregoing in every way. He says:
"The ascendant acquires that property with a condition subsequent, to wit, whether or not there exist at the time of his death relatives within the third degree of the descendant from whom
they inherit in the line whence the property proceeds. If such relatives exist, they acquire ownership of the property at the death of the ascendant. If they do not exist, the ascendant can freely
dispose thereof. If this is true, since the possessor of property subject to conditions subsequent can alienate and encumber it, the ascendant may alienate the property required by law to be
reserved, but he will alienate what he has and nothing more because no one can give does not belong to him, and the acquirer will therefore receive a limited and revocable title. The relatives within
the third degree will in their turn have an expectation to the property while the ascendant lives, an expectation that cannot be transmitted to their heirs, unless these are also within the third degree.
After the person who is required by law to reserve the right has died, the relatives may rescind the alienation of the realty required by law to be reserved and they will acquire it and all the rest that
has the same character in complete ownership, in fee simple, because the condition and the usufructuary." (Morell, Estudios sobre bienes reservables, 304, 305.)
The conclusion is that the person required by article 811 to reserve the right has, beyond any doubt at all, the rights of use and usufruct. He has, moreover, for the reasons set forth, the legal title and
dominion, although under a condition subsequent. Clearly he has, under an express provision of the law, the right to dispose of the property reserved, and to dispose of is to alienate, although under a condition. He
has the right to recover it, because he is the one who possesses or should possess it and have title to it, although a limited and revocable one. In a word, the legal title and dominion, even though under a condition,
reside in him while he lives. After the right required by law to be reserved has been assured, he can do anything that a genuine owner can do.
On the other hand, the relatives within the third degree in whose favor the right is reserved cannot dispose of the property, first because it is no way, either actually, constructively or formally, in their
possession; and, moreover, because they have no title of ownership or of fee simple which they can transmit to another, on the hypothesis that only when the person who must reserve the right should die before them
will they acquire it, thus creating a fee simple, and only then will they take their place in the succession of the descendant of whom they are relatives within the third degree, that is to say, a second contingent place in
said legitimate succession in the fashion of aspirants to a possible future legacy. If any of the persons in whose favor the right is reserved should, after their right has been assured in the registry, dare to dispose of
even nothing more than the fee simple of the property to be reserved his act would be null and void, for, as was definitely decided in the decision on appeal of December 30, 1897, it is impossible to determine the part
"that might pertain therein to the relative at the time he exercised the right, because in view of the nature and scope of the right required by law to be reserved the extent of his right cannot be foreseen, for it may
disappear by his dying before the person required to reserve it, just as it may even become absolute should that person die."
Careful consideration of the matter forces the conclusion that no act of disposal inter vivos of the person required by law to reserve the right can be impugned by him in whose favor it is reserved, because
such person has all, absolutely all, the rights inherent in ownership, except that the legal title is burdened with a condition that the third party acquirer may ascertain from the registry in order to know that he is
acquiring a title subject to a condition subsequent. In conclusion, it seems to us that only an act of disposal mortis causa in favor of persons other than relatives within the third degree of the descendant from whom he
got the property to be reserved must be prohibited to him, because this alone has been the object of the law: "To prevent persons outside a family from securing, by some special accident of life, property that would
otherwise have remained therein." ( Decision of December 30, 1897.)

Practically, even in the opinion of those who reduce the person reserving the right to the condition of a mere usufructuary, the person in whose favor it must be reserved cannot attack the alienation that may
be absolutely made of the property the law requires to be reserved, in the present case, that which the applicant has made of the two parcels of land in question to a third party, because the conditional alienation of
the usufruct, which is authorized by article 480 of the Civil Code, and, practically, use and enjoyment of the property required by law to be reserved are all that the person who must reserve it has during his lifetime,
and in alienating the usufruct all the usefulness of the thing would be transmitted in an incontrovertible manner. The question as to whether or not she transmits the fee simple is purely academic, sine re, for it is not
real, actual and positive, as is the case of the institution of two heirs, one a usufructuary and the other the owner, by the express wish of the predecessor in interest.
If the person whom article 811 requires to reserve the right has all the rights inherent in ownership, he can use, enjoy, dispose of and recover it; and if, in addition to usufructuary, he is in fact and in law the
real owner and can alienate it, although under a condition, the whole question is reduced to the following terms:
Cannot the heir of the property required by law to be reserved, merely because a condition subsequent is annexed to his right of disposal, himself alone register the ownership of the property he has
inherited, when the persons in whose favor the reservation must be made agree thereto, provided that the right reserved to them in the two parcels of land be recorded, as the law provides?
It is well known that the vendee under pacto de retracto acquires all the rights of the vendor:
"The vendee substitutes the vendor in all his rights and actions." (Civil Code, art. 1511.)
If the vendor can register his title, the vendee can also register this same title after he has once acquired it. This title, however, in its attribute of being disposable, has a condition subsequent annexed
that the alienation the purchaser may make will be terminated, if the vendor should exercise the right granted him by article 1507, which says:
"Conventional redemption shall take place when the vendor reserves to himself the right to recover the thing sold with the obligation to comply with article 1518, and whatever more may
have been agreed upon," that is, if he recovers the thing sold by repaying the vendee the price of the sale and other expenses. Notwithstanding this condition subsequent, it is a point not at all
doubtful now that the vendee may register his title in the same way as the owner of a thing mortgaged that is to say, the latter with the consent of his creditor and the former with the consent of
the vendor. He may alienate the thing bought when the acquirer knows very well from the title entered in the registry that he acquires a title revocable after a fixed period, a thing much more certain
and to be expected than the purely contingent expectation of the person in whose favor is reserved a right to inherit some day what another has inherited. The purposes of the law would be
defeated in not applying to the person who must make the reservation the provision therein relative to the vendee under pacto de retracto, since the argument in his favor is the more powerful and
conclusive; ubi eadem ratio, eadem legis dispositio.
Therefore, we reverse the judgment appealed from, and in lieu thereof decide and declare that the applicant is entitled to register in her own name the two parcels of land which are the subject matter of the
application, recording in the registration the right required by article 811 to be reserved to either or both of the opponents, Pablo Sablan and Basilio Sablan, should they survive her; without special finding as to costs.
Torres, Mapa, Johnson, Carson and Trent, JJ., concur.
||| (Edroso v. Sablan, G.R. No. 6878, [September 13, 1913], 25 PHIL 295-315)
ENCARNACION FLORENTINO ET AL., plaintiffs-appellants, vs. MERCEDES FLORENTINO ET AL., defendants-appellees.
Ramon Querubin, Simeon Ramos and Orense & Vera for appellants.
Vicente Foz, Jose Singsong Tongson and Angel Encarnacion for appellees.
SYLLABUS
1. RESERVABLE PROPERTY The property proceeding from an ascendant or from a brother of a deceased descendant who may have acquired same by lucrative title and from whom
afterwards another ascendant of deceased will inherit is by law invested with the character of reservable property in favor of said deceased's relatives, within the third degree, of the line from whence such
property proceeds. (Art. 811 of the Civil Code.)
2. ID.; WHEN IT LOSES THIS CHARACTER. The ascendant, who inherits property of a reservable character from his deceased descendant who has a relative within the third degree still living, is
no more than a life usufructuary or a fiduciary of said reservable property. But if, during the lifetime of the said ascendant, all the relatives, within the third degree, of his predecessor in interest should die or
disappear, according to law the condition of reservation with which the property had been burdened ceases to exist, and said property now becomes a part of the legitimate legitime of the ascendant who had
inherited same through the death of those for whom it had been reserved (reservatarios).
3. ID; RIGHTS OF SUCCESSION. According to the order of succession prescribed by law for legitimes, when there are relatives within the third degree of the deceased descendant, the right of
the relative's nearest reservative (reservatario) to the property excludes that of the one more remote. Wherefore the property ought to be handed over to said relative by the reservist (reservista), without it being
possible to allege a right of representation when he who attempts the same is not comprehended within the third degree, among the predecessor-in-interest's relatives. Inasmuch as the right conceded by the
aforementioned article 811 of the Civil Code is, in the highest degree, for the personal and exclusive benefit of the persons pointed out by law, in no manner can there be included relatives of the fourth and
succeeding degrees, not recognize by law.
4. ID., NATURE OF. Reservable property neither comes nor falls under the absolute dominion of the ascendant who inherits and receives same from his deceased descendant and, therefore,
neither forms part of his estate nor integrates the legitime of his forced heirs. It becomes the ascendant's own property, received as an inheritance, only under the condition that all of the deceased descendant's
relatives, within the third degree, shall have died. Under these circumstances the property, transmitted by the predecessor in interest to his ascendant, has lost its character of reservation.
5. ID., ID. Reservable property left, through a will or otherwise, by the death of ascendant (reservista) to other with his own property in favor of another of his descendants as forced heir, forms no
part of the latter's lawful inheritance nor of the legitime, for the reason that, as said property continued to be reservable the heir receiving same as an inheritance from his ascendant has the strict obligation of its
delivery to the relatives, within the third degree, of the predecessor in interest, without prejudicing the right of the heir to an aliquot part of property, if he has at the same time the right of a reservatario.
DECISION
TORRES, J p:
On January 17, 1918, counsel for Encarnacion (together with her husband Simeon Serrano), Gabriel, Magdalena, Ramon, Miguel, Victorino, and Antonio of the surname Florentino; for Miguel Florentino,
guardian ad litem of the minor Rosario Florentino; for Eugenio Singson, the father and guardian ad litem of Emilia, Jesus, Lourdes, Caridad, and Dolores of the surname Singson y Florentino; and for Eugenio
Singson, guardian of the minors Jose and Asuncion Florentino, filed a complaint in the Court of First Instance of Ilocos Sur, against Mercedes Florentino and her husband, alleging as follows:
That Apolonio Isabelo Florentino II married the first time Antonia Faz de Leon; that during the marriage he begot nine children called Jose, Juan, Maria, Encarnacion, Isabel, Espirita, Gabriel, Pedro, and
Magdalena of the surname Florentino y de Leon; that on becoming a widower he married the second time Severina Faz de Leon with whom he had two children, Mercedes and Apolonio III of the surname Florentino y
de Leon; that Apolonio Isabelo Florentino II died on February 13, 1890; that he was survived by his second wife Severina Faz de Leon and the ten children first above mentioned; that his eleventh son, Apolonio III,
was born on the following 4th of March 1890.
That of the deceased Apolonio Isabelo's aforementioned eleven children, Juan, Maria and Isabel died single, without leaving any ascendants or descendants; that Ramon, Miguel, Victorino, Antonio, and
Rosario are the legitimate children of the deceased Jose Florentino who was one of the children of the deceased Apolonio Isabelo; that Emilia, Jesus, Lourdes, Caridad, and Dolores are the legitimate children of
Espirita Florentino, now deceased, and her husband Eugenio Singson; that Jose and Asuncion are the children of Pedro Florentino, another son of the deceased Apolonio Isabelo Florentino.
That on January 17 and February 13, 1890, Apolonio Isabelo Florentino executed a will before the notary public of Ilocos Sur, instituting as his universal heirs his aforementioned ten children, the
posthumos Apolonio III and his widow Severina Faz de Leon; that he declared, in one of the paragraphs of said will, all his property should be divided among all of his children of both marriages.
That, in the partition of the said testator's estate, there as given to Apolonio Florentino III, his posthumos son the property marked with the letters A, B, C, D, E, and F in the complaint, a gold rosary, pieces
of gold, of silver and of table service, livestock, palay, some personal property and other objects mentioned in the complaint.
That Apolonio Florentino III, the posthumos son of the second marriage, died in 1891; that his mother, Severina Faz de Leon, succeeded to all his property described in the complaint; that the widow,

Severina Faz de Leon died on November 18, 1908, leaving a will instituting as her universal heiress her only living daughter, Mercedes Florentino; that, as such heir, said daughter took possession of all the property
left at the death of her mother, Severina Faz de Leon; that among same is included the property, described in the complaint, which the said Severina Faz de Leon inherited from her deceased son, the posthumos
Apolonio, as reservable property; that, as a reservist, the heir of the said Mercedes Florentino deceased had been gathering for herself alone the fruits of lands described in the complaint; that each and every one of
the parties mentioned in said complaint is entitled to one-seventh of the fruits of the reservable property described therein, either by direct participation or by representation, in the manner mentioned in paragraph 9 of
the complaint.
That several times the plaintiffs have, in an amicable manner, asked the defendants to deliver their corresponding part of the reservable property; that without any justifiable motive the defendants have
refused and do refuse to deliver said property or to pay for its value; that for nine years Mercedes Florentino has been receiving, as rent for the lands mentioned, 360 bundles of palay at fifty pesos per bundle and 90
bundles of corn at four pesos per bundle; that thereby the plaintiffs have suffered damages in the sum of fifteen thousand four hundred and twenty-eight pesos and fifty-eight centavos, in addition to three hundred and
eight pesos and fifty-eight centavos for the value of the fruits not gathered, of one thousand pesos (P1,000) for the unjustifiable retention of the aforementioned reservable property and for the expenses of this suit.
Wherefore they pray it be declared that all the foregoing property is reservable property; that the plaintiffs had and do have a right to the same, in the quantity and proportion mentioned in the aforementioned
paragraph 9 of the complaint; that the defendants Mercedes Florentino and her husband be ordered to deliver to the plaintiffs their share of the property in question, of the palay and of the corn above mentioned, or
their value; and that they be condemned to pay the plaintiffs the sum of one thousand pesos (P1,000) together with the costs of this instance.
To the preceding complaint counsel for the defendants demurred, alleging that the cause of action is based on the obligation of the widow Severina Faz de Leon to reserve the property she inherited from
her deceased son Apolonio Florentino y Faz de Leon v. Ho, in turn, inherited same from his father Apolonio Isabelo Florentino; that, there being no allegation to the contrary, it is to be presumed that the widow
Severina Faz de Leon did not remarry after the death of this husband nor have any natural child; that the right claimed by the plaintiffs is not that mentioned in article 968 and the following articles, but that established
in article 811 of the Civil Code; that the object of the provisions of the aforementioned articles is to avoid the transfer of said reservable property to those extraneous to the family of the owner thereof; that if the
property inherited by the widow Severina Faz de Leon from her deceased son Apolonio Florentino y Faz de Leon (property which originated from his father and her husband) has all passed into the hands of the
defendant, Mercedes Florentino y Encarnacion, a daughter of the common ancestor's second marriage (said Apolonio Isabelo Florentino with the deceased Severina Faz de Leon) it is evident that the property left at
the death of the posthumos son Apolonio Florentino y Faz de Leon did not pass after the death of his mother Severina, his legitimate heirs as an ascendant, into the hands of strangers; that said property having been
inherited by Mercedes Florentino y Encarnacion from her mother (Severina), article 811 of the Civil Code is absolutely inapplicable to the present case because, when the defendant Mercedes, by operation of law,
entered into and succeeded to, the possession, of the property lawfully inherited from her mother Severina Faz de Leon, said property had, while in the possession of her mother, lost the character of reservable
property there being a legitimate daughter of Severina Faz de Leon with the right to succeed her in all her rights, property and actions; that the restraints of the law whereby said property may not passed into the
possession of strangers are void, inasmuch as the said widow had no obligation to reserve same, as Mercedes Florentino is a forced heiress of her mother Severina Faz de Leon; that, in the present case, there ii no
property reserved for the plaintiffs since there is a forced heiress, entitled to the property left by the death of the widow Severina Faz de Leon who never remarried; that the obligation to reserve is secondary to the
duty of respecting the legitime; that in the instant case, the widow Severina Faz de Leon was in duty bound to respect the legitime of her daughter Mercedes, the defendant; that her obligation to reserve the property
could not be fulfilled to the prejudice of the legitime which belongs to her forced heiress, citing in support of these statements the decision of the supreme court of Spain of January 4, 1911; that, finally, the application
of article 811 of the Civil Code in favor of the plaintiffs would presuppose the exclusion of the defendant from her right to succeed exclusively to all the property, rights and actions left by her legitimate mother, altho the
said defendant has a better right than the plaintiffs; and that there would be injustice if the property claimed be adjudicated to the plaintiffs, as well as a violation of section 5 of the Jones Law which invalidates any law
depriving any person of an equal protection. Wherefore they prayed that the demurrer be sustained, with costs against the plaintiffs.
After the hearing of the demurrer, on August 22, 1918, the judge absolved the defendants from the complaint and condemned the plaintiffs to pay the costs.
Counsel for the plaintiffs excepted to this order, moved to vacate it and to grant them a new trial; said motion was overruled; the plaintiffs excepted thereto and filed the corresponding bill of exceptions
which was allowed, certified and forwarded to the clerk of this court.
On appeal the trial judge sustained the demurrer of the defendants to the complaint of the plaintiffs, but, instead of ordering the latter to amend their complaint within the period prescribed by the rules
undoubtedly believing that the plaintiffs could not alter nor change the facts constituting the cause of action, and that, as both parties were agreed as to the facts alleged in the complaint as well as in the demurrer,
every question reduced itself to one of the law, already submitted to the decision of the court the said judge, disregarding the ordinary procedure established by law, decided the case by absolving the defendants
from the complaint and by condemning the plaintiffs to pay the costs of the instance.
There certainly was no real trial, inasmuch as the defendants, instead of answering the complaint of the plaintiffs, confined themselves to filing a demurrer based on the ground that the facts alleged in the
complaint do not constitute a cause of action. However, the judge preferred to absolve the defendants, thereby making an end to the cause, instead of dismissing the same, because undoubtedly he believed, in view
of the controversy between the parties, that the arguments adduced to support the demurrer would be the same which the defendants would allege in their answer those dealing with a mere question of law which
the courts would have to decide and that, the demurrer having been sustained, if the plaintiffs should insist they could do no less upon alleging the same facts as those set out in their complaint and if another
demurrer were afterwards set up, he would be obliged to dismiss said complaint with costs against the plaintiffs in spite of being undoubtedly convinced in the instant case that the plaintiffs absolutely lack the right
to bring the action stated in their complaint.
Being of the opinion that the emendation of the indicated defects is not necessary as in this case what has been done does not prejudice the parties the appellate court will now proceed to decide the
suit according to its merits, as found in the record and to the legal provisions applicable to the question of law in controversy so that unnecessary delay and greater expense may be avoided, inasmuch as, even if all
the ordinary proceedings be followed, the suit would be subsequently decided in the manner and terms that it is now decided in the opinion thoughtfully and conscientiously formed for its determination.
In order to decide whether the plaintiffs are or are not entitled to invoke, in their favor, the provisions of article 811 of the Civil Code, and whether the same article is applicable to the question of law
presented in this suit, it is necessary to determine whether the property enumerated in paragraph 5 of the complaint is of the nature of reservable property; and, if so, whether in accordance with the provision of the
Civil Code in article 811, Severina Faz de Leon (the widow of the deceased Apolonio Isabelo Florentino) who inherited said property from her son Apolonio Florentino III (born after the death of his father Apolonio
Isabelo) had the obligation to preserve and reserve same for the relatives, within the third degree, of her aforementioned deceased son Apolonio III.
The above mentioned article reads:
"Any ascendant who inherits from his descendant any property acquired by the latter gratuitously from some other ascendant, or from a brother or sister, is obliged to reserve such of the
property as he may have acquired by operation of law for the benefit of relatives within the third degree belonging to the line from which such property came."
During the marriage of Apolonio Isabelo Florentino II and Severina Faz de Leon two children were born, namely the defendant Mercedes Florentino and Apolonio Florentino III (born after the death of his
father). At the death of Apolonio Isabelo Florentino under a will, his eleven children succeeded to the inheritance he left, one of whom, the posthumos son Apolonio III, was given, as his share, the aforementioned
property enumerated in the complaint. In 1891 the said posthumos son Apolonio Florentino III died and was succeeded by his legitimate mother Severina Faz de Leon, who inherited the property he left and who on
dying, November 18, 1908, instituted by will as her sole heiress her surviving daughter, Mercedes Florentino, the defendant herein, who took possession of all property left by her father, same constituting the
inheritance. Included in said inheritance is the property, specified in paragraph 5 of the complaint, which had been inherited by the posthumos son Apolonio Florentino III from his father Apolonio Isabelo Florentino,
and which, at the death of the said posthumos son, had in turn been inherited by his mother, Severina Faz de Leon. Even if Severina left in her will said property, together with her own, to her only daughter and forced
heiress, Mercedes Florentino, nevertheless this property had not lost its reservable nature inasmuch as it originated from the common ancestor of the litigants, Apolonio Isabelo; was inherited by his son Apolonio III;
was transmitted by same (by operation of law) to his legitimate mother and ascendant, Severina Faz de Leon.
The posthumos son, Apolonio Florentino III, acquired the property, now claimed by his brothers, by a lucrative title or by inheritance from his aforementioned legitimate father, Apolonio Isabelo Florentino II.
Although said property was inherited by his mother, Severina Faz de Leon, nevertheless, she was in duty bound, according to article 811 of the Civil Code, to reserve the property thus acquired for the benefit of the
relatives, within the third degree, of the line from which such property came.

According to the provisions of law, ascendants do not inherit the reservable property, but its enjoyment, use or trust, merely for the reason that said law imposes the obligation to reserve and preserve same
for certain designated persons who, on the death of the said ascendants-reservists, (taking into consideration the nature of the line from which such property came) acquire the ownership of said property in fact and
by operation of law in the same manner as forced heirs (because they are also so such) said property reverts to said line as long as the aforementioned persons who, from the death of the ascendant reservists,
acquire in fact the right of reservatarios (persons for whom property is reserved), and are relatives, within the third degree, of the descendant from whom the reservable property came.
Any ascendant who inherits from his descendant any property, while there are living, within the third degree, relatives of the latter, is nothing but a life usufructuary or a fiduciary of the reservable property
received. He is, however, the legitimate owner of his own property which is not reservable property and which constitutes his legitime, according to article 809 of the Civil Code. But if, afterwards, all of the relatives,
within the third degree, of the descendant (from whom came the reservable property) die or disappear, the said property becomes free property, by operation of law, and is thereby converted into the legitime of the
ascendant heir who can transmit it at his death to his legitimate successors or testamentary heirs. This property has now lost its nature of reservable property, pertaining thereto at the death of the relatives, called
reservatarios, who belonged within the third degree to the line from which such property came.
Following the order prescribed by law in legitimate succession, when there are relatives of the descendant within the third degree, the right of the nearest relative, called reservatario, over the property
which the reservista (person holding it subject to reservation) should return to him, excludes that of the one more remote. The right of representation cannot be alleged when the one claming same as a reservatario of
the reservable property is not among the relatives within the third degree belonging to the line from which such property came, inasmuch as the right granted by the Civil Code in article 811 is in the highest degree
personal and for the exclusive benefit of designated persons who are the relatives, within the third degree, of the person from whom the reservable property came. Therefore, relatives of the fourth and the succeeding
degrees can never be considered as reservatarios, since the law does not recognize them as such.
In spite of what has been said relative to the right of representation on the part of one alleging his right as reservatario who is not within the third degree of relationship, nevertheless there is right of
representation on the part of reservatarios who are within the third degree mentioned by law, as in the case of nephews of the deceased person from whom the reservable property came. These reservatarios have the
right to represent their ascendants (fathers and mothers) who are the brothers of the said deceased person and relatives within the third degree in accordance with article 811 of the Civil Code.
In this case it is conceded without denial by defendants, that the plaintiffs Encarnacion, Gabriel and Magdalena are the legitimate children of the first marriage of the deceased Apolonio Isabelo Florentino II;
that Ramon, Miguel, Ceferino, Antonio, and Rosario are both grandchildren of Apolonio Isabelo Florentino II, and children of his deceased son, Jose Florentino; that the same have the right to represent their
aforementioned father, Jose Florentino; that Emilia, Jesus, Lourdes, Caridad, and Dolores are the legitimate children of the deceased Espirita Florentino, one of the daughters of the deceased Apolonio Isabelo
Florentino II, and represent the right of their aforementioned mother; and that the other plaintiffs, Jose and Asuncion, have also the right to represent their legitimate father Pedro Florentino, one of the sons of the
aforementioned Apolonio Isabelo Florentino II. It is a fact, admitted by both parties, that the other children of the first marriage of the deceased Apolonio Isabelo Florentino II died without issue so that this decision
does not deal with them.
There are then seven "reservatarios" who are entitled to the reservable property left at the death of Apolonio III; the posthumos son of the aforementioned Apolonio Isabelo II, to wit, his three children of his
first marriage Encarnacion, Gabriel, Magdalena; his three children, Jose, Espirita and Pedro who are represented by their own twelve children respectively; and Mercedes Florentino, his daughter by a second
marriage. All of the plaintiffs are the relatives of the deceased posthumos son, Apolonio Florentino III, within the third degree (four of whom being his half-brothers and the remaining twelve being his nephews as they
are the children of his three half-brothers). As the first four are his relatives within the third degree in their own right and the other twelve are such by representation, all of them are indisputably entitled as reservatarios
to the property which came from the common ancestor, Apolonio Isabelo, to Apolonio Florentino III by inheritance during his life-time, and in turn by inheritance to his legitimate mother, Severina Faz de Leon, widow of
the aforementioned Apolonio Isabelo Florentino II.
In spite of the provision of article 811 of the Civil Code already cited, the trial judge refused to accept the theory of the plaintiffs and, accepting that of the defendants, absolved the latter from the complaint
on the ground that said article is absolutely inapplicable to the instant case, inasmuch as the defendant Mercedes Florentino survived her brother, Apolonio III, from whom the reservable property came and her
mother, Severina Faz de Leon, the widow of her father, Apolonio Isabelo Florentino II; that the defendant Mercedes, being the only daughter of Severina Faz de Leon, is likewise her forced heiress; that when she
inherited the property left at the death of her mother, together with that which came from her deceased brother Apolonio III, the fundamental object of article 811 of the Code was thereby complied with, inasmuch as
the danger that the property coming from the same line might fall into the hands of strangers had been avoided; and that the hope or expectation on the part of the plaintiffs of the right to acquire the property of the
deceased Apolonio III never did come into existence because there is a forced heiress who is entitled to such property.
The judgment appealed from is also founded on the theory that article 811 of the Civil Code does not destroy the system of legitimate succession and that the pretension of the plaintiffs to apply said article
in the instant case would be permitting the reservable right to reduce and impair the forced legitime which exclusively belongs to the defendant Mercedes Florentino, in violation of the precept of article 813 of the
same Code which provides that the testator cannot deprive his heirs of their legitime, except in the cases expressly determined by law. Neither can he impose upon it any burden, condition, or substitution of any kind
whatsoever, saving the provisions concerning the usufruct of the surviving spouse, citing the decision of the Supreme Court of Spain of January 4, 1911.
The principal question submitted to the court for decision consists mainly in determining whether the property left at the death of Apolonio III, the posthumos son of Apolonio Isabelo II, was or was not
invested with the character of reservable property when it was received by his mother, Severina Faz de Leon.
The property enumerated by the plaintiffs in paragraph 5 of their complaint came, without any doubt whatsoever from the common ancestor Apolonio Isabelo II, and when, on the death of Apolonio III
without issue, the same passed by operation of law into the hands of his legitimate mother, Severina Faz de Leon, it became reservable property, in accordance with the provision of article 811 of the Code, with the
object that the same should not fall into the possession of persons other than those comprehended within the order of succession traced by the law from Apolonio Isabelo II, the source of said property. If this property
was in fact clothed with the character and condition of reservable property when Severina Faz de Leon inherited same from her son Apolonio III, she did not thereby acquire the dominion or right of ownership but only
the right of usufruct or of fiduciary, with the necessary obligation to preserve and to deliver or return it as such reservable property to her deceased son's relatives within the third degree, among whom is her daughter,
Mercedes Florentino.
Reservable property neither comes, nor falls under, the absolute dominion of the ascendant who inherits and receives same from his descendant, therefore it does not form part of his own property nor
become the legitimate of his forced heirs. It becomes his own property only in case that all the relatives of his descendant shall have died (reservista), in which case said reservable property losses such character.
With full right Severina Faz de Leon could have disposed in her will of all her own property in favor of her only living daughter, Mercedes Florentino, as forced heiress. But whatever provision there is in her
will concerning the reservable property received from her son Apolonio III, or rather, whatever provision will reduce the rights of the other reservatarios, the half brothers and nephews of her daughter Mercedes, is
unlawful, null and void, inasmuch as said property is not her own and she has only the right of usufruct or of fiduciary, with the obligation to preserve and to deliver same to the reservatarios, one of whom is her own
daughter, Mercedes Florentino.
It cannot reasonably be affirmed, founded upon an express provision of law, that by operation of law all of the reservable property, received during lifetime by Severina Faz de Leon from her son, Apolonio
III, constitutes or forms part of the legitime pertaining to Mercedes Florentino. If said property did not come to be the legitimate and exclusive property of Severina Faz de Leon, her only legitimate and forced heiress,
the defendant Mercedes, could not inherit all by operation of law and in accordance with the order of legitimate succession, because the other relatives of the deceased Apolonio III, within the third degree, as well as
herself are entitled to such reservable property.
For this reason, in no manner can it be claimed that the legitime of Mercedes Florentino, coming from the inheritance of her mother Severina Faz de Leon, has been reduced and impaired; and the
application of article 811 of the Code to the instant case in no way prejudices the rights of the defendant Mercedes Florentino, inasmuch as she is entitled to a part only of the reservable property, there being no lawfull
or just reason which serves as real foundation to disregard the right to Apolonio III's other relatives, within the third degree, to participate in the reservable property in question. As these relatives are at present living,
claiming for it with an indisputable right, we cannot find any reasonable and lawful motive why their rights should not be upheld and why they should not be granted equal participation with the defendant in the litigated
property.
The claim that because of Severina Faz de Leon's forced heiress, her daughter Mercedes, the property received from the deceased son Apolonio III lost the character, previously held, of reservable

property; and that the mother, the said Severina, therefore, had no further obligation to reserve same for the relatives within the third degree of the deceased Apolonio III, is evidently erroneous for the reason that as
has been already stated, the reservable property, left in a will by the aforementioned Severina to her only daughter Mercedes, does not form part of the inheritance left by her death nor of the legitimate of the heiress
Mercedes. Just because she has a forced heiress, with a right to her inheritance, does not relieve Severina of her obligation to reserve the property which she received from her deceased son, nor did same lose the
character of reservable property held before the reservatarios received same.
It is true that when Mercedes Florentino, the heiress of the reservista Severina, took possession of the property in question, same did not pass into the hands of strangers. But it is likewise true that the said
Mercedes is not the only reservataria. And there is no reason founded upon law and upon the principle of justice why the other reservatarios, the other brothers and nephews, relatives within the third degree in
accordance with the precept of article 811 of the Civil Code, should be deprived of portions of the property which, as reservable property, pertain to them.
From the foregoing it has been shown that the doctrine announced by the Supreme Court of Spain on January 4, 1911, for the violation of articles 811, 968 and consequently of the Civil Code is not
applicable in the instant case.
Following the provisions of article 813, the Supreme Court of Spain held that the legitime of the forced heirs cannot be reduced or impaired and said article is expressly respected in this decision.
However, in spite of the efforts of the appellee to defend their supposed rights, it has not been shown, upon any legal foundation, that the reservable property belonged to, and was under the absolute
dominion of, the reservista, there being relatives within the third degree of the person from whom same came; that said property, upon passing into the hands of the forced heiress of the deceased reservista, formed
part of the legitime of the former; and that the said forced heiress, in addition to being a reservataria, had an exclusive right to receive all of said property and to deprive the other reservatarios, her relatives within the
third degree, of certain portions thereof.
Concerning the prayer in the complaint relative to the indemnity for damages and the delivery of the fruits collected, it is not proper to grant the first for there is no evidence of any damage which can give
rise to the obligation of refunding same. As to the second, the delivery of the fruits produced by the land forming the principal part of the reservable property, the defendants are undoubtedly in duty bound to deliver to
the plaintiffs six-sevenths of the fruits or rents of the portions of land claimed in the complaint, in the quantity expressed in paragraph 11 of the same, from January 17, 1918, the date the complaint was filed; and the
remaining seventh part should go to the defendant Mercedes.
For the foregoing reasons it follows that with the reversal of the order of decision appealed from we should declare, as we hereby do, that the aforementioned property, inherited by the deceased Severina
Faz de Leon from her son Apolonio Florentino III, is reservable property; that the plaintiffs, being relatives of the deceased Apolonio III within the third degree, are entitled to six-sevenths of said reservable property;
that the defendant Mercedes is entitled to the remaining seventh part thereof; that the latter, together with her husband Angel Encarnacion, shall deliver to the plaintiffs, jointly, six-sevenths of the fruits or rents,
claimed from said portion of the land and of the quantity claimed, from January 17, 1918, until fully delivered; and that the indemnity for one thousand pesos (P1,000) prayed for in the complaint is denied, without
special findings as to the costs of both instances. So ordered.
Arellano, C. J., Johnson, Araullo, Street, Malcolm and Avancea, JJ., concur.
||| (Florentino v. Florentino, G.R. No. 14856, [November 15, 1919], 40 PHIL 480-496)
SEGUNDA MARIA NIEVA with her husband ANGEL ALCALA, plaintiffs-appellants, vs. MANUELA ALCALA and JOSE DEOCAMPO, defendants-appellees.
Eduardo Gutierrez Repide for appellants.
Felipe Agoncillo for appellees.
SYLLABUS
1. RESERVABLE RIGHTS IN PROPERTY; INHERITANCE BY RELATIVES WITHIN THE THIRD DEGREE- ILLEGITIMATE RELATIVES. Article 811 of the Civil Code which provides that "any
ascendant who inherits from his descendant any property acquired by the latter gratuitously from some other ascendant, or from a brother or sister, is obliged to reserve such of the property, as he may have
acquired by operation of law for the benefit of relatives within the third degree belonging to the line from which such property came," does not apply to illegitimate relatives.
DECISION
JOHNSON, J p:
This is an appeal from a judgment of the Court of First Instance of the Province of Tayabas, absolving the defendants from all liability under the plaintiff's complaint, without any finding as to costs.
Juliana Nieva, the alleged natural mother of the plaintiff Segunda Maria Nieva, married Francisco. Deocampo. Of said marriage Alfeo Deocampo was born.
Juliana Nieva died intestate on April 19, 1889, and her said son, Alfeo Deocampo, inherited from her, ab intestate, the parcels of land described in Paragraphs V and X of the complaint.
Alfeo Deocampo died intestate and without issue on July 7, 1890. Thereupon the two parcels of land above-mentioned passed to his father, Francisco Deocampo, by intestate succession. Thereafter
Francisco Deocampo married the herein defendant Manuela Alcala, of which marriage was born Jose Deocampo, the other defendant herein.
Francisco Deocampo died on August la, 1914, whereupon his widow and son, the defendants herein, took possession of the parcels of land in question, under the claim that the said son, the defendant
Jose Deocampo (a minor) had inherited the same, ab intestate, from his deceased father.
On September 30, 1915, the plaintiff herein, claiming to be an acknowledged natural daughter of the said Juliana Nieva, instituted the present action for the purpose of recovering from the defendants the
parcels of land in question, particularly described in Paragraphs V and X of the complaint, invoking the provisions of article 811 of the Civil Code.
The lower court held that, even granting, without deciding, that the plaintiff was an acknowledged natural daughter of Juliana Nieva, she was not entitled to the property here in question because, in its
opinion an illegitimate relative has no right to the reserva troncal under the provisions of article 811 of the Civil Code.
The first question presented by this appeal is, whether or not the plaintiff is an acknowledged natural daughter of the deceased Juliana Nieva. It appears from the record that the said Juliana; Nieva, while
unmarried, gave birth to the plaintiff on March 29, 1882, and that the plaintiff was duly baptized as her natural daughter, of unknown father (Exhibit C, baptismal certificate); that the said Juliana Nieva nourished and
reared her said child, the plaintiff herein; that the plaintiff lived with her said mother until the latter was married to Francisco Deocampo; that the said mother treated the plaintiff, and exhibited her publicly, as a
legitimate daughter. (See testimony of Antero Gala, pp. .5-6; Prudencio de la Cuesta, pp. 16-17; and Mamerto Paiabrica, pp. 26-27, sten. notes.)
The foregoing facts, which are not controverted, are analogous to the facts in the case of Llorente vs. Rodriguez (3 Phil., 697, 699). Under the decision of this court in that case we are of the opinion and so
decide, without rediscussing here the law and legal principles involved, that the plaintiff Segunda Maria Nieva is an acknowledged natural daughter of Juliana Nieva. (See also In re estate of Enriquez and Reyes, 29
Phil., 167.)
The other and more important question presented by this appeal is, whether or not an illegitimate relative within the third degree is entitled to the reserva troncal provided for by article 811 of the Civil Code.
That article reads as follows:
"Any ascendant who inherits from his descendant any property acquired by the latter gratuitously from some other ascendant, or from a brother or sister, is obliged to reserve such of the
property as he may have acquired by operation of law for the benefit of relatives within the third degree belonging to the line from which such property came."
The property here in question was inherited, by operation of law, by Francisco Deocampo from his son Alfeo Deocampo, who, in turn, had inherited it, in the same manner, from his mother Juliana Nieva,
the natural mother of the plaintiff. The plaintiff is the natural sister of Alfeo Deocampo, and she belongs to the same line from which the property in question came. Was Francisco Deocampo obliged by law to reserve
said property for the benefit of the plaintiff, an illegitimate relative within the third degree of Alfeo Deocampo? If he was, then, upon his death, the plaintiff, and not his son the defendant Jose Deocampo, was entitled to
the said property; if he was not, the plaintiff's action must fail.
There can be no question whatever but that, under said article 811 of the Civil Code, the plaintiff would be entitled to the property in question if she were a legitimate daughter of Juliana Nieva. (Edroso vs.
Sablan, 25 Phil., 295.) But in said article 811 the legislator uses the generic terms "ascendant," "descendant," and "relatives," without specifying whether or not they have to be legitimate. Does the legislator, then,
refer to legitimate as well as to illegitimate relatives ? Counsel for the appellant, in a lengthy and carefully prepared brief, attempts to maintain the affirmative.

This question, so far as our investigation shows, has not been decided before by any court or tribunal. However, eminent commentators on the Spanish Civil Code, who have devoted their lives to the study
and solution of the intricate and difficult problems that may arise under the provisions of that Code, have dealt with the very question now before us, and are unanimous in the opinion that the provisions of article 811
of the Civil Code apply only to legitimate relatives. One of such commentators, undoubtedly the best known of them all, is Manresa. We believe we can do no better than to adopt his reasons and conclusions, in
deciding the question before us. In determining the persons who are obliged to reserve under article 811, he says:
"Is every ascendant, whether legitimate or not, obliged to reserve? Should the natural father or grandfather reserve the properties proceeding from the mother or other natural ascendant?
Article 811 does not distinguish; it speaks of the ascendant, without attaching the qualification of legitimate, and, on the other hand, the same reason that exists for applying the provision to the
natural family exists for applying it to the legitimate family. Nevertheless, the article in referring to the ascendant in an indeterminate manner shows that it imposes the obligation to reserve only upon
the legitimate ascendant.
"Let us overlook for the moment the question whether the Code recognizes or does not recognize the existence of the natural family, or whether it admits only the bond established by
acknowledgment between the father or mother who acknowledges and the acknowledged children. However it may be, it may be stated as an indisputable truth, that in said Code, the legitimate
relationship forms the general rule and the natural relationship the exception; which is the reason why, as may be easily seen, the law in many articles speaks only of children or parents, of
ascendants or descendants, and in them reference is of course made to those who are legitimate; and when it desires to make a provision-applicable only to natural relationship, it does not say
father or mother, but natural father or natural mother; it does not say child, but natural child; it does not speak of ascendants, brothers or parents in the abstract, but of natural ascendants, natural
brothers or natural parents. (See, for example, articles 294, 302, 809, 810, 846, 935 to 938, 944 and 945 and 946 to 955.)
"Articles 809 and 810 themselves speak only of ascendants. Can it in any way be maintained that they refer to legitimate as well as to natural ascendants? They evidently establish the
legitime of the legitimate ascendants included as forced heirs in number 2 of article 807. And article 811, and as we will see also article 812, continues to treat of this same legitime. The right
of the natural parents and children in the testamentary succession is wholly included in the eighth section and is limited to the parents, other ascendants of such class being excluded in articles 807,
No. 3, and 846. Therefore, the place which article 811 occupies in the Code is proof that it refers only to legitimate ascendants. And if there were any doubt, it disappears upon considering the text
of article 938, which states that the provisions of article 811 applies to intestate succession, which is just established in favor of the legitimate direct ascending line, the text of articles 939 to 945,
which treat of intestate succession of natural parents, as well as that of articles 840 to 847, treating of their testamentary succession, which do not allude directly or indirectly to that provision.
"Lastly, the principle which underlies the exception which article 811 creates in the right to succeed neither admits of any other interpretation. Whether the provision is due to the desire
that the properties should not pass, by reason of new marriages, out of the family to which they belonged, or is directly derived from the system of the so-called 'reserva troncal,' and whether the
idea of reservation or that of lineal rights (troncalidad) predominate the patrimony which is intended to be preserved is that of the legitimate family. Only to legitimate ascendants and descendants do
article 968 et seg. of the Code refer, arising as they do from the danger of second or subsequent marriage; only to legitimate parents do the special laws of Navarra, Aragon, Vizcaya and Cataluna
concede the right to succeed with respect to lineal properties (bienes troncales); only to the legitimate ascendants does article 811 impose the duty to reserve.
"The convenience of amplifying the precept to natural parents and ascendants may be raised just as the question whether it would be preferable to suppress it altogether may be raised;
but in the realm of the statute law there is no remedy but to admit that article 811, the interpretation of which should on the other hand be strict was drafted by the legislator with respect only to
legitimate ascendants." (Manresa, Codigo Civil, vol. 6, 3d ed., pp. 249-250.)
The same jurist, in determining the persons in whose favor the reservation is established, says:
"Persons in whose favor the reservation is established. This is one of the most delicate points in the interpretation of article 811. According to this article, the reservation is established
in favor of the parents who are within the third degree and belong to the line from which the properties came.
"It treats of blood relationship, which is applicable to questions on succession, according to articles 915 to 920. It could not be otherwise, because relationship by affinity is established
between each spouse and the family of the other, by marriage, and to admit it, would be to favor the transmission of the properties of the family of one spouse to that of the other, which is just what
this article intends to prevent.
"It also treats of legitimate relationship. The person obliged to reserve is a legitimate ascendant who inherits from a descendant property which proceeds from the same legitimate family,
and this being true, there can be no question, because the line from which the properties proceed must be the line of that family and only in favor of that line is the reservation established.
Furthermore, we have already said, the object is to protect the patrimony of the legitimate family, following the precedents of the foral law. And it could not be otherwise. Article 943 denies to
legitimate parents the right to succeed the natural child and viceversa, from which it must be deduced that natural parents neither have the right to inherit from legitimate ones ; the law in the article
cited establishes a barrier between the two families; properties of the legitimate family shall never pass by operation of law to the natural family." (Ibid. pp. 251-252.)
Scaevola, after a very extended discussion of this same subject, arrives at the same conclusion as Manresa. "La reserva del articulo 811 es privilegio de la familia legitima. (The reservation in article 811 i6
a privilege of the legitimate family.)" (See Scaevola, Codigo Civil, Vol. 14, pp. 211-224, 3010-305.)
Article 943, above referred to by Manresa, provides as follows:
"A natural or legitimated child has no right to succeed ab intestate the legitimate children and relatives of the father or mother who has acknowledged it; nor shall such children or relatives
so inherit from the natural or legitimated child."
To hold that the appellant is entitled to the property left by her natural brother, Alfeo Deocampo, by operation of law, would be a flagrant violation of the express provisions of the foregoing article (943).
For all of the foregoing reasons, the judgment of the lower court is hereby affirmed, without any finding as to costs. So ordered.
Mapa, C.J., Araullo, Malcolm, Avancea and Villamor, JJ., concur.
||| (Nieva v. Alcala, G.R. No. 13386, [October 27, 1920], 41 PHIL 915-922)
MARIQUITA O. SUMAYA and LAGUNA AGRO-INDUSTRIAL COCONUT COOPERATIVE, INC., petitioners, vs. THE HON. INTERMEDIATE APPELLATE COURT, and AMADEO, SANCHO, DONATO, LUIS,
ERASTO, LUISA, JOSE and DOLORES, all surnamed BALANTAKBO, respondents.
Ceriaco A. Sumaya for petitioners.
Tomas P. Aonuevo for private respondents.
SYLLABUS
1.CIVIL LAW; LAND REGISTRATION; VOLUNTARY AND INVOLUNTARY REGISTRATION; EFFECT OF ENTRY IN THE DAY BOOK WITHOUT NOTING ON THE CERTIFICATE OF TITLE. In the case of Bass v. De la
Rama, 73 Phil. 682, 685, the rule was laid down that the mere entry of a document in the day book without noting it on the certificate of title is not sufficient registration. However, that ruling was superseded by the holding
in the later six cases of Levin v. Bass, 91 Phil. 420. As explained in Garcia v. C.A., et al., G.R. Nos. L-48971 and 49011, January 20, 1980, 95 SCRA 380, 388, which is the prevailing doctrine in this jurisdiction. "That ruling
was superseded by the holding in the later six cases of Levin v. Bass, 91 Phil. 420, where a distinction was made between voluntary and involuntary registration, such as the registration of an attachment, levy upon
execution, notice of lis pendens, and the like. In case of involuntary registration, an entry thereof in the day book is a sufficient notice to all persons even if the owner's duplicate certificate of title is not presented to the
register of deeds. "On the other hand, according to the said cases of Levin v. Bass, in case of voluntary registration of documents an innocent purchaser for value of registered land becomes the registered owner, and, in
contemplation of law the holder of a certificate of title, the moment he presents and files a duly notarized and valid deed of sale and the same is entered in the day book and at the same time he surrenders or presents the
owner's duplicate certificate of title covering the land sold and pays the registration fees, because what remains to be done lies not within his power to perform. The register of deeds is duty bound to perform it." (See
Potenciano v. Dineros, 97 Phil. 196).
2.ID.; SUCCESSION; RESERVA TRONCAL; OBLIGATION OF THE RESERVOR. The obligation to reserve rests upon the reservor, Consuelo Joaquin vda. de Balantakbo as provided in Article 891 of the New Civil

Code on reserva troncal. Consistent with the rule in reserva viudal where the person obliged to reserve (the widowed spouse) had the obligation to annotate in the Registry of Property the reservable character of the
property, in reserva troncal, the reservor (the ascendant who inherited from a descendant property which the latter inherited from another ascendant) has the duty to reserve and therefore, the duty to annotate also.
3.ID.; ID.; ID.; RESERVABLE CHARACTER OF THE REAL PROPERTY MUST BE ANNOTATED IN THE REGISTRY OF PROPERTY. The jurisprudential rule requiring annotation in the Registry of Property of the right
reserved in real property subject of reserva viudal insofar as it is applied to reserva troncal stays despite the abolition of reserva viudal in the New Civil Code. This rule is consistent with the rule provided in the second
paragraph of Section 51 of P.D. 1529, which provides that; "The act of registration shall be the operative act to convey or affect the land insofar as third persons are concerned . . . ."
4.ID.; ID.; ID.; ACTION FOR RECOVERY OF RESERVED PROPERTY; PRESCRIPTIVE PERIOD. The cause of action of the reservees did not commence upon the death of the propositus Raul Balantakbo on June 13,
1952 but upon the death of the reservor Consuelo Vda. de Balantakbo on June 3, 1968. Relatives within the third degree in whose favor the right (or property) is reserved have no title of ownership or of fee simple over the
reserved property during the lifetime of the reservor. Only when the reservor should die before the reservees will the latter acquire the reserved property, thus creating a fee simple, and only then will they take their place in
the succession of the descendant of whom they are relatives with in the third degree (See Velayo Bernardo v. Siojo, G.R. No. 36078, March 11, 1933, 58 Phil. 89). The reserva is extinguished upon the death of the
reservor, as it then becomes a right of full ownership on the part of the reservatarios, who can bring a reivindicatory suit therefor. Nonetheless, this right if not exercised within the time for recovery may prescribe in ten (10)
years under the old Code of Civil Procedure (see Carillo v. De Paz, G.R. No. L-22601, October 28, 1966, 18 SCRA 467, 473) or in thirty years under Article 1141 of the New Civil Code.
DECISION
MEDIALDEA, J p:
This is a petition for review on certiorari of the decision of the Intermediate Appellate Court (now Court of Appeals) in C.A. G.R. No. CV-01292-93, which affirmed the decision of the Court of First Instance (now Regional
Trial Court) of Laguna in the consolidated cases in Civil Case No. SC-956 1 and Civil Case No. SC-957. 2
The parties entered into a stipulation of facts in the court a quo, which is summarized as follows: cdrep
Raul Balantakbo inherited from two (2) different ascendants the two (2) sets of properties subject of this case: 1) A one-third (1/3) interest, pro-indiviso in a parcel of land situated in Dita, Lilio (Liliw) Laguna and described in
paragraph 7 of the complaint in Civil Case No. SC-956 from his father Jose, Sr., who died on January 28, 1945; and 2) A one-seventh (1/7) interest pro-indiviso in ten (10) parcels of registered lands described in paragraph
6 of the complaint in Civil Case No. SC-957 from his maternal grandmother, Luisa Bautista, who died on November 3, 1950.
On June 13, 1952, Raul died intestate, single, without any issue, and leaving only his mother, Consuelo Joaquin Vda. de Balantakbo, as his sole surviving heir to the real properties above-mentioned.
On November 3, 1952, Consuelo adjudicated unto herself the above described properties in an Affidavit entitled "Caudal Herederario del finado Raul Balantakbo" which provided, among others:
"I.Que de mi legitimo matrimonio con mi difunto esposo, Jose Balantakbo, he tenido varios hijos, entre ellos si difunto hijo, llamado Raul Balantakbo.
"II.Que mi referido hijo Raul Balantakbo, fallencio el 13 de Junio de 1952, en la Ciudad de Pasay, durante su minoria de edad sin dejar testamento alguno."
"III.Que el finado Raul Balantakbo al morir no ha dejado descendiente alguno.
"IV.Que soy la unica ascendiente superviviento de mi referido hijo Raul Balantakbo y por lo tanto su unica heredera formosa, legitima y universal.
"V.Que el finado Raul Balantakbo murio sin dejar deuda alguna.
"VI.Que el finado al morir dejo propiedades consistentes en bienes inmuebles situados en la Provincia de Laguna.
"VII.Que dichas propriedades fueron a su vez adquiridas por el finado Raul Balantakbo per herencia de su difunto padre, Jose Balantakbo, y de su tia abuela Luisa Bautista.
". . ." (Rollo, p. 29).
On December 21, 1959, Consuelo Joaquin vda de. Balantakbo sold the property described in Civil Case No. SC-956 to Mariquita H. Sumaya. The sale was evidenced by a deed attached as Annex "C" to the complaint.
The same property was subsequently sold by Mariquita Sumaya to Villa Honorio Development Corporation, Inc., on December 30, 1963. On January 23, 1967, Villa Honorio Development Corporation transferred and
assigned its rights over the property in favor of Agro-Industrial Coconut Cooperative, Inc. The documents evidencing these transfers were registered in the Registry of Deeds of Laguna and the corresponding certificates of
titles were issued. The properties are presently in the name of Agro-Industrial Coconut Cooperative, Inc., 2/3 share and the remaining 1/3 share is in the name of Sancho Balantakbo. LLjur
Also on December 30, 1963, Consuelo Joaquin vda. de Balantakbo sold the properties described in the complaint in Civil Case No. SC-957 to Villa Honorio Development Corporation, Inc. The latter in turn transferred and
assigned all its rights to the properties in favor of Laguna Agro-Industrial Coconut Cooperative, Inc. which properties are presently in its possession.
The parties admit that the certificates of titles covering the above described properties do not contain any annotation of its reservable character.
On June 3, 1968, Consuelo Joaquin vda. de Balantakbo died.
On March 4, 1970, Amadeo, Sancho, Donato, Luis, and Erasto, all surnamed Balantakbo, brothers in full blood of Raul Balantakbo and Luisa, Jose and Dolores, also all surnamed Balantakbo, surviving children of
deceased Jose Balantakbo, Jr., another brother of the first named Balantakbos, filed the above mentioned civil cases to recover the properties described in the respective complaints which they claimed were subject to a
reserva troncal in their favor.
The court a quo found that the two (2) cases varied only in the identity of the subject matter of res involved, the transferees, the dates of the conveyances but involve the same legal question of reserva troncal. Hence, the
consolidation of the two (2) cases.
After trial, the court a quo rendered a joint decision in favor of the Balantakbos, the dispositive portion of which reads:
"WHEREFORE, in both Civil Cases Nos. SC-956 and SC-957, judgment is hereby rendered in favor of the plaintiffs and against the defendants, as follows:
"1.Ordering the defendant Laguna Agro-Industrial Coconut Cooperative, Inc. to convey to the plaintiffs
"a.)In Civil Case No. SC-956 the one-third (1/3) interest and ownership, pro-indiviso, in and over the parcel of land described in paragraph three (3) subparagraph 1, of
pages one (1) and two (2) of this decision;
"b.)In Civil Case No. SC-957 the one-seventh (1/7) interest and ownership, pro-indiviso, in and over the ten (10) parcels of land described in paragraph three (3),
subparagraph 2, of pages two (2) and three (3) of this decision;
"c.)The plaintiffs are to share equally in the real properties herein ordered to be conveyed to them by the defendants with plaintiffs Luisa, Jose and Dolores, all surnamed
Balantakbo, receiving one-third (1/3) of the one share pertaining to the other plaintiffs who are their uncles:
"2.Ordering the Laguna Agro-Industrial Coconut Cooperative, Inc. to account for and pay to the plaintiffs the value of the produce from the properties herein ordered to be returned to the plaintiffs,
said accounting and payment of income being for the period from January 3, 1968 until date of reconveyance of the properties herein ordered:
"3.In each of Civil Cases Nos. SC-956 and SC-957, defendants are to pay plaintiffs
"a.One Thousand (P1,000.00) Pesos in litigation expenses
"b.Two Thousand (P2,000.00) Pesos in attorney's fees.
"4.Defendants are to pay the costs in each of Civil Cases Nos. SC-956 and 957.
". . ." (p. 46, Rollo).
This decision was appealed to the appellate court which affirmed the decision of the court a quo in toto. The motion for reconsideration was denied (p. 65, Rollo) by the appellate court which found no cogent reason to
reverse the decision.
This petition before Us was filed on November 12, 1984 with the petitioners assigning the following errors allegedly committed by the appellate court:
I.The trial court erred in not finding defendants an (sic) innocent purchaser for value and in good faith of the properties covered by certificates of title subject of litigation.
II.The trial court erred in finding it unnecessary to annotate the reservable interest of the reservee in the properties covered by certificates of title subject of litigation.

III.The trial court erred in finding that the cause of action of the plaintiffs (private respondents) has not yet prescribed.
IV.The trial court erred in awarding moral and actual damages in favor of the plaintiffs by virtue of the institution of Civil Cases Nos. 956 and 957.
Petitioners would want this Court to reverse the findings of the court a quo, which the appellate court affirmed, that they were not innocent purchasers for value. According to petitioners, before they agreed to buy the
properties from the reservor (also called reservista), Consuelo Joaquin vda. de Balantakbo, they first sought the legal advice of their family consultant who found that there was no encumbrance nor any lien annotated on
the certificate of title covering the properties.
The court a quo found otherwise. Upon the death of the propositus, Raul Balantakbo, the reservista, Consuelo vda. de Balantakbo caused the registration of an affidavit of self-adjudication of the estate of Raul, wherein it
was clearly stated that the properties were inherited by Raul from his father Jose, Sr., as regards the subject matter of Civil Case No. SC-956 and from his maternal grandmother, Luisa Bautista, as regards the subject
matter of Civil Case No. SC-957. The court a quo further ruled that said affidavit was, in its form, declaration and substance, a recording with the Registry of Deeds of the reservable character of the properties. In Spanish
language, the affidavit clearly stated that the affiant, Consuelo, was a lone ascendant and heir to Raul Balantakbo, her son, who died leaving properties previously inherited from other ascendants and which properties
were inventoried in the said affidavit.
It was admitted that the certificates of titles covering the properties in question show that they were free from any liens and encumbrances at the time of the sale. The fact remains however, that the affidavit of selfadjudication executed by Consuelo stating the source of the properties thereby showing the reservable nature thereof was registered with the Register of Deeds of Laguna, and this is sufficient notice to the whole world in
accordance with Section 52 of the Property Registration Decree (formerly Sec. 51 of R.A. 496) which provides: llcd
"SEC. 52.CONSTRUCTIVE NOTICE UPON REGISTRATION . Every conveyance, mortgage, lease, lien attachment, order, judgment, instrument or entry affecting registered land shall, if
registered, filed or entered in the Office of the Register of Deeds for the province or city where the land to which it relates lies, be constructive notice to all persons from the time of such registering,
filing or entering."
Thus, in Gatioan v. Gaffud, G.R. No. L-21953, March 28, 1969, 27 SCRA 706, 712-713, cited in People v. Reyes, G.R. Nos. 74226-27, July 27, 1989, 175 SCRA 597; Garcia v. CA and PNB v. CA, et al., G.R. Nos. L-48971
and L-40911, both dated January 22, 1980, 95 SCRA 380 and Legarda and Prieto v. Saleeby, 31 Phil. 590, 600, We held:
"When a conveyance has been properly recorded such record is constructive notice of its contents and all interests, legal and equitable, included therein . . .
"Under the rule of notice, it is presumed that the purchaser has examined every instrument of record affecting the title. Such presumption is irrebuttable. He is charged with notice of every fact
shown by the record and is presumed to know every fact shown by the record and is presumed to know every fact which an examination of the record would have disclosed. This presumption
cannot be overcome by proof of innocence or good faith. Otherwise, the very purpose and object of the law requiring a record would be destroyed. Such presumption cannot be defeated by proof of
want of knowledge of what the record contains any more than one may be permitted to show that he was ignorant of the provisions of the law. The rule that all persons must take notice of the facts
which the public record contains is a rule of law. The rule must be absolute, any variation would lead to endless confusion and useless litigation. . . ."
In the case of Bass v. De la Rama, 73 Phil. 682, 685, the rule was laid down that the mere entry of a document in the day book without noting it on the certificate of title is not sufficient registration. However, that ruling was
superseded by the holding in the later six cases of Levin v. Bass, 91 Phil. 420. As explained in Garcia v. C.A., et al., G.R. Nos. L-48971 and 49011, January 20, 1980, 95 SCRA 380, 388, which is the prevailing doctrine in
this jurisdiction.
"That ruling was superseded by the holding in the later six cases of Levin v. Bass, 91 Phil. 420, where a distinction was made between voluntary and involuntary registration, such as the registration
of an attachment, levy upon execution, notice of lis pendens, and the like. In cases of involuntary registration, an entry thereof in the day book is a sufficient notice to all persons even if the owner's
duplicate certificate of title is not presented to the register of deeds.
"On the other hand, according to the said cases of Levin v. Bass, in case of voluntary registration of documents an innocent purchaser for value of registered land becomes the registered owner,
and, in contemplation of law the holder of a certificate of title, the moment he presents and files a duly notarized and valid deed of sale and the same is entered in the day book and at the same time
he surrenders or presents the owner's duplicate certificate of title covering the land sold and pays the registration fees, because what remains to be done lies not within his power to perform. The
register of deeds is duty bound to perform it." (See Potenciano v. Dineros, 97 Phil. 196).
In this case, the affidavit of self-adjudication executed by Consuelo vda. de Balantakbo which contained a statement that the property was inherited from a descendant, Raul, which has likewise inherited by the latter from
another ascendant, was registered with the Registry of Property. The failure of the Register of Deeds to annotate the reservable character of the property in the certificate of title cannot be attributed to Consuelo.
Moreover, there is sufficient proof that the petitioners had actual knowledge of the reservable character of the properties before they bought the same from Consuelo. This matter appeared in the deed of sale (Exhibit "C")
executed by Consuelo in favor of Mariquita Sumaya, the first vendee of the property litigated in Civil Case No. SC-956, as follows:
"xxx xxx xxx"
"That, I (Consuelo, vendor) an the absolute and exclusive owner of the one-third (1/3) portion of the above described parcel of land by virtue of the Deed of Extra-Judicial Partition executed by the
Heirs of the deceased Jose Balantakbo dated December 10, 1945 and said portion in accordance with the partition above-mentioned was adjudicated to Raul Balantakbo, single, to (sic) whom I
inherited after his death and this property is entirely free from any encumbrance of any nature or kind whatsoever, . . . ." (p 42, Rollo)
It was admitted though that as regards the properties litigated in Civil Case SC-957, no such admission was made by Consuelo to put Villa Honorio Development on notice of the reservable character of the properties. The
affidavit of self-adjudication executed by Consuelo and registered with the Registry would still be sufficient notice to bind them. prcd
Moreover, the court a quo found that the petitioners and private respondents were long time acquaintances; that the Villa Honorio Development Corporation and its successors, the Laguna Agro-Industrial Coconut
Cooperative Inc., are family corporations of the Sumayas and that the petitioners knew all along that the properties litigated in this case were inherited by Raul Balantakbo from his father and from his maternal
grandmother, and that Consuelo Vda. de Balantakbo inherited these properties from his son Raul.
The obligation to reserve rests upon the reservor, Consuelo Joaquin vda. de Balantakbo. Article 891 of the New Civil Code on reserva troncal provides:
"Art. 891.The ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant or a brother or sister, is obliged to reserve such
property as he may have acquired by operation of law for the benefit of relatives who are within the third degree and who belong to the line from which said property came." (emphasis supplied).
We do not agree, however, with the disposition of the appellate court that there is no need to register the reservable character of the property, if only for the protection of the reservees, against innocent third persons. This
was suggested as early as the case of Director of Lands v. Aguas, G.R. No. 42737, August 11, 1936, 63 Phil. 279. The main issue submitted for resolution therein was whether the reservation established by Article 811
(now Art. 891 of the New Civil Code) of the Civil Code, for the benefit of the relatives within the third degree belonging to the line of the descendant from whom the ascendant reservor received the property, should be
understood as made in favor of all the relatives within said degree and belonging to the line above-mentioned, without distinction legitimate, natural and illegitimate ones not having the legal status of natural children.
However, in an obiter dictum this Court stated therein:
"The reservable character of a property is but a resolutory condition of the ascendant reservor's right of ownership. If the condition is fulfilled, that is, if upon the ascendant reservor's death there are
relatives having the status provided in Article 811 (Art. 891, New Civil Code), the property passes, in accordance with this special order of succession, to said relatives, or to the nearest of kin
among them, which question not being pertinent to this case, need not now be determined. But if this condition is not fulfilled, the property is released and will be adjudicated in accordance with the
regular order of succession. The fulfillment or non-fulfillment of the resolutory condition, the efficacy or cessation of the reservation, the acquisition of rights or loss of the vested ones, are
phenomena which have nothing to do with whether the reservation has been noted or not in the certificate of title to the property. The purpose of the notation is nothing more than to afford to the
persons entitled to the reservation, if any, due protection against any act of the reservor, which may make it ineffective . . . ." (p. 292, ibid).
Likewise, in Dizon and Dizon v. Galang, G.R. No. 21344, January 14, 1926, 48 Phil. 601, 603, this Court ruled that the reservable character of a property may be lost to innocent purchasers for value. Additionally, it was
ruled therein that the obligation imposed on a widowed spouse to annotate the reservable character of a property subject of reserva viudal is applicable to reserva troncal. (See also Edrozo v. Sablan, G.R. No. 6878,

September 13, 1913, 25 Phil. 295).

"Since these parcels of land have been legally transferred to third persons, Vicente Galang has lost ownership thereof and cannot now register nor record in the Registry of Deeds their reservable
character; neither can he effect the fee simple, which does not belong to him, to the damage of Juan Medina and Teodoro Jurado, who acquired the said land in good faith, free of all incumbrances.
An attempt was made to prove that when Juan Medina was advised not to buy the land he remarked, `Why, did he (Vicente Galang) not inherit it from his son?' Aside from the fact that it is not clear
whether this conservation took place in 1913 or 1914, that is, before or after the sale, it does not signify that he had any knowledge of the reservation. This did not arise from the fact alone that
Vicente Galang had inherited the land from his son, but also from the fact that, by operation of law, the son had inherited it from his mother Rufina Dizon, which circumstance, so far as the record
shows, Juan Medina had not been aware of. We do not decide, however, whether or not Juan Medina and Teodoro Jurado are obliged to acknowledge the reservation and to note the same in their
deeds, for the reason that there was no prayer to this effect in the complaint and no question raised in regard thereto."
Consistent with the rule in reserva viudal where the person obliged to reserve (the widowed spouse) had the obligation to annotate in the Registry of Property the reservable character of the property, in reserva troncal, the
reservor (the ascendant who inherited from a descendant property which the latter inherited from another descendant) has the duty to reserve and therefore, the duty to annotate also. prLL
The jurisprudential rule requiring annotation in the Registry of Property of the right reserved in real property subject of reserva viudal insofar as it is applied to reserva troncal stays despite the abolition of reserva viudal in
the New Civil Code. This rule is consistent with the rule provided in the second paragraph of Section 51 of P.D. 1529, which provides that: "The act of registration shall be the operative act to convey or affect the land
insofar as third persons are concerned . . . ." (emphasis supplied).
The properties involved in this case are already covered by a Torrens title and unless the registration of the limitation is effected (either actual or constructive), no third persons shall be prejudiced thereby.
The respondent appellate court did not err in finding that the cause of action of the private respondents did not prescribe yet. The cause of action of the reservees did not commence upon the death of the propositus Raul
Balantakbo on June 13, 1952 but upon the death of the reservor Consuelo Vda. de Balantakbo on June 3, 1968. Relatives within the third degree in whose favor the right (or property) is reserved have no title of ownership
or of fee simple over the reserved property during the lifetime of the reservor. Only when the reservor should die before the reservees will the latter acquire the reserved property, thus creating a fee simple, and only then
will they take their place in the succession of the descendant of whom they are relatives within the third degree (See Velayo Bernardo v. Siojo, G.R. No. 36078, March 11, 1933, 58 Phil. 89). The reserva is extinguished
upon the death of the reservor, as it then becomes a right of full ownership on the part of the reservatarios, who can bring a reivindicatory suit therefor. Nonetheless, this right if not exercised within the time for recovery
may prescribe in ten (10) years under the old Code of Civil Procedure (see Carillo v. De Paz, G.R. No. L-22601, October 28, 1966, 18 SCRA 467, 473) or in thirty years under Article 1141 of the New Civil Code. The actions
for recovery of the reserved property was brought by herein private respondents on March 4, 1970 or less than two (2) years from the death of the reservor. Therefore, private respondents' cause of action has not
prescribed yet.
Finally, the award of one thousand pesos (P1,000.00) for actual litigation expenses and two thousand pesos (P2,000.00) for attorney's fees is proper under Article 2208(2) of the New Civil Code. Private respondents were
compelled to go to court to recover what rightfully belongs to them. cdphil
ACCORDINGLY, the petition is DENIED. The questioned decision of the Intermediate Appellate Court is AFFIRMED, except for the modification on the necessity to annotate the reversible character of a property subject of
reserva troncal.
SO ORDERED.
Narvasa, Cruz and Grio-Aquino, JJ., concur.
||| (Sumaya v. Intermediate Appellate Court, G.R. Nos. 68843-44, [September 2, 1991], 278 PHIL 201-214)
PRIMA G. CARRILLO and LORENZO LICUP, plaintiffs-appellants, vs. FRANCISCA SALAK DE PAZ and ERNESTO BAUTISTA, defendants-appellees.
Filemon Cajator for plaintiffs and appellants.
Tomas Besa for defendants and appellees.
SYLLABUS
1. PLEADING AND PRACTICE; APPELLATE COURT MAY UPHOLD JUDGMENT OF COURT BELOW ON SOME POINT IGNORED. When the trial judge decides a case in favor of a party an a certain ground,
the appellate court may uphold the decision below upon some other point which was ignored or erroneously decided in favor of the appellant by the trial court (Garcia Valdez vs. Soterana Tuason, 40 Phil., 943;
Relativo vs. Castro, 76 Phil., 563).
2. CIVIL LAW; RESERVA TRONCAL. Reserva troncal in this jurisdiction is treated in Article 891 of the new Civil Code and Article 811 of the old Civil Code.
3. ID.; ID.; WHEN EXTINGUISHED; LOSS OF RIGHT BY PRESCRIPTION. The reserva is extinguished upon the death of the reservista, as it then becomes a right of full ownership on the part of the
reservatarios, who can bring a reivindicatory suit therefor. Nonetheless, this right if not exercised within the time for recovering real properties, can be lost by prescription (Manresa, Comentarios Al Codigo Civil
Espaol, Vol. 6, 1911 Ed., pp. 288-289, 316-318).
4. ID.; ID.; PRESCRIPTION MAY APPLY AGAINST THE RESERVATARIOS. Prescription can apply against the reservatarios to cut off their right to the reservable property (Scaevola, Codigo Civil Comentado, Vol.
14, 1944 Ed., p. 360).
5. ID.; PRESCRIPTION OF ACTIONS TO RECOVER REAL PROPERTY. Section 40 of the Code of Civil Procedure fixes 10 years as the period of prescription for actions to recover real property, counted from the
time the cause of action accrued. This is the applicable law because Article 1116 of the new Civil Code provides that "prescription already running before the effectivity of this Code (August 30, 1950) shall be
governed by laws previously in force." The suit herein, having been filed only on April 22, 1963, or more than 10 years from April 24, 1950, has prescribed.
DECISION
BENGZON, J.P., J p:
This is an appeal from an order of the Court of First Instance of Tarlac dismissing a suit to recover ownership and possession of 2/3 of 1/2 of Lot No. 221 of the Cadastral Survey of Tarlac.
Severino Salak and Petra Garcia were the owners of Lot No. 221 of the Cadastral Survey of Tarlac, covered by Original Certificate of Title No. 41543, with an area of 1,334 square meters. Petra Garcia died on September
21, 1941. On August 16, 1943, Severino Salak sold to Honoria Salak for P812.00 his 1/2 portion of said lot. A year later, on December 5, 1944, Severino Salak died.
Sometime in January 1945, Honoria Salak and other members of her family died massacred by the Japanese.
As a result, two settlement proceedings were instituted in the Court of First Instance of Tarlac: (1) Special Proceeding No. 3, to settle the estates of Severino Salak and Petra Garcia and (2) Special Proceeding No. 23, to
settle the estates of the Salak family (parents Simeon Salak and Isabel Carrillo; and children Adolfo, Honoria, Consuelo and Ligaya).
On September 4, 1946, a Project of Partition was submitted in Special Proceeding No. 3, which the court approved on November 19, 1946. Said project adjudicated inter alia Lot No. 221, which was given thereunder to
Francisca Salak de Paz (1/4, of it in her capacity as heir, and the other 3/4 by purchase and/or exchange with her co-heirs, Rita Sahagun, Aurea Sahagun and Ernesto Bautista). From 1946 up to the present Francisca
Salak has possessed all of Lot No. 221.
On the other hand, in Special Proceeding No. 23, on February 26, 1948, the court a quo held that the heirs entitled to the estates of the Salak family were Agustina de Guzman Vda. de Carrillo (3/4 share) and Ernesto
Bautista (1/4, share), applying the survivorship presumption [Rule 123, Sec. 69(ii), now Rule 131, Sec. 5(jj) of the Rules of Court], thus: (1) Simeon Salak died first his properties went to the children Adolfo, Honoria,
Consuelo and Ligaya (1/4, each); (2) Honoria, Consuelo and Ligaya died next Honoria's and Consuelo's properties went to their mother, Isabel; those of Ligaya went to her son, Ernesto Bautista; 1 (3) Isabel died next
her properties went to her son Adolfo; and (4) Adolfo died last his properties went to his maternal grandmother, Agustina. Agustina thereby succeeded to the properties that came by intestate succession from Honoria
Salak and Isabel Carrillo, including 1/2 of Lot No. 221.
On November 9, 1948, Agustina de Guzman Vda. de Carrillo filed an action in the Court of First Instance of Tarlac (docketed therein as Case No. 351) against the heirs in Special Proceeding No. 3 to recover 1/2 of Lot No.
221 which as aforementioned has been possessed by Francisca Salak de Paz.
On April 24, 1950, Agustina died.

On June 8, 1950 the Court of Appeals affirmed the decision of the Court of First Instance of Tarlac in Special Proceeding No. 23, and further decreed that the properties inherited by Agustina de Guzman Vda. de Carrillo
were subject to reserva troncal.
On November 6, 1950, Ernesto Bautista filed petition in Special Proceeding No. 23 for the execution of the judgment therein. Said petition was heard on November 10, 1959, after a copy was served on the lawyer of Prima
Carrillo, the latter being a party thereto as administratrix of the estate of her deceased mother Agustina. Acting on said petition, the lower court issued its order of November 14, 1950, which reads in part:
". . . the Court, in view of the death of the reservista, Doa Agustina de Guzman Vda. de Carrillo, declares all the interest of the said reservista Doa Agustina de Guzman Vda. de Carrillo as well as
that of her heirs in the three-fourths share adjudged to the reservista definitely terminated, and that the reservee, the minor Ernesto Bautista, is entitled to the immediate delivery to him of the said
three-fourths share declared reserved to him in the decision of the Court of Appeals of June 8, 1950 . . ." (Record on Appeal, pp. 213- 214)
On December 20, 1960, the lower court dismissed Civil Case No. 351. The order of dismissal reads in part:
"By virtue of the existence of third-degree relatives of Adolfo Salak, the portion of Lot No. 221, inherited by Agustina de Guzman was never released from the reserva, so as to convert the ownership
of Agustina de Guzman into an absolute one. Upon her death on April 24, 1950, therefore, the property did not pass by inheritance to her legal heirs, but rather reverted to the family trunk of the
Isabel-Adolfo line. Such being the case, the estate of Agustina de Guzman, the present plaintiff in this case, has no cause of action against the defendants.
"In resume the adjudication in Special Proceeding No. 23, Intestate Estate of the late Simeon Salak and Isabel Camillo, which included Lot No. 221, has become res judicata which cannot be
disturbed in this case." (Record on Appeal p. 209)
On April 22, 1963, Prima Carrillo and Lorenzo Licup filed the present suit for recovery of 2/3 of 1/2 Lot No. 221 against Francisca Salak de Paz and Ernesto Bautista. 2
On June 20, 1963, defendants Francisca Salak de Paz and Ernesto Bautista filed a motion to dismiss upon the grounds that the cause of action is barred by prior judgment and by the statute of limitations.
On November 19, 1963, the court a quo dismissed the complaint on the ground of res judicata, finding the suit barred by the order of delivery dated November 14, 1950 in Special Proceeding No. 23.
Plaintiffs Prima Carrillo and Lorenzo Licup thereupon appealed to Us upon questions of law.
Several grounds were advanced to support the motion to dismiss: that the cause of action is barred by prior judgment and by the statute of limitations. Although the action was dismissed by the lower court expressly upon
the ground of res judicata, it did not totally disregard the defense of prescription. Thus, said court pointed out that:
"Prima Carillo being then the administratrix of the estate of her mother, she is also deemed to have been notified of the petition for execution of judgment in Special Proceeding No. 23, and of the
order of November 14, 1950. As of then, therefore, Prima Carillo (even though as administratrix) personally knew that Ernesto Bautista claimed to be the sole reservee of all the properties inherited
by Da. Agustina from the Salak Family, among which was Lot No. 221 in question, but she did not file any opposition thereto. It was her opportunity to assert her right as reservee by opposing the
petition or, failing in this, to contest or to ask to be relieved from the order of November 14, 1950. Instead, she allowed about thirteen (13) years before she commenced the present action."
(Decision, Record on Appeal, pp. 214-215; emphasis supplied)
At any rate, this Court can resolve this appeal on the issue of prescription. As ruled in the cases of Garcia Valdez vs. Soterana Tuazon, 40 Phil. 943, and Relativo vs. Castro, 76 Phil. 563, when the trial judge decides a
case in favor of a party on a certain ground, the appellate court may uphold the decision below upon some other point which was ignored or erroneously decided in favor of the appellant by the trial court.
Reserva troncal in this jurisdiction is treated in Article 891 of the new Civil Code and Article 811 of the old Civil Code, which state:
"The ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant, or a brother or sister, is obliged to reserve such
property as he may have acquitted by operation of law for the benefit of relatives who are within the third degree and who belong to the line from which said property came."
The reserva troncal arose as had been finally decided by the Court of Appeals in Special Proceeding No. 23 when Agustina acquired by operation of law all the properties of her descendant Adolfo (grandson), who
acquired them by gratuitous title from another ascendant, Isabel (Adolfo's mother).
According to Manresa, the reserva is extinguished upon the death of the reservista, as it then becomes a right of full ownership on the part of the reservatarios, who can bring a reivindicatory suit therefor. Nonetheless, this
right, if not exercised within the time for recovering real properties, can be lost by prescription:
"Pero extinguida la reserva por la muerte del reservista, cambian nor completo las relaciones y condiciones juridicas de las personas y de las cosas, como ya se ha indicado. La obligacion de
reservar se convierte en la de entregar los bienes a quien correspondan, obligacion que pasa a la herencia del reservista fallecido y deben complir sus herederos. Y el derecho a la reserva se
convierte en el derecho al dominio pleno de esos bienes. Si a la muerte del reservista se comple la condicion resolutoria de existir parientes dentro del tercer grado que pertenezcan a la linea de
donde los bienes proceden, a estos parientes pasa desde aquel momento por ministerio de la ley el dominio absoluto de aquellos bienes, y, por consiguiente, el derecho para reclamarlos,
pudiendo disponer libremente de aquellos o de este, y transmitirlos a sus herederos, puesto que la ley no lo prohibe. Y si no sobrevive al reservista ninguno de dichos parientes, queda extinguida
la obligacion de reservar, por no haberse complido aquella condicion resolutoria impuesta por la ley, y en su virtud vuelven los bienes al pleno domiuo del ascendiente, y pertenecen a su herencia
conforme al art. 651. Y como nada ordena la ley en sentido contrario, tenemos por indudable que no tienb el caracter de personalismo ninguno de esos derechos, que nacen con la extincion de la
reserva, pertenecen a la herencia y se transmiten a los herederos, aunque el causante no los hubiere ejercitado por si mismo, salva los casos de renuncia, incapacidad o prescripcion."
xxx xxx xxx
"C) Extincion de la reserva. Las mismas condiciones exigas para el nacimiento de la raserva son necesarias para su exitsencia. Al faltar una de ellas, la reserva muere. Tres son, por tanto
las principales causas da extincion:
"1.a Muerte del ascendiente. Sea el que quiera el destino definitivo de los bienes, en virtud de la naturaleza condicional de los derechos que crea el art. 811, es lo cierto que la reserva,
como tal, una vez nacida, acompaa al ascendiente obligado a ella hasta su muerte. Muerto el ascendiente, casa toda obligacion da reservar; falta el sujecto pasivo ds la reserva.
xxx xxx xxx
"Ademas de las tres causas expresadas, pueden sealarse otras que expondremos a continuacion.
xxx xxx xxx
"Y 5.a La prescripcion, si se disfrutan como libres los bienes por los herederos del ascendiente durante el tiempo y con las condiciones marcadas por la ley." (Manresa, Comentarios Al Codigo Civil
Espaol, Vol. 6, 1911 Ed., pp. 288-289, 316-318).
Scaevola also states the view that prescription can apply against the reservatarios to cut off their right to the reservable property:
"f) Prescription. Este modo extintivo de los derechos tiene solo aplicacion a los parientes del tercer grado del descendiente porque no habiendo reserva si no acepta el ascendiente, no
hay que hablar de prescripcion extintiva respecto de el.
"Trocante a los parientes con derecho a la reserva, es aplicable la doctrina, porque pueden no ejercer su derecho por ignorar la muertb del descendiente o por otra causa.
"Dada esta posibilidad, entendemos que, tratandose de un derecho real sobre bienes inmuebles, prescribira a los treinta aos (art. 1693) (1), contados desde la aceptacion de la herencia por el
ascendiente, momento determinante del derecho al ejercicio de la reserva (art. 1.969); transcurridos, pues, treinta aos desde la aceptacion sin que los parientes favorecidos por la ley hayan
solicitado la constitucion da la reserva, se extinguira esta, y el ascendiente o sus derecho-habientes adquiriran el plano diminio de los bienes reservebles por su naturaleza, pero que no fueron
objeto de reserva." (Scaevola, Codigo Civil Comentado, Vol. 14, 1944 Ed., p. 360).
Plaintiffs-appellants herein, as reservatarios, had the right to claim the property 2/3 of 1/2 of Lot No. 221 from Francisca Salak de Paz, who has been possessing it in the concept of an owner, from April 24, 1950
when Agustina died. And the Court of Appeals' decision affirming the existence of reserva troncal, promulgated on June 8, 1950, rendered it all the more doubtless that such right had accrued in their favor from the time
Agustina died. It is clear, therefore, that the right or cause of action accrued in favor of the plaintiffs-reservatarios herein on April 24, 1950.
Section 40 of the Code of Civil Procedure fixes 10 years as the period of prescription for actions to recover real property, counted from the time the cause of action accrued. This is the applicable law because Article 1116 of

the new Civil Code provides that "prescription already running before the effectivity of this Code [August 30, 1950] shall be governed by laws previously in force."
Plaintiffs-appellants' suit herein, having been filed only on April 22, 1963, or more than 10 years from April 24, 1950, has prescribed.
And having reached such conclusion, We deem it unnecessary to pass upon the question of whether the suit is also barred on the ground of res judicata.
WHEREFORE, the order of dismissal appealed from is hereby affirmed on the ground of prescription, with costs against appellants. So ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Zaldivar, Sanchez and Castro, JJ., concur.
Barrera, J., is on leave.
||| (Carillo v. de Paz, G.R. No. L-22601, [October 28, 1966], 124 PHIL 1075-1082)
CANUTA PAGKATIPUNAN, FLORA VELASQUEZ, BENJAMIN VELASQUEZ, RODOLFO VELASQUEZ, ALFREDO VELASQUEZ, NAPOLEON VELASQUEZ, MANUEL VELASQUEZ, JULIO VELASQUEZ,
VICTORIA VELASQUEZ, CARLOS VELASQUEZ, LEONOR VELASQUEZ, ELENA VELASQUEZ, PATROCINIO VELASQUEZ, PATRICLA VELASQUEZ, SANTIAGO ZAPANTA, HERMINIGILDO SISON,
ALFREDO AGAPITO, MOISES SANTOS, MAGDALENA PAGKATIPUNAN, AGAPITO MANALO, MIGUEL ANGELES, MATIAS ALVAREZ, PATRICIO LAYSA, TEOFILO DE LUNA, ISIDRO ANINAO,
APOLINAR CASAL, MOISES GALLARDO, BONIFACIO PEREZ, DELFIN LAYBA, AND HERMOGENES FLORES, petitioners, vs. HON. INTERMEDIATE APPELLATE COURT, JOSE R. VELASQUEZ, JR.,
LOURDES VELASQUEZ, EDGARDO VELASQUEZ, LOLITA VELASQUEZ, MINERVA VELASQUEZ, CYNTHIA VELASQUEZ, CESAR GONZALES, ADOLFO GONZALES, EVELYN GONZALES, AMELITA
GONZALES, RUBEN GONZALES, AND CARMENCITA GONZALES, respondents.
Bengzon, Zarraga, Narciso, Cudala, Pecson, Ascuna & Bengson for petitioners.
Tomas P. Aonuevo for private respondents.
SYLLABUS
1. CIVIL LAW; SUCCESSION; LIQUIDATION OF CONJUGAL PARTNERSHIPS; FAILURE TO COLLATE AND CONSIDER DONATIONS MADE DURING THE LIFETIME OF DONOR; DISTRIBUTION AMONG THE
HEIRS CONSIDERED DEFECTIVE. It is a basic rule that before any conclusion about the legal share due to the heirs may be reached, it is necessary that certain steps be taken first. The trial court failed to
consider among others, Articles 908 and 1061 of the Civil Code . It is undeniable that numerous donations inter vivos were made by Jose Velasquez, Sr. in favor of some of his compulsory heirs. Likewise, no
collation of the donations he executed during his lifetime was undertaken by the trial court. With the avowed specific provisions of the laws respecting collation, which are ruled controlling even in intestate
succession, this Court finds that the lower court's ruling adjudicating the remaining portion of the conjugal estate to the private respondents is purely speculative and conjectural.
2. ID.; LAND REGISTRATION; LAND FRAUDULENTLY REGISTERED, HELD AS MERE TRUSTEE BY THE PERSON IN WHOSE NAME THE SAME IS REGISTERED. The fact that they had succeeded in
securing title over the said parcels of land does not warrant the reversal of the trial court's ruling that the sales and assignments were sham and fictitious. A Torrens title does not furnish a shield for fraud
notwithstanding the long-standing rule that registration is a constructive notice of title binding upon the whole world. The legal principle is that if the registration of the land is fraudulent and the person in whose name
the land is registered thus holds it as a mere trustee, the real owner is entitled to file an action for reconveyance of the property within a period of ten years (Pajarillo v. Intermediate Appellate Court, G.R. No. 72908,
August 11, 1969, 176 SCRA 340). Since petitioners asserted claims of exclusive ownership over the said parcels of land but acted in fraud of the private respondents, the former may be held to act as trustees for the
benefit of the latter, pursuant to the provision of Article 1456 of the Civil Code:
3. ID.; ID.; ID.; RECONVEYANCE IN FAVOR OF ONE OF THE PARTIES TO THE CASE; NOT POSSIBLE UNTIL WHO AMONG THE HEIRS ARE DETERMINED ENTITLED THERETO. But while the trial court
has the authority to order the reconveyance of the questioned titles, We cannot agree that the reconveyance should be made in favor of the private respondents. The reason is that it is still unproven whether or not
the private respondents are the only ones entitled to the conjugal properties of Jose Velasquez, Sr. and Victorina Real. It is to be noted that as the lawful heirs of Jose Velasquez, Sr. the herein petitioners are also
entitled to participate with his conjugal share. To reconvey said property in favor of the private respondents alone would not only be improper but will also make the situation more complicated. There are still things to
be done before the legal share of all the heirs can be properly adjudicated.
4. ID.; SUCCESSION; STEPS NECESSARY TO DETERMINE LEGAL SHARE DUE THE COMPULSORY HEIRS. No conclusion as to the legal share due to the compulsory heirs can be reached in this case
without (1) determining first the net value of the estate of Jose Velasquez, Sr.; (2) collating all the donations inter vivos in favor of some of the heirs; and (3) ascertaining the legitime of the compulsory heirs.
DECISION
MEDIALDEA, J p:
This petition for certiorari seeks to nullify the decision of the Intermediate Appellate Court (now Court of Appeals) in AC-G.R. CV No. 68431 dated February 7, 1986, affirming the decision of the Court of First Instance (now
Regional Trial Court) of Laguna, Branch II, Santa Cruz, Laguna, in Civil Case No. SC-894, the dispositive portion of which reads:
"WHEREFORE, the appealed decision of the lower court is affirmed, with the following modification:
"The entire house and lot on West Avenue, Quezon City, shall be divided as follows:
"One-half value of said house and lot to defendant-appellant Canuta Pagkatipunan and her 13 co-defendants-appellants children (now petitioners) to the extent of their respective proportional
contributions as stated above; and.
"The other one-half value of the said house and lot goes to the second conjugal partnership of the deceased husband and his second spouse Canuta Pagkatipunan to be partitioned one-fourth to
Canuta Pagkatipunan and the other one-fourth appertaining to the deceased Jose Velasquez, Sr. to be divided equally among his 18 heirs as follows:
1/18 undivided portion to Canuta Pagkatipunan;
1/18 undivided portion to the plaintiff-appellee Lourdes Velasquez;
1/18 undivided portion to the plaintiffs-appellees Edgardo, Lolita, Minerva, Cynthia, and Jennifer, all surnamed Velasquez;
1/18 undivided portion to the plaintiffs-appellee Teresa Magtibay and her children, Ricardo, Lourdes, Celia and Aida, all surnamed Velasquez;
1/18 undivided portion to the plaintiffs-appellees Cesar, Adolfo, Evelyn, Angelita, Ruben, and Carmencita, all surnamed Gonzales;
1/18 undivided portion to each of the 13 defendants-appellants Flora, Leonor, Patrocinio, Benjamin, Rodolfo, Alfredo, Napoleon, Manuel, Julio, Elena, Patricia, Victoria, and
Carlos, all surnamed Velasquez.
"SO ORDERED." (p. 55, Rollo)
The facts from the records are as follows: The principal litigants in this case are the successors-in-interest of Jose Velasquez, Sr. who died intestate on February 24, 1961. Petitioner Canuta Pagkatipunan is the surviving
spouse of Jose Velasquez, Sr. and the other 13 petitioners are their children namely: Flora, Leonor, Patrocinio, Julio, Benjamin, Rodolfo, Alfredo, Napoleon, Manuel, Elena, Patricia, Victoria and Carlos. On the other hand,
the private respondents are the descendants of Jose Velasquez, Sr. with his first wife Victorina Real who died in 1920 at Santa Cruz, Laguna. Private respondents Jose Velasquez, Jr. (substituted after his death during the
pendency of this suit by his surviving spouse Teresa Magtibay and their children Ricardo, Lourdes, Celia and Aida), and Lourdes Velasquez are two of the five children of Jose Velasquez, Sr. and Victorina Real. The other
three, Amelia, Guillermo and Lutgarda, all surnamed Velasquez, all died before the commencement of this case. Amelia Velasquez died without any issue. Guillermo Velasquez was survived by private respondents
Edgardo, Lolita, Minerva, Cynthia and Jennifer, all surnamed Velasquez, his children, forced heirs and lawful successors-in-interest. Lutgarda Velasquez was survived by private respondents Cesar, Adolfo, Evelyn, Amelita,
Ruben and Carmencita, all surnamed Gonzales, likewise her children, forced heirs and successors-in-interest.
This case was judicially instituted by the private respondents against the petitioners in 1969 in a complaint entitled "accion reivindicatoria, annulment of deeds of sale, partition and damages." However, both the trial and the
appellate courts considered that the real controversy in this case is the liquidation of the conjugal partnership properties acquired by the deceased Jose Velasquez, Sr. in his two marriages, one with Victorina Real, who
predeceased him, and the other with Canuta Pagkatipunan, as well as the partition of the estate of said Jose Velasquez, Sr. among his heirs.
It appears that after the death of Victorina Real in 1920, no dissolution of the first conjugal property has been made. Consequently, Jose Velasquez, Sr. enjoyed full possession, use, usufruct and administration of the whole
conjugal property of the first marriage. llcd

In 1930, Jose Velasquez, Sr. took Canuta Pagkatipunan as his second wife although they cohabited as early as 1921, when she was 16, soon after his first wife's death. From this marriage, the other 13 co-petitioners were
born. Neither had there been any liquidation of the second conjugal partnership after the death of Jose Velasquez, Sr. in 1961. This situation gave rise to the controversies in the instant case spawned by the parties'
conflicting claims from both sides of the two marriages.
The trial court appointed two sets of commissioners one on January 31, 1975, for the purpose of making an inventory of the estate of Jose Velasquez, Sr., and the other on November 15, 1976, to determine which of the
parcels of land listed in such inventory submitted by the first set of commissioners belong to the conjugal partnership of the first marriage or to the conjugal partnership of the second marriage.
Based on the Report and Inventory submitted on May 29, 1975, the commissioners listed the following properties as acquired by the late Jose Velasquez, Sr. during his marriage with Victorina Real:
1. Tax Declaration No. 2718. A riceland, located in Luya and with an area of 93,662 square meters;
2. Tax Declaration No. 3125. A Secano land located in Luya and with an area of 12,540 square meters;
3. Tax Declaration No. 2623. A Cocal and Forestal, situated in Salang-Bato (Macasipac) and with an area of 500,000 square meters;
4. Tax Declaration No. 2096. A riceland, situated in Islang Munti and with an area of 40,328 square meters;
5. A Cocal and Forestal land situated in Bankang Bato containing an area of 240,000 square meters;
6. Tax Declaration No. 4251. A Cocal, Secano and Cogonal land situated in Cambuja and containing an area of 163,121 square meters;
7. Tax Declaration No. 1342. A parcel of land situated in Bagumbayan and containing an area of 80,258 square meters;
8. Tax Declaration No. 3541. A Cocal and Secano land, situated in Bagumbayan and containing an area of 20 hectares;(Total area as surveyed is 392,503 square meters. This includes the
area of the land stated in Item 7 of the Inventory).
9. Tax Declaration No. 82. A Cogonal land situated in Tungkod (Ikalong Tuwid), containing an area of 385,324 square meters;
10. Tax Declaration No. 1500. A riceland, situated in Pague, containing an area of 9,228 square meters;
11. Tax Declaration No. 5688.
a) A parcel of land situated in NAPSE (Masinao), containing an area of 24,725 square meters;
b) A parcel of land situated in NAPSE (Masinao), containing an area of 25,000 square meters;
12. Tax Declaration No. 543. A parcel of land situated in Gomez Street, containing an area of 755 square meters;
13. Tax Declaration No. 4139. A parcel of land situated in Caboam containing an area of 367.2 square meters;
14. Tax Declaration No. 4139. A parcel of land situated in Caboan, containing an area of 367.2 square meters.
15. Tax Declaration No. 4139. A parcel of land situated in Caboan, containing an area of 367.2 square meters.
16. Tax Declaration No. 4139. A parcel of land situated in Caboan, containing an area of 367.2 square meters.
17. Tax Declaration No. 4139. A parcel of land situated in Caboam, containing an area of 1,275 square meters.
18. Tax Declaration No. 804-A. Three parcels of land situated in Salang Bato, containing an area of 450,000 square meters;
19. Tax Declaration No. 2560. A parcel of land situated in Salang Bato which area is included in item no. 18.
20. A parcel of land situated in Burgos St. (Papers cannot be located but subject lot is known to both parties).
21. A parcel of land situated in Burgos St., containing an area of 5,000 square meters. (Papers cannot be located but subject lot is known to both parties).
22. A parcel of land situated in Gomez St., containing an area of 800 square meters. (Papers cannot be located but subject lot is known to both parties).
23. A parcel of land situated in Gomez St., containing an area of 1,050 square meters. (Papers cannot be located but subject lot is known to both parties).
24. A parcel of land situated in Gomez St. (Papers cannot be located but subject lot is known to both parties).
25. A parcel of land situated in Zamora St., containing an area of 3,605. (Papers cannot be located but subject lot is known to both parties).
26. Tax Declaration No. 2412: A parcel of land situated in Caboam, containing an area of 12,867 square meters;
27. A parcel of land situated in Dra. Amelia St."
On the other hand, the commissioners listed the following properties as acquired by Jose Velasquez, Sr. on February 11, 1921 or after the death of Victorina Real:
28. Tax Declaration No. 2547. A parcel of land situated in Barandilla, containing an area of 21,566 square meters;
29. A parcel of land situated in Barandilla, containing an area of 93.191 square meters. (Commissioner's Inventory, Rollo, pp. 355-360).
Worth noting are the following findings of the commissioners:
"3) That among the properties acquired by the late Jose Velasquez, Sr. during his lifetime, only the one mentioned in Item 7 of the Inventory (Annex "A") is still intact. It is situated in
Bagumbayan, Sta. Maria, Laguna, and is containing an area of 80,258 square meters, more or less;
"4) That Item 8 of the Inventory is only 200,000 square meters, more or less in Tax Declaration No. 3541, but as per Survey caused by the defendants (which is not yet approved) it contains
an area of 330,345 square meters. That the Tax Declaration of said parcel of land is under the name of Canuta Pagkatipunan, but plaintiff Jose Velasquez, Jr. is the one in possession of said
property. That the area as contained in the Survey includes the area of the land mentioned in Item 7 of the Inventory (80,258 sq. m.);
"5) That the other properties of the late Jose Velasquez Sr. were disposed of by the said decedent during his lifetime and some were sold and or disposed of by the parties and heirs of the
late Jose Velasquez, Sr.;
"6) That the Barandilla properties, as evidenced by the Venta Absoluta dated February 11, 1921 executed by Pedro Villanueva in favor of Jose Velasquez Sr., were disposed of portion by
portion. It was sold by the late Jose Velasquez who disposed of some portions and the rest by either the plaintiffs or defendants. An area of 11,200 square meters more or less was
DONATED (donacion propter Nupcias) in favor of Canuta Pagkatipunan by the decedent Jose Velasquez, Sr. as evidenced by Kasulatan ng Pambagong Documento Donacion Propter
Nupcias notarized under Inst. 135; Page 47; Book I; Series of 1947 of Notary Public Bonifacio de Ramos;
"7) That the parcels of land appearing in Items 5 and 6 of the Inventory (Annex "A") were DONATED by the late Jose Velasquez Sr. to Guillermo Velasquez;
"8) That parcels of land mentioned in Items 18 and 19 of the Inventory (Annex "A") were DONATED by the late Jose Velasquez, Sr. to Jose Velasquez, Jr. Said properties were sold by the
Donee to Sps. Santiago Recio and Filomena Dimaculangan;
"9) The property mentioned in Item 27, page 3 of the Inventory was given by the late Jose Velasquez, Sr. to one of his daughters, Dra. Amelia Velasquez while she was still living and now
owned by her heirs;
"10) A residential lot at 7 West Avenue, Quezon City, titled in the name of Canuta Pagkatipunan, was acquired from the PHHC (People's Homesite and Housing Corporation, now National
Housing Authority) and presently occupied by the defendants." (Rollo, pp. 351-353)
There is divergence of findings and opinion among the three members of the second set of commissioners with respect to the properties covered by Items 7 and 8 and the property in the unnumbered item relating to Lot 2A West Avenue, Quezon City and the house thereon of the Inventory submitted by the first set of commissioners. They refuse to make findings as to the nature of the properties because the petitioners had caused the
issuance of titles covering said properties. However, all the commissioners were in agreement that all the other properties listed in the Inventory belonged to the conjugal partnership of the first marriage.
The records before Us will show that the properties covered by items 7 and 8 were originally declared for taxation purposes in the names of the spouses Real and Velasquez. This has been admitted by Canuta
Pagkatipunan during the hearing before the Commissioner and is duly supported by documentary evidence. LexLib

After the death of Jose Velasquez, Sr. the full possession of said property was acquired by Canuta Pagkatipunan. On March 4, 1967, she sold the same property to the spouses Moises Santos and Magdalena
Pagkatipunan, her brother-in-law and sister, respectively (they were previously impleaded in the trial court as party-defendants). Subsequently, Tax Declaration No. 4843 was issued in the names of the said spouses who
later resold the same property to Canuta Pagkatipunan. Thereafter, tax declaration covering said property was issued in her name. During the pendency of this suit, this property was subdivided and assigned by Canuta
Pagkatipunan in favor of her thirteen children. The latter caused the issuance of separate free patent titles in their favor covering the subdivided lots conveyed to them by their mother. Original Certificates of Title Nos. P2000 to P-2012 were accordingly issued in their names.
With regard to the West Avenue property it is not disputed that said residential lot was purchased on installments from People's Homesite and Housing Corporation (now National Housing Authority) by the spouses Jose
Velasquez Sr. and Canuta Pagkatipunan. The installments were paid by the said spouses until Jose Velasquez, Sr. died on February 24, 1961. Canuta Pagkatipunan, with the help of some of her children, shouldered the
payment of the remaining installments until said property was fully paid in 1965. On February 23, 1968, the PHHC executed a deed of absolute sale conveying the said house and lot to Canuta Pagkatipunan.
On August 11, 1980, a judgment was rendered by the trial court:
"1) Declaring the properties listed in the Inventory submitted by the Commissioners on May 9, 1975, as belonging to the estate of the conjugal partnership of the deceased spouses Jose
Velasquez, Sr. and Victorina Real;
"2) Confirming all the conveyances, either by way of sale or donation, executed by Jose Velasquez, Sr. during his lifetime;
"3) Declaring null and void, sham and fictitious, the following sales, transfers, assignments or conveyances: (a) the sale executed by Canuta Pagkatipunan in favor of her sister Magdalena
Pagkatipunan in favor of Canuta Pagkatipunan (sic); (b) the deeds of assignments executed by Canuta Pagkatipunan in favor of her children, covering the properties listed in Items 7 and 8 of
the Inventory; and ordering defendants (petitioners) to reconvey in favor of the plaintiffs (private respondents) the parcels of land covered by Patent Titles Nos. P-2000 to P-2012;
"4) Declaring as null, fictitious and fraudulent the sales by Canuta Pagkatipunan in favor of her children and her sister Magdalena Pagkatipunan and brother-in-law Moises Santos, listed in
paragraph 13 of the Amended Complaint; declaring the plaintiffs owners of the said properties; and ordering the defendant Canuta Pagkatipunan and her children-defendants to deliver
possession of said properties to the plaintiffs;
"5) Ordering the partition of the house and lot in West Avenue, Quezon City in the following manner:
"(a) One-half undivided portion to defendant Canuta Pagkatipunan; and the other half appertaining to Jose Velasquez, Sr. to be divided among his heirs, to wit:
1/18 undivided portion to Canuta Pagkatipunan;
1/18 undivided portion to Lourdes Velasquez;
1/18 undivided portion to the plaintiffs Edgardo, Lolita, Minerva, Cynthia and Jennifer, all surnamed Velasquez;
1/18 undivided portion to the plaintiffs Teresa Magtibay and her children Ricardo, Lourdes, Celia and Aida, all surnamed Velasquez;
1/18 undivided portion to the plaintiffs Cesar, Adolfo, Evelyn, Angelita, Ruben and Carmencita, all surnamed Gonzales;
1/18 undivided portion to each of the defendants Flora, Leonor, Patrocinio, Benjamin, Rodolfo, Alfredo, Napoleon, Manuel, Julio, Elena, Patricia, Victoria and Carlos, all
surnamed Velasquez;
"6) Ordering the defendant Canuta Pagkatipunan and her children-defendants to pay to the plaintiffs the sum of P5,000.00, as reimbursement for attorney's fees;
"7) The defendant Canuta Pagkatipunan and her children-defendants are likewise ordered to pay the costs of this suit;
"8) The case against the other defendants, other than Canuta Pagkatipunan and her children and the spouses Moises Santos and Magdalena Pagkatipunan, is ordered dismissed." (pp. 614617, Rollo).
Petitioners appealed to the respondent Intermediate Appellate Court.
On February 7, 1985, the Intermediate Appellate Court, Third Civil Cases Division promulgated a decision, affirming the decision of the trial court, with the modification that the entire house and lot in West Avenue, Quezon
City be divided into two; one-half value to the petitioners Canuta Pagkatipunan and her 13 children to the extent of their respective proportional contributions and the other half value, to the second conjugal partnership of
Jose Velasquez, Sr. and Canuta Pagkatipunan to be partitioned one-fourth to the wife and the other one-fourth appertaining to the deceased Jose Velasquez, Sr. to be divided equally among his heirs.
Hence, this instant petition for review pointing out the following four (4) assignments of error, to wit:
I
"THE TRIAL COURT ERRED IN HOLDING THAT THE ENTIRE ESTATE LISTED IN THE INVENTORY SUBMITTED BY THE COMMISSIONERS ON MAY 9, 1975 AS BELONGING TO THE
DECEASED SPOUSES JOSE VELASQUEZ, SR. AND VICTORINA REAL.
II
"THAT THE LOWER COURT ERRED IN CONFIRMING ALL THE CONVEYANCES EITHER BY WAY OF SALE OR DONATION EXECUTED BY JOSE VELASQUEZ, SR. DURING HIS LIFETIME.
III
"THAT THE LOWER COURT ERRED IN DECLARING NULL AND VOID, SHAM AND FICTITIOUS THE FOLLOWING SALES: a) THE SALE EXECUTED BY CANUTA PAGKATIPUNAN IN FAVOR
OF HER SISTER MAGDALENA PAGKATIPUNAN AND BROTHER-IN-LAW MOISES SANTOS; b) THE RESALE EXECUTED BY MOISES SANTOS AND MAGDALENA PAGKATIPUNAN IN
FAVOR OF CANUTA PAGKATIPUNAN c) THE DEEDS OF ASSIGNMENT EXECUTED BY CANUTA PAGKATIPUNAN IN FAVOR OF HER CHILDREN: COVERING THE PROPERTIES LISTED IN
ITEMS 7 AND 8 OF THE INVENTORY; AND ORDERING DEFENDANT-APPELLANT CANUTA PAGKATIPUNAN AND HER CHILDREN DEFENDANTS-APPELLANTS TO RECONVEY IN FAVOR
OF THE PLAINTIFFS-APPELLEES THE PARCELS OF LAND COVERED BY PATENT TITLES NOS. P2-000 TO P-2012.
IV
"THAT THE TRIAL COURT ERRED IN ORDERING THE PARTITION OF THE HOUSE AND LOT IN WEST AVENUE, QUEZON CITY, ONE-HALF UNDIVIDED PORTION TO DEFENDANTAPPELLANT CANUTA PAGKATIPUNAN AND THE OTHER HALF TO JOSE VELASQUEZ, SR." (pp. 21-22, Rollo)
After a careful review of the records and the arguments presented by both parties, the Court finds that both the trial court and the respondent Intermediate Appellate Court failed to consider some basic principles observed
in the law on succession. Such an oversight renders the appealed decision defective and hard to sustain. prcd
It is a basic rule that before any conclusion about the legal share due to the heirs may be reached, it is necessary that certain steps be taken first. In the assailed decision, the respondent court affirmed the trial court's
ruling, that Jose Velasquez, Sr. had already disposed of and exhausted his corresponding share in the conjugal partnership owned by him and Victorina Real, so that his heirs have nothing more to inherit from him, and
that accordingly, whatever remaining portion of the conjugal property must necessarily appertain only to the private respondents as heirs of the deceased Victorina Real. Clearly, the trial court failed to consider among
others, the following provisions of the Civil Code:
"ART. 908. To determine the legitime, the value of the property left at the death of the testator shall be considered, deducting all debts and charges, which shall not include those imposed in
the will.
"To the net value of the hereditary estate, shall be added the value of all donations by the testator that are subject to collation, at the time he made them."
"ART. 1061. Every compulsory heir, who succeeds with other compulsory heirs, must bring into the mass of the estate any property or right which he may have received from the decedent,
during the lifetime of the latter, by way of donation, or any other gratuitous title, in order that it may be computed in the determination of the legitime of each heir, and in the account of the
partition."
It is undeniable that numerous donations inter vivos were made by Jose Velasquez, Sr. in favor of some of his compulsory heirs. They include among others, the donation made in favor of Guillermo Velasquez on February

26, 1953, consisting of 403,000 square meters (Items 5 and 6); the donation made in 1926 in favor of Jose Velasquez, Jr., consisting of 450,000 square meters (Item No. 18); the donation in favor of Amelia Velasquez (Item
No. 27), and the donation in favor of Canuta Pagkatipunan, consisting of 11,000 square meters (part of Item No. 29) (Commissioner's Report, Rollo, pp. 355-360).
It appears that there was no determination whatsoever of the gross value of the conjugal properties of Jose Velasquez, Sr. and Victorina Real. Obviously it is impossible to determine the conjugal share of Jose Velasquez,
Sr. from the said property relationship. Likewise, no collation of the donations he executed during his lifetime was undertaken by the trial court. Thus, it would be extremely difficult to ascertain whether or not such donations
trenched on the heirs' legitime so that the same may be considered subject to reduction for being inofficious.
Article 909 of the Civil Code provides:
"Art. 909. Donations given to children shall be charged to their legitime.
"Donations made to strangers shall be charged to that part of the estate of which the testator could have disposed by his last will.
"Insofar as they may be inofficious or may exceed the disposable portion, they shall be reduced according to the rules established by this Code."
With the avowed specific provisions of the aforesaid laws respecting collation, which are ruled controlling even in intestate succession, this Court finds that the lower court's ruling adjudicating the remaining portion of the
conjugal estate to the private respondents is purely speculative and conjectural.
Relative to the sale executed by Canuta Pagkatipunan to the spouses Magdalena Pagkatipunan and Moises Santos; the resale of the same property to her; and the subsequent deeds of assignment she executed in favor
of her children, the trial court had clearly established that Canuta Pagkatipunan employed fraudulent acts to acquire title over the said properties. Hence, the trial court, as well as the respondent court are correct in ruling
that the said sales and assignments are null and void, sham and fictitious.
The pertinent portion of the trial court's decision reads as follows:
"From the evidence adduced by the parties during the hearing before this Court and before the Commissioners, these properties were acquired on November 19, 1918 by the spouses Jose
Velasquez, Sr. and Victoria Real from Estanislao Balasoto (Exh. H-5, Commissioner). Said property was originally declared for taxation purposes in the names of said spouses. (Exh. HCommissioner). On March 4, 1967, defendant Canuta Pagkatipunan sold the same property to the spouses Moises Santos and Magdalena Pagkatipunan (Exh. H-1-Commissioner). The vendee
Magdalena Pagkatipunan is the sister of the defendant Canuta Pagkatipunan. Subsequently, Tax Declaration No. 4843 (Exh. H-2-Commissioner) was issued in the names of the spouses Moises
Santos and Magdalena Pagkatipunan resold (sic) the same property to Canuta Pagkatipunan (Exh. H-3-Commissioner). Thereafter, tax declaration covering said property was issued in the name of
Canuta Pagkatipunan (Exhibit H-4-Commissioner). During the pendency of this suit, this property was subdivided and assigned by Canuta Pagkatipunan in favor of her children, the defendants
Flora, Leonor, Patrocinio, Benjamin, Rodolfo, Alfredo, Napoleon, Manuel, Elena, Patricia, Julio, Victoria and Carlos, all surnamed Velasquez. Said defendants-children of Canuta Pagkatipunan
caused the issuance of free patent titles in their favor covering the subdivided lots conveyed to them respectively by their mother (Exh. 2, 2-A to 2-L).
"It is evident that the parcels of land under Items 7 and 8 of the Inventory belonged to the conjugal partnership of the spouses Jose Velasquez, Sr. and Victorina Real. Canuta Pagkatipunan had no
right to alienate the same. Her conveyance of the same property to her brother-in-law and sister is fictitious or simulated. Ten (10) days after she executed her sale, the same property was resold to
her by the vendees. She utilized said conveyance and reconveyance only for the purpose of securing a tax declaration in her name over said property. Her subsequent subdivision of said lot and
transfer of the subdivided lots to each of their children further show her fraudulent intent to deprive the plaintiffs of their rightful shares in the disputed property." (Rollo, pp. 606-607)
Despite the several pleadings filed by the petitioners in this Court, they did not rebut the foregoing findings of the trial court but merely held on to their argument that since Free Patent Titles Nos. P-2000 to P-2012 were
already issued in their names, their title thereto is indefeasible and incontrovertible. This is a misplaced argument. prcd
The fact that they had succeeded in securing title over the said parcels of land does not warrant the reversal of the trial court's ruling that the above mentioned sales and assignments were sham and fictitious. A Torrens
title does not furnish a shield for fraud notwithstanding the long-standing rule that registration is a constructive notice of title binding upon the whole world. The legal principle is that if the registration of the land is fraudulent
and the person in whose name the land is registered thus holds it as a mere trustee, the real owner is entitled to file an action for reconveyance of the property within a period of ten years (Pajarillo v. Intermediate Appellate
Court, G.R. No. 72908, August 11, 1969, 176 SCRA 340).
Since petitioners asserted claims of exclusive ownership over the said parcels of land but acted in fraud of the private respondents, the former may be held to act as trustees for the benefit of the latter, pursuant to the
provision of Article 1456 of the Civil Code:
"ART. 1456. If property is acquired through mistake or fraud, the person obtaining it is, by force of law, considered a trustee of an implied trust for the benefit of the person from whom the property
comes."
But while the trial court has the authority to order the reconveyance of the questioned titles, We cannot agree that the reconveyance should be made in favor of the private respondents. The reason is that it is still unproven
whether or not the private respondents are the only ones entitled to the conjugal properties of Jose Velasquez, Sr. and Victoria Real. It is to be noted that as the lawful heirs of Jose Velasquez, Sr. the herein petitioners are
also entitled to participate in his conjugal share. To reconvey said property in favor of the private respondents alone would not only be improper but will also make the situation more complicated. There are still things to be
done before the legal share of all the heirs can be properly adjudicated.
Relative to the last assignment of error, We find the ruling made by the respondent appellate court proper and in accord with law insofar as it adjudicated the one-half (1/2) portion of the house and lot situated at West
Avenue, Quezon City, as belonging to the petitioners to the extent of their respective proportional contributions, and the other half to the conjugal partnership of Jose Velasquez, Sr. and Canuta Pagkatipunan. We must
modify it, however, as it readily partitioned the conjugal share of Jose Velasques, Sr. (1/2 of the conjugal property or 1/4 of the entire house and lot) to his 18 heirs.
As already said, no conclusion as to the legal share due to the compulsory heirs can be reached in this case without (1 ) determining first the net value of the estate of Jose Velasquez, Sr.; (2) collating all the donations
inter vivos in favor of some of the heirs; and (3) ascertaining the legitime of the compulsory heirs. LLjur
ACCORDINGLY, the decision of the trial court as modified by the respondent appellate court is hereby SET ASIDE except insofar as it:
(a) declared the properties listed in the Inventory submitted by the commissioners on May 9, 1975 as belonging to the estate of the conjugal partnership of the spouses Jose Velasquez, Sr.
and Victorina Real;
b) declared null and void, sham and fictitious, the following sales, transfers, assignments or conveyances:
1) the sale executed by Canuta Pagkatipunan in favor of her sister Magdalena Pagkatipunan; 2) the resale of the same property executed in favor of Canuta
Pagkatipunan; and 3) the deeds of assignments executed by Canuta Pagkatipunan in favor of her 13 children; covering the properties listed in Items 7 and 8;
c) declared as null and void all the other conveyances made by Canuta Pagkatipunan with respect to Item No. 13 of the inventory; and
d) dismissed the case against the other defendants except Canuta Pagkatipunan and her children and the spouses Moises Santos and Magdalena Pagkatipunan.
Civil Case No. SC-894 is hereby remanded to the Regional Trial Court of Laguna, for further proceedings and the same Court is directed to:
a) follow the procedure for partition herein prescribed;
b) expand the scope of the trial to cover other possible illegal dispositions of the first conjugal partnership properties not only by Canuta Pagkatipunan but also by the other heirs as can be
shown in the records;
c) include the one-fourth (1/4) share of Jose Velasquez, Sr. in the residential house in Quezon City with his conjugal share under his first marriage, if any, to determine his net estate at the
time of his death.
The trial court's pronouncement as to cost and damages is hereby deleted.
SO ORDERED.
Narvasa, Cruz and Grio-Aquino, JJ., concur.

||| (Pagkatipunan v. Intermediate Appellate Court, G.R. No. 70722, [July 3, 1991], 275 PHIL 794-811)
THE HEIRS OF MARCELINO DORONIO, NAMELY: REGINA AND FLORA, BOTH SURNAMED DORONIO, petitioners, vs. HEIRS OF FORTUNATO DORONIO, NAMELY: TRINIDAD ROSALINA DORONIOBALMES, MODING DORONIO, FLORENTINA DORONIO, AND ANICETA ALCANTARA-MANALO, respondents.
DECISION
REYES, R.T., J p:
For Our review on certiorari is the Decision 1 of the Court of Appeals (CA) reversing that 2 of the Regional Trial Court (RTC), Branch 45, Anonas, Urdaneta City, Pangasinan, in an action for reconveyance and damages.
The CA declared respondents as rightful owners of one-half of the subject property and directed petitioners to execute a registerable document conveying the same to respondents.
The Facts
Spouses Simeon Doronio and Cornelia Gante, now both deceased, were the registered owners of a parcel of land located at Barangay Cabalitaan, Asingan, Pangasinan covered by Original Certificate of Title (OCT) No.
352. 3 The courts below described it as follows:
Un terreno (Lote 1018), situada en el municipio de Asingan, Linda por el NE; con propriedad de Gabriel Bernardino; con el SE con propriedad de Zacarias Najorda y Alejandro Najorda; por el SO
con propriedad de Geminiano Mendoza y por el NO con el camino para Villasis; midiendo una extension superficial mil ciento cincuenta y dos metros cuadrados. 4
The spouses had children but the records fail to disclose their number. It is clear, however, that Marcelino Doronio and Fortunato Doronio, now both deceased, were among them and that the parties in this case are their
heirs. Petitioners are the heirs of Marcelino Doronio, while respondents are the heirs of Fortunato Doronio.
On April 24, 1919, a private deed of donation propter nuptias 5 was executed by spouses Simeon Doronio and Cornelia Gante in favor of Marcelino Doronio and the latter's wife, Veronica Pico. One of the properties subject
of said deed of donation is the one that it described as follows:
Fourth A piece of residential land located in the barrio of Cabalitian but we did not measure it, the area is bounded on the north by Gabriel Bernardino; on the east by Fortunato Doronio; on the
south by Geminiano Mendoza and on the west by a road to Villasis. Constructed on said land is a house of light materials also a part of the dowry. Value . . . 200.00. 6 HTASIa
It appears that the property described in the deed of donation is the one covered by OCT No. 352. However, there is a significant discrepancy with respect to the identity of the owner of adjacent property at the eastern
side. Based on OCT No. 352, the adjacent owners are Zacarias Najorda and Alejandro Najorda, whereas based on the deed of donation, the owner of the adjacent property is Fortunato Doronio. Furthermore, said deed of
donation remained a private document as it was never notarized. 7
Both parties have been occupying the subject land for several decades 8 although they have different theories regarding its present ownership. According to petitioners, they are now the owners of the entire property in
view of the private deed of donation propter nuptias in favor of their predecessors, Marcelino Doronio and Veronica Pico.
Respondents, on the other hand, claim that only half of the property was actually incorporated in the said deed of donation because it stated that Fortunato Doronio, instead of Zacarias Najorda and Alejandro Najorda, is
the owner of the adjacent property at the eastern side. Respondents posit that the donors respected and segregated the possession of Fortunato Doronio of the eastern half of the land. They are the ones who have been
possessing said land occupied by their predecessor, Fortunato Doronio.
Eager to obtain the entire property, the heirs of Marcelino Doronio and Veronica Pico filed, on January 11, 1993, before the RTC in Urdaneta, Pangasinan a petition "For the Registration of a Private Deed of Donation" 9
docketed as Petition Case No. U-920. No respondents were named in the said petition 10 although notices of hearing were posted on the bulletin boards of Barangay Cabalitaan, Municipalities of Asingan and Lingayen. 11
During the hearings, no one interposed an objection to the petition. 12 After the RTC ordered a general default, 13 the petition was eventually granted on September 22, 1993. This led to the registration of the deed of
donation, cancellation of OCT No. 352 and issuance of a new Transfer Certificate of Title (TCT) No. 44481 in the names of Marcelino Doronio and Veronica Pico. 14 Thus, the entire property was titled in the names of
petitioners' predecessors.
On April 28, 1994, the heirs of Fortunato Doronio filed a pleading before the RTC in the form of a petition in the same Petition Case No. U-920. The petition was for the reconsideration of the decision of the RTC that
ordered the registration of the subject deed of donation. It was prayed in the petition that an order be issued declaring null and void the registration of the private deed of donation and that TCT No. 44481 be cancelled.
However, the petition was dismissed on May 13, 1994 on the ground that the decision in Petition Case No. U-920 had already become final as it was not appealed.
Determined to remain in their possessed property, respondent heirs of Fortunato Doronio (as plaintiffs) filed an action for reconveyance and damages with prayer for preliminary injunction 15 against petitioner heirs of
Marcelino Doronio (as defendants) before the RTC, Branch 45, Anonas, Urdaneta City, Pangasinan. Respondents contended, among others, that the subject land is different from what was donated as the descriptions of
the property under OCT No. 352 and under the private deed of donation were different. They posited that spouses Simeon Doronio and Cornelia Gante intended to donate only one-half of the property.
During the pre-trial conference, the parties stipulated, among others, that the property was originally covered by OCT No. 352 which was cancelled by TCT No. 44481. They also agreed that the issues are: (1) whether or
not there was a variation in the description of the property subject of the private deed of donation and OCT No. 352; (2) whether or not respondents had acquired one-half of the property covered by OCT No. 352 by
acquisitive prescription; (3) whether or not the transfer of the whole property covered by OCT No. 352 on the basis of the registration of the private deed of donation notwithstanding the discrepancy in the description is
valid; (4) whether or not respondents are entitled to damages; and (5) whether or not TCT No. 44481 is valid. 16
RTC Decision
After due proceedings, the RTC ruled in favor of petitioner heirs of Marcelino Doronio (defendants). It concluded that the parties admitted the identity of the land which they all occupy; 17 that a title once registered under
the torrens system cannot be defeated by adverse, open and notorious possession or by prescription; 18 that the deed of donation in consideration of the marriage of the parents of petitioners is valid, hence, it led to the
eventual issuance of TCT No. 44481 in the names of said parents; 19 and that respondent heirs of Fortunato Doronio (plaintiffs) are not entitled to damages as they are not the rightful owners of the portion of the property
they are claiming. 20
The RTC disposed of the case, thus:
WHEREFORE, premises considered, the Court hereby renders judgment DISMISSING the herein Complaint filed by plaintiffs against defendants. 21
Disagreeing with the judgment of the RTC, respondents appealed to the CA. They argued that the trial court erred in not finding that respondents' predecessor-in-interest acquired one-half of the property covered by OCT
No. 352 by tradition and/or intestate succession; that the deed of donation dated April 26, 1919 was null and void; that assuming that the deed of donation was valid, only one-half of the property was actually donated to
Marcelino Doronio and Veronica Pico; and that respondents acquired ownership of the other half portion of the property by acquisitive prescription. 22 CcaASE
CA Disposition
In a Decision dated January 26, 2005, the CA reversed the RTC decision with the following disposition:
WHEREFORE, the assailed Decision dated June 28, 2002 is REVERSED and SET ASIDE. Declaring the appellants as rightful owners of one-half of the property now covered by TCT No. 44481,
the appellees are hereby directed to execute a registerable document conveying the same to appellants.
SO ORDERED. 23
The appellate court determined that "(t)he intention to donate half of the disputed property to appellees' predecessors can be gleaned from the disparity of technical descriptions appearing in the title (OCT No. 352) of
spouses Simeon Doronio and Cornelia Gante and in the deed of donation propter nuptias executed on April 24, 1919 in favor of appellees' predecessors." 24
The CA based its conclusion on the disparity of the following technical descriptions of the property under OCT No. 352 and the deed of donation, to wit:
The court below described the property covered by OCT No. 352 as follows:
"Un terreno (Lote 1018), situada en el municipio de Asingan, Linda por el NE; con propriedad de Gabriel Bernardino; con el SE con propriedad de Zacarias Najorda y Alejandro Najorda;
por el SO con propriedad de Geminiano Mendoza y por el NO con el camino para Villasis; midiendo una extension superficial mil ciento cincuenta y dos metros cuadrados."
On the other hand, the property donated to appellees' predecessors was described in the deed of donation as:
"Fourth A piece of residential land located in the barrio of Cabalitian but we did not measure it, the area is bounded on the north by Gabriel Bernardino; on the east by Fortunato

Doronio; on the south by Geminiano Mendoza and on the west by a road to Villasis. Constructed on said land is a house of light materials also a part of the dowry. Value . . . 200.00."
25 (Emphasis ours)
Taking note "that the boundaries of the lot donated to Marcelino Doronio and Veronica Pico differ from the boundaries of the land owned by spouses Simeon Doronio and Cornelia Gante," the CA concluded that spouses
Simeon Doronio and Cornelia Gante donated only half of the property covered by OCT No. 352. 26
Regarding the allegation of petitioners that OCT No. 352 is inadmissible in evidence, the CA pointed out that, "while the OCT is written in the Spanish language, this document already forms part of the records of this case
for failure of appellees to interpose a timely objection when it was offered as evidence in the proceedings a quo. It is a well-settled rule that any objection to the admissibility of such evidence not raised will be considered
waived and said evidence will have to form part of the records of the case as competent and admitted evidence." 27
The CA likewise ruled that the donation of the entire property in favor of petitioners' predecessors is invalid on the ground that it impairs the legitime of respondents' predecessor, Fortunato Doronio. On this aspect, the CA
reasoned out: TIaDHE
Moreover, We find the donation of the entire property in favor of appellees predecessors invalid as it impairs the legitime of appellants' predecessor. Article 961 of the Civil Code is explicit. "In
default of testamentary heirs, the law vests the inheritance, . . ., in the legitimate . . . relatives of the deceased, . . . . As Spouses Simeon Doronio and Cornelia Gante died intestate, their property
shall pass to their lawful heirs, namely: Fortunato and Marcelino Doronio. Donating the entire property to Marcelino Doronio and Veronica Pico and excluding another heir, Fortunato, tantamounts to
divesting the latter of his rightful share in his parents' inheritance. Besides, a person's prerogative to make donations is subject to certain limitations, one of which is that he cannot give by donation
more than what he can give by will (Article 752, Civil Code). If he does, so much of what is donated as exceeds what he can give by will is deemed inofficious and the donation is reducible to the
extent of such excess. 28
Petitioners were not pleased with the decision of the CA. Hence, this petition under Rule 45.
Issues
Petitioners now contend that the CA erred in:
1. DECLARING ADMISSIBILITY OF THE ORIGINAL CERTIFICATE OF TITLE NO. 352 DESPITE OF LACK OF TRANSLATION THEREOF.
2. (RULING THAT) ONLY HALF OF THE DISPUTED PROPERTY WAS DONATED TO THE PREDECESSORS-IN-INTEREST OF THE HEREIN APPELLANTS. cHDEaC
3. (ITS) DECLARATION THAT THE DONATION PROPTER NUPTIAS IS INNOFICIOUS, IS PREMATURE, AND THUS IT IS ILLEGAL AND UNPROCEDURAL. 29
Our Ruling
OCT No. 352 in Spanish Although Not
Translated into English or Filipino Is
Admissible For Lack of Timely Objection
Petitioners fault the CA for admitting OCT No. 352 in evidence on the ground that it is written in Spanish language. They posit that "(d)ocumentary evidence in an unofficial language shall not be admitted as evidence,
unless accompanied with a translation into English or Filipino." 30
The argument is untenable. The requirement that documents written in an unofficial language must be accompanied with a translation in English or Filipino as a prerequisite for its admission in evidence must be insisted
upon by the parties at the trial to enable the court, where a translation has been impugned as incorrect, to decide the issue. 31 Where such document, not so accompanied with a translation in English or Filipino, is offered
in evidence and not objected to, either by the parties or the court, it must be presumed that the language in which the document is written is understood by all, and the document is admissible in evidence. 32
Moreover, Section 36, Rule 132 of the Revised Rules of Evidence provides:
SECTION 36. Objection. Objection to evidence offered orally must be made immediately after the offer is made.
Objection to a question propounded in the course of the oral examination of a witness shall be made as soon as the grounds therefor shall become reasonably apparent.
An offer of evidence in writing shall be objected to within three (3) days after notice of the offer unless a different period is allowed by the court .
In any case, the grounds for the objections must be specified. (Emphasis ours)
Since petitioners did not object to the offer of said documentary evidence on time, it is now too late in the day for them to question its admissibility. The rule is that evidence not objected may be deemed admitted and may
be validly considered by the court in arriving at its judgment. 33 This is true even if by its nature, the evidence is inadmissible and would have surely been rejected if it had been challenged at the proper time. 34
As a matter of fact, instead of objecting, petitioners admitted the contents of Exhibit "A," that is, OCT No. 352 in their comment 35 on respondents' formal offer of documentary evidence. In the said comment, petitioners
alleged, among others, that "Exhibits A, B, C, D, E, F and G, are admitted but not for the purpose they are offered because these exhibits being public and official documents are the best evidence of that they
contain and not for what a party would like it to prove." 36 Said evidence was admitted by the RTC. 37 Once admitted without objection, even though not admissible under an objection, We are not inclined now to reject it.
38 Consequently, the evidence that was not objected to became property of the case, and all parties to the case are considered amenable to any favorable or unfavorable effects resulting from the said evidence. 39
EAcTDH
Issues on Impairment of Legitime
Should Be Threshed Out in a Special
Proceeding, Not in Civil Action for
Reconveyance and Damages
On the other hand, petitioners are correct in alleging that the issue regarding the impairment of legitime of Fortunato Doronio must be resolved in an action for the settlement of estates of spouses Simeon Doronio and
Cornelia Gante. It may not be passed upon in an action for reconveyance and damages. A probate court, in the exercise of its limited jurisdiction, is the best forum to ventilate and adjudge the issue of impairment of
legitime as well as other related matters involving the settlement of estate. 40
An action for reconveyance with damages is a civil action, whereas matters relating to settlement of the estate of a deceased person such as advancement of property made by the decedent, partake of the nature of a
special proceeding. Special proceedings require the application of specific rules as provided for in the Rules of Court. 41
As explained by the Court in Natcher v. Court of Appeals: 42
Section 3, Rule 1 of the 1997 Rules of Civil Procedure defines civil action and special proceedings, in this wise:
. . . a) A civil action is one by which a party sues another for the enforcement or protection of a right, or the prevention or redress of a wrong.
A civil action may either be ordinary or special. Both are governed by the rules for ordinary civil actions, subject to specific rules prescribed for a special civil action.
xxx xxx xxx
c) A special proceeding is a remedy by which a party seeks to establish a status, a right or a particular fact.
As could be gleaned from the foregoing, there lies a marked distinction between an action and a special proceeding. An action is a formal demand of one's right in a court of justice in the manner
prescribed by the court or by the law. It is the method of applying legal remedies according to definite established rules. The term "special proceeding" may be defined as an application or
proceeding to establish the status or right of a party, or a particular fact. Usually, in special proceedings, no formal pleadings are required unless the statute expressly so provides. In special
proceedings, the remedy is granted generally upon an application or motion.
Citing American Jurisprudence, a noted authority in Remedial Law expounds further:
It may accordingly be stated generally that actions include those proceedings which are instituted and prosecuted according to the ordinary rules and provisions relating to actions at law

or suits in equity, and that special proceedings include those proceedings which are not ordinary in this sense, but is instituted and prosecuted according to some special mode as in the
case of proceedings commenced without summons and prosecuted without regular pleadings, which are characteristics of ordinary actions . . . . A special proceeding must therefore be in
the nature of a distinct and independent proceeding for particular relief, such as may be instituted independently of a pending action, by petition or motion upon notice. aSTAIH
Applying these principles, an action for reconveyance and annulment of title with damages is a civil action, whereas matters relating to settlement of the estate of a deceased person such as
advancement of property made by the decedent, partake of the nature of a special proceeding, which concomitantly requires the application of specific rules as provided for in the Rules of Court.
Clearly, matters which involve settlement and distribution of the estate of the decedent fall within the exclusive province of the probate court in the exercise of its limited jurisdiction.
Thus, under Section 2, Rule 90 of the Rules of Court, questions as to advancement made or alleged to have been made by the deceased to any heir may be heard and determined by the court
having jurisdiction of the estate proceedings, and the final order of the court thereon shall be binding on the person raising the questions and on the heir.
While it may be true that the Rules used the word "may," it is nevertheless clear that the same provision contemplates a probate court when it speaks of the "court having jurisdiction of the estate
proceedings."
Corollarily, the Regional Trial Court in the instant case, acting in its general jurisdiction, is devoid of authority to render an adjudication and resolve the issue of advancement of the real property in
favor of herein petitioner Natcher, inasmuch as Civil Case No. 71075 for reconveyance and annulment of title with damages is not, to our mind, the proper vehicle to thresh out said question.
Moreover, under the present circumstances, the RTC of Manila, Branch 55, was not properly constituted as a probate court so as to validly pass upon the question of advancement made by the
decedent Graciano Del Rosario to his wife, herein petitioner Natcher.
We likewise find merit in petitioners' contention that before any conclusion about the legal share due to a compulsory heir may be reached, it is necessary that certain steps be taken first. 43 The net estate of the decedent
must be ascertained, by deducting all payable obligations and charges from the value of the property owned by the deceased at the time of his death; then, all donations subject to collation would be added to it. With the
partible estate thus determined, the legitime of the compulsory heir or heirs can be established; and only then can it be ascertained whether or not a donation had prejudiced the legitimes. 44
Declaration of Validity of Donation
Can Be Challenged by an Interested
Party Not Impleaded in Petition for
Quieting of Title or Declaratory Relief
or Where There is No Res Judicata.
Moreover, This Court Can Consider
a Factual Matter or Unassigned Error
in the Interest of Substantial Justice.
Nevertheless, petitioners cannot preclude the determination of validity of the deed of donation on the ground that (1) it has been impliedly admitted by respondents; (2) it has already been determined with finality by the
RTC in Petition Case No. U-920; or (3) the only issue in an action for reconveyance is who has a better right over the land. 45
The validity of the private deed of donation propter nuptias in favor of petitioners' predecessors was one of the issues in this case before the lower courts. The pre-trial order 46 of the RTC stated that one of the issues
before it is "(w)hether or not the transfer of the whole property covered by OCT No. 352 on the basis of the private deed of donation notwithstanding the discrepancy in the description is valid." Before the CA, one of the
errors assigned by respondents is that "THE TRIAL COURT ERRED IN NOT FINDING THAT THE PRIVATE DEED OF DONATION DATED APRIL 26, 1919 WAS NULL AND VOID." 47 cHEATI
The issue of the validity of donation is likewise brought to Us by petitioners as they stated in their Memorandum 48 that one of the issues to be resolved is regarding the alleged fact that "THE HONORABLE COURT OF
APPEALS ERRED IN FINDING THE DONATION INVALID." We are thus poised to inspect the deed of donation and to determine its validity.
We cannot agree with petitioners' contention that respondents may no longer question the validity of the deed of donation on the ground that they already impliedly admitted it. Under the provisions of the Civil Code, a void
contract is inexistent from the beginning. The right to set up the defense of its illegality cannot be waived. 49 The right to set up the nullity of a void or non-existent contract is not limited to the parties as in the case of
annullable or voidable contracts; it is extended to third persons who are directly affected by the contract. 50
Consequently, although respondents are not parties in the deed of donation, they can set up its nullity because they are directly affected by the same. 51 The subject of the deed being the land they are occupying, its
enforcement will definitely affect them.
Petitioners cannot also use the finality of the RTC decision in Petition Case No. U-920 52 as a shield against the verification of the validity of the deed of donation. According to petitioners, the said final decision is one for
quieting of title. 53 In other words, it is a case for declaratory relief under Rule 64 (now Rule 63) of the Rules of Court, which provides:
SECTION 1. Who may file petition. Any person interested under a deed, will, contract or other written instrument, or whose rights are affected by a statute, executive order or regulation, or
ordinance, may, before breach or violation thereof, bring an action to determine any question of construction or validity arising under the instrument or statute and for a declaration of his
rights or duties thereunder.
An action for the reformation of an instrument, to quiet title to real property or remove clouds therefrom, or to consolidate ownership under Article 1607 of the Civil Code, may be brought
under this rule.
SECTION 2. Parties. All persons shall be made parties who have or claim any interest which would be affected by the declaration; and no declaration shall, except as otherwise
provided in these rules, prejudice the rights of persons not parties to the action. (Emphasis ours)
However, respondents were not made parties in the said Petition Case No. U-920. Worse, instead of issuing summons to interested parties, the RTC merely allowed the posting of notices on the bulletin boards of
Barangay Cabalitaan, Municipalities of Asingan and Lingayen, Pangasinan. As pointed out by the CA, citing the ruling of the RTC:
. . . In the said case or Petition No. U-920, notices were posted on the bulletin boards of barangay Cabalitaan, Municipalities of Asingan and Lingayen, Pangasinan, so that there was a notice to the
whole world and during the initial hearing and/or hearings, no one interposed objection thereto. 54
Suits to quiet title are not technically suits in rem, nor are they, strictly speaking, in personam, but being against the person in respect of the res, these proceedings are characterized as quasi in rem. 55 The judgment in
such proceedings is conclusive only between the parties. 56 Thus, respondents are not bound by the decision in Petition Case No. U-920 as they were not made parties in the said case. aATESD
The rules on quieting of title 57 expressly provide that any declaration in a suit to quiet title shall not prejudice persons who are not parties to the action.
That respondents filed a subsequent pleading 58 in the same Petition Case No. U-920 after the decision there had become final did not change the fact that said decision became final without their being impleaded in the
case. Said subsequent pleading was dismissed on the ground of finality of the decision. 59
Thus, the RTC totally failed to give respondents their day in court. As a result, they cannot be bound by its orders. Generally accepted is the principle that no man shall be affected by any proceeding to which he is a
stranger, and strangers to a case are not bound by judgment rendered by the court. 60
Moreover, for the principle of res judicata to apply, the following must be present: (1) a decision on the merits; (2) by a court of competent jurisdiction; (3) the decision is final; and (4) the two actions involve identical parties,
subject matter and causes of action. 61 The fourth element is not present in this case. The parties are not identical because respondents were not impleaded in Petition Case No. U-920. While the subject matter may be
the same property covered by OCT No. 352, the causes of action are different. Petition Case No. U-920 is an action for declaratory relief while the case below is for recovery of property.
We are not persuaded by petitioners' posture that the only issue in this action for reconveyance is who has a better right over the land; and that the validity of the deed of donation is beside the point. 62 It is precisely the
validity and enforceability of the deed of donation that is the determining factor in resolving the issue of who has a better right over the property. Moreover, notwithstanding procedural lapses as to the appropriateness of the
remedies prayed for in the petition filed before Us, this Court can brush aside the technicalities in the interest of justice. In some instances, this Court even suspended its own rules and excepted a case from their operation

whenever the higher interests of justice so demanded. 63

Moreover, although respondents did not directly raise the issue of validity of the deed of donation at the commencement of the case before the trial court, it was stipulated 64 by the parties during the pre-trial conference. In
any event, this Court has authority to inquire into any question necessary in arriving at a just decision of a case before it. 65 Though not specifically questioned by the parties, additional issues may also be included, if
deemed important for substantial justice to be rendered. 66
Furthermore, this Court has held that although a factual issue is not squarely raised below, still in the interest of substantial justice, this Court is not prevented from considering a pivotal factual matter. The Supreme Court is
clothed with ample authority to review palpable errors not assigned as such if it finds that their consideration is necessary in arriving at a just decision. 67
A rudimentary doctrine on appealed cases is that this Court is clothed with ample authority to review matters, even if they are not assigned as errors on appeal, if it finds that their consideration is necessary at arriving at a
just decision of the case. 68 Also, an unassigned error closely related to an error properly assigned or upon which the determination of the question raised by the error properly assigned is dependent, will be considered by
the appellate court notwithstanding the failure to assign it as an error. 69
Donation Propter Nuptias of Real
Property Made in a Private Instrument
Before the New Civil Code Took Effect
on August 30, 1950 is Void
We now focus on the crux of the petition, which is the validity of the deed of donation. It is settled that only laws existing at the time of the execution of a contract are applicable to it and not the later statutes, unless the
latter are specifically intended to have retroactive effect. 70 Accordingly, the Old Civil Code applies in this case as the donation propter nuptias was executed in 1919, while the New Civil Code took effect only on August 30,
1950.
Under the Old Civil Code, donations propter nuptias must be made in a public instrument in which the property donated must be specifically described. 71 Article 1328 of the Old Civil Code provides that gifts propter
nuptias are governed by the rules established in Title 2 of Book 3 of the same Code. Article 633 of that title provides that the gift of real property, in order to be valid, must appear in a public document. 72 It is settled that a
donation of real estate propter nuptias is void unless made by public instrument. 73
In the instant case, the donation propter nuptias did not become valid. Neither did it create any right because it was not made in a public instrument. 74 Hence, it conveyed no title to the land in question to petitioners'
predecessors.
Logically, then, the cancellation of OCT No. 352 and the issuance of a new TCT No. 44481 in favor of petitioners' predecessors have no legal basis. The title to the subject property should, therefore, be restored to its
original owners under OCT No. 352.
Direct reconveyance to any of the parties is not possible as it has not yet been determined in a proper proceeding who among the heirs of spouses Simeon Doronio and Cornelia Gante is entitled to it. It is still unproven
whether or not the parties are the only ones entitled to the properties of spouses Simeon Doronio and Cornelia Gante. As earlier intimated, there are still things to be done before the legal share of all the heirs can be
properly adjudicated. 75 aDHCcE
Titled Property Cannot Be Acquired
By Another By Adverse Possession
or Extinctive Prescription
Likewise, the claim of respondents that they became owners of the property by acquisitive prescription has no merit. Truth to tell, respondents cannot successfully invoke the argument of extinctive prescription. They cannot
be deemed the owners by acquisitive prescription of the portion of the property they have been possessing. The reason is that the property was covered by OCT No. 352. A title once registered under the torrens system
cannot be defeated even by adverse, open and notorious possession; neither can it be defeated by prescription. 76 It is notice to the whole world and as such all persons are bound by it and no one can plead ignorance of
the registration. 77
The torrens system is intended to guarantee the integrity and conclusiveness of the certificate of registration, but it cannot be used for the perpetration of fraud against the real owner of the registered land. 78 The system
merely confirms ownership and does not create it. Certainly, it cannot be used to divest the lawful owner of his title for the purpose of transferring it to another who has not acquired it by any of the modes allowed or
recognized by law. It cannot be used to protect a usurper from the true owner, nor can it be used as a shield for the commission of fraud; neither does it permit one to enrich himself at the expense of another. 79 Where
such an illegal transfer is made, as in the case at bar, the law presumes that no registration has been made and so retains title in the real owner of the land. 80
Although We confirm here the invalidity of the deed of donation and of its resulting TCT No. 44481, the controversy between the parties is yet to be fully settled. The issues as to who truly are the present owners of the
property and what is the extent of their ownership remain unresolved. The same may be properly threshed out in the settlement of the estates of the registered owners of the property, namely: spouses Simeon Doronio and
Cornelia Gante.
WHEREFORE, the appealed Decision is REVERSED AND SET ASIDE. A new one is entered:
(1) Declaring the private deed of donation propter nuptias in favor of petitioners predecessors NULL AND VOID; and
(2) Ordering the Register of Deeds of Pangasinan to:
(a) CANCEL Transfer Certificate of Title No. 44481 in the names of Marcelino Doronio and Veronica Pico; and
(b) RESTORE Original Certificate of Title No. 352 in the names of its original owners, spouses Simeon Doronio and Cornelia Gante.
SO ORDERED.
Ynares-Santiago, Austria-Martinez, Chico-Nazario and Nachura, JJ., concur.
||| (Heirs of Doronio v. Heirs of Doronio, G.R. No. 169454, [December 27, 2007], 565 PHIL 766-793)
IN THE MATTER OF THE PETITION FOR BETTY CHUA SY ALIAS "GRACE CABANGBANG" FOR THE ISSUANCE OF A WRIT OF HABEAS CORPUS. PACITA CHUA, petitioner-appellant, vs. MR. &
MRS. BARTOLOME CABANGBANG, ET AL., respondents-appellees.
Francisco R. Sotto and Associate for petitioner-appellant.
Teofilo F . Manalo for respondent-appellee Mr. & Mrs. Cabangbang.
Enrico R. Castro for respondent-appellee Victor T. Villareal.
SYLLABUS
1.CIVIL LAW; PARENTAL AUTHORITY OVER CHILD; POWER OF COURTS TO DEPRIVE PARENTS OF PARENTAL AUTHORITY OVER THEIR CHILD. While in one breath, Art. 313 of the Civil Code lays down the
rule that "Parental authority cannot be renounced or transferred, except in cases of guardianship or adoption approved by the courts, or emancipation by concession, " it indicates in the next that "The courts may, in cases
specified by law, deprive parents of their (parental) authority."
2.ID.; ID.; ID.; CASE AT BAR. The reasons that "petitioner is not exactly an upright woman" and "it will be for the welfare of the child" are not, strictly speaking, proper grounds in law to deprive a mother of her inherent
right to parental authority over her child.
3.ID.; ID.; ID.; ABANDONMENT AS ONE OF SAID GROUNDS. Under Art. 332, abandonment is one of the grounds for depriving parents of parental authority over their children. To our mind, however, mere
acquiescence - without more - is not sufficient to constitute abandonment.
4.ID.; ID.; ID.; ID.; INSTANT CASE. The record yields a host of circumstances which, in their totality, unmistakably betray the petitioner's settled purpose and intention to completely forego all parental responsibilities and
forever relinquish all parental claim in respect to the child. She continuously shunned the natural and legal obligations which she owed to the child; completely withheld her love, her care, and the opportunity to display

maternal affection; and totally denied her support and maintenance. Her silence and inaction have been prolonged to such a point that her abandonment of the child and her total relinquishment of parental claim over her,
can and should be inferred as a matter of law.
5.ID.; CUSTODY OF MINOR CHILDREN; AWARD OF CUSTODY OF CHILD TO STRANGER, WHEN PROPER. The absence of any kinship between the child and the Cabangbangs alone cannot serve to bar the lower
court from awarding her custody to them. Indeed, the law provides that in certain cases the custody of a child may be awarded even to strangers, as against either the father or the mother or against both. Thus, in
proceedings involving a child whose parents are separated either legally or de facto and where it appears that both parents are improper persons to whom to entrust the care, custody and control of the child, "the
court may either designate the paternal or maternal grandparents of the child, or his oldest brother or sister, or some reputable and discreet person to take charge of such child, or commit it to any suitable asylum,
children's home, or benevolent society."
6.ID.; ID.; ID.; PROVISIONS OF LAW INVOLVED EXPLAINED. Sections 6 and 7 of Rule 99 of the Rules of Court belie the petitioner's contention that the first sentence of Art. 363 of the Civil Code, which states that "In
all questions on the care, custody, education and property of children, the latter's welfare shall be paramount . . . " applies only when the litigation involving a child is between the father and the mother. That the policy
enunciated in the abovequoted legal provision is of general application, is evident from the use of adjective all meaning, the whole extent or quantity of, the entire number of, every one of (Webster's New World
Dictionary of the American Language, College Edition, 1959, ed., p. 38).
7.ID.; ID.; ID.; SUIT BETWEEN PARENTS AND STRANGER OVER CUSTODY OF CHILD CONTEMPLATED UNDER RULES INVOLVED. It is error to argue that if the suit involving a child's custody is between a
parent and a stranger, the law must necessarily award such custody to the parent. Sec. 7, Rule 99 of the Rules of Court, precisely contemplates, among other, a suit between a parent and a stranger who, in the words of
the provision, is "some reputable resident of the province." And under the authority of the said rule, the court if it is for the best interest of the child - may take the child away from its parents and commit it to, inter alia, a
benevolent person.
8.REMEDIAL LAW; WRIT OF HABEAS CORPUS; COVERAGE. Sec. 1, Rule 102 of the Rules of Court provides that "Except as otherwise expressly provided by law, the writ of habeas corpus shall extend to all cases of
illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto."
9.ID.; ID.; PETITION THEREFOR WAS CORRECTLY DISMISSED IN INSTANT CASE. The petitioner has not proven that she is entitled to the rightful custody of Betty Chua Sy or Grace Cabangbang. Upon the contrary,
by wantonly and completely shunting aside her legal and moral obligations toward her child, she must be deemed as having forfeited all legitimate legal and moral claim to her custody. The lower court acted correctly in
dismissing her petition.
DECISION
CASTRO, J p:
This is an appeal direct to this Court from the decision of May 21, 1964 of the Court of First Instance of Rizal dismissing Pacita Chua's petition for habeas corpus directed against Bartolome Cabangbang and his wife Flora
Cabangbang.
Pacita Chua, when still in the prime of youth, supported herself by working in nightclubs as a hostess. And sexual liaison she had with man after man without benefit of marriage. She first lived with a certain Chua Ben in
1950 by whom she had a child who died in infancy. She afterwards cohabited with Sy Sia Lay by whom she had two children named Robert and Betty Chua Sy. The latter child was born on December 15, 1957. Shortly
after the birth of Betty, Pacita Chua and Sy Sia Lay separated. Finding no one to fall back on after their separation, Pacita Chua lingered in and around nightclubs and gambling joints, until she met Victor Tan Villareal. In
due time she became the latter's mistress. In 1960 another child, a girl, was born to her. In 1961 when this last child was still an infant, she and Villareal separated. Without means to support the said child, Pacita Chua
gave her away to a comadre in Cebu.
Sometime in May 1958 Bartolome Cabangbang and his wife, a childless couple, acquired the custody of the child Betty who was then barely four months old. They have since brought her up as their own. They had her
christened as Grace Cabangbang on September 12, 1958. 1
There is some testimonial conflict on how the Cabangbang spouses acquired custody of the girl Betty (or Grace). Pacita Chua avers that in 'October 1958, while she and Villareal were still living together, the latter
surreptitiously took the child away and gave her to the Cabangbangs, allegedly in recompense for favors received. She supposedly came to know of the whereabouts of her daughter only in 1960 when the girl, who was
then about three years old, was brought to her by Villareal, who shortly thereafter returned the child to the Cabangbangs allegedly thru threats, intimidation, fraud and deceit. The Cabangbang spouses assert in rebuttal that
Mrs. Cabangbang found the child, wrapped in a bundle, at the gate of their residence; that she reared her as her own and grew very fond of her; and that nobody ever molested them until the child was 5-1/2 years of age.
At all events, it is the lower court's finding that the child was given to the Cabangbang spouses by Villareal with the knowledge and consent of Pacita Chua.
By letter dated June 6, 1963 addressed to the Cabangbang spouses, with copy furnished to Villareal, Pacita Chua thru counsel demanded the surrender to her of the custody of the child. Failing to secure such custody,
Pacita Chua (hereinafter referred to as the petitioner) filed on June 14, 1963 a petition for habeas corpus with the Court of First Instance of Rizal, praying that the court grant her custody of and recognize her parental
authority over the girl. Named respondents in the petition were Villareal and the spouses Cabangbang.
On June 15, 1963 a writ was issued commanding the provincial sheriff of Rizal or any of his deputies to produce the body of Betty Chua Sy or Grace Cabangbang before the court a quo on June 17, 1963, at 8:30 a.m.
However, for reasons not stated in the record, the child was not produced before the lower court as ordered.
On June 21, 1963 Villareal filed his answer to the petition. The Cabangbangs filed their answer the next day.
After due trial, the lower court on May 21, 1964 promulgated its decision, the dispositive portion of which reads as follows:
"IN VIEW OF THE FOREGOING, the Court has come to the conclusion that it will be for the welfare of the child Betty Chua Sy also known as Grace Cabangbang to be under the custody of
respondents Mr. and Mrs. Bartolome Cabangbang. Petition dismissed. No pronouncement as to costs."
In this appeal now before us, the petitioner tenders for resolution two issues of law which, by her own formulation, read as follows: "The lower court erred when it [1] awarded the custody of
petitioner's daughter Betty Chua Sy or Grace Cabangbang, who is less than seven (7) years old, in favor of respondents Mr. and Mrs. Bartolome Cabangbang, and [2] illegally deprived petitioner of
parental authority over her daughter."
We resolve both issues against the petitioner.
I.
Stated succinctly, the petitioner's thesis is that pursuant to the mandate contained in Article 363 of the Civil Code she cannot be separated from her child who was less than seven years of age, and that she cannot be
deprived of her parental authority over the child because not one of the grounds for the termination, loss, suspension or deprivation of parental authority provided in Article 332 of the same Code obtains in this case.
Whether the petitioner can be legally separated from her child, Betty Chua Sy or Grace Cabangbang, is an issue that is now moot and academic. Having been born on December 15, 1957, the child is now 11 years of age.
Consequently, the second paragraph of Art. 363 of the Civil Code, which prohibits the separation of a child under seven years of age from her mother, "unless the court finds compelling reasons for such measure," has no
immediate relevance.
The petitioner correctly argues, however, that the reasons relied upon by the lower court i.e., "petitioner is not exactly an upright woman" and "it will be for the welfare of the child" are not, strictly speaking, proper
grounds in law to deprive a mother of her inherent right to parental authority over her child. It must be conceded that minor children be they legitimate, recognized natural, adopted, natural by legal fiction or illegitimate,
other than natural as specified in Art. 269 of the Civil Code are by law under the parental authority of both the father and the mother, or either the father or the mother, as the case may be. But we take the view that on
the basis of the aforecited seemingly unpersuasive factual premises, the petitioner can be deprived of her parental authority. For while in one breath Art. 313 of the Civil Code lays down the rule that "Parental authority
cannot be renounced or transferred, except in cases of guardianship or adoption approved by the courts, or emancipation by concession," it indicates in the next that "The courts may, in cases specified by law, deprive
parents of their [parental] authority." And there are indeed valid reasons, as will presently be expounded, for depriving the petitioner of parental authority over the minor Betty Chua Sy or Grace Cabangbang.
It is the lower court's finding that the child was given to the Cabangbangs by Villareal with the knowledge and consent of the petitioner. In support of this finding, it cited the facts that the petitioner did not at all not ever
report to the authorities the alleged disappearance of her daughter, and had not been taken any step to see the child when she allegedly discovered that she was in the custody of the Cabangbangs. It discounted the

petitioner's claim that she did not make any move to recover the child because the Cabangbangs are powerful and influential. The petitioner is bound by the foregoing findings of fact. Having taken her appeal directly to this
Court, she is deemed to have waived the right to dispute any finding of fact made by the trial court. 2
Art. 332 of the Civil Code provides, inter alia:
"The courts may deprive the parents of their authority or suspend the exercise of the same if they should treat their children with excessive harshness or should give them corrupting orders,
counsels, or examples, or should make them beg or abandon them." (emphasis supplied)
Abandonment is therefore one of the grounds for depriving parents of parental authority over their children.
Was the petitioner's acquiescence to the giving by Villareal of her child to the Cabangbangs tantamount to abandonment of the child? To our mind, mere acquiescence without more is not sufficient to constitute
abandonment. But the record yields a host of circumstances which, in their totality, unmistakably betray the petitioner's settled purpose and intention to completely forego all parental responsibilities and forever relinquish all
parental claim in respect to the child.
She surrendered the custody of her child to the Cabangbangs in 1958. She waited until 1963, or after the lapse of a period of five long years, before she brought action to recover custody. Her claim that she did not take
any step to recover her child because the Cabangbangs were powerful and influential, does not deserve any modicum of credence. A mother who really loves her child would go to any extent to be reunited with her. The
natural and normal reaction of the petitioner once informed, as she alleged, that her child was in the custody of the Cabangbangs should have been to move heaven and earth, to use a worn-out but still respectable
cliche, in order to recover her. Yet she lifted not a finger.
It is a matter of record being the gist of her own unadulterated testimony under oath that she wants the child back so that Sy Sia Lay, the alleged father, would resume providing the petitioner the support which he
peremptorily withheld and ceased to give when she gave the child away. A woman scorned, she desires to recover the child as a means of embarrassing Villareal who retrieved the jeep he gave her and altogether stopped
living with and supporting her. But the record likewise reveals that at the pre-trial conducted by the court a quo, she expressed her willingness that the child remain with the Cabangbangs provided the latter would in
exchange give her a jeep and some money.
The petitioners's inconsistent demands in the course of the proceedings below, reveal that her motives do not flow from the wellsprings of a loving mother's heart. Upon the contrary, they are unmistakably selfish nay,
mercenary. She needs the child as a leverage to obtain concessions financial and otherwise either from the alleged father or the Cabangbangs. If she gets the child back, support for her would be forthcoming or so
she thinks from the alleged father, Sy Sia Lay. On the other hand, if the Cabangbangs would keep the child, she would agree provided they gave her a jeep and some money.
Indeed, the petitioner's attitude, to our mind, does nothing but confirm her intention to abandon the child from the very outset when she allowed Villareal to give her away to the Cabangbangs. It must be noted that the
abandonment took place when the child, barely four months old, was at the most fragile stage of life and needed the utmost care and solicitude of her mother. And for five long years thereafter she did not once move to
recover the child. She continuously shunned the natural and legal obligations which she owed to the child; completely withheld her presence, her love, her care, and the opportunity to display maternal affection; and totally
denied her support and maintenance. Her silence and inaction have been prolonged to such a point that her abandonment of the child and her total relinquishment of parental claim over her, can and should be inferred as a
matter of law. 3
Note that this was not the only instance when she gave away a child of her own flesh and blood. She gave up her youngest child, named Betty Tan Villareal, to her comadre in Cebu because she could not support it.
Of incalculable significance is the fact that nowhere in the course of the petitioner's lengthy testimony did she ever express a genuine desire to recover her child Betty Chua Sy or Grace Cabangbang or, for that
matter, her other child Betty Tan Villareal because she loves her, cares for her, and wants to smother her with motherly affection. Far from it. She wants Betty Chua Sy or Grace Cabangbang back so that the alleged
father would resume giving her (the petitioner) support. She wants her back to humiliate and embarrass the respondent Villareal who, with her knowledge and consent, gave the child to the Cabangbangs. But "most
unkindest cut of all!" she nevertheless signified her readiness to give up the child, in exchange for a jeep and some money.
We therefore affirm the lower court's decision, not on the grounds cited by it, but upon a ground which the court overlooked i.e., abandonment by the petitioner of her child. 4
Contrast the petitioner's attitude with that of the respondents Cabangbang especially the respondent Flora Cabangbang who, from the moment the child was given to them, took care of her as if she were her own flesh
and blood, had her baptized, and when she reached school age enrolled her in a reputable exclusive school for girls.
Ironically enough, the real heart-rending tragedy in this case would consist not in taking the child away from the Cabangbangs but in returning her to the custody of the petitioner.
For, by her own admission, the petitioner has no regular source of income, and it is doubtful, to say the very least, that she can provide the child with the barest necessities of life, let alone send her to school. There is no
assurance at all that the alleged father, Sy Sia Lay an unknown quantity, as far as the record goes would resume giving the petitioner support once she and the child are reunited. What would then prevent the
petitioner from again doing that which she did before, i.e., give her away? These are of course conjectures, but when the welfare of a helpless child is at stake, it is the bounden duty of courts which they cannot shirk
to respect, enforce, and give meaning and substance to a child's natural and legal right to live and grow in the proper physical, moral and intellectual environment. 5
This is not to say that with the Cabangbang spouses, a bright and secure future is guaranteed for her. For life is beset at every turn with snares and pitfalls. But the record indubitably pictures the Cabangbang spouses as a
childless couple of consequence in the community, who have given her their name and are rearing her as their very own child, and with whom there is every reason to hope she will have a fair chance of normal growth and
development into respectable womanhood.
Verily, to surrender the girl to the petitioner would be to assume quite incorrectly that only mothers are capable of parental love and affection. Upon the contrary, this case precisely underscores the homiletic
admonition that parental love is not universal and immutable like a law of natural science.
II.
The petitioner assails as illegal and without basis the award of the custody of Grace Cabangbang or Betty Chua Sy to the Cabangbang spouses upon the grounds, first, that the couple are not related by consanguinity, or
affinity to the child, and second, because the answer of the spouses contains no prayer for the custody of the child.
The absence of any kinship between the child and the Cabangbangs alone cannot serve to bar the lower court from awarding her custody to them. Indeed, the law provides that in certain cases the custody of a child may
be awarded even to strangers, as against either the father or the mother or against both. Thus, in proceedings involving a child whose parents are separated either legally or de facto and where it appears that both
parents are improper persons to whom to entrust the care, custody and control of the child, "the court may either designate the paternal or maternal grandparent of the child, or his oldest brother or sister, or some reputable
and discreet person to take charge of such child, or commit it to any suitable asylum, children's home, or benevolent society." 6
Parenthetically, Sections 6 and 7 of Rule 99 of the Rules of Court belie the petitioner's contention that the first sentence of Art. 363 of the Civil Code, which states that.
"In all questions on the care, custody, education and property of children, the latter's welfare shall be paramount . . ."
applies only when the litigation involving a child is between the father and the mother. That the policy enunciated in the abovequoted legal provision is of general application, is evident from the use of the adjective all
meaning, the whole extent or quantity of, the entire number of, every of. 7 It is, therefore, error to argue that if the suit involving a child's custody is between a parent and a stranger, the law must necessarily award
such custody to the parent. Sec. 7, Rule 99 of the Rules of Court, precisely contemplates, among others, a suit between a parent and a stranger who, in the words of the provision, is "some reputable resident of the
province." And under the authority of the said rule, the court if it is for the best interest of the child may take the child away from its parents and commit it to, inter alia, a benevolent person.
The petitioner's contention that the answer of the spouses Cabangbang contains no prayer for the retention by them of the custody of the child, is equally devoid of merit. The several moves taken by them are clear and
definitive enough. First, they asked for her custody pendente lite. Second, they sought the dismissal of the petition below for lack of merit. Finally, they added a general prayer for other reliefs just and equitable in the
premises. Surely the above reliefs prayed for are clearly indicative of the Cabangbangs' genuine desire to retain the custody of Betty Chua Sy or Grace Cabangbang.
III.
Sec. 1, Rule 102 of the Rules of Court provides that "Except as otherwise expressly provided by law, the writ of habeas corpus shall extend to all cases of illegal confinement or detention by which any person is deprived of
his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto." The petitioner has not proven that she is entitled to the rightful custody of Betty Chua Sy or Grace Cabangbang. Upon
the contrary, by wantonly and completely shunting aside her legal and moral obligations toward her child, she must be deemed as having forfeited all legitimate legal and moral claim to her custody. The lower court acted

correctly in dismissing her petition.

ACCORDINGLY, the judgment a quo is affirmed. No pronouncement as to costs.
Concepcion, C .J ., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Fernando, Capistrano, Teehankee and Barredo, JJ ., concur.
||| (In re: Chua v. Cabangbang, G.R. No. L-23253, [March 28, 1969], 137 PHIL 204-215)
MIGUEL FUENTES, ET AL., plaintiffs-appellees, vs. JUANA CANON Y FAUSTINO, ET AL., defendant-appellant.
Ramon Salinas, for appellants.
Aguedo Velarde, for appellee.
SYLLABUS
1. LEGACY; "LEGADO MODAL." A legacy to A. of 3,000 pesos with directions to purchase lands, to certain one-third of such lands and to deliver the other two-thirds to B. and C., is not a legado
modal as that term is defined in law 21, title 9, partida 6.
2. ID.; INTEREST. A judicial demand having been made on the heirs of the testatrix in 1893, for the delivery of the legacy, interest thereon commenced from the date of such demand.
3. ID.; HEIRS; RESPONSIBILITY. The liability of the heirs who have received the inheritance of the testator to pay this legacy is pro rata (mancomunada), and is in proportion to the interest which
each has in the inheritance.
DECISION
WILLARD, J p:
The twentieth clause of the will of Josefa Faustino y Mendoza, who died on the 1st day of April, 1887, is as follows:
"Vigesima. Mando se entreguen a los conyuges Don Miguel de la Fuente y Doa Potenciana Medrano tres mil pesos para invertirlos en compra de buenos terrenos de labor
quedandose con una tercera parte y repartiendo las dos restantes la una a la viuda e hijo de Don Eriberto de la Fuente y la otra a los hijos y herederos de Don Honorio de la Fuente."
The plaintiffs herein, Miguel de la Fuente and Potenciana Medrano, brought this action against the twenty heirs of Josefa to recover the 3,000 pesos mentioned in this legacy. Judgment was entered in favor
of the plaintiffs in the court below. Defendants excepted to the judgment, and have brought the case here by bill of exceptions. No motion for a new trial was made in the court below.
The first claim of the appellants is that the plaintiffs are required to give a bond before they are entitled to the delivery of the 3,000 pesos, the legacy here in question being defined in law 21, title 9, partida
6, and known as a legado modal. There is nothing in this claim. As far as the heirs of the testatrix are concerned, there is no condition whatever attached to the legacy. With the rights of the beneficiaries mentioned in
the said twentieth clause the defendants in this case have nothing to do. As to them there was an absolute gift of 3,000 pesos, and the plaintiffs have the right to receive that from the heirs, and they are under no
obligation to give security to the heirs before the money is paid.
The court below ordered judgment against the defendants for 3,000 pesos and interest from January 1, 1894. The appellants claim that this was error. It was proved that in November, 1893, the plaintiffs
commenced an action against the heirs of the testatrix to recover this legacy. For some reason that case was not brought to trial. It, however, amounted to a judicial demand for the payment of the money, and the
interest commenced to run from that date.
The case shows that upon the death of Josefa her property was divided among two nephews and a niece. One of the nephews afterwards died, and his property was divided among heirs of two other
nephews who had died before Josefa and the nephew and niece who had survived her. The court ordered judgment against the twenty defendants for the payment of 3,000 pesos and interest, without any statement
as to how much each defendant was to pay. The judgment as it stands must be construed as imposing an equal pro rata liability, and for this reason we think it is erroneous. The liability imposed upon the heirs to pay
this legacy is pro rata (mancomunada) and in proportion to the amount of the estate to which each one was entitled. The judgment of the court below is modified, and judgment is rendered against the defendants for
the following amounts, to wit: Maria Josefa Canon Faustino, 1,250 pesos; Cipriana Pilar Faustino, Lazaro Faustino, Filomena Faustino, and Francisco Faustino, 62.50 pesos each; Emerenciano Faustino, Jose
Faustino, Exequiel Faustino, Trinidad Faustino, Pedro Faustino, Jose Faustino, and Manuel Faustino, 35.71 pesos each; Juana Canon Faustino, Fernanda Canon Faustino, Marciana Canon Faustino, and Fernando
Canon Faustino, 250 pesos each; Concepcion Suarez y Canon Faustino, Alfredo Suarez y Canon Faustino, Adolfo Suarez y Canon Faustino, and Alfonso Suarez y Canon Faustino, 62.50 pesos each.
Judgment is also rendered against each one of the defendants for interest at the rate of 6 per cent per annum from the 1st day of January, 1894, on the sum for which judgment is herein entered as above
set forth. With this modification the judgment of the court below is affirmed. No costs will be allowed to either party in this court. After the expiration of twenty days let final judgment be entered herewith and ten days
thereafter let the case be remanded to the court below for proper procedure. So ordered.
Arellano, C. J., Torres, Mapa, Johnson, and Carson, JJ., concur.
||| (Fuentes v. Canon y Faustino, G.R. No. L-2386, [April 16, 1906], 6 PHIL 117-120)
CHIONG JOC-SOY, petitioner-appellant, vs. JAIME VAO, ET AL., respondents-appellants.
Levering & Wood, for petitioner.
Del-Pan, Ortigas & Fisher, for respondents.
SYLLABUS
1. WILLS; PROBATE; HEIRS. When no appeal is taken from an order probating a will, the heirs can not in subsequent litigation in the same proceeding raise questions relating to its due execution.
2. ID.; LEGACY; CONDITIONAL GIFTS. A testatrix left 50,000 pesos to a legatee. 20,000 pesos for himself and 30,000 for the burial and other expenses of interment of the remains of her deceased
husband. Held, That this gift was not conditional.
3. ID.; LEGATEES. Article 797 of the Civil Code requires the heirs of the legatee to give security for the proper application of a legacy falling within the terms of that article, but does not require such
security from the legatee himself.
4. ID.; ID.; LEGACY; INTEREST. A legacy of money, unless the testator otherwise orders, draws interest only from the time of a demand therefor made by the legatee.
5. JUDGMENT; CURRENCY. A judgment directed the payment of a sum of money in Mexican currency or its equivalent in Philippine currency "at this day's price fixed by the court." The court did not
name any price in its judgment. Held, That the defendant should, when the judgment was paid, ascertain the price on the date of the judgment and pay at that rate.
DECISION
WILLARD, J p:
Genoveva Rosales, a resident of Cebu, made her will on the 26th day of October, 1903. The third clause is in part as follows:
"3. Of the third part of the estate, which is at my free disposal, I bequeath to the Chinaman Chiong Joc-Soy, the sum of 50,000 pesos, Mexican currency, of which amount 20,000 pesos
are for the aforesaid Chiong Joc-Soy, and the balance of 30,000 pesos for the expenses of interment etc. of my late husband Don Nicasio Veloso, . . ."
The rest of her property, which amounted in all to upward of 800,000 pesos, she left to her children. After her death the will was presented for probate in the Court of First Instance of the Province of Cebu
and was duly proved and allowed on the 24th of November, 1903, and an administrator with the will annexed was appointed. By order of the court he was allowed one year from the 24th of November, 1903, in which
to pay the debts and legacies of the deceased.
On the 6th of February, 1905, the petitioner, Chiong Joc-Soy, the legatee named in the will, filed a petition in the said proceeding for the settlement of the estate of the deceased, Genoveva Rosales, asking
that the administrator be directed to pay him the 50,000 pesos mentioned in the will. An order was made by consent on the 28th of February, 1905, directing the administrator to pay to the petitioner the 20,000 pesos
expressed in the first part of the legacy. As to the remainder of the amount therein expressed, the court, on the 6th day of May, 1906, made another order or judgment which as afterwards modified directed as follows:
"And the court hereby orders that the administrator shall immediately pay over the said to the Joc-Soy the sum of 30,000 pesos, Mexican currency, or its equivalent in Conant money, at

this day's price, fixed by the court, with interest at the rate of 6 per cent annum from the date of the presentation of the claim, or that is, from the 6th of February, 1905."
From this order both the petitioner, Chiong Joc-Soy, and the administrator and some of the heirs have appealed. No appeal was taken by any one from the order probating the will.
I. As to the appeal of the administrator and the heirs: It is alleged as the first assignment of error that the will was not executed in accordance with the law; that the legacy therein did not, therefore, exist and
consequently that the court erred in ordering the administrator to pay the amount thereof of the petitioner.
The complete answer to this claim is that the validity of the will was conclusively established by the order of the court admitting it to probate. The question as to whether in the execution of the will the
requirements of the law were complied with was then submitted to that court for decision. It had jurisdiction to decide that question. The heirs who have now appealed were parties to that proceeding. After a hearing,
the court decided the question and from that decision none of the heirs appealed. The judgment of the probate court in such case stands like any other decision of a court of competent jurisdiction. Its judgments are
binding upon the parties interested and their validity, in the absence of any proof of fraud or accidents, or mistakes, can be called in question only by an appeal. In this case there is no suggestion of the existence of
any of those things. There is no claim made that the heirs were not properly notified of the hearing upon the probate of the will and nothing to indicate that they were not present and took part in that hearing. Section
625 of the Code of Civil Procedure provides that "the allowance by the court of a will of real and personal estate shall be conclusive as to its due execution."
The second error assigned is that the court below ordered the payment of the 30,000 pesos without requiring the petitioner to give a bond conditioned that he would dispose of the money as indicated in the
will.
Article 797 of the Civil Code is as follows:
"The statement of the object of the designation or of the legacy or the application to be given to what has been left by the testator, or the charge imposed by the same, shall not be
considered as a condition, unless it appears that such was his will.
"What has been left in this manner may be immediately claimed and is transmissible to the heirs who give security for the fulfillment of the orders of the testator and the repayment of
what they may have received, with its fruits and interest, should they fail to comply with this obligation."
From the first paragraph of this article it is apparent that there is a presumption in cases of this kind that the legacy is not conditional, and unless it clearly appears in the will that it was the intention of the
testatrix in this case to make the legacy conditional, the words used must be considered as not imposing any condition. We think under all the circumstances of the case that the testatrix did not intend to impose upon
the legatee any condition in making this gift of 30,000 pesos. It is true, as claimed by the heirs, that it is very evident that she intended the 20,000 pesos to be the absolute property of the petitioner and that as to the
30,000 pesos she had a different intention, but this does not resolve the question presented. That she wished and desired the petitioner to expend the 30,000 pesos as indicated in the will is apparent, but the question
is, did she intent to make her gift conditional, or did she rely upon her confidence in the petitioner that he would carry out her suggestion without the necessity of imposing a condition upon him? It appears that the
husband of the testatrix was a Chinaman; that she was a Filipina, and that the legatee was Chinaman. The manner in which persons of Chinese descent spend money to perpetuate the memory of a deceased person
of their race does not appear, nor the amount that they are accustomed so to expend, nor the time during which it may be expended. All these circumstances were doubtless known to the testatrix and we believe that
knowing them she intentionally selected a person of Chinese birth to carry out her purposes in these regard. We hold, therefore, that they legacy is not conditional.
When the legacy is not conditional, there may, however, be cases which do not fall under the provisions of said article 797.
Scaevola says in his Commentaries on the Civil Code, volume 13, page 646:
"It is doubtful if the definite directions of the testator, not imposed in the sense of a duty, are embraced in the quoted expression of the purpose of the legacy, with the consequences
provided in paragraph 2 of the said article 797. Examples of this class of instructions: "I bequeath to Luis my property and desire him to expend in good works all in excess of that which is necessary
for his support. I name him my heir so that he may as in duty bound attend to the better education of his children." In these cases, capable of infinite variety, attention must be paid to the true
intention of the testator, and if it appears that there was no wish to impose a definite condition, but merely to express a desire or personal opinion as to the best disposal of the estate, then article
797 would not be applicable."
We do not find it necessary to decide whether the legacy in question comes within the provisions of the said article or not, for we are satisfied that, even if it does, the judgment of the court below may be
affirmed. A fair construction of the second paragraph of the article indicates that the heirs of the legatee are the only ones who are required to give security, and that such security is not required of the legatee himself.
In the case of Fuentes vs. Canon, 1 No. 2386, decided April 16, 1906 (4 Off. Gaz., 379), the will there in question contained the following clause:
"Twentieth. I order the sum of 3,000 pesos to be delivered to the spouses Don Miguel de la Fuente and Doa Potenciana Medrano to be expended in the purchase of good agricultural
land, one-third of which shall belong to them, and of the remaining two-thirds, one third shall be given to the widow and son of Don Eriberto de la Fuente and the other third to the sons and heirs of
Don Honorio de la Fuente."
We held that the heirs were bound to pay the full 3,000 pesos to the legatee named in the will and that the court could not require such legatee to give security that they would deliver to the other persons
named in the will the parts corresponding to them. The testatrix in that case, however, died prior to the enactment of the Civil Code.
The third assignment of error made by the heirs is that the court erred in ordering the payment of interest from the date of the presentation of the petition. The petitioner in his appeal has also assigned as
error the failure of the court to order the payment of interest from the date of the death of the testatrix, or at least from the expiration of the period of one year granted to the administrator for the purpose of paying the
debts.
Article 882 of the Civil Code provides that when the legacy relates to a specific article the legatee is entitled to the income and rents from the death of the deceased, but article 884 is as follows:
"If the bequest should not be of a specific and determined thing, but generic or of quantity, its fruits and interest from the death of the testator shall belong to the legatee if the testator
should have expressly so ordered."
In this case the testatrix did not expressly provide that the legatee should be entitled to interest from her death. In the case of Fuentes vs. Canon, above cited, the same question was presented and we
there held that the legatee was entitled to interest from the date of his demand for payment. We follow the rule laid down in that case and hold that the court committed no error in ordering the judgment of interest from
the date of presentation of the petition by the legatee.
II. As to the appeal of the petitioner, what has been said disposes of all the assignments of error made by him except one. After the court below had made its order of March 6, 1906, in which it directed the
payment of 30,000 Mexican pesos, or its equivalent in Philippine currency at that day's price fixed by the court, the petitioner made a motion that the court fix the rate at 100 pesos, Mexican currency, for 100 pesos
and 25 centavos, Philippine currency, and presented an affidavit to the effect that was the market price of Mexican currency on the 6th day of March. The court below, in its order of the 28th of April, which was not
made by the same judge who made the order of the 6th of March, held that it was improper at that time to receive evidence as to the market value of the two kinds of money; that no evidence had been presented at
the trial as to such market value, and that consequently the court, in making the order, must have intended to apply the rate fixed by the Executive Order then in force.
We can not agree with the court's construction of the order of the 6th of March. We think that order means that the rate of exchange should be the rate which actually existed in Cebu on the 6th day of
March, 1906, and the court, not having determined that in his order, left it to the parties to ascertain and determine it when payment was made. That price is a matter which can be easily determined at any time, and
we hold that it is the duty of the administrator, if he pays in Philippine currency, to pay at the market price of Mexican currency at Cebu on the 6th day of March, 1906.
The judgment of the court below is affirmed, without costs to either party in this court.
After the expiration of twenty days let judgment be entered in accordance herewith and ten days thereafter let the case be remanded to the court from whence it came for proper action. So ordered.
Arellano, C.J., Torres, Mapa, Johnson, and Tracey, JJ., concur.
||| (Chiong Joc-Soy v. Vao, G.R. No. L-3459, [March 22, 1907], 8 PHIL 119-125)
In re Estate of the late Mrs. R. H. Frankel, PHILIPPINE TRUST COMPANY, administrator-appellee, vs. CLARA WEBBER ET AL., appellants. FREMA FISCHLER, appellee.
Gibbs & McDonough, for appellants Clara and Gertrude Webber.

J. A. Wolfson, for appellants Anna Hartske and Charles Albert Robinson.

Harvey & O'Brien, for appellant Fred Frankel.
Feria & La O, for administrator-appellee.
Ross, Lawrence & Selph, for appellee Fischler.
Benj. S. Ohnick, for Peoples Bank and Trust Co. as amicus curi.
SYLLABUS
1. EXECUTORS AND ADMINISTRATORS; ADDITIONAL ALLOWANCE FOR JUDICIAL ADMINISTRATOR. It lay within the lower court's discretion to grant the judicial administrator an additional
allowance for services rendered, and there is no reason for holding that said court abused that discretion or made an improper use of it, in view of the importance and duration of the work performed.
2. ID.; DEPOSIT OF FUNDS IN BANK. The conduct of the administrator of an inheritance who deposits the funds entrusted to his care in a current account with a solid and responsible bank,
instead of depositing them in a fixed account at a higher rate of interest, with a view to having them subject to withdrawal at a moment's notice, is not unlawful or even improper, but rather worthy of approval;
and he is not answerable for the low rate of interest thus obtained in exchange for the security in the custody of the funds, and the certainly of their withdrawal at a moment's notice.
3. ID.; MANAGEMENT OF ESTATE. A judicial administrator of an inheritance is not called upon to speculate with funds in his custody or to place them where they may not be withdrawn at once at
the order of a competent court, but rather to manage them in accordance with law, keeping them subject to the orders of the proper court. (Sec. 643, Code of Civil Procedure.)
DECISION
ROMUALDEZ, J p:
This appeal has been taken from an order of the Court of First Instance of Manila entered in the course of the present proceedings, and providing as follows:
"In view of the foregoing (1) the item of two thousand pesos (P2,000) for attorney's fees in the final account submitted by the administrator is hereby approved; but the scheme of partition
must be amended so as to charge this sum proportionally to the estate of each of the spouses, Herman Frankel and Mrs. Frankel. In other words, this sum must be taken from the value of the
estate of the husband and of the wife pro rata.
"(2) The opposition of Anna Hartske, her son Charles Robinson, Clara Webber and her daughter, Gertrude Webber, to the scheme of partition is disallowed, together with every
other opposition to the final account based upon the amount of the interest due on the sum of forty thousand eight hundred three pesos and seventy-three centavos (P40,803.73). To this
sum, however, must be added the interest for the month of May, 1930, which, according to the report, amounts to eighty- three pesos and twenty-three centavos (P83.23), and the interest
thereon at the same rate from the date last mentioned until these funds are finally delivered.
"(3) Clara Webber's opposition in the matter of the jewels is also overruled.
"(4) Lastly, Frema Fischler's opposition with reference to the payment of interest upon the principal of her legacy is also overruled.
"The judicial administrator shall file a scheme of partition, amended in accordance with this order, within five (5) days after it becomes final under the law." (Pp. 54 and 55, Bill of
Exceptions.)
The appellants, through counsel, assign the following alleged errors as committed by the trial court:
"1. In overruling the oppositions of the appellants to the final account and project of partition filed on May 19, 1930, and to the report filed on June 26, 1930.
"2. In overruling Mrs. Clara Webber's additional objection to the project of partition with reference to the jewelry."
These proceedings deal with a final account, a report, and a scheme of partition filed by the administrator of the estate of the late R. H. Frankel.
The appellants objected to said final account, scheme of partition, and report, upon the following grounds:
(1) That the value of the estate belonging to the conjugal partnership of Herman Frankel and his wife, at the time of the latter's death, is not shown; (2) that the additional item of P2,000 for the
administrator's services is improper, unlawful, and exorbitant; (3) that the administrator did not invest the funds belonging to the estate adequately and advantageously; and (4) that the interest earned,
according to the report filed by the administrator on June 26, 1930, is not accurate, and the statement of the income and the expenses cannot be understood by the parties.
The value of the conjugal estate has been finally decided by a competent court, and is now res judicata.
To grant an additional allowance for the services rendered by the judicial administrator was discretionary with the trial court, and we find no reason for holding that said court abused that discretion or made
improper use of it, in view of the importance and duration of the work in question.
With reference to the investment of the inheritance funds, we find that the trial court rightly held such investment to be in no way exceptionable or contrary to any law.
The conduct of the administrator of an inheritance who deposits the funds entrusted to his care in a current account with a solid and responsible bank, instead of depositing them in a fixed account at a higher rate of
interest, with a view to having them subject to withdrawal at a moment's notice, is not unlawful or even improper, but rather worthy of approval; and he is not answerable for the low rate of interest thus obtained,
because, generally speaking and there is no reason for applying any special rule in default of instructions to the contrary, a judicial administrator of an inheritance is not called upon to speculate with funds in his
custody or to place them where they may not be withdrawn at once at the order of a competent court, but rather to manage them in accordance with the law, keeping them subject to the orders of the proper court.
(Sec. 643, Code of Civil Procedure.) To this end when the administrator happens to be a trust company engaged in banking, as in this case, there is nothing wrong in its depositing the inheritance funds in its own
banking department rather than in another bank, if there is no evidence that its own bank is lacking in security.
No question is raised regarding the rate of interest earned by such funds, but the computation of interest is said to be inaccurate. There is no merit in this contention, considering the administrator's report
covering the period from August, 1926, to April 25, 1930. Furthermore, with reference to the deposit and the rate of interest obtained we consider the following remarks of the administrator-appellee just and sound:
"The Philippine Trust Company has had at all times and still now has sufficient lawful money of the Philippine Islands to pay all the cash of said estate on deposit with it. It has not
invested the funds of the estate because it considers that in view of the will, the action of the residuary legatees, and the nature of its duties, any such investment would make the funds unliquid,
and would violate the duties of its trust, which were to assemble the assets, in order to distribute as this Honorable Court may decree." (Pp. 9 and 10, Brief of the administrator-appellee.)
As to the second assignment of error with reference to Mrs. Clara Webber's objection, we find no merit in it, considering the proposed adjudication of the jewelry according to the scheme of partition, and the
grounds upon which the trial court overruled this additional objection, to wit:
"Mrs. Clara Webber filed an additional opposition to the scheme of partition in so far as it gives her one-half of the jewelry. She contends that inasmuch as the will gives her one-half of
said jewelry, and as its value has depreciated considerably, being hardly worth P500 at present, it is a serious error and a manifest lack of equity to appraise its value at P2,995.50, adjudicating to
her one-half thereof. She proposes that the jewelry be sold and the proceeds divided equally between her and the other legatee. This contention is not well taken: first, because the will of the
testatrix must be carried out where it provides that one-half of the jewelry itself is to be given to this opponent; and secondly, because there is no need of selling the jewelry; as for the value, that is
reasonable because it was fixed by the committee of appraisal, and no proper objection was entered in due time. This additional opposition must be rejected.
"The last opposition is that filed by Frema Fischler, who claims the legal interest upon her legacy of P10,000. It is argued that since this sum of money has been in the administrator's
hands for many years, this legatee is entitled to the legal interest upon it from the time of the testatrix's death. There is no merit in this opposition. While it is true that under article 882 of the Civil
Code the legacy of a specific determinate thing vests in the legatee upon the testator's death, as well as any pending fruits or income, inasmuch as we are here concerned with a generic or a socalled legacy of quantity, article 884 of the Code must be applied, which provides that interest from the time of the testator's death shall be given the legatee if the testator's death shall be given the
legatee if the testator has expressly so provided. With reference to the present opponent, it appears that the testatrix has not clearly and expressly provided for the payment of the interest upon the
P10,000 legacy; according to the last-named article it is clear that the opponent is not entitled to the interest claimed. In Fuentes vs. Canon (6 Phil., 117), and Chiong Joc-Soy vs. Vao (8 Phil., 119),
the Supreme Court ruled that generic legacies or legacies of quantity, like the one adjudicated to the opponent, do not draw legal interest until a demand is made for them: and a legacy cannot be

legally demanded before the scheme of partition is duly approved by the probate court. And in the case cited by counsel for Fred Frankel (Ongpin vs. Rivera, 44 Phil., 808), the Supreme Court held
that a cash legacy does not earn interest until the person bound to deliver it in this case the judicial administrator is in default. The administrator in the present case is not in default, for the
scheme of partition not only has not yet been approved, but is actually the subject matter of many oppositions filed by the legatees and the heir." (Pp. 52, 53, and 54, Bill of Exceptions.)
Finding the order appealed from to be justified by the merits of the case, we hereby affirmed it, with costs against the appellants. So ordered.
Avancea, C.J., Street, Malcolm, Villamor, Ostrand and Villa-Real, JJ., concur.
||| (Philippine Trust Co. v. Webber, G.R. No. 34480, [February 16, 1932], 56 PHIL 522-528)