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G.R. No.

L-28040 August 18, 1972

TESTATE ESTATE OF JOSEFA TANGCO, JOSE DE BORJA, administrator-appellee;


JOSE DE BORJA, as administrator, CAYETANO DE BORJA, MATILDE DE BORJA and
CRISANTO DE BORJA (deceased) as Children of Josefa Tangco, appellees,
vs.
TASIANA VDA. DE DE BORJA, Special Administratrix of the Testate Estate of
Francisco de Borja, appellant. .

G.R. No L-28568 August 18, 1972

TESTATE ESTATE OF THE LATE FRANCISCO DE BORJA, TASIANA O. VDA. DE DE


BORJA, special Administratrix appellee,
vs.
JOSE DE BORJA, oppositor-appellant.

G.R. No. L-28611 August 18, 1972

TASIANA 0. VDA. DE BORJA, as Administratrix of the Testate Estate of the late


Francisco de Borja, plaintiff-appellee,
vs.
JOSE DE BORJA, as Administrator of the Testate Estate of the late Josefa
Tangco, defendant-appellant.

L-28040

Pelaez, Jalandoni & Jamir for administrator-appellee.

Quiogue & Quiogue for appellee Matilde de Borja.

Andres Matias for appellee Cayetano de Borja.

Sevilla & Aquino for appellant.

L-28568

Sevilla & Aquino for special administratrix-appellee.

Pelaez, Jalandoni & Jamir for oppositor-appellant.

L-28611

Sevilla & Aquino for plaintiff-appellee.

Pelaez, Jalandoni & Jamir and David Gueverra for defendant-appellant.

REYES, J.B.L., J.:p


Of these cases, the first, numbered L-28040 is an appeal by Tasiana Ongsingco Vda. de de
Borja, special administratrix of the testate estate of Francisco de Borja,1 from the approval of
a compromise agreement by the Court of First Instance of Rizal, Branch I, in its Special
Proceeding No. R-7866, entitled, "Testate Estate of Josefa Tangco, Jose de Borja,
Administrator".

Case No. L-28568 is an appeal by administrator Jose Borja from the disapproval of the same
compromise agreement by the Court of First Instance of Nueva Ecija, Branch II, in its Special
Proceeding No. 832, entitled, "Testate Estate of Francisco de Borja, Tasiana O. Vda. de de
Borja, Special Administratrix".

And Case No. L-28611 is an appeal by administrator Jose de Borja from the decision of the
Court of First Instance of Rizal, Branch X, in its Civil Case No. 7452, declaring the Hacienda
Jalajala Poblacion, which is the main object of the aforesaid compromise agreement, as the
separate and exclusive property of the late Francisco de Borja and not a conjugal asset of the
community with his first wife, Josefa Tangco, and that said hacienda pertains exclusively to
his testate estate, which is under administrator in Special Proceeding No. 832 of the Court of
First Instance of Nueva Ecija, Branch II.

It is uncontested that Francisco de Borja, upon the death of his wife Josefa Tangco on 6
October 1940, filed a petition for the probate of her will which was docketed as Special
Proceeding No. R-7866 of the Court of First Instance of Rizal, Branch I. The will was probated
on 2 April 1941. In 1946, Francisco de Borja was appointed executor and administrator: in
1952, their son, Jose de Borja, was appointed co-administrator. When Francisco died, on 14
April 1954, Jose became the sole administrator of the testate estate of his mother, Josefa
Tangco. While a widower Francisco de Borja allegedly took unto himself a second wife,
Tasiana Ongsingco. Upon Francisco's death, Tasiana instituted testate proceedings in the
Court of First Instance of Nueva Ecija, where, in 1955, she was appointed special
administratrix. The validity of Tasiana's marriage to Francisco was questioned in said
proceeding.

The relationship between the children of the first marriage and Tasiana Ongsingco has been
plagued with several court suits and counter-suits; including the three cases at bar, some
eighteen (18) cases remain pending determination in the courts. The testate estate of Josefa
Tangco alone has been unsettled for more than a quarter of a century. In order to put an end
to all these litigations, a compromise agreement was entered into on 12 October 1963,2 by
and between "[T]he heir and son of Francisco de Borja by his first marriage, namely, Jose de
Borja personally and as administrator of the Testate Estate of Josefa Tangco," and "[T]he heir
and surviving spouse of Francisco de Borja by his second marriage, Tasiana Ongsingco Vda.
de Borja, assisted by her lawyer, Atty. Luis Panaguiton Jr." The terms and conditions of the
compromise agreement are as follows:

AGREEMENT

THIS AGREEMENT made and entered into by and between

The heir and son of Francisco de Borja by his first marriage, namely, Jose de
Borja personally and as administrator of the Testate Estate of Josefa Tangco,
AND

The heir and surviving spouse of Francisco de Borja by his second marriage,
Tasiana Ongsingco Vda. de Borja, assisted by her lawyer, Atty. Luis Panaguiton
Jr.

WITNESSETH

THAT it is the mutual desire of all the parties herein terminate and settle, with
finality, the various court litigations, controversies, claims, counterclaims, etc.,
between them in connection with the administration, settlement, partition,
adjudication and distribution of the assets as well as liabilities of the estates of
Francisco de Borja and Josefa Tangco, first spouse of Francisco de Borja.

THAT with this end in view, the parties herein have agreed voluntarily and
without any reservations to enter into and execute this agreement under the
following terms and conditions:

1. That the parties agree to sell the Poblacion portion of the Jalajala properties
situated in Jalajala, Rizal, presently under administration in the Testate Estate of
Josefa Tangco (Sp. Proc. No. 7866, Rizal), more specifically described as
follows:

Linda al Norte con el Rio Puwang que la separa de la jurisdiccion


del Municipio de Pililla de la Provincia de Rizal, y con el pico del
Monte Zambrano; al Oeste con Laguna de Bay; por el Sur con los
herederos de Marcelo de Borja; y por el Este con los terrenos de la
Familia Maronilla

with a segregated area of approximately 1,313 hectares at the amount of P0.30


per square meter.

2. That Jose de Borja agrees and obligates himself to pay Tasiana Ongsingco
Vda. de de Borja the total amount of Eight Hundred Thousand Pesos (P800,000)
Philippine Currency, in cash, which represent P200,000 as his share in the
payment and P600,000 as pro-rata shares of the heirs Crisanto, Cayetano and
Matilde, all surnamed de Borja and this shall be considered as full and complete
payment and settlement of her hereditary share in the estate of the late
Francisco de Borja as well as the estate of Josefa Tangco, Sp. Proc. No. 832-
Nueva Ecija and Sp. Proc. No. 7866-Rizal, respectively, and to any properties
bequeathed or devised in her favor by the late Francisco de Borja by Last Will
and Testament or by Donation Inter Vivos or Mortis Causa or purportedly
conveyed to her for consideration or otherwise. The funds for this payment shall
be taken from and shall depend upon the receipt of full payment of the proceeds
of the sale of Jalajala, "Poblacion."

3. That Tasiana Ongsingco Vda. de de Borja hereby assumes payment of that


particular obligation incurred by the late Francisco de Borja in favor of the
Rehabilitation Finance Corporation, now Development Bank of the Philippines,
amounting to approximately P30,000.00 and also assumes payment of her 1/5
share of the Estate and Inheritance taxes on the Estate of the late Francisco de
Borja or the sum of P3,500.00, more or less, which shall be deducted by the
buyer of Jalajala, "Poblacion" from the payment to be made to Tasiana
Ongsingco Vda. de Borja under paragraph 2 of this Agreement and paid directly
to the Development Bank of the Philippines and the heirs-children of Francisco
de Borja.

4. Thereafter, the buyer of Jalajala "Poblacion" is hereby authorized to pay


directly to Tasiana Ongsingco Vda. de de Borja the balance of the payment due
her under paragraph 2 of this Agreement (approximately P766,500.00) and issue
in the name of Tasiana Ongsingco Vda. de de Borja, corresponding certified
checks/treasury warrants, who, in turn, will issue the corresponding receipt to
Jose de Borja.

5. In consideration of above payment to Tasiana Ongsingco Vda. de de Borja,


Jose de Borja personally and as administrator of the Testate Estate of Josefa
Tangco, and Tasiana Ongsingco Vda. de de Borja, for themselves and for their
heirs, successors, executors, administrators, and assigns, hereby forever
mutually renounce, withdraw, waive, remise, release and discharge any and all
manner of action or actions, cause or causes of action, suits, debts, sum or sums
of money, accounts, damages, claims and demands whatsoever, in law or in
equity, which they ever had, or now have or may have against each other, more
specifically Sp. Proceedings Nos. 7866 and 1955, CFI-Rizal, and Sp. Proc. No.
832-Nueva Ecija, Civil Case No. 3033, CFI Nueva Ecija and Civil Case No. 7452-
CFI, Rizal, as well as the case filed against Manuel Quijal for perjury with the
Provincial Fiscal of Rizal, the intention being to completely, absolutely and finally
release each other, their heirs, successors, and assigns, from any and all liability,
arising wholly or partially, directly or indirectly, from the administration,
settlement, and distribution of the assets as well as liabilities of the estates of
Francisco de Borja and Josefa Tangco, first spouse of Francisco de Borja, and
lastly, Tasiana Ongsingco Vda. de de Borja expressly and specifically renounce
absolutely her rights as heir over any hereditary share in the estate of Francisco
de Borja.

6. That Tasiana Ongsingco Vda. de de Borja, upon receipt of the payment under
paragraph 4 hereof, shall deliver to the heir Jose de Borja all the papers, titles
and documents belonging to Francisco de Borja which are in her possession and
said heir Jose de Borja shall issue in turn the corresponding receive thereof.

7. That this agreement shall take effect only upon the fulfillment of the sale of the
properties mentioned under paragraph 1 of this agreement and upon receipt of
the total and full payment of the proceeds of the sale of the Jalajala property
"Poblacion", otherwise, the non-fulfillment of the said sale will render this
instrument NULL AND VOID AND WITHOUT EFFECT THEREAFTER.
IN WITNESS WHEREOF, the parties hereto have her unto set their hands in the
City of Manila, Philippines, the 12th of October, 1963.

On 16 May 1966, Jose de Borja submitted for Court approval the agreement of 12 October
1963 to the Court of First Instance of Rizal, in Special Proceeding No. R-7866; and again, on
8 August 1966, to the Court of First Instance of Nueva Ecija, in Special Proceeding No. 832.
Tasiana Ongsingco Vda. de de Borja opposed in both instances. The Rizal court approved
the compromise agreement, but the Nueva Ecija court declared it void and unenforceable.
Special administratrix Tasiana Ongsingco Vda. de de Borja appealed the Rizal Court's order
of approval (now Supreme Court G.R. case No. L-28040), while administrator Jose de Borja
appealed the order of disapproval (G.R. case No. L-28568) by the Court of First Instance of
Nueva Ecija.

The genuineness and due execution of the compromised agreement of 12 October 1963 is
not disputed, but its validity is, nevertheless, attacked by Tasiana Ongsingco on the ground
that: (1) the heirs cannot enter into such kind of agreement without first probating the will of
Francisco de Borja; (2) that the same involves a compromise on the validity of the marriage
between Francisco de Borja and Tasiana Ongsingco; and (3) that even if it were valid, it has
ceased to have force and effect.

In assailing the validity of the agreement of 12 October 1963, Tasiana Ongsingco and the
Probate Court of Nueva Ecija rely on this Court's decision in Guevara vs. Guevara. 74 Phil.
479, wherein the Court's majority held the view that the presentation of a will for probate is
mandatory and that the settlement and distribution of an estate on the basis of intestacy when
the decedent left a will, is against the law and public policy. It is likewise pointed out by
appellant Tasiana Ongsingco that Section 1 of Rule 74 of the Revised Rules explicitly
conditions the validity of an extrajudicial settlement of a decedent's estate by agreement
between heirs, upon the facts that "(if) the decedent left no will and no debts, and the heirs
are all of age, or the minors are represented by their judicial and legal representatives ..." The
will of Francisco de Borja having been submitted to the Nueva Ecija Court and still pending
probate when the 1963 agreement was made, those circumstances, it is argued, bar the
validity of the agreement.

Upon the other hand, in claiming the validity of the compromise agreement, Jose de Borja
stresses that at the time it was entered into, on 12 October 1963, the governing provision was
Section 1, Rule 74 of the original Rules of Court of 1940, which allowed the extrajudicial
settlement of the estate of a deceased person regardless of whether he left a will or not. He
also relies on the dissenting opinion of Justice Moran, in Guevara vs. Guevara, 74 Phil. 479,
wherein was expressed the view that if the parties have already divided the estate in
accordance with a decedent's will, the probate of the will is a useless ceremony; and if they
have divided the estate in a different manner, the probate of the will is worse than useless.

The doctrine of Guevara vs. Guevara, ante, is not applicable to the case at bar. This is
apparent from an examination of the terms of the agreement between Jose de Borja and
Tasiana Ongsingco. Paragraph 2 of said agreement specifically stipulates that the sum of
P800,000 payable to Tasiana Ongsingco —
shall be considered as full — complete payment — settlement of her hereditary
share in the estate of the late Francisco de Borja as well as the estate of Josefa
Tangco, ... and to any properties bequeathed or devised in her favor by the late
Francisco de Borja by Last Will and Testament or by Donation Inter Vivos or
Mortis Causa or purportedly conveyed to her for consideration or otherwise.

This provision evidences beyond doubt that the ruling in the Guevara case is not applicable to
the cases at bar. There was here no attempt to settle or distribute the estate of Francisco de
Borja among the heirs thereto before the probate of his will. The clear object of the contract
was merely the conveyance by Tasiana Ongsingco of any and all her individual share and
interest, actual or eventual in the estate of Francisco de Borja and Josefa Tangco. There is no
stipulation as to any other claimant, creditor or legatee. And as a hereditary share in a
decedent's estate is transmitted or vested immediately from the moment of the death of
such causante or predecessor in interest (Civil Code of the Philippines, Art. 777)3 there is no
legal bar to a successor (with requisite contracting capacity) disposing of her or his hereditary
share immediately after such death, even if the actual extent of such share is not determined
until the subsequent liquidation of the estate.4 Of course, the effect of such alienation is to be
deemed limited to what is ultimately adjudicated to the vendor heir. However, the aleatory
character of the contract does not affect the validity of the transaction; neither does the
coetaneous agreement that the numerous litigations between the parties (the approving order
of the Rizal Court enumerates fourteen of them, Rec. App. pp. 79-82) are to be considered
settled and should be dismissed, although such stipulation, as noted by the Rizal Court, gives
the contract the character of a compromise that the law favors, for obvious reasons, if only
because it serves to avoid a multiplicity of suits.

It is likewise worthy of note in this connection that as the surviving spouse of Francisco de
Borja, Tasiana Ongsingco was his compulsory heir under article 995 et seq. of the present
Civil Code. Wherefore, barring unworthiness or valid disinheritance, her successional interest
existed independent of Francisco de Borja's last will and testament and would exist even if
such will were not probated at all. Thus, the prerequisite of a previous probate of the will, as
established in the Guevara and analogous cases, can not apply to the case of Tasiana
Ongsingco Vda. de de Borja.

Since the compromise contract Annex A was entered into by and between "Jose de Borja
personally and as administrator of the Testate Estate of Josefa Tangco" on the one hand, and
on the other, "the heir and surviving spouse of Francisco de Borja by his second marriage,
Tasiana Ongsingco Vda. de de Borja", it is clear that the transaction was binding on both in
their individual capacities, upon the perfection of the contract, even without previous authority
of the Court to enter into the same. The only difference between an extrajudicial compromise
and one that is submitted and approved by the Court, is that the latter can be enforced by
execution proceedings. Art. 2037 of the Civil Code is explicit on the point:

8. Art. 2037. A compromise has upon the parties the effect and authority of res
judicata; but there shall be no execution except in compliance with a judicial
compromise.

It is argued by Tasiana Ongsingco that while the agreement Annex A expressed


no definite period for its performance, the same was intended to have a
resolutory period of 60 days for its effectiveness. In support of such contention, it
is averred that such a limit was expressly stipulated in an agreement in similar
terms entered into by said Ongsingco with the brothers and sister of Jose de
Borja, to wit, Crisanto, Matilde and Cayetano, all surnamed de Borja, except that
the consideration was fixed at P600,000 (Opposition, Annex/Rec. of Appeal, L-
28040, pp. 39- 46) and which contained the following clause:

III. That this agreement shall take effect only upon the consummation of the sale
of the property mentioned herein and upon receipt of the total and full payment of
the proceeds of the sale by the herein owner heirs-children of Francisco de
Borja, namely, Crisanto, Cayetano and Matilde, all surnamed de Borja; Provided
that if no sale of the said property mentioned herein is consummated, or the non-
receipt of the purchase price thereof by the said owners within the period of sixty
(60) days from the date hereof, this agreement will become null and void and of
no further effect.

Ongsingco's argument loses validity when it is considered that Jose de Borja was not a party
to this particular contract (Annex 1), and that the same appears not to have been finalized,
since it bears no date, the day being left blank "this — day of October 1963"; and while signed
by the parties, it was not notarized, although plainly intended to be so done, since it carries a
proposed notarial ratification clause. Furthermore, the compromise contract with Jose de
Borja (Annex A), provides in its par. 2 heretofore transcribed that of the total consideration of
P800, 000 to be paid to Ongsingco, P600,000 represent the "prorata share of the heirs
Crisanto, Cayetano and Matilde all surnamed de Borja" which corresponds to the
consideration of P600,000 recited in Annex 1, and that circumstance is proof that the duly
notarized contract entered into wit Jose de Borja under date 12 October 1963 (Annex A), was
designed to absorb and supersede the separate unformalize agreement with the other three
Borja heirs. Hence, the 60 days resolutory term in the contract with the latter (Annex 1) not
being repeated in Annex A, can not apply to the formal compromise with Jose de Borja. It is
moreover manifest that the stipulation that the sale of the Hacienda de Jalajala was to be
made within sixty days from the date of the agreement with Jose de Borja's co-heirs (Annex
1) was plainly omitted in Annex A as improper and ineffective, since the Hacienda de Jalajala
(Poblacion) that was to be sold to raise the P800,000 to be paid to Ongsingco for her share
formed part of the estate of Francisco de Borja and could not be sold until authorized by the
Probate Court. The Court of First Instance of Rizal so understood it, and in approving the
compromise it fixed a term of 120 days counted from the finality of the order now under
appeal, for the carrying out by the parties for the terms of the contract.

This brings us to the plea that the Court of First Instance of Rizal had no jurisdiction to
approve the compromise with Jose de Borja (Annex A) because Tasiana Ongsingco was not
an heir in the estate of Josefa Tangco pending settlement in the Rizal Court, but she was an
heir of Francisco de Borja, whose estate was the object of Special Proceeding No. 832 of the
Court of First Instance of Nueva Ecija. This circumstance is irrelevant, since what was sold by
Tasiana Ongsingco was only her eventual share in the estate of her late husband, not the
estate itself; and as already shown, that eventual share she owned from the time of
Francisco's death and the Court of Nueva Ecija could not bar her selling it. As owner of her
undivided hereditary share, Tasiana could dispose of it in favor of whomsoever she chose.
Such alienation is expressly recognized and provided for by article 1088 of the present Civil
Code:

Art. 1088. Should any of the heirs sell his hereditary rights to a stranger before
the partition, any or all of the co-heirs may be subrogated to the rights of the
purchaser by reimbursing him for the price of the sale, provided they do so within
the period of one month from the time they were notified in writing of the sale of
the vendor.

If a sale of a hereditary right can be made to a stranger, then a fortiori sale thereof to a coheir
could not be forbidden.

Tasiana Ongsingco further argues that her contract with Jose de Borja (Annex "A") is void
because it amounts to a compromise as to her status and marriage with the late Francisco de
Borja. The point is without merit, for the very opening paragraph of the agreement with Jose
de Borja (Annex "A") describes her as "the heir and surviving spouse of Francisco de Borja by
his second marriage, Tasiana Ongsingco Vda. de de Borja", which is in itself definite
admission of her civil status. There is nothing in the text of the agreement that would show
that this recognition of Ongsingco's status as the surviving spouse of Francisco de Borja was
only made in consideration of the cession of her hereditary rights.

It is finally charged by appellant Ongsingco, as well as by the Court of First Instance of Nueva
Ecija in its order of 21 September 1964, in Special Proceedings No. 832 (Amended Record
on Appeal in L-28568, page 157), that the compromise agreement of 13 October 1963 (Annex
"A") had been abandoned, as shown by the fact that, after its execution, the Court of First
Instance of Nueva Ecija, in its order of 21 September 1964, had declared that "no amicable
settlement had been arrived at by the parties", and that Jose de Borja himself, in a motion of
17 June 1964, had stated that the proposed amicable settlement "had failed to materialize".

It is difficult to believe, however, that the amicable settlement referred to in the order and
motion above-mentioned was the compromise agreement of 13 October 1963, which already
had been formally signed and executed by the parties and duly notarized. What the record
discloses is that some time after its formalization, Ongsingco had unilaterally attempted to
back out from the compromise agreement, pleading various reasons restated in the
opposition to the Court's approval of Annex "A" (Record on Appeal, L-20840, page 23): that
the same was invalid because of the lapse of the allegedly intended resolutory period of 60
days and because the contract was not preceded by the probate of Francisco de Borja's will,
as required by this Court's Guevarra vs. Guevara ruling; that Annex "A" involved a
compromise affecting Ongsingco's status as wife and widow of Francisco de Borja, etc., all of
which objections have been already discussed. It was natural that in view of the widow's
attitude, Jose de Borja should attempt to reach a new settlement or novatory agreement
before seeking judicial sanction and enforcement of Annex "A", since the latter step might
ultimately entail a longer delay in attaining final remedy. That the attempt to reach another
settlement failed is apparent from the letter of Ongsingco's counsel to Jose de Borja quoted in
pages 35-36 of the brief for appellant Ongsingco in G.R. No. 28040; and it is more than
probable that the order of 21 September 1964 and the motion of 17 June 1964 referred to the
failure of the parties' quest for a more satisfactory compromise. But the inability to reach a
novatory accord can not invalidate the original compromise (Annex "A") and justifies the act of
Jose de Borja in finally seeking a court order for its approval and enforcement from the Court
of First Instance of Rizal, which, as heretofore described, decreed that the agreement be
ultimately performed within 120 days from the finality of the order, now under appeal.

We conclude that in so doing, the Rizal court acted in accordance with law, and, therefore, its
order should be upheld, while the contrary resolution of the Court of First Instance of Nueva
Ecija should be, and is, reversed.

In her brief, Tasiana Ongsingco also pleads that the time elapsed in the appeal has affected
her unfavorably, in that while the purchasing power of the agreed price of P800,000 has
diminished, the value of the Jalajala property has increased. But the fact is that her delay in
receiving the payment of the agreed price for her hereditary interest was primarily due to her
attempts to nullify the agreement (Annex "A") she had formally entered into with the advice of
her counsel, Attorney Panaguiton. And as to the devaluation de facto of our currency, what
We said in Dizon Rivera vs. Dizon, L-24561, 30 June 1970, 33 SCRA 554, that "estates
would never be settled if there were to be a revaluation with every subsequent fluctuation in
the values of currency and properties of the estate", is particularly opposite in the present
case.

Coming now to Case G.R. No. L-28611, the issue is whether the Hacienda de Jalajala
(Poblacion), concededly acquired by Francisco de Borja during his marriage to his first wife,
Josefa Tangco, is the husband's private property (as contended by his second spouse,
Tasiana Ongsingco), or whether it forms part of the conjugal (ganancial) partnership with
Josefa Tangco. The Court of First Instance of Rizal (Judge Herminio Mariano, presiding)
declared that there was adequate evidence to overcome the presumption in favor of its
conjugal character established by Article 160 of the Civil Code.

We are of the opinion that this question as between Tasiana Ongsingco and Jose de Borja
has become moot and academic, in view of the conclusion reached by this Court in the two
preceding cases (G.R. No. L-28568), upholding as valid the cession of Tasiana Ongsingco's
eventual share in the estate of her late husband, Francisco de Borja, for the sum of P800,000
with the accompanying reciprocal quit-claims between the parties. But as the question may
affect the rights of possible creditors and legatees, its resolution is still imperative.

It is undisputed that the Hacienda Jalajala, of around 4,363 hectares, had been originally
acquired jointly by Francisco de Borja, Bernardo de Borja and Marcelo de Borja and their title
thereto was duly registered in their names as co-owners in Land Registration Case No. 528 of
the province of Rizal, G.L.R.O. Rec. No. 26403 (De Barjo vs. Jugo, 54 Phil. 465).
Subsequently, in 1931, the Hacienda was partitioned among the co-owners: the Punta section
went to Marcelo de Borja; the Bagombong section to Bernardo de Borja, and the part in
Jalajala proper (Poblacion) corresponded to Francisco de Borja (V. De Borja vs. De Borja 101
Phil. 911, 932).

The lot allotted to Francisco was described as —

Una Parcela de terreno en Poblacion, Jalajala: N. Puang River; E. Hermogena


Romero; S. Heirs of Marcelo de Borja O. Laguna de Bay; containing an area of
13,488,870 sq. m. more or less, assessed at P297,410. (Record on Appeal,
pages 7 and 105)

On 20 November 1962, Tasiana O. Vda. de Borja, as Administratrix of the Testate Estate of


Francisco de Borja, instituted a complaint in the Court of First Instance of Rizal (Civil Case
No. 7452) against Jose de Borja, in his capacity as Administrator of Josefa Tangco (Francisco
de Borja's first wife), seeking to have the Hacienda above described declared exclusive
private property of Francisco, while in his answer defendant (now appellant) Jose de Borja
claimed that it was conjugal property of his parents (Francisco de Borja and Josefa Tangco),
conformably to the presumption established by Article 160 of the Philippine Civil Code
(reproducing Article 1407 of the Civil Code of 1889), to the effect that:

Art. 160. All property of the marriage is presumed to belong to the conjugal
partnership, unless it be proved that it pertains exclusively to the husband or to
the wife.

Defendant Jose de Borja further counterclaimed for damages, compensatory, moral and
exemplary, as well as for attorney's fees.

After trial, the Court of First Instance of Rizal, per Judge Herminio Mariano, held that the
plaintiff had adduced sufficient evidence to rebut the presumption, and declared the Hacienda
de Jalajala (Poblacion) to be the exclusive private property of the late Francisco de Borja, and
his Administratrix, Tasiana Ongsingco Vda. de Borja, to be entitled to its possession.
Defendant Jose de Borja then appealed to this Court.

The evidence reveals, and the appealed order admits, that the character of the Hacienda in
question as owned by the conjugal partnership De Borja-Tangco was solemnly admitted by
the late Francisco de Borja no less than two times: first, in the Reamended Inventory that, as
executor of the estate of his deceased wife Josefa Tangco, he filed in the Special
Proceedings No. 7866 of the Court of First Instance of Rizal on 23 July 1953 (Exhibit "2"); and
again, in the Reamended Accounting of the same date, also filed in the proceedings aforesaid
(Exhibit "7"). Similarly, the plaintiff Tasiana O. Vda. de Borja, herself, as oppositor in the
Estate of Josefa Tangco, submitted therein an inventory dated 7 September 1954 (Exhibit "3")
listing the Jalajala property among the "Conjugal Properties of the Spouses Francisco de
Borja and Josefa Tangco". And once more, Tasiana Ongsingco, as administratrix of the
Estate of Francisco de Borja, in Special Proceedings No. 832 of the Court of First Instance of
Nueva Ecija, submitted therein in December, 1955, an inventory wherein she listed the
Jalajala Hacienda under the heading "Conjugal Property of the Deceased Spouses Francisco
de Borja and Josefa Tangco, which are in the possession of the Administrator of the Testate
Estate of the Deceased Josefa Tangco in Special Proceedings No. 7866 of the Court of First
Instance of Rizal" (Exhibit "4").

Notwithstanding the four statements aforesaid, and the fact that they are plain admissions
against interest made by both Francisco de Borja and the Administratrix of his estate, in the
course of judicial proceedings in the Rizal and Nueva Ecija Courts, supporting the legal
presumption in favor of the conjugal community, the Court below declared that the Hacienda
de Jalajala (Poblacion) was not conjugal property, but the private exclusive property of the
late Francisco de Borja. It did so on the strength of the following evidences: (a) the sworn
statement by Francis de Borja on 6 August 1951 (Exhibit "F") that —

He tomado possession del pedazo de terreno ya delimitado (equivalente a 1/4


parte, 337 hectareas) adjunto a mi terreno personal y exclusivo (Poblacion de
Jalajala, Rizal).

and (b) the testimony of Gregorio de Borja, son of Bernardo de Borja, that the entire Hacienda
had been bought at a foreclosure sale for P40,100.00, of which amount P25,100 was
contributed by Bernardo de Borja and P15,000. by Marcelo de Borja; that upon receipt of a
subsequent demand from the provincial treasurer for realty taxes the sum of P17,000,
Marcelo told his brother Bernardo that Francisco (son of Marcelo) wanted also to be a co-
owner, and upon Bernardo's assent to the proposal, Marcelo issue a check for P17,000.00 to
pay the back taxes and said that the amount would represent Francisco's contribution in the
purchase of the Hacienda. The witness further testified that —

Marcelo de Borja said that that money was entrusted to him by Francisco de
Borja when he was still a bachelor and which he derived from his business
transactions. (Hearing, 2 February 1965, t.s.n., pages 13-15) (Emphasis
supplied)

The Court below, reasoning that not only Francisco's sworn statement overweighed the
admissions in the inventories relied upon by defendant-appellant Jose de Borja since probate
courts can not finally determine questions of ownership of inventoried property, but that the
testimony of Gregorio de Borja showed that Francisco de Borja acquired his share of the
original Hacienda with his private funds, for which reason that share can not be regarded as
conjugal partnership property, but as exclusive property of the buyer, pursuant to Article
1396(4) of Civil Code of 1889 and Article 148(4) of the Civil Code of the Philippines.

The following shall be the exclusive property of each spouse:

xxx xxx xxx

(4) That which is purchased with exclusive money of the wife or of the husband.

We find the conclusions of the lower court to be untenable. In the first place, witness Gregorio
de Borja's testimony as to the source of the money paid by Francisco for his share was plain
hearsay, hence inadmissible and of no probative value, since he was merely repeating what
Marcelo de Borja had told him (Gregorio). There is no way of ascertaining the truth of the
statement, since both Marcelo and Francisco de Borja were already dead when Gregorio
testified. In addition, the statement itself is improbable, since there was no need or occasion
for Marcelo de Borja to explain to Gregorio how and when Francisco de Borja had earned the
P17,000.00 entrusted to Marcelo. A ring of artificiality is clearly discernible in this portion of
Gregorio's testimony.

As to Francisco de Borja's affidavit, Exhibit "F", the quoted portion thereof (ante, page 14)
does not clearly demonstrate that the "mi terreno personal y exclusivo (Poblacion de Jalajala,
Rizal) " refers precisely to the Hacienda in question. The inventories (Exhibits 3 and 4)
disclose that there were two real properties in Jalajala owned by Francisco de Borja, one of
72.038 sq. m., assessed at P44,600, and a much bigger one of 1,357.260.70 sq. m., which is
evidently the Hacienda de Jalajala (Poblacion). To which of these lands did the affidavit of
Francisco de Borja (Exhibit "F") refer to? In addition, Francisco's characterization of the land
as "mi terreno personal y exclusivo" is plainly self-serving, and not admissible in the absence
of cross examination.

It may be true that the inventories relied upon by defendant-appellant (Exhibits "2", "3", "4"
and "7") are not conclusive on the conjugal character of the property in question; but as
already noted, they are clear admissions against the pecuniary interest of the declarants,
Francisco de Borja and his executor-widow, Tasiana Ongsingco, and as such of much greater
probative weight than the self-serving statement of Francisco (Exhibit "F"). Plainly, the legal
presumption in favor of the conjugal character of the Hacienda de Jalajala (Poblacion) now in
dispute has not been rebutted but actually confirmed by proof. Hence, the appealed order
should be reversed and the Hacienda de Jalajala (Poblacion) declared property of the
conjugal partnership of Francisco de Borja and Josefa Tangco.

No error having been assigned against the ruling of the lower court that claims for damages
should be ventilated in the corresponding special proceedings for the settlement of the
estates of the deceased, the same requires no pro announcement from this Court.

IN VIEW OF THE FOREGOING, the appealed order of the Court of First Instance of Rizal in
Case No. L-28040 is hereby affirmed; while those involved in Cases Nos. L-28568 and L-
28611 are reversed and set aside. Costs against the appellant Tasiana Ongsingco Vda. de
Borja in all three (3) cases.

G.R. No. 45629 September 22, 1938

ANTILANO G. MERCADO, petitioner,


vs.
ALFONSO SANTOS, Judge of First Instance of Pampanga, respondents.
ROSARIO BASA DE LEON, ET AL., intervenors.

Claro M. Recto and Benigno S. Aquino for petitioner.


Esperanza de la Cruz and Heracio Abistao for respondents.
Sotto and Sotto for intervenors.

LAUREL, J.:

On May 28, 1931, the petitioner herein filed in the Court of First Instance of Pampanga a
petition for the probate of the will of his deceased wife, Ines Basa. Without any opposition,
and upon the testimony of Benigno F. Gabino, one of the attesting witnesses, the probate
court, on June 27,1931, admitted the will to probate. Almost three years later, on April 11,
1934, the five intervenors herein moved ex parte to reopen the proceedings, alleging lack of
jurisdiction of the court to probate the will and to close the proceedings. Because filed ex
parte, the motion was denied. The same motion was filed a second time, but with notice to the
adverse party. The motion was nevertheless denied by the probate court on May 24, 1934.
On appeal to this court, the order of denial was affirmed on July 26, 1935. (Basa vs. Mercado,
33 Off. Gaz., 2521.)

It appears that on October 27, 1932, i. e., sixteen months after the probate of the will of Ines
Basa, intervenor Rosario Basa de Leon filed with the justice of the peace court of San
Fernando, Pampanga, a complaint against the petitioner herein, for falsification or forgery of
the will probated as above indicated. The petitioner was arrested. He put up a bond in the
sum of P4,000 and engaged the services of an attorney to undertake his defense. Preliminary
investigation of the case was continued twice upon petition of the complainant. The complaint
was finally dismissed, at the instance of the complainant herself, in an order dated December
8, 1932. Three months later, or on March 2, 1933, the same intervenor charged the petitioner
for the second time with the same offense, presenting the complaint this time in the justice of
the peace court of Mexico, Pampanga. The petitioner was again arrested, again put up a
bond in the sum of P4,000, and engaged the services of counsel to defend him. This second
complaint, after investigation, was also dismissed, again at the instance of the complainant
herself who alleged that the petitioner was in poor health. That was on April 27, 1933. Some
nine months later, on February 2, 1934, to be exact, the same intervenor accused the same
petitioner for the third time of the same offense. The information was filed by the provincial
fiscal of Pampanga in the justice of the peace court of Mexico. The petitioner was again
arrested, again put up a bond of P4,000, and engaged the services of defense counsel. The
case was dismissed on April 24, 1934, after due investigation, on the ground that the will
alleged to have been falsified had already been probated and there was no evidence that the
petitioner had forged the signature of the testatrix appearing thereon, but that, on the
contrary, the evidence satisfactorily established the authenticity of the signature aforesaid.
Dissatisfied with the result, the provincial fiscal, on May 9, 1934, moved in the Court of First
Instance of Pampanga for reinvestigation of the case. The motion was granted on May 23,
1934, and, for the fourth time, the petitioner was arrested, filed a bond and engaged the
services of counsel to handle his defense. The reinvestigation dragged on for almost a year
until February 18, 1934, when the Court of First Instance ordered that the case be tried on the
merits. The petitioner interposed a demurrer on November 25, 1935, on the ground that the
will alleged to have been forged had already been probated. This demurrer was overruled on
December 24, 1935, whereupon an exception was taken and a motion for reconsideration
and notice of appeal were filed. The motion for reconsideration and the proposed appeal were
denied on January 14, 1936. The case proceeded to trial, and forthwith petitioner moved to
dismiss the case claiming again that the will alleged to have been forged had already been
probated and, further, that the order probating the will is conclusive as to the authenticity and
due execution thereof. The motion was overruled and the petitioner filed with the Court of
Appeals a petition for certiorari with preliminary injunction to enjoin the trial court from further
proceedings in the matter. The injunction was issued and thereafter, on June 19, 1937, the
Court of Appeals denied the petition for certiorari, and dissolved the writ of preliminary
injunction. Three justices dissented in a separate opinion. The case is now before this court
for review on certiorari.

Petitioner contends (1) that the probate of the will of his deceased wife is a bar to his criminal
prosecution for the alleged forgery of the said will; and, (2) that he has been denied the
constitutional right to a speedy trial.
1. Section 306 of our Code of Civil Procedure provides as to the effect of judgments.

SEC. 306. Effect of judgment. — The effect of a judgment or final order in an action or
special proceeding before a court or judge of the Philippine Islands or of the United
States, or of any State or Territory of the United States, having jurisdiction to pronounce
the judgment or order, may be as follows.

1. In case of a judgment or order against a specific thing, or in respect to the probate of


a will, or the administration of the estate of a deceased person, or in respect to the
personal, political, or legal condition or relation of a particular person, the judgment or
order is conclusive upon the title of the thing, the will or administration, or the condition
or relation of the person Provided, That the probate of a will or granting of letters of
administration shall only be prima facie evidence of the death of the testator or
intestate.

xxx xxx xxx

(Emphasis ours.)

Section 625 of the same Code is more explicit as to the conclusiveness of the due execution
of a probate will. It says.

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. (Emphasis ours.)

(In Manahan vs. Manahan 58 Phil., 448, 451), we held:

. . . The decree of probate is conclusive with respect to the due execution thereof and it
cannot be impugned on any of the grounds authorized by law, except that of fraud, in
any separate or independent action or proceeding. Sec. 625, Code of Civil Procedure;
Castañeda vs. Alemany, 3 Phil., 426; Pimentel vs. Palanca, 5 Phil., 436;
Sahagun vs. De Gorostiza, 7 Phil., 347; Limjuco vs. Ganara, 11 Phil., 393;
Montañano vs. Suesa, 14 Phil., 676; in re Estate of Johnson, 39 Phil, 156;
Riera vs. Palmaroli, 40 Phil., 105; Austria vs. Ventenilla, 21 Phil., 180;
Ramirez vs. Gmur, 42 Phil., 855; and Chiong Jocsoy vs. Vano, 8 Phil., 119.

In 28 R. C. L., p. 377, section 378, it is said.

The probate of a will by the probate court having jurisdiction thereof is usually
considered as conclusive as to its due execution and validity, and is also conclusive
that the testator was of sound and disposing mind at the time when he executed the
will, and was not acting under duress, menace, fraud, or undue influence, and that the
will is genuine and not a forgery. (Emphasis ours.)

As our law on wills, particularly section 625 of our Code of Civil Procedure aforequoted, was
taken almost bodily from the Statutes of Vermont, the decisions of the Supreme Court of the
State relative to the effect of the probate of a will are of persuasive authority in this
jurisdiction. The Vermont statute as to the conclusiveness of the due execution of a probated
will reads as follows.

SEC. 2356. No will shall pass either real or personal estate, unless it is proved and
allowed in the probate court, or by appeal in the county or supreme court; and the
probate of a will of real or personal estate shall be conclusive as to its due execution.
(Vermont Statutes, p. 451.)

Said the Supreme Court of Vermont in the case of Missionary Society vs. Eells (68 Vt., 497,
504): "The probate of a will by the probate court having jurisdiction thereof, upon the due
notice, is conclusive as to its due execution against the whole world. (Vt. St., sec. 2336;
Fosters Exrs. vs. Dickerson, 64 Vt., 233.)"

The probate of a will in this jurisdiction is a proceeding in rem. The provision of notice by
Publication as a prerequisite to the allowance of a will is constructive notice to the whole
world, and when probate is granted, the judgment of the court is binding upon everybody,
even against the State. This court held in the case of Manalo vs. Paredes and Philippine Food
Co. (47 Phil., 938):

The proceeding for the probate of a will is one in rem (40 Cyc., 1265), and the court
acquires jurisdiction over all the persons interested, through the publication of the
notice prescribed by section 630 of the Code of Civil Procedure, and any order that
may be entered therein is binding against all of them.

Through the publication of the petition for the probate of the will, the court acquires
jurisdiction over all such persons as are interested in said will; and any judgment that
may be rendered after said proceeding is binding against the whole world.

In Everrett vs. Wing (103 Vt., 488, 492), the Supreme Court of Vermont held.

In this State the probate of a will is a proceeding in rem being in form and substance
upon the will itself to determine its validity. The judgment determines the status of the
instrument, whether it is or is not the will of the testator. When the proper steps required
by law have been taken the judgment is binding upon everybody, and makes the
instrument as to all the world just what the judgment declares it to be.
(Woodruff vs. Taylor, 20 Vt., 65, 73; Burbeck vs. Little, 50 Vt., 713, 715; Missionary
Society vs. Eells, 68 Vt., 497, 504; 35 Atl., 463.) The proceedings before the probate
court are statutory and are not governed by common law rules as to parties or causes
of action. (Holdrige vs. Holdriges Estate, 53 Vt., 546, 550; Purdy vs. Estate of Purdy, 67
Vt. 50, 55; 30 Atl., 695.) No process is issued against anyone in such proceedings, but
all persons interested in determining the state or conditions of the instrument are
constructively notified by the publication of notice as required by G. L. 3219.
(Woodruff vs. Taylor, supra; In re Warners Estate 98 Vt., 254; 271; 127 Atl., 362.)

Section 333, paragraph 4, of the Code of Civil Procedure establishes an incontrovertible


presumption in favor of judgments declared by it to be conclusive.
SEC. 333. Conclusive Presumptions. — The following presumptions or deductions,
which the law expressly directs to be made from particular facts, are deemed
conclusive.

xxx xxx xxx

4. The judgment or order of a court, when declared by this code to be conclusive.

Conclusive presumptions are inferences which the law makes so peremptory that it will not
allow them to be overturned by any contrary proof however strong. (Brant vs. Morning Journal
Assn., 80 N.Y.S., 1002, 1004; 81 App. Div., 183; see, also, Joslyn vs. Puloer, 59 Hun., 129,
140, 13 N.Y.S., 311.) The will in question having been probated by a competent court, the law
will not admit any proof to overthrow the legal presumption that it is genuine and not a forgery.

The majority decision of the Court of Appeals cites English decisions to bolster up its
conclusion that "the judgment admitting the will to probate is binding upon the whole world as
to the due execution and genuineness of the will insofar as civil rights and liabilities are
concerned, but not for the purpose of punishment of a crime." The cases of Dominus
Rex vs. Vincent, 93 English Reports, Full Reprint, 795, the first case being decided in 1721,
were cited to illustrate the earlier English decisions to the effect that upon indictment for
forging a will, the probating of the same is conclusive evidence in the defendants favor of its
genuine character. Reference is made, however, to the cases of Rex vs. Gibson, 168 English
Reports, Full Reprint, 836, footnote (a), decided in 1802, and Rex vs. Buttery and
Macnamarra, 168 English Reports, Full Reprint, 836, decided in 1818, which establish a
contrary rule. Citing these later cases, we find the following quotation from Black on
Judgments, Vol. II, page 764.

A judgment admitting a will to probate cannot be attacked collaterally although the will
was forged; and a payment to the executor named therein of a debt due the decedent
will discharge the same, notwithstanding the spurious character of the instrument
probated. It has also been held that, upon an indictment for forging a will, the probate of
the paper in question is conclusive evidence in the defendants favor of its genuine
character. But this particular point has lately been ruled otherwise.

It was the case of Rex vs. Buttery, supra, which induced the Supreme Court of
Massachussetts in the case of Waters vs. Stickney (12 Allen 1; 90 Am. Dec., 122) also cited
by the majority opinion, to hold that "according to later and sounder decisions, the probate,
though conclusive until set aside of the disposition of the property, does not protect the forger
from punishment." This was reproduced in 28 R.C.L., p. 376, and quoted in Barry vs. Walker
(103 Fla., 533; 137 So., 711, 715), and Thompson vs. Freeman (149 So., 740, 742), also
cited in support of the majority opinion of the Court of Appeals. The dissenting opinion of the
Court of Appeals in the instant case under review makes a cursory study of the statutes
obtaining in England, Massachussetts and Florida, and comes to the conclusion that the
decisions cited in the majority opinion do not appear to "have been promulgated in the face of
statutes similar to ours." The dissenting opinion cites Whartons Criminal Evidence (11th ed.,
sec. 831), to show that the probate of a will in England is only prima facie proof of the validity
of the will (Op. Cit. quoting Marriot vs. Marriot, 93 English Reprint, 770); and 21 L.R.A. (pp.
686689 and note), to show that in Massachussetts there is no statute making the probate of a
will conclusive, and that in Florida the statute(sec. 1810, Revised Statutes) makes the probate
conclusive evidence as to the validity of the will with regard to personal, and prima facie as to
real estate. The cases decided by the Supreme Court of Florida cited by the majority
opinion, supra, refer to wills of both personal and real estate.

The petitioner cites the case of State vs. McGlynn (20 Cal., 233, decided in 1862), in which
Justice Norton of the Supreme Court of California, makes the following review of the nature of
probate proceedings in England with respect to wills personal and real property.

In England, the probate of wills of personal estate belongs to the Ecclesiastical Courts.
No probate of a will relating to real estate is there necessary. The real estate, upon the
death of the party seized, passes immediately to the devisee under the will if there be
one; or if there be no will, to the heir at law. The person who thus becomes entitled
takes possession. If one person claims to be the owner under a will, and another
denies the validity of the will and claims to be the owner as heir at law, an action of
ejectment is brought against the party who may be in possession by the adverse
claimant; and on the trial of such an action, the validity of the will is contested, and
evidence may be given by the respective parties as to the capacity of the testator to
make a will, or as to any fraud practiced upon him, or as to the actual execution of it, or
as to any other circumstance affecting its character as a valid devise of the real estate
in dispute. The decision upon the validity of the will in such action becomes res
adjudicata, and is binding and conclusive upon the parties to that action and upon any
person who may subsequently acquire the title from either of those parties; but the
decision has no effect upon other parties, and does not settle what may be called the
status or character of the will, leaving it subject to be enforced as a valid will, or
defeated as invalid, whenever other parties may have a contest depending upon it. A
probate of a will of personal property, on the contrary, is a judicial determination of the
character of the will itself. It does not necessarily or ordinarily arise from any
controversy between adverse claimants, but is necessary in order to authorize a
disposition of the personal estate in pursuance of its provisions. In case of any
controversy between adverse claimants of the personal estate, the probate is given in
evidence and is binding upon the parties, who are not at liberty to introduce any other
evidence as to the validity of the will.

The intervenors, on the other hand, attempt to show that the English law on wills is different
from that stated in the case of State vs. McGlynn, supra, citing the following statutes.

1. The Wills Act, 1837 (7 Will. 4 E 1 Vict. c. 26).

2. The Court of Probate Act, 1857 (20 and 21 Vict. c. 77).

3. The Judicature Act, 1873 (36 and 37 Vict. c. 66).

The Wills Act of 1837 provides that probate may be granted of "every instrumental purporting
to be testamentary and executed in accordance with the statutory requirements . . . if it
disposes of property, whether personal or real." The Ecclesiastical Courts which took charge
of testamentary causes (Ewells Blackstone [1910], p. 460), were determined by the Court of
Probate Act of 1857, and the Court of Probate in turn was, together with other courts,
incorporated into the Supreme Court of Judicature, and transformed into the Probate Division
thereof, by the Judicature Act of 1873. (Lord Halsbury, The Laws of England[1910], pp.
151156.) The intervenors overlook the fact, however, that the case of Rex vs. Buttery and
Macnamarra, supra, upon which they rely in support of their theory that the probate of a
forged will does not protect the forger from punishment, was decided long before the
foregoing amendatory statutes to the English law on wills were enacted. The case of
State vs. McGlynn may be considered, therefore, as more or less authoritative on the law of
England at the time of the promulgation of the decision in the case of Rex vs. Buttery and
Macnamarra.

In the case of State vs. McGlynn, the Attorney General of California filed an information to set
aside the probate of the will of one Broderick, after the lapse of one year provided by the law
of California for the review of an order probating a will, in order that the estate may be
escheated to the State of California for the review of an probated will was forged and that
Broderick therefore died intestate, leaving no heirs, representatives or devisees capable of
inheriting his estate. Upon these facts, the Supreme Court of California held.

The fact that a will purporting to be genuine will of Broderick, devising his estate to a
devisee capable of inheriting and holding it, has been admitted to probate and
established as a genuine will by the decree of a Probate Court having jurisdiction of the
case, renders it necessary to decide whether that decree, and the will established by it,
or either of them, can be set aside and vacated by the judgment of any other court. If it
shall be found that the decree of the Probate Court, not reversed by the appellate court,
is final and conclusive, and not liable to be vacated or questioned by any other court,
either incidentally or by any direct proceeding, for the purpose of impeaching it, and
that so long as the probate stands the will must be recognized and admitted in all
courts to be valid, then it will be immaterial and useless to inquire whether the will in
question was in fact genuine or forged. (State vs. McGlynn, 20 Cal., 233; 81 Am. Dec.,
118, 121.).

Although in the foregoing case the information filed by the State was to set aside the decree
of probate on the ground that the will was forged, we see no difference in principle between
that case and the case at bar. A subtle distinction could perhaps be drawn between setting
aside a decree of probate, and declaring a probated will to be a forgery. It is clear, however,
that a duly probated will cannot be declared to be a forgery without disturbing in a way the
decree allowing said will to probate. It is at least anomalous that a will should be regarded as
genuine for one purpose and spurious for another.

The American and English cases show a conflict of authorities on the question as to whether
or not the probate of a will bars criminal prosecution of the alleged forger of the probate will.
We have examined some important cases and have come to the conclusion that no fixed
standard maybe adopted or drawn therefrom, in view of the conflict no less than of diversity of
statutory provisions obtaining in different jurisdictions. It behooves us, therefore, as the court
of last resort, to choose that rule most consistent with our statutory law, having in view the
needed stability of property rights and the public interest in general. To be sure, we have
seriously reflected upon the dangers of evasion from punishment of culprits deserving of the
severity of the law in cases where, as here, forgery is discovered after the probate of the will
and the prosecution is had before the prescription of the offense. By and large, however, the
balance seems inclined in favor of the view that we have taken. Not only does the law
surround the execution of the will with the necessary formalities and require probate to be
made after an elaborate judicial proceeding, but section 113, not to speak of section 513, of
our Code of Civil Procedure provides for an adequate remedy to any party who might have
been adversely affected by the probate of a forged will, much in the same way as other
parties against whom a judgment is rendered under the same or similar circumstances.
(Pecson vs.Coronel, 43 Phil., 358.)The aggrieved party may file an application for relief with
the proper court within a reasonable time, but in no case exceeding six months after said
court has rendered the judgment of probate, on the ground of mistake, inadvertence, surprise
or excusable neglect. An appeal lies to review the action of a court of first instance when that
court refuses to grant relief. (Banco Español Filipino vs. Palanca, 37 Phil., 921; Philippine
Manufacturing Co. vs. Imperial, 47 Phil., 810; Samia vs. Medina, 56 Phil., 613.) After a
judgment allowing a will to be probated has become final and unappealable, and after the
period fixed by section 113 of the Code of Civil Procedure has expired, the law as an
expression of the legislative wisdom goes no further and the case ends there.

. . . The court of chancery has no capacity, as the authorities have settled, to judge or
decide whether a will is or is not a forgery; and hence there would be an incongruity in
its assuming to set aside a probate decree establishing a will, on the ground that the
decree was procured by fraud, when it can only arrive at the fact of such fraud by first
deciding that the will was a forgery. There seems, therefore, to be a substantial reason,
so long as a court of chancery is not allowed to judge of the validity of a will, except as
shown by the probate, for the exception of probate decrees from the jurisdiction which
courts of chancery exercise in setting aside other judgments obtained by fraud. But
whether the exception be founded in good reason or otherwise, it has become too
firmly established to be disregarded. At the present day, it would not be a greater
assumption to deny the general rule that courts of chancery may set aside judgments
procured by fraud, than to deny the exception to that rule in the case of probate
decrees. We must acquiesce in the principle established by the authorities, if we are
unable to approve of the reason. Judge Story was a staunch advocate for the most
enlarged jurisdiction of courts of chancery, and was compelled to yield to the weight of
authority. He says "No other excepted case is known to exist; and it is not easy to
discover the grounds upon which this exception stands, in point of reason or principle,
although it is clearly settled by authority. (1 Storys Eq. Jur. sec. 440.)"
(State vs. McGlynn, 20 Cal., 233; 81 Am. Dec., 118, 129. See, also, Tracy vs. Muir, 121
American State Reports, 118, 125.)

We hold, therefore, that in view of the provisions of sections 306, 333 and 625 of our Code of
Civil Procedure, criminal action will not lie in this jurisdiction against the forger of a will which
had been duly admitted to probate by a court of competent jurisdiction.

The resolution of the foregoing legal question is sufficient to dispose of the case. However,
the other legal question with reference to the denial to the accused of his right to a speedy
trial having been squarely raised and submitted, we shall proceed to consider the same in the
light of cases already adjudicated by this court.

2. The Constitution of the Philippines provides that "In all criminal prosecutions the accused . .
. shall enjoy the right . . . to have a speedy . . . trial. . . . (Art. III, sec. 1, par. 17. See, also,
G.O. No. 58, sec. 15, No. 7.) Similar provisions are to be found in the Presidents Instructions
to the Second Philippine Commission (par. 11), the Philippine Bill of July 1, 1902 (sec. 5, par.
2) and the Jones Act of August 29, 1916 (sec. 3, par. 2). The provisions in the foregoing
organic acts appear to have been taken from similar provisions in the Constitution of the
United States (6th Amendment) and those of the various states of the American Union. A
similar injunction is contained in the Malolos Constitution (art. 8, Title IV), not to speak of
other constitutions. More than once this court had occasion to set aside the proceedings in
criminal cases to give effect to the constitutional injunction of speedy trial. (Conde vs. Judge
of First Instance and Fiscal of Tayabas [1923], 45 Phil., 173; Conde vs. Rivera and
Unson[1924], 45 Phil., 650; People vs. Castañeda and Fernandez[1936]), 35 Off. Gaz., 1269;
Kalaw vs. Apostol, Oct. 15, 1937, G.R. No. 45591; Esguerra vs. De la Costa, Aug. 30,1938,
G.R. No. 46039.).

In Conde vs. Rivera and Unson, supra, decided before the adoption of our Constitution, we
said.

Philippine organic and statutory law expressly guarantee that in all criminal
prosecutions the accused shall enjoy the right to have a speedy trial. Aurelia Conde,
like all other accused persons, has a right to a speedy trial in order that if innocent she
may go free, and she has been deprived of that right in defiance of law. Dismissed from
her humble position, and compelled to dance attendance on courts while investigations
and trials are arbitrarily postponed without her consent, is palpably and openly unjust to
her and a detriment to the public. By the use of reasonable diligence, the prosecution
could have settled upon the appropriate information, could have attended to the formal
preliminary examination, and could have prepared the case for a trial free from
vexatious, capricious, and oppressive delays.

In People vs. Castañeda and Fernandez, supra, this court found that the accused had not
been given a fair and impartial trial. The case was to have been remanded to the court a quo
for a new trial before an impartial judge. This step, however, was found unnecessary. A
review of the evidence convinced this court that a judgment of conviction for theft, as charged,
could not be sustained and, having in view the right to a speedy trial guaranteed by the
Constitution to every person accused of crime, entered a judgment acquitting the accused,
with costs de oficio. We said.

. . . The Constitution, Article III, section 1, paragraph 17, guarantees to every accused
person the right to a speedy trial. This criminal proceeding has been dragging on for
almost five years now. The accused have twice appealed to this court for redress from
the wrong that they have suffered at the hands of the trial court. At least one of them,
namely Pedro Fernandez alias Piro, had been con-fined in prison from July 20, 1932 to
November 27, 1934, for inability to post the required bond of P3,000 which was finally
reduced to P300. The Government should be the last to set an example of delay and
oppression in the administration of justice and it is the moral and legal obligation of this
court to see that the criminal proceedings against the accused come to an end and that
they be immediately dis-charged from the custody of the law. (Conde vs. Rivera and
Unson, 45 Phil., 651.)
In Kalaw vs. Apostol, supra, the petitioner invoked and this court applied and gave effect to
the doctrines stated in the second Conde case, supra. In granting the writs prayed for, this
court, after referring to the constitutional and statutory provisions guaranteeing to persons
accused of crime the right to a speedy trial, said:

Se infiere de los preceptos legales transcritos que todo acusado en causa criminal
tiene derecho a ser juzgado pronta y publicamente. Juicio rapido significa un juicioque
se celebra de acuerdo con la ley de procedimiento criminal y los reglamentos, libre de
dilaciones vejatorias, caprichosas y opersivas (Burnett vs.State, 76 Ark., 295; 88S. W.,
956; 113 AMSR, 94; Stewart vs. State, 13 Ark., 720; Peo. vs. Shufelt, 61 Mich., 237; 28
N. W., 79; Nixon vs. State, 10 Miss., 497; 41 AMD., 601; State vs. Cole, 4 Okl. Cr., 25;
109 P., 736; State vs. Caruthers, 1 Okl. Cr., 428; 98 P., 474; State vs. Keefe, 17 Wyo.,
227, 98 p., 122;22 IRANS, 896; 17 Ann. Cas., 161). Segun los hechos admitidos
resulta que al recurrente se le concedio vista parcial del asunto, en el Juzgado de
Primera Instancia de Samar, solo despues de haber transcurrido ya mas de un año y
medio desde la presentacion de la primera querella y desde la recepcion de la causa
en dicho Juzgado, y despues de haberse transferido dos veces la vista delasunto sin
su consentimiento. A esto debe añadirse que laprimera transferencia de vista era
claramente injustificadaporque el motivo que se alego consistio unicamente en
laconveniencia personal del ofendido y su abogado, no habiendose probado
suficientemente la alegacion del primero de quese hallaba enfermo. Es cierto que el
recurrente habia pedido que, en vez de señalarse a vista el asunto para el mayo de
1936, lo fuera para el noviembre del mismo año; pero,aparte de que la razon que alego
era bastante fuerte porquesu abogado se oponia a comparecer por compromisos
urgentes contraidos con anterioridad y en tal circunstancia hubiera quedado indefenso
si hubiese sido obligado a entraren juicio, aparece que la vista se pospuso por el
Juzgado amotu proprio, por haber cancelado todo el calendario judicial preparado por
el Escribano para el mes de junio. Declaramos, con visto de estos hechos, que al
recurrents se leprivo de su derecho fundamental de ser juzgado prontamente.

Esguerra vs. De la Costa, supra, was a petition for mandamus to compel the respondent
judge of the Court of First Instance of Rizal to dismiss the complaint filed in a criminal case
against the petitioner, to cancel the bond put up by the said petitioner and to declare the
costs de oficio. In accepting the contention that the petitioner had been denied speedy trial,
this court said:

Consta que en menos de un año el recurrente fue procesado criminalmente por el


alegado delito de abusos deshonestos, en el Juzgado de Paz del Municipio de Cainta,
Rizal. Como consecuencia de las denuncias que contra el se presentaron fue
arrestado tres veces y para gozar de libertad provisional, en espera de los juicios, se
vio obligado a prestartres fianzas por la suma de P1,000 cada una. Si no se da fin al
proceso que ultimamente se ha incoado contra el recurrente la incertidumbre
continuara cerniendose sobre el y las consiguientes molestias y preocupaciones
continuaran igualmente abrumandole. El Titulo III, articulo 1, No. 17,de la Constitucion
preceptua que en todo proceso criminalel acusado tiene derecho de ser juzgado pronta
y publicamente. El Articulo 15, No. 7, de la Orden General No. 58 dispone asimismo
que en las causas criminales el acusado tendra derecho a ser juzgado pronta y
publicamente. Si el recurrente era realmente culpable del delito que se le imputo, tenia
de todos modos derechos a que fuera juzgado pronta y publicamente y sin dilaciones
arbitrarias y vejatorias. Hemos declarado reiteradamente que existe un remedio
positivo para los casos en que se viola el derecho constitucional del acusado de ser
juzgado prontamente. El acusado que esprivado de su derecho fundomental de ser
enjuiciado rapidamente tiene derecho a pedir que se le ponga en libertad, si estuviese
detenido, o a que la causa que pende contra el sea sobreseida definitivamente.
(Conde contra Rivera y Unson, 45 Jur. Fil., 682; In the matter of Ford [1911], 160 Cal.,
334; U. S. vs. Fox [1880], 3 Mont., 512; Kalaw contra Apostol, R. G. No. 45591, Oct.
15, 1937; Pueblo contra Castañeda y Fernandez, 35 Gac. Of., 1357.)

We are again called upon to vindicate the fundamental right to a speedy trial. The facts of the
present case may be at variance with those of the cases hereinabove referred to.
Nevertheless, we are of the opinion that, under the circumstances, we should consider the
substance of the right instead of indulging in more or less academic or undue factual
differentiations. The petitioner herein has been arrested four times, has put up a bond in the
sum of P4,000 and has engaged the services of counsel to undertake his defense an equal
number of times. The first arrest was made upon a complaint filed by one of the intervenors
herein for alleged falsification of a will which, sixteen months before, had been probated in
court. This complaint, after investigation, was dismissed at the complainant's own request.
The second arrest was made upon a complaint charging the same offense and this complaint,
too, was dismissed at the behest of the complainant herself who alleged the quite startling
ground that the petitioner was in poor health. The third arrest was made following the filing of
an information by the provincial fiscal of Pampanga, which information was dismissed, after
due investigation, because of insufficiency of the evidence. The fourth arrest was made when
the provincial fiscal secured a reinvestigation of the case against the petitioner on the pretext
that he had additional evidence to present, although such evidence does not appear to have
ever been presented.

It is true that the provincial fiscal did not intervene in the case until February 2, 1934, when he
presented an information charging the petitioner, for the third time, of the offense of
falsification. This, however, does not matter. The prosecution of offenses is a matter of public
interest and it is the duty of the government or those acting in its behalf to prosecute all cases
to their termination without oppressive, capricious and vexatious delay. The Constitution does
not say that the right to a speedy trial may be availed of only where the prosecution for crime
is commenced and undertaken by the fiscal. It does not exclude from its operation cases
commenced by private individuals. Where once a person is prosecuted criminally, he is
entitled to a speedy trial, irrespective of the nature of the offense or the manner in which it is
authorized to be commenced. In any event, even the actuations of the fiscal himself in this
case is not entirely free from criticism. From October 27, 1932, when the first complaint was
filed in the justice of the peace court of San Fernando, to February 2, 1934, when the
provincial fiscal filed his information with the justice of the peace of Mexico, one year, three
months and six days transpired; and from April 27, 1933, when the second criminal complaint
was dismissed by the justice of the peace of Mexico, to February 2, 1934, nine months and
six days elapsed. The investigation following the fourth arrest, made after the fiscal had
secured a reinvestigation of the case, appears also to have dragged on for about a year.
There obviously has been a delay, and considering the antecedent facts and circumstances
within the knowledge of the fiscal, the delay may not at all be regarded as permissible.
In Kalaw vs. Apostol, supra, we observed that the prosecuting officer all prosecutions for
public offenses (secs. 1681 and 2465 of the Rev. Adm. Code), and that it is his duty to see
that criminal cases are heard without vexatious, capricious and oppressive delays so that the
courts of justice may dispose of them on the merits and determine whether the accused is
guilty or not. This is as clear an admonition as could be made. An accused person is entitled
to a trial at the earliest opportunity. (Sutherland on the Constitution, p. 664; United
States vs. Fox, 3 Mont., 512.) He cannot be oppressed by delaying he commencement of trial
for an unreasonable length of time. If the proceedings pending trial are deferred, the trial itself
is necessarily delayed. It is not to be supposed, of course, that the Constitution intends to
remove from the prosecution every reasonable opportunity to prepare for trial. Impossibilities
cannot be expected or extraordinary efforts required on the part of the prosecutor or the court.
As stated by the Supreme Court of the United States, "The right of a speedy trial is
necessarily relative. It is consistent with delays and depends upon circumstances. It secures
rights to a defendant. It does not preclude the rights of public justice." (Beavers vs. Haubert
[1905], 198 U. S., 86; 25 S. Ct., 573; 49 Law. ed., 950, 954.).

It may be true, as seems admitted by counsel for the intervenors, in paragraph 8, page 3 of
his brief, that the delay was due to "the efforts towards reaching an amicable extrajudicial
compromise," but this fact, we think, casts doubt instead upon the motive which led the
intervenors to bring criminal action against the petitioner. The petitioner claims that the
intention of the intervenors was to press upon settlement, with the continuous threat of
criminal prosecution, notwithstanding the probate of the will alleged to have been falsified.
Argument of counsel for the petitioner in this regard is not without justification. Thus after the
filing of the second complaint with the justice of the peace court of Mexico, complainant
herself, as we have seen, asked for dismissal of the complaint, on the ground that "el
acusado tenia la salud bastante delicada," and, apparently because of failure to arrive at any
settlement, she decided to renew her complaint.

Counsel for the intervenors contend — and the contention is sustained by the Court of
Appeals — that the petitioner did not complain heretofore of the denial of his constitutional
right to a speedy trial. This is a mistake. When the petitioner, for the fourth time, was ordered
arrested by the Court of First Instance of Pampanga, he moved for reconsideration of the
order of arrest, alleging, among other things, "Que por estas continuas acusaciones e
investigaciones, el acusado compareciente no obstante su mal estado de salud desde el año
1932 en que tuvo que ser operado por padecer de tuberculosis ha tenido que sostener litigios
y ha sufrido la mar de humiliaciones y zozobras y ha incudo en enormes gastos y molestias y
ha desatendido su quebrantada salud." The foregoing allegation was inserted on page 6 of
the amended petition for certiorari presented to the Court of Appeals. The constitutional issue
also appears to have been actually raised and considered in the Court of Appeals. In the
majority opinion of that court, it is stated:

Upon the foregoing facts, counsel for the petitioner submits for the consideration of this
court the following questions of law: First, that the respondent court acted arbitrarily and
with abuse of its authority, with serious damage and prejudice to the rights and
interests of the petitioner, in allowing that the latter be prosecuted and arrested for the
fourth time, and that he be subjected, also for the fourth time, to a preliminary
investigation for the same offense, hereby converting the court into an instrument of
oppression and vengeance on the part of the alleged offended parties, Rosario Basa et
al.; . . . .
And in the dissenting opinion, we find the following opening paragraph:

We cannot join in a decision declining to stop a prosecution that has dragged for about
five years and caused the arrest on four different occasions of a law abiding citizen for
the alleged offense of falsifying a will that years be competent jurisdiction.

From the view we take of the instant case, the petitioner is entitled to have the criminal
proceedings against him quashed. The judgment of the Court of Appeals is hereby reversed,
without pronouncement regarding costs. So ordered.

G.R. No. L-32213 November 26, 1973

AGAPITA N. CRUZ, petitioner,


vs.
HON. JUDGE GUILLERMO P. VILLASOR, Presiding Judge of Branch I, Court of First
Instance of Cebu, and MANUEL B. LUGAY, respondents.

Paul G. Gorrez for petitioner.

Mario D. Ortiz for respondent Manuel B. Lugay.

ESGUERRA, J.:

Petition to review on certiorari the judgment of the Court First Instance of Cebu allowing the
probate of the last will a testament of the late Valente Z. Cruz. Petitioner-appellant Agapita N.
Cruz, the surviving spouse of the said decease opposed the allowance of the will (Exhibit
"E"), alleging the will was executed through fraud, deceit, misrepresentation and undue
influence; that the said instrument was execute without the testator having been fully informed
of the content thereof, particularly as to what properties he was disposing and that the
supposed last will and testament was not executed in accordance with law. Notwithstanding
her objection, the Court allowed the probate of the said last will and testament Hence this
appeal by certiorari which was given due course.

The only question presented for determination, on which the decision of the case hinges, is
whether the supposed last will and testament of Valente Z. Cruz (Exhibit "E") was executed in
accordance with law, particularly Articles 805 and 806 of the new Civil Code, the first requiring
at least three credible witnesses to attest and subscribe to the will, and the second requiring
the testator and the witnesses to acknowledge the will before a notary public.

Of the three instrumental witnesses thereto, namely Deogracias T. Jamaloas Jr., Dr.
Francisco Pañares and Atty. Angel H. Teves, Jr., one of them, the last named, is at the same
time the Notary Public before whom the will was supposed to have been acknowledged.
Reduced to simpler terms, the question was attested and subscribed by at least three credible
witnesses in the presence of the testator and of each other, considering that the three
attesting witnesses must appear before the notary public to acknowledge the same. As the
third witness is the notary public himself, petitioner argues that the result is that only two
witnesses appeared before the notary public to acknowledge the will. On the other hand,
private respondent-appellee, Manuel B. Lugay, who is the supposed executor of the will,
following the reasoning of the trial court, maintains that there is substantial compliance with
the legal requirement of having at least three attesting witnesses even if the notary public
acted as one of them, bolstering up his stand with 57 American Jurisprudence, p. 227 which,
insofar as pertinent, reads as follows:

It is said that there are, practical reasons for upholding a will as against the
purely technical reason that one of the witnesses required by law signed as
certifying to an acknowledgment of the testator's signature under oath rather than
as attesting the execution of the instrument.

After weighing the merits of the conflicting claims of the parties, We are inclined to sustain
that of the appellant that the last will and testament in question was not executed in
accordance with law. The notary public before whom the will was acknowledged cannot be
considered as the third instrumental witness since he cannot acknowledge before himself his
having signed the will. To acknowledge before means to avow (Javellana v. Ledesma, 97
Phil. 258, 262; Castro v. Castro, 100 Phil. 239, 247); to own as genuine, to assent, to admit;
and "before" means in front or preceding in space or ahead of. (The New Webster
Encyclopedic Dictionary of the English Language, p. 72; Funk & Wagnalls New Standard
Dictionary of the English Language, p. 252; Webster's New International Dictionary 2d. p.
245.) Consequently, if the third witness were the notary public himself, he would have to avow
assent, or admit his having signed the will in front of himself. This cannot be done because he
cannot split his personality into two so that one will appear before the other to acknowledge
his participation in the making of the will. To permit such a situation to obtain would be
sanctioning a sheer absurdity.

Furthermore, the function of a notary public is, among others, to guard against any illegal or
immoral arrangement Balinon v. De Leon, 50 0. G. 583.) That function would defeated if the
notary public were one of the attesting instrumental witnesses. For them he would be
interested sustaining the validity of the will as it directly involves him and the validity of his
own act. It would place him in inconsistent position and the very purpose of acknowledgment,
which is to minimize fraud (Report of Code Commission p. 106-107), would be thwarted.

Admittedly, there are American precedents holding that notary public may, in addition, act as
a witness to the executive of the document he has notarized. (Mahilum v. Court Appeals, 64
0. G. 4017; 17 SCRA 482; Sawyer v. Cox, 43 Ill. 130). There are others holding that his
signing merely as notary in a will nonetheless makes him a witness thereon (Ferguson v.
Ferguson, 47 S. E. 2d. 346; In Re Douglas Will, N. Y. S. 2d. 641; Ragsdal v. Hill, 269 S. W.
2d. 911, Tyson Utterback, 122 So. 496; In Re Baybee's Estate 160 N. 900; W. Merill v. Boal,
132 A. 721; See also Trenwith v. Smallwood, 15 So. 1030). But these authorities do not serve
the purpose of the law in this jurisdiction or are not decisive of the issue herein because the
notaries public and witnesses referred to aforecited cases merely acted as instrumental,
subscribing attesting witnesses, and not as acknowledging witnesses. He the notary public
acted not only as attesting witness but also acknowledging witness, a situation not envisaged
by Article 805 of the Civil Code which reads:
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. [Emphasis
supplied]

To allow the notary public to act as third witness, or one the attesting and acknowledging
witnesses, would have the effect of having only two attesting witnesses to the will which
would be in contravention of the provisions of Article 80 be requiring at least three credible
witnesses to act as such and of Article 806 which requires that the testator and the required
number of witnesses must appear before the notary public to acknowledge the will. The result
would be, as has been said, that only two witnesses appeared before the notary public for or
that purpose. In the circumstances, the law would not be duly in observed.

FOR ALL THE FOREGOING, the judgment appealed from is hereby reversed and the
probate of the last will and testament of Valente Z. Cruz (Exhibit "E") is declared not valid and
hereby set aside.

Cost against the appellee.

G.R. No. L-33006 December 8, 1982

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.

Tranquilino O. Calo, Jr. for petitioner.

Ildefonso Japitana and Antonio Boloricon for respondents.

GUTIERREZ, JR., J.:

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 JAPITANA Civil Case No. 65 Plaintiff,

FOR:

— Versus —

CLAIM AGAINST THE ESTATE NICANOR NACAR THE LATE ISABELO


NACAR WITH Defendant. PRELIMINARY ATTACHMENT x ---------------------------
------x

COMPLAINT

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 P
2,791.00 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 P 2,791,00 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: (1) 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 of
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., L-
19751, 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 lsabelo 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 in 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 P I,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 I, 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., 95 Phil. 365, 371; Dalandan, et at.
vs. Julio, et al., L- 19101, February 29, 1964, 10 SCRA 400;
Ramitere 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.

[ G. R. No. 39547, May 03, 1934 ]


IN RE INTERSTATE ESTATE OF THE DECEASED FRANCISCO TORDILLA. GAUDENCIA
TORDILLA, PETITIONER AND APPELLEE, VS. MOISES TORDILLA, OPPONENT AND
APPELLANT.

DECISION
HULL, J.:
This is an appeal from a decision of the Court of First Instance of Camarines Sur providing for
the distribution of the estate of one Francisco Tordilla, who died interstate in Naga,
Camarines Sur, on December 18, 1925, leaving as his only heirs his widow, legitimate son,
the defendant and appellant, and a recognized natural daughter, petitioner and appellee.
It might be said by way of introduction that the record is voluminous and that many questions
of fact could have been clearly established by direct means rather than to leave the question
in doubt by presenting only circumstantial evidence. This is especially true as to the first and
second assignments of error which read:
"I. In including in the patition that residential lot containing 3352 square meters and more fully
described as parcel (2) in the decision (69-70 R. A.).
"II. In including ten (10) carabaos and six (6) cattle (Item 8 and 9 in Dec. at pp. 70-71 R. A.)
among the properties partitioned and in not holding that said animals do not exist and never
came to the possession of the estate."
In a prior proceeding between the deceased and a third party, the third party was given a right
to repurchase the land there in question. But the fact, standing alone, does not remove the lot
from the properties left by the deceased. The fact is whether or not the third party had
exercised his option to repurchased. The fact is whether or not the third party had exercised
his option to repurchase. The fact was well known to appellant and was easily susceptible of
definite and accurate proof. He has seen fit to leave the record in doubt and, therefore, the
finding of the trial court will not be disturbed.
The same remarks are true as to the number of carabaos and cattle that the deceased had at
the time of his death.
The contention of appellant in the third assignment of error is that, where a certain value is
stated in a deed of donation, the value cannot be questioned when the properties are brought
into collation. This is incorrect, as article 1045 of the Civil Code provides for the assessment
of the property at its actual valuation at the time of donation. The rectial in the deed cannot
therefore be controlling. The actual value at the time of the donation is a question of fact
which must be established by proof the same as any other fact.
The fourth assignment of error is not well taken. The original testimony was taken by a
commissioner, and the report of the commissioner with the evidence was stricken from the
files on motion of appellant. Thereafter the parties agreed to submit the case for the decision
of the trial court on the evidence taken by the commissioner. Such a procedure waived the
erroneous ruling on evidence by the commissioner. The appellant should have reserved the
right to introduce additional evidence and should have reserved the right to introduce
additional evidence and should have tendered the proper evidence in the trial court. The trial
court, with much experience, and after study of the evidence produced, held that the actual
value of one of the properties was greater than that recited in the deed of donation, and also
fixed the fruits and interest produced by property subject to collation must be ascertained
under article 1094 of the Civil Code. (See Guinguing vs. Abuton and Abuton, 48 Phil., 144.)
There is some doubt in our mind as to the income from the donated properties. But we cannot
state from the fragmentary evidence which has been brought to our attention that the opinion
of the trial court is contrary to the weight of the evidence, and, in case those figures are
incorrect, what are the correct figures.
On the question of fact dealt with in the fifth and sixth assignments of error, after due
consideration, we have determined to be guided by the judgment of the trial court.
The seventh, eight, and ninth assignments of error refer to the validity of Exhibit H, a contract
entered into between the appellee and the appellant in another case and signed shortly
before the death of their father. The contract is in the nature of a compromise and convered
two items, namely, first, the support of the natural daughter which the brother agreed to
assume for one year and, second, a proposed division of their future inheritance upon the
death of their father. It assumed that appellant has complied with his terms of the contract,
and the father died before the obligation of the brother terminated. The second portion of the
contract Exhibit H clearly related to the anticipated future inheritance and, therefore, is null
and void under the provisions of article 1271 of the Civil Code which reads:
"ART. 1271. All things, even future ones, which are not out of 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 intervivos of the estate, in accordance with
article 1056.
"Any services not contrary to law or to good morals may also be the subject-matter of a
contract."
The action of the trial court in holding Exhibit H to be uncontroverted and predicating its final
action on the terms of that documents was erroneous and predicating its final action on the
terms of that document was erroneous and contrary to law.
The tenth assignment of error reads: "In adjudicating to the natural daughter the same share
or amount of properties as that ajudicated to the legitimate son." This assignment of error is
based on article 840 of the Civil Code which provides:
"ART. 840. When the teastor leaves legitimate children or decendants, and also natural
children, legally acknowledged, each of the latter shall be entitled to one-half of the portion
pertaining to each of the legitimate children who have not received any betterment, provided
that a sufficient amount remains of the disposable portion, from which it must be taken, after
the burial and funeral expenses have been paid.
"The legitimate children may pay the portion pertaining to the natural ones in cash, or in other
property of the estate, at a fair valuation."
Appellee contends that article 840 of the Civil Code has been replaced by the Code of Civil
Procedure, based on the statement of this court in Concepcion vs. Jose (46 Phil., 809). It is
true that in the majority decision in that case it speaks of article 840 being repealed. While,
with the question there considered, namely from where the funeral expenses should be taken,
the Code of Civil Procedure changed the rule as to those items from what had formerly been
in the Civil Code, by reading the whole decision we have no hesitancy in saying that what the
court that what the court then had in mind was not repeal of the article but in fact merely a
modification thereof. In the case of In re Interstate Estate of Tad-Y, found in the same volume
(46 Phil., 557), this court, speaking through the Chief Justice, applied article 840 of the Civil
Code in the following language:
"To determine the share that pertains to the natural child is which is but one-half of the portion
that in quality and quantity belongs to the legitimate child not bettered, the latter's portion
must first be ascertained. If a widow shares in the inheritance, together with only on legitimate
child, as in the instant case, the child gets, according to the law, the third constituting the
legitime in full ownership, and in the third available for betterment in naked ownership, the
unsufruct of which goes to the widow. Then the natural child must get one-half of the free third
in full ownership, from which third his portion must be taken, so far as possible, after
deducting the funeral and burial expenses. * * *."
Our attention has not been called to any case in which this court has treated article 840 as
entirely and completely repealed.
We are therefore of the opinion that this case must be disposed of according to the above
quotation from the case of tad-Y.
The eleventh assignment of error relates to a matter of accountancy which the court ordered
to take place after its original decision had become in force and needs no further discussion
at this time.

The decision and orders of the trial court must therefore be reversed and the case remanded
for further proceedings consonant with the opinion. Costs against appellee. So ordered.